In re Boisjoli
Opinion of the Court
THIS MATTER came before the Court on the Second Amended Chapter 13 Plan dated February 15, 2018 (Docket # 32) filed by Debtors Nathan John Boisjoli and Jennifer Kay Warren (collectively, "Debtors") and the Objection thereto filed by Adam Goodman, Chapter 13 Trustee ("Trustee") on March 8, 2018 ("Objection") (Docket # 36). The parties filed legal briefs and the Court is now prepared to rule, and hereby finds and concludes as follows:
I. FACTUAL BACKGROUND
The facts are not disputed. Debtors filed their Chapter 13 case on October 3, 2017. Debtors are "above median" income debtors with a combined monthly income of $8,886.47 and monthly expenses of $6,225.53
Debtors filed their Second Amended Chapter 13 plan on February 15, 2018 (Docket # 32) (hereafter, the "Plan"), proposing to pay 100% of all timely filed unsecured, general non-priority claims (Class IV) over 60 months. In the Plan, *470Debtors propose to make the following payments: $1,094.00 for month 1; $1,222.00 per month for months 2 through 4; $1,028.00 per month for months 5 through 59; and $1,034.00 for month 60. The Plan provides "Debtors will amend or modify their plan to pay all Class IV claims in full." See Plan, Part 12, p. 6 (Docket # 32).
Trustee objects to the Plan because Debtors could pay all amounts due under the Plan in far fewer than 60 months but are electing not to do so, effectively preventing creditors from recouping funds they would receive sooner if the Plan payments were increased. Trustee argues Debtors' full disposable income should be committed to plan payments now (while those funds are available) to mitigate risk of loss to the creditors, since there is no certainty their disposable income will remain sufficient to repay 100% of general unsecured creditors for the duration of the proposed 60-month term. Accordingly, Trustee contends the Plan violates Section 1325(a)(3)
Trustee argues in the alternative that if the Court does not order higher plan payments and thus decrease the duration of the Plan, the Court should impose modifications in order to mitigate the risk of loss to the creditors, such as adding provisions to the Plan requiring concurrent payments to general unsecured creditors, or limiting Debtors' ability to obtain a Chapter 13 discharge if they fail to pay 100% of the unsecured claims as proposed, or prohibiting Debtors from seeking to modify the Plan at a later date to reduce the dividend to unsecured creditors.
Debtors maintain the Plan fully complies with the letter and spirit of the Bankruptcy Code by proposing a 100% plan over the applicable commitment period pursuant to Section 1325. Debtors contend Trustee seeks to deprive them of their rights under the Bankruptcy Code and Trustee's proposed modifications to the Plan deprive them of due process while giving creditors rights that do not exist under the Bankruptcy Code.
The parties agree confirmation of the Plan hinges upon a legal issue: whether above-medium debtors can be forced to pay a 100% plan in fewer than 60 months simply because they have the ability to do so. If the Court accepts Debtors' position, the Court must then consider whether Trustee's proposed modifications to the Plan should be required.
II. DISCUSSION
Chapter 13 of the Bankruptcy Code "enable[s] certain debtors to repay all or a percentage of their debts according to a court-approved plan." Flygare v. Boulden ,
Trustee asserts the Plan does not comply with Section 1325(a)(3) under the circumstances, or otherwise violates the purpose and spirit of the Bankruptcy Code. No other bar to confirmation has been raised.
Pursuant to Section 1325(a)(3), a plan must be "proposed in good faith and not by any means forbidden by law" to be confirmable.
Since Flygare was decided, however, the Bankruptcy Code was amended to include the provisions of Section 1325(b). Anderson v. Cranmer (In re Cranmer) ,
Cranmer is instructive. Cranmer, an above-median debtor, excluded his Social Security income ("SSI") from his projected disposable income calculation. Cranmer ,
But the Tenth Circuit disagreed, holding Cranmer's exclusion of his SSI was expressly permitted by Sections 101(10A)(B) and 1325(b)(2). Cranmer ,
Section 1325(b)(1) provides two alternatives when an objection to plan confirmation is lodged, as here. Section 1325(b)(1) provides:
If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan -
(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or *472(B) the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
Debtors have complied with Section 1325(b)(1)(A) by proposing a 100% plan. Sections 1325(b)(1)(A) and (B) are in the disjunctive, separated by the word "or." Because Debtors have proposed a 100% plan in accordance with Section 1325(b)(1)(A), they are not required to apply all of their projected disposable income received during the applicable commitment period to make payments to unsecured creditors pursuant to Section 1325(b)(1)(B).
In addition, Debtors propose to perform their Plan within the timeframe required under Section 1325(b)(4). Since Debtors have above-median income, Section 1325(b)(4) directs that the "applicable commitment period" for their plan "shall be ... not less than 5 years." § 11 U.S.C. 1325(b)(4)(A)(ii). Section 1325(b)(4)(B) permits, but not requires , the "applicable commitment period" to be less than 5 years: the "applicable commitment period ... may be less than ... 5 years ... but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period." § 11 U.S.C. 1325(b)(4)(B).
The language of Section 1325(b)(1) and (b)(4) is clear and unambiguous. Debtors have complied with those provisions of the Bankruptcy Code. As with the Cranmer debtor, this Court does not construe Debtors' adherence to those provisions as lacking good faith, without any other specific factual allegations of bad faith to the contrary.
This Court is in agreement with other decisions within this District directly on point. See In re Conklin , Case 17-16247 MER, ECF No. 43 (Bankr. D. Colo. March 28, 2018); In re McGehan ,
In McGehan , Judge Brooks concluded that with the addition of Section 1325(b)(1) to the Bankruptcy Code, "the amount of the Debtors' repayment, standing alone , is an insufficient basis for finding a lack of good faith under either the Flygare factor analysis or a narrow analysis." In re McGehan ,
The Court recognizes that the good faith requirement still applies to situations in which a debtor "complies with § 1325(b)(1), yet, has done so in a way which is based upon misrepresentations or unfair manipulation of the Code." McGehan ,
Here, Trustee does not allege Debtors have stated their debts and expenses inaccurately, or that they made misrepresentations in connection with their bankruptcy or their Plan to mislead the Court or any party. Nor are there allegations Debtors have engaged in any deceitful conduct. The Court finds Debtors have not unfairly manipulated the Bankruptcy Code by adhering to the requirements set forth in Section 1325 in these circumstances; the Bankruptcy Code expressly permits the choices Debtors have made with respect to the repayment amounts and timing they propose in the Plan. The Court finds under the facts of this case, those choices do not show a lack of good faith or otherwise violate the purpose and spirit of Chapter 13.
Trustee urges this Court to impose additional provisions in the Plan to mitigate the risk of loss to creditors that might occur during the 5-year duration of the Plan. In support of imposing additional provisions that would limit Debtors ability to obtain a discharge or limit Debtors' ability to modify their Plan without also providing for full payment to creditors, Trustee cites several decisions from the Western District of Texas, including In re Crawford ,
While the Court appreciates Trustee's efforts, the relief Trustee seeks is speculative in nature. More importantly, the Court cannot condition Debtors' ability to seek a discharge or a plan modification upon a promise they pay all creditors in full. Imposing such conditions directly contravenes other provisions of the Bankruptcy Code, and is prohibited under the Supreme Court's holding in Law v. Siegel ,
As noted by Judge Romero in Conklin , Trustee is not wholly without recourse in this situation; the good faith requirement of Section 1325(a)(3) is incorporated into any post-confirmation modification analysis pursuant to Section 1329(b)(1). In re Conklin , Case 17-16247 MER, ECF No. 43 at *6. "If, in the future, the undesirable scenario identified by the Trustee ... comes to pass, the Court may deny modification upon finding the result would significantly reduce the distribution to creditors, especially if the modification is based on circumstances which could have been reasonably foreseen prior to confirmation."
With respect to Trustee's suggestion of requiring concurrent distribution to general unsecured creditors, Section 1322(b)(4) permits - but does not require - concurrent distribution. Without reaching the issue of whether Section 1325(b)(1)(B) contemplates concurrent distribution to unsecured creditors as Trustee contends, compliance with Section 1325(b)(1)(B) is not required because the Plan complies with the alternative under Section 1325(b)(1)(A).
Only a debtor may propose a Chapter 13 plan.
Accordingly, it is
HEREBY ORDERED that the Chapter 13 Trustee's Objection to the Plan is OVERRULED; and it is
FURTHER ORDERED Debtors shall file a Verification of Confirmable Plan with in fourteen (14) days.
Debtors' monthly disposable income under
All references to the Bankruptcy Code or to Sections thereof are to
The relevant factors include:
(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 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 Reform Act; (10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; and (11) the burden the plan's administration would place upon the trustee.
Flygare v. Boulden ,
Reference
- Full Case Name
- IN RE: Nathan John BOISJOLI, and Jennifer Kay Warren, Debtors.
- Status
- Published