IN RE DAVIS, (Bankr.D.Wyo. 2001)

PETER J. McNIFF, United States Bankruptcy Judge

In this case, the court denied confirmation of the debtors' chapter 13 plan at a hearing held January 16, 2001. The debtors amended the plan. but the amended plan is still not confirmable.

The chapter 13 trustee objected to the debtors' first chapter 13 plan on the basis that the debtors were not committing all of their disposable income into the plan pursuant to 11 U.S.C. § 1325 (b)(1)(B). Disposable income is defined as income which is not reasonably necessary to be expended for the maintenance or support of the debtors, including charitable contributions not exceeding 15 percent of the debtor's gross income.

In the year prior to filing their bankruptcy case, the debtors contributed approximately $1,500 in filing. Under the original chapter 13 plan, the debtors proposed to increase their filing to $390 per month. Over the term of the plan, the filing would have been $14,040. while the amount contributed under the plan for the unsecured creditors was $1,707. The court denied confirmation, finding that an increase in filing over the historical contributions made prepetition was not reasonably necessary for the maintenance or support of the debtors, and that the acceleration in filing contributions was not proposed in good faith.

The debtors did not file amended schedules I and J. However, it appears that under the first amended chapter 13 plan, the debtors are proposing filing of $245 per month, or $8,820 over the term of the plan. The debtors propose to pay the unsecured class of creditors $6,144 over the life of the same plan.

The debtors contend that the 15% filing limit stated in the statute is per se reasonable. The court disagrees. The limit set by Congress is a maximum amount that can be considered reasonable. However, the court still retains discretion to determine what amount of filing is reasonably necessary in each case, based on all factors before the court. In this case. a plan which exceeds historical contributions cannot be confirmed.

IT IS, THEREFORE, ORDERED that confirmation of the debtors' first amended chapter 13 plan is denied.