In re Vonkreuter
In re Vonkreuter
Opinion of the Court
ORDER
This matter comes before the Court regarding the Application for Payment of Administrative Claim
This Court can appreciate the need to address this issue, in light of the immediate impact of Harris on pending and future Chapter 13 cases. In Harris, the Supreme Court concluded undisbursed postpetition earnings held by a Chapter 13 trustee under a confirmed plan at the time a case is converted to a Chapter 7 may not be disbursed to creditors, and must be returned to the debtor:
BACKGROUND
The relevant facts are undisputed. On March 31, 2015, debtor James Alan Von-Kreuter (“Debtor”) filed for relief under Chapter 13 of the Bankruptcy Code through Movant. At the time this case was filed, Movant received $1,425.00 for the representation of the Debtor, with any allowed remaining balance to be paid through a Chapter 13 plan.
Prior to confirming a Chapter 13 plan, on September 21, 2015, the Debtor voluntarily sought conversion from Chapter 13 to Chapter 7 under § 1307(a). In support of conversion, the Debtor stated he was no longer able to make plan payments and was ineligible for Chapter 13 relief under § 109(e) due to the amount owed to unsecured creditors. On the same date, this bankruptcy case was converted to Chapter 7, and the Trustee was in possession of $665.00 in undisbursed postpetition wages from the Debtor. There are no allegations or evidence to suggest the Debtor sought conversion to Chapter 7 in bad faith.
On October 7, 2015, Movant filed the Application, seeking payment of an administrative expense claim for attorneys’ fees incurred during the pendency of the Chapter 13 case, and an order for the Trustee to pay the undisbursed $665.00 to Movant. As a result of the Harris decision, the Trustee filed his Objection to the Application taking no position, but seeking a determination on the issue presented.
DISCUSSION
A. Harris v. Viegelahn
The Supreme Court’s holding in Harris is clear—absent bad faith, any .undisbursed postpetition wages must be returned to the debtor upon conversion from Chapter 13 to Chapter 7.
At the outset of Harris, Justice Ruth Bader Ginsburg, writing for a unanimous United States Supreme Court, observed as follows:
This case concerns the disposition of wages earned by a debtor after he petitions for bankruptcy.... In a Chapter 13 proceeding, postpetition wages are “[plroperty of the estate,” 11 U.S.C. § 1306(a), and may be collected by the Chapter 13 trustee for distribution to creditors, § 1322(a)(1). In a Chapter 7 proceeding, those earnings are not estate property; instead, they belong to the debtor. See § 541(a)(1). The Code permits the debtor to convert a Chapter 13 proceeding to one under Chapter 7 “at any time,” § 1307(a); upon such conversion, the service of the Chapter 13 trustee terminates, § 348(e).8
After noting the § 348(f)(2) bad faith conversion exception, Justice Ginsburg added “§ 348(f) limits a converted Chapter 7 estate to property belonging to the debtor ‘as of the date’ the original Chapter 13 petition was filed. Postpetition wages, by definition, do not fit that bill.”
Having eliminated the Chapter 7 estate from the equation and turning to the issue presented in Harris, the Supreme Court succinctly framed and answered the following:
What happens to postpetition wages held by a Chapter 13 trustee at the time the case is converted to Chapter 7? Does the Code require return of the funds to the debtor, or does it require their distribution to creditors? ■ We conclude that postpetition wages must be returned to the debtor.10
Although returning undistributed funds to a debtor is seemingly counterintuitive, the Supreme Court principally relied on § 348(f)(1)(A), which removes postpetition “earnings from the pool of assets that may be liquidated and distributed to creditors!,]”
In addition, the Supreme Court expressly rejected the former trustee’s arguments that undisbursed funds must be distributed to creditors pursuant to §§ 1326(a)(2) and 1327(a) upon conversion:
When a debtor exercises his statutory right to convert, the case is placed under Chapter 7’s governance, and no Chapter 13 provision holds' sway. § 103(i) (“Chapter 13 ... applies only in a case under [that] chapter.”). Harris having converted the case, the Chapter 13 plan was no longer “bind[ing].” § 1327(a). And Viegelahn, by then the former*300 Chapter. 13 trustee, lacked .authority to distribute “payment[s] in accordance with the plan.” § 1326(a)(2); . see § 348(e).14
The above pronouncement that “no Chapter 13 provision holds sway,” coupled with the Supreme Court’s unequivocal holding that “under the governing provisions of the Bankruptcy Code, a debtor who converts to Chapter 7 is entitled to return of any postpetition wages not yet distributed by the Chapter 13 trustee[,j”
B. Harris v. Viegelahn Precludes Payment of Administrative Expense Claims Upon Conversion to Chapter 7 Regardless of Whether a Plan is Confirmed.
“To gild refined gold, to paint the lily, to throw a perfume on the violet, to smooth the ice, or add another hue unto the rainbow, or with taper-light to seek the beauteous eye of heaven to garnish, is wasteful and ridiculous excess.”
In Harris, the debtor confirmed a Chapter 13 plan and then sought conversion to Chapter 7 under § 1307(a). This fact stands as the sole pillar supporting Mov-ant’s argument that Harris is limited to conversions after a plan has been confirmed. Other than that single fact, throughout the Harris opinion, the Supreme Court uses the term “conversion” without any reference to when conversion was sought by the debtor under § 1307(a). Indeed, the temporal factual distinction between seeking conversion before or after confirmation has generated several post-Harris companion cases.
Movant argues if conversion of a case from Chapter 13 to Chapter 7 occurs prior to confirmation of a plan,- allowed administrative expense claims may be paid from undisbursed postpetition earnings. This argument is premised on giving effect to the third sentence of § 1326(a)(2), and the observation the Supreme Court' did not specifically address payment of administrative expense claims under § 503(b) upon conversion prior to confirmation of a plan. This song has been sung before.
Section 1326(a)(2) provides as follows:
A payment made under paragraph (1)(A) shall be retained by the trustee until confirmation or denial of confirmation. If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable. If a plan is not confirmed, the trustee shall return any such payments not previously paid and not yet due and owing to creditors pursuant to paragraph (3) to the debtor, after deducting any unpaid claim allowed under section 503(b).18
After Harris, Judge David E. Rice for the United States Bankruptcy Court for the District of Maryland determined Harris does not apply to the conversion of a case to Chapter 7 pre-confirmation. In In re Brandon, Judge Rice explained:
In a case converted prior to confirmation, the service of the Chapter 13 trustee is similarly terminated under § 348(e). But as the Supreme Court acknowledged [in Harris], the former Chapter 13 trustee nevertheless has some ongoing responsibilities after conversion. Because a plan has not been confirmed, I conclude that those post-conversion responsibilities continue to include compliance with the third sentence of § 1326(a)(2) requiring the payment of administrative expenses such as the remaining allowed fee of debtor’s counsel prior to returning unpaid funds to a debtor.19
Judge Rice relied on In re Michael,
This Court respectfully disagrees with the conclusion in Brandon, the lone support for Movant’s position. The Supreme Court rejected the “principled basis”
[The former Chapter 13 trustee] alternatively urges that a terminated Chapter 13 trustee’s “duty” to distribute funds to creditors is a facet of the trustee’s obligation to “wind up” the affairs of the Chapter 13 estate following conversion— The Federal Rules of Bankruptcy Procedure, however, specify what a terminated Chapter 13 trustee must do postconversion: (1) she must turn over records and assets to the Chapter 7 trustee, Rule 1019(4); and (2) she must file a report with the United States bankruptcy trustee, Rule 1019(5)(B)(ii). Continuing to distribute funds to creditors pursuant to the defunct Chapter 13 plan is not an authorized “wind-up” task.23
Likewise, continuing to distribute funds to creditors pursuant to a Chapter 13 plan that never was, is not an authorized “wind up” duty set forth in Fed. R. Bankr. P. 1019.
Moreover, the Supreme Court’s broad statement, “[w]hen a debtor exercises his statutory right to convert, the case is placed under Chapter 7’s governance, and no Chapter 13 provision holds sway[,]”
According to Harris, no provision in Chapter 13, including § 1326(a)(2), “holds sway” after conversion. 135 S.Ct. at 1838 (Upon conversion “the case is placed under Chapter 7’s governance, and no provision in Chapter 13 holds sway.”). While Harris was focused on the second sentence of § 1362(a)(2), there is no principled basis upon which to continue to give effect to the third but not the second sentence of § 1326(a)(2) after conversion.
Further, because Harris rejected the argument that distributing funds to creditors is a “wind up” duty, it follows that former Chapter 13 trustees likewise lack authority to pay administrative expenses as a “wind up” duty before remitting funds to the debtor. Like the obligation of a Chapter 13 trustee to pay creditors, the obligation of a Chapter 13 trustee to pay administrative claimants is rooted in Chapter 13.
In sum, the Harris decision means that if a Chapter 13 case is converted to Chapter 7 before plan confirmation, all funds held by the standing Chapter 13 trustee on conversion that are not prop*303 erty of the Chapter 7 estate must be returned to the debtor, without paying administrative expenses.29
This Court agrees with, joins and adopts this majority view.
In summary, this Court finds Hams applies equally to cases converted from Chapter 13 to Chapter 7 after confirmation and prior to confirmation, and allowed administrative expense claims under § 503(b) may not be paid from undistributed post-petition earnings in a case converted from Chapter 13 to Chapter 7.
CONCLUSION
As noted in Beauregard,
Accordingly, the Court
ORDERS the relief requested in Mov-ant’s Application is DENIED. The Trustee shall return the undistributed $665.00 to the Debtor as soon as practicable.
. Application for Payment of Administrative Claim for Attorney Fees Incurred in Connection with Chapter 13 Filing (Docket No. 53).
. Trustee's Response (Docket No. 58).
. Movant’s Brief (Docket No. 66).
. Harris v. Viegelahn, — U.S.-, 135 S.Ct. 1829, 191 L.Ed.2d 783 (2015).
. Unless otherwise noted, all statutory references in the text refer to Title 11 of the United States Code.
. See Harris v. Viegelahn, 135 S.Ct. at 1835.
. See id. at 1837. This Court will not reach the effect of dismissal of a Chapter 13 case
. Id. at 1834 (emphasis in original).
. Id. at 1837.
. Id.
. Id.
. Id. at 1838 (“The moment a case is converted from Chapter 13 to Chapter 7 ... the Chapter 13 trustee is stripped of authority to provide [the disbursement of payments to creditors]. § 348(e).”).
. See id.; see also In re Marshall, 2016 WL 402386, at *1 (Bankr.W.D.La. Jan. 28, 2016).
. Harris v. Viegelahn, 135 S.Ct. at 1838 (emphasis in original).
. Id. at 1835.
. See id. at 1837.
. William Shakespeare, The Life and Death of King John, act 4, sc. 2 (1595).
. § 1326(a)(2) (emphasis added).
. In re Brandon, 537 B.R. 231, 236 (Bkrtcy. D.Md. 2015).
. In re Michael, 699 F.3d 305, 310 (3d Cir. 2012).
. Id.
. Brandon, 537 B.R. at 236.
. Harris v. Viegelahn, 135 S.Ct. at 1839.
. Rule 1019 imposes more wind up duties on former Chapter 13 trustees when a case in converted after plan confirmation. See Fed. R. Bankr. P. 1019(5)(C). Thus, if the Supreme Court found distributions to creditors were not "wind up” duties in a post-confirmation conversion scenario with additional duties, this Court will not impose additional duties in a pre-confirmation conversion scenario.
. 9 Collier on Bankruptcy ¶ 1019.01 (Alan N. Resnick & Henry J. Sommer eds., 16th ed.).
. Harris v. Viegelahn, 135 S.Ct. at 1838 (quoting § 103(i) for the proposition "Chapter 13 ... applies only in a case under [that] chapter.”).
. In re Beauregard, 533 B.R. 826, 831 (Bankr.D.N.M. 2015); In re Sowell, 535 B.R. 824 (Bankr.D.Minn. 2015); In re Beckman, 536 B.R. 446 (Bankr.S.D.Ca. 2015); In re Spraggins, 2015 WL 5227836 (Bankr.D.N.J. Sept. 3, 2015) (relying on Beauregard and Sowell); In re Marshall, 2016 WL 402386 (Bankr.W.D.La. Jan. 28, 2016).
. Beauregard, 533 B.R. at 832.
. Id. at 832.
. Id:
Reference
- Full Case Name
- IN RE James Alan VONKREUTER, Debtor
- Cited By
- 3 cases
- Status
- Published