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In re Hoyt-Kieckhaben, Case No. 11-13705 EEB, February 23, 2016
This case is similar to several recent chapter 13 cases in this district in which the debtor failed to make her direct payments to the mortgage holder for a substantial period of the plan but sought to receive a discharge on the basis of having made all of the payments required to be paid to the trustee. Judge Brown follows the holding of other divisions in this court that both trustee payments and direct mortgage payments are payments "under the plan," and that failure to make any of these payments prohibits the debtor from receiving a discharge.
In determining that the direct mortgage payments were payments â€śunder the plan,â€ť the Court relied heavily on In re Foster, 670 F.2d 478 (5th Cir. 1982), which reviews the historical underpinnings of chapter 13. It recognized that prior versions of the statute required the consent of every secured creditor as a condition of plan confirmation. If the debtor could not secure the consent of a particular secured creditor, the debtor would simply leave this creditor out of the plan altogether. Thus, if the plan made absolutely no provision for a secured creditor, then the debtor could make payments "outside the plan" under the contractual terms of their agreement. But if the plan cures an arrearage or otherwise specifies any treatment for this claim in the plan, then all payments on the claim are deemed "under the plan" regardless of who disburses the payments to the mortgage holder. Judge Brown then traces the Code sections that leave the question of who should act as the disbursing agent of mortgage payments to the court's discretion. Thus, this decision may serve as a foundation for Judge Brown's analysis of upcoming issues in this district as to conduit mortgage payments and whether a debtor may truly make payments on secured debts "outside the plan."
Judge Brown also ruled that the failure to make direct mortgage payments was a â€śmaterial default by the debtor with respect to the term of a confirmed plan,â€ť and was cause to dismiss or convert the case under Â§ 1307(c). Because the Debtor requested conversion of her case if she was not entitled to a chapter 13 discharge, neither the chapter 13 trustee nor the mortgage lender opposed conversion, and there was no suggestion of bad faith, the case was converted to chapter 7.
Posted: 3/21/2016 7:48:25 AM
In re Hoggarth, Case No. 14-24810 EEB, February 23, 2016
The Debtorâ€™s case was converted from chapter 13 to chapter 7 prior to confirmation of a chapter 13 plan. The Debtorâ€™s attorney filed an application for payment of her fees from undistributed plan payments held by the chapter 13 trustee at the time of conversion. The Court ruled that the Supreme Courtâ€™s decision in Harris v. Viegelahn, 135 S. Ct. 1829 (2015) (â€śHarrisâ€ť), required that all undistributed plan payments be returned to the Debtor, without payment of the attorneyâ€™s fees. The attorney argued that because the Debtorâ€™s case was converted prior to confirmation of a plan, and Harris involved a post-confirmation conversion, the Harris case was distinguishable. The Court acknowledged that when a chapter 13 case is dismissed prior to confirmation of a plan, the third sentence of Â§ 1326(a)(2) requires that administrative expenses be paid prior to the return of plan payments to the debtor. However, the Court could not ignore the Supreme Courtâ€™s ruling in Harris that the second sentence of
Â§ 1326(a)(2) and â€śno provision of chapter 13 holds swayâ€ť after a case is converted to chapter 7. The Court found the language and reasoning of Harris broad enough to encompass the situation where a case is converted prior to confirmation. It also found that payment of chapter 13 administrative expenses upon conversion could frustrate the statutory priority scheme of
Â§ 726(b). The attorney also argued that Harris involved payments made to secured and unsecured creditors and did not address whether administrative claims could be paid from plan payments upon conversion. The Court found, however, that the Supreme Court did not appear to use the term â€ścreditorâ€ť in its technical sense, as it is defined by Â§ 101(1) of the Code, or give any indication that it intended to distinguish between payments to â€ścreditorsâ€ť from payments to administrative expense claimants. Rather, the Supreme Court appeared to use the term more broadly to refer to all those entitled to receive distributions of plan payments and was unequivocal that the trusteeâ€™s authority to make plan payments ended at conversion.
Posted: 3/21/2016 7:44:24 AM
In re VonKreuter, Ch. 13 Case No. 15-13258-MER (Bankr. D. Colo. Feb. 12, 2016) (absent bad faith conversion, any undisbursed postpetition earnings must be returned to the debtor upon conversion to Chapter 7).
In Harris v. Viegelahn, â€“â€“â€“ U.S. â€“â€“â€“, 135 S. Ct. 1829, 191 L. Ed. 2d 783 (2015), the United States Supreme Court concluded any undisbursed postpetition earnings must be returned to the debtor upon conversion from Chapter 13 to Chapter 7 under 11 U.S.C. § 1307(a), absent finding of bad faith under 11 U.S.C. § 348(f)(2). In Harris, the debtor had confirmed a Chapter 13 plan and then sought conversion to Chapter 7.
The issue before this Court was whether allowed administrative expense claims pursuant to 11 U.S.C. §§ 503(b) and 1326(a)(2) may be paid from undisbursed postpetition earnings upon the pre-confirmation conversion of a case from Chapter 13 to Chapter 7. Ultimately, this Court agreed with, joined and adopted the growing post-Harris majority position. In summary, the Court determined Harris applies equally to cases converted from Chapter 13 to Chapter 7 both after confirmation and prior to confirmation. The Court held absent bad faith conversion, allowed administrative expense claims may not be paid from undistributed postpetition earnings, rather those undisbursed earnings must be returned to the debtor upon conversion.
Posted: 2/12/2016 4:17:28 PM
In re Palmer, Case No. 14-21837- HRT; Order entered December 16, 2015 (Student loans are consumer debts under 11 U.S.C. Â§ 707(b)(1)).
The United States Trustee moved to dismiss Debtors' chapter 7 case pursuant to 11 U.S.C. §§ 707(b)(1) and 707(b)(2) or, in the alternative, § 707(b)(3). Debtors filed a response, arguing that a student loan debt, incurred to pay for a doctorate degree in business administration, was non-consumer debt. Before the hearing, the parties stipulated that the only issue before the Court was whether the student loan debt was a consumer debt, defined by § 101(8) as "debt incurred by an individual primarily for a personal, family or household purpose." If so, the parties agreed the granting of relief under chapter 7 would be an abuse of the provisions of chapter 7, and the Debtors would convert to a chapter 13 case within 14 days of the Court's order, failing which the case would be dismissed.
The Court examined In re Stewart, 175 F.3d 796 (10th Cir. 1999), where the Tenth Circuit affirmed a bankruptcy court's decision holding that student loan debts incurred by a debtor to attend medical school were consumer debts. In that case, the Tenth Circuit acknowledged that student loans are not per se consumer debts, and recognized the general principle that a credit transaction is not a consumer debt when it is incurred with a profit motive. The Court also analyzed several recent cases from other jurisdictions classifying student loan debt as consumer or non-consumer debt.
Ultimately, the Court found that the profit motive factor should be interpreted narrowly for purposes of the means test and eligibility to file for chapter 7 under § 707(b). The Court held that in order to show a student loan was incurred with a profit motive, the debtor must demonstrate a tangible benefit to an existing business, or show some requirement for advancement or greater compensation in a current job or organization. The goal must be more than a hope or an aspiration that the education funded, in whole or in part, by student loans will necessarily lead to a better life through more income or profit.
In this case, Debtors did not show the student loan debt was incurred with a motivation to benefit an existing business or in furtherance of an ongoing job or business requirement. Thus, the Court found the student loan debt was a consumer debt, making the provisions of § 701(b)(1) applicable. Pursuant to the parties' agreement, the Court ordered the Debtors to convert to chapter 13 or face dismissal of their case.
Posted: 12/18/2015 3:25:22 PM
In re Tabert, Case No. 15-13805 EEB, October 29, 2015
The Debtor initially filed a chapter 7 case, but immediately converted to chapter 13 when the chapter 7 trustee expressed interest in selling the Debtor's home due to the existence of non-exempt equity. The Debtor did not file a chapter 13 plan within fourteen days after the conversion date and, as a result, the Court entered an order dismissing the case. The chapter 7 trustee and the chapter 13 trustee moved to vacate the order dismissing the case and to re-convert the case to chapter 7. The trustees asserted that the Debtor could take advantage of a larger homestead exemption by allowing his case to be dismissed and then re-filing it under chapter 7 after the effective date of an amendment to the homestead exemption statute. The Court found that its local rules were ambiguous as to whether the failure to file a chapter 13 plan may result in the dismissal of a case pursuant to the United States Trustee's Standing Motion to Dismiss Deficient Cases and that its procedures governing dismissal for failure to timely file a plan failed to satisfy the due process requirements of notice and a hearing for dismissal under § 1307(c). The Court contrasted the Bankruptcy Code's provision for automatic dismissal for the failure to file certain case commencement documents, found in § 521(i), with § 1307(c), which requires "notice and a hearing" prior to dismissal for failure to timely file a chapter 13 plan. The purpose for requiring a notice and opportunity for hearing prior to the dismissal under § 1307(c) is to allow any party who wishes to provide the court with input as to whether dismissal or conversion is in the best interests of creditors to have the opportunity to do so. Here, the only notice regarding the potential dismissal of the case was certain language in the Court's 341 meeting notice. This language failed to satisfy the minimal due process requirements of § 1307(c), therefore the Court vacated the order of dismissal pursuant to Fed. R. Civ. P. 60(b)(4) and reinstated the case.
Posted: 11/19/2015 2:55:53 PM
In re Vingar, Case No. 15-12069-SBB
Debtor filed for Chapter 13 relief without her husband. Debtor's husband had previously filed a bankruptcy case of his own without the Debtor. Despite the separate filings, the Debtor and her husband maintained a joint financial household: they had a joint bank account, filed joint tax returns, and were jointly and severally liable on a lease agreement for their residence.
Together, the Debtor and her husband's unadjusted monthly income was above median income for the household size. However, in her case the Debtor took a marital adjustment on line 13 of Form 22C for one-half of the rent expense, which rendered her below median income for purposes of applicable commitment period under §1325(b)(4) of the Bankruptcy Code. As a result, Debtor proposed a 36-month plan rather than a longer, more costly 60-month plan. The Trustee filed an objection to the Debtor's claim of the marital adjustment.
The Court noted that the analysis for applicable commitment period under §1325(a)(4) is the same as that for calculating disposable income under §1325(b)(2). Therefore, a marital adjustment is not proper if an item constitutes "a household expense of the debtor or the debtor's dependents" under §101(10A)(B).
The Court adopted Judge Romero's definition of a "household expense" in the Toxvard opinion to find that the Debtor's rental expense fell within the ambit of §101(10A)(B) because the Debtor, her husband, and their child lived together as a family in the leased property. However, the Court distinguished the facts of this case from those in Toxvard. Specifically, the Court found that here, the Debtor and her husband's lives were financially intertwined in a manner that allowing a 50/50 split of their monthly rent expense would create a judicial fiction and artificially reduce her monthly income so she would slip below the median income standard. The Court denied confirmation of the Debtor's plan.
Posted: 11/6/2015 8:26:58 AM
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