In re Deese
In re Deese
Opinion of the Court
ORDER
THIS MATTER comes before the Court on the Modified Chapter 13 Plan
JURISDICTION AND VENUE
The Court has jurisdiction over this matter under 28 U.S.C. §§ 1334(a) and (b)
BACKGROUND
On December 5, 2012 (“Petition Date”), the Debtor filed a voluntary petition for relief under Chapter 13 of Title 11 of the U.S. Code, 11 U.S.C. §§ 101, et seq. (“Bankruptcy Code”).
The confirmed Plan required the Debtor to make plan payments of $240.00 per month for one month, $260.00 per month for twenty-nine months, and. $388.00 per month for the remaining thirty months of the plan.
The Debtor’s first attempt at modification of the Plan came in September 2016.
In response to the Trustee’s objections, the Debtor filed a second modified plan (“Modified Plan”) and a Motion for Posh-Confirmation Modification (“Motion”) on October 31, 2016.
The second Modified Plan requires the Debtor to make plan payments totaling $13,212.00 for months 1-44 and $215.00 per month for the remaining sixteen months.
The Trustee objected to the Debtor’s proposed Modified Plan, arguing it also was not proposed in good faith. The Trustee’s objection to the second Modified Plan alleged a review of the Amended Schedule I filed on October 31, 2016 shows Debtor is over withholding for taxes by approximately $300.00 p.er month and Debtor understated the EM-E payments she receives from her employer, the United States Postal Service, by approximately $490.00 per month.
The Court held evidentiary hearings on the Debtor’s Motion and Modified Plan and the Trustee’s objection thereto on March 22 and May 22, 2017, following which the Court took the matter under advisement.
DISCUSSION
Pursuant to § 1329(a), “[a]t any time after confirmation of the plan but before the completion of the payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed secured claim.”
Courts in the Tenth Circuit reject a per se application of rules to determine good faith in favor of evaluating the totality of a debtor’s circumstances,
1) the amount of the proposed payments and the amount of the debtor’s surplus;
2) the debtor’s employment history, ability to earn and likelihood of future increases in income;
3) the probable or expected duration of the plan;
4) the accuracy of the plan’s statements of the debts, expenses and percentage*856 repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court;
5) the extent of preferential treatment between classes of creditors;
6) the extent to which secured claims are modified;
7) the type of debt sought to be discharged and whether any such debt is non-dischargeable in Chapter 7;
8) the existence of special circumstances such as inordinate medical expenses;
9) the frequency with which the debtor has sought relief under the Bankruptcy [Code];
10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; and
11) the burden which the plan’s administration would place upon the Trustee.25
No single factor is determinative of the good faith issue in any given case.
Based on the evidence and testimony presented by the parties, the Court views the first, third, fourth, and tenth Flygare factors as applicable to these proceedings. Essentially, the Trustee argues the. Debtor’s unnecessary increase in her expenses and the resulting reduction in payments to creditors coupled with inconsistencies and inaccuracies in her stated income and expenses demonstrate an intent to avoid paying to creditors and a lack of good faith on Debtor’s part in proposing the Modified Plan.
The Debtor has been gainfully employed as a rural mail carrier for the United States Postal Service in Idaho Springs, Colorado, for the past thirty-eight years. There is no evidence Debtor’s employment will not continue until her retirement. At the time she filed her bankruptcy petition, the Debtor served as an elected councilwoman in Idaho Springs, a position for which she received $400 per month. In August 2016, the Debtor sold her residence in Idaho Springs and moveid to a new residence in Littleton, Colorado. The move caused the Debtor’s travel for work to increase from approximately two miles to approximately fifty miles round-trip, and her transportation expenses increased as a result. The move out of Idaho Springs also made the Debtor ineligible to serve as a councilwoman and she relinquished, that position and the additional income from it.
The Debtor filed her Modified Plan after she sold her residence in Idaho Springs and sought to modify her confirmed Plan to remove payments associated with the residence. The Debtor received $10,000 in proceeds from the sale of her residence in Idaho Springs, which the Debtor testified she used to hire movers. At the time she sold her residence, the Debtor’s mortgage
The Debtor’s mail route, the only route in Idaho Springs, is seventy miles long. The Debtor testified she uses her own vehicle for her mail route, and receives reimbursement payments, the “EM-E” payments, from the United States Postal Service. The EM-E payments Debtor receives are for reimbursement of auto expenses, gas, and maintenance costs Debtor incurs for using her own vehicle on her mail route.
The Trustee also argued additional unnecessary expenses could be funneled into the Debtor’s plan payments for the benefit of creditors. For example, the Debtor’s charitable contributions reflected on her Schedule J have increased since the original Plan was confirmed and the Debtor has made increased contributions to her retirement funds. Additionally, the Debtor testified she used approximately $12,000 in tax refunds received during her bankruptcy case for personal expenses, including new eyeglasses, replacing personal computing equipment, and making a “retirement deposit” to the United States Postal Service to' ensure she receives her full retirement benefits.
The Court found the testimony of the Debtor to be credible and straightforward. Although, and despite the Debtor’s testimony as to their accuracy, the Trustee pointed out several inconsistencies between the Debtor’s amended schedules and evidence of her income and expenses, there was no evidence the Debtor attempt ed to mislead the Court. While the Court recognizes the. Debtor’s household expenses, including her monthly housing expenses, increased following her move from Idaho Springs, the Court is mindful of the
The Court must also consider the current stage of this case and its proximity to the end of the life of the Debtor’s plan payments. The Debtor - is current on her plan payments including during the time since her proposal of the Modified Plan. At the time of the hearings on this matter, the Debtor was in the fifty-third month of her plan payments with, at the time of this order, approximately six months remaining. To deny approval of the Modified Plan with only six months remaining on the Debtor’s plan payments with the Debtor’s current monthly income and expenditures would work an undue hardship on the Debtor and potentially force the Debtor towards a dismissal or conversion of her case. Had the Debtor sought the same modifications to her plan during the middle of this case or at the time Debtor directed her tax refunds towards personal expenses rather than creditors, the Court would have much less sympathy. However, the Court finds no evidence the Debtor is undertaking the proposed modification at this stage in an effort avoid paying her creditors or that her motivation behind the modifications is insincere.
In prior cases concerning whether a debtor’s proposed Chapter 13 plan has been filed in good faith, this Court noted almost thirty years after Flygare was decided, the Tenth Circuit in Cranmer noted the Bankruptcy Code was amended to include § 1325(b), containing “ability to pay” criteria which subsumed most of the Fly-gare factors and gave the good faith inquiry “a more narrow focus.”
However, even under the more narrowly focused inquiry, the Court finds no basis to deny approval of the Debtor’s Modified Plan. As discussed above, despite inconsistencies among Debtor’s stated income and expenses pointed out by the Trustee, the Court found the Debtor’s testimony to be credible and finds no evidence her income and expenses were unsupported. Nor does the Court find there to be any evidence the Debtor has made any fraudulent misrepresentations to mislead the Court or any attempts to unfairly manipulate the Bankruptcy Code.
Accordingly, based on the totality of the circumstances in this case the Court finds the Modified Plan was proposed in good faith and thus meets the requirements of §§ 1329(a) and 1325(a).
CONCLUSION
IT IS THEREFORE ORDERED the Debtor’s Motion for Post-Confirmation Modification is hereby granted. The Court will enter a separate order approving the Debtor’s Modified Plan.
. Dkt. No. 38.
. Dkt. No. 41.
.Dkt. No. 44.
. Unless otherwise specified, all references herein to "Section,” “§” and “Code” refer to the U.S. Bankruptcy Code, 11 U.S.C. §§ 101, et seq.
. Dkt. No. 21.
. Dkt. No. 56, ¶ 3.
. Id. at ¶ 4.
. Id. at II 5.
. Id. at ¶ 6.
. Id. at ¶ 7.
. Id.
. Dkt. Nos. 38 and 41.
. Dkt. Nos. 39 and 40. The Debtor filed second Amended Schedules I and J on February 23, 2017. See Dkt. Nos. 52 and 53.
. Dkt. No. 34, ¶ 3.
. Dkt. No. 34,114.
. Id. at ¶¶ 6-7.
. Dkt. No. 56, ¶ 9.
. Id. at ¶ 10.
. Id. at ¶ 11. The parties stipulated the “EME” payments Debtor receives from the United States Postal Service are for the reimbursement of costs Debtor incurs for using her own vehicle in her job as a rural mail carrier. Id.
. Dkt. No. 44, ¶ 1.
. 11 U.S.C. § 1329(a)(1).
. 11 U.S.C. § 1329(b)(1).
. 11 U.S.C. § 1325(a)(3).
. In re McGehan, 495 B.R. 37, 41 (Bankr. D. Colo. 2013).
. Flygare v. Boulden, 709 F.2d 1344, 1347-1348 (10th Cir. 1983) (quoting factors set forth in In re Estus, 695 F.2d 311, 317 (8th Cir. 1982)) (quotation marks omitted); see also In re Racine, 2013 WL 412914, at *2-3 (Bankr. D. Colo. Feb. 1, 2013) (applying Flygare factors); see also In re Arrigo, 399 B.R. 700, 707 (Bankr. D. Colo. 2008) (same).
. In re Loper, 367 B.R. 660, 670 (Bankr. D. Colo. 2007).
. Id.
. Id.
. Id. (citing In re Ford, 345 B.R. 713, 716 (Bankr. D. Colo. 2006)).
. Debtor’s Exhibit 8.
. Dkt. No. 56, ¶ 11.
. Debtor’s Exhibit 1.
. Debtor’s Exhibit 2.
. Debtor’s Exhibits 5, 6 and 7.
. In re Khan, 2015 WL 739854, at *4 (Bankr. D. Colo. 2015) (citing In re Cranmer, 697 F.3d 1314, 1318-19 n. 5 (10th Cir. 2012); In re McDonald, 508 B.R. 187, 206 (Bankr. D. Colo. 2014) (in context of good faith factor in determining whether to convert or dismiss Chapter 13 case for "cause”).
. In re Cranmer, 697 F.3d at 1319 n. 5.
. In re Khan, 2015 WL 739854 at *4-6.
. In re McGehan, 495 B.R. at 42.
Reference
- Full Case Name
- IN RE: Denise Rae DEESE, Debtor
- Status
- Published