In re Moore-Mckinney
In re Moore-Mckinney
Opinion of the Court
THIS MATTER is before the Court on the Debtor's Objection to Claim of Anthony B. Moore (Doc. No. 26). The Court held a hearing on the Objection on April 2, 2019, after which it took the matter under advisement.
I. FACTS
Mr. Moore is the Debtor's former spouse as well as a child support creditor in this case. The parties have an extensive history of litigation in both state court and this Court. Debtor filed this case on January 11, 2019. This is the Debtor's second chapter 13 bankruptcy case.
Debtor previously filed case number 16-57172 on April 25, 2016. After obtaining relief from the automatic stay, Mr. Moore obtained a judgment in the Douglas County Superior Court on July 11, 2016 for child support arrears, reimbursement of medical expenses, and various fees. Mr. Moore filed a proof of claim regarding the domestic support obligation of the Debtor to Mr. Moore. After hearing and based on a state court order in existence at the time, the Court allowed Mr. Moore a priority unsecured claim in the amount of $18,971.84. Order on Motion to Disallow Claim (Doc. No. 70.), entered on October 14, 2016.
Mr. Moore appealed the state court order. After a remand, the state court entered an Order After Second Remand on May 17, 2018, in which it recalculated the amounts due and increased the amount of Mr. Moore's claim. Mr. Moore filed an amended proof of claim and, after notice and hearing, the Court modified its prior order and allowed Mr. Moore an unsecured priority claim in the amount of $24,159.61. The claim consisted of the following:
Child Support Arrears $4,347.00 Uninsured Health Care Expenses $5,749.55 Attorney's Fee $15,571.50 Amount Paid by Debtor ($1,508.44) ___________ TOTAL $24,159.61
*859Order Allowing Modified Claim (Doc. No. 102) entered July 19, 2018.
Debtor was unable to propose a workable plan modification to pay Mr. Moore's modified claim. The Chapter 13 Trustee filed a motion to dismiss the case, and the case was dismissed on September 26, 2018.
Mr. Moore then returned to state court and filed an Amended Motion for Contempt on November 20, 2018 requesting interest on his domestic support claim pursuant to O.C.G.A. § 7-4-12. The state court held a hearing on Mr. Moore's amended motion for contempt on January 15, 2019, after the Debtor filed this case. The state court issued an order on January 18, 2019. The order made several observations but left it to this Court to determine Mr. Moore's claim.
Mr. Moore filed a proof of claim for the domestic support obligation owed by the Debtor to him in this case. He amended his claim several times to add and adjust interest he alleges is owed on the claim. Mr. Moore filed his original proof of claim number 1 on January 23, 2019 for $16,205.26. He then filed claim no. a1 on January 25, 2019 for $17,039.87; claim no. a2 on January 30, 2019 for $21,939.60; claim no. a3 on February 6, 2019 for $22,518.40; and claim no. a4 on February 28, 2019 for $26,124.33. Mr. Moore seeks interest at the rate of 6.25% for 2015 - 2018 in the amount of $5,399.28.
The Debtor objects to Mr. Moore's claim. She contends Mr. Moore's claim should be reduced to reflect the amount of his claim allowed in the Debtor's previous case ($24,159.61) less the amount the Debtor paid on the claim in her prior case ($6,994.74) to reflect a balance of $17,164.87. Debtor contends Mr. Moore is not entitled to interest on his claim and, if allowed, the interest should not be entitled to priority status but be a general unsecured claim. Debtor argues Mr. Moore is estopped from seeking interest now since he did not seek it in Debtor's prior case. Debtor also argues the portion of the claim for attorney's fees should not be entitled to priority.
The Court held a hearing on the objection on April 2, 2019. Counsel for the Debtor, David Casey, Mr. Moore, and counsel for the Chapter 13 Trustee, Ryan Williams, were present. After considering the argument of counsel and Mr. Moore, the Court found Mr. Moore is entitled to both pre- and post-petition interest and the interest is to be treated as a priority debt and that the attorney's fees are entitled to priority treatment. The Court took the precise calculation of Mr. Moore's claim under advisement and ordered the parties to submit revised calculations of the interest owed, accounting for the payments made by the Debtor before and during her prior case.
Mr. Moore filed a calculation on April 8, 2019 (Doc. No. 45). On April 10, 2019, Debtor submitted her calculation (Doc. No. 46). The Chapter 13 Trustee filed a report on April 11, 2019 (Doc. No. 47). The Court entered an order on April 17, 2019 (Doc. No. 52) providing further direction for the calculation of the claim. The parties filed a Joint Stipulation pursuant to the Court's order calculating Mr. Moore's pre-petition claim to be $22,104.00 (Doc. No. 54). After the Court requested the parties divide the claim between principal and interest, Mr. Moore filed a second revision of the calculation of his claim (Doc. No. 55) rejecting the stipulation and proposing his calculation of principal and interest. Debtor responded (Doc. No. 56) with a different proposal.
II. ANALYSIS
The Objection and responses raise several issues: 1) is Mr. Moore entitled to pre-petition *860interest; 2) did Mr. Moore waive his interest claim by not raising it in the Debtor's prior case; 3) is Mr. Moore entitled to post-petition interest; 4) if he is entitled to interest, what interest rate applies; 5) is Mr. Moore entitled to a priority claim for attorney's fees; 6) what is the basis for the charges of $175 and $320 included in Mr. Moore's claim; and 7) what is the principal and interest due on the judgment as of the petition date (i.e. Mr. Moore's claim)? The Court considers each of these in turn.
a. Mr. Moore is Entitled to Pre-Petition Interest
Mr. Moore is entitled to pre-petition interest on his domestic support obligation and the interest is entitled to priority status.
The state court order issued on January 18, 2019 discusses interest, but it did not award Mr. Moore interest. Rather, the state court acknowledged it was "aware" that Georgia law provides all judgments in Georgia shall bear annual interest. It noted that Mr. Moore "did not specify the amount of interest accrued thus far, however, it does appear that he is entitled to collect interest on his judgment claim which is something that he can take up with the bankruptcy court when he files his claim under her chapter 13 plan." The state court therefore left the question of interest open for this Court to consider.
The Bankruptcy Code provides for interest on DSO claims. Section 101(14A) defines a "domestic support obligation" ("DSO") as:
a debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title, that is-
(A) owed to or recoverable by-
(i) a spouse, former spouse, or child of the debtor or such child's parent, legal guardian, or responsible relative; or
(ii) a governmental unit;
(B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child's parent, without regard to whether such debt is expressly so designated;
(C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of-
(i) a separation agreement, divorce decree, or property settlement agreement;
(ii) an order of a court of record; or
(iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and
(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child's parent, legal guardian, or responsible relative for the purpose of collecting the debt.
*861The interest that accrues on a prepetition debt in the nature of alimony, maintenance or support shares the nondischargeable character of the debt and becomes part of the DSO itself.
b. Mr. Moore is Entitled to Post-Petition Interest
Mr. Moore is entitled to post-petition interest. The plain language of section 101(14A) defines a DSO to include interest accruing under applicable nonbankruptcy law. In re Resendiz, No. 12-10603,
Section 502(b)(2) disallows any claim for unmatured interest generally and section 502(b)(5) disallows claims for unmatured DSOs. But section 101(14A) expressly includes interest in the definition of DSO "notwithstanding any other provision" of the Code. Lightfoot,
Post-petition interest as it accrues on a DSO becomes part of the DSO debt itself under § 101(14A) and the accruing post-petition interest is a priority debt that must be paid in full through the confirmed plan consistent with § 1322(a)(2). Because a debtor must provide for the full payment of all claims entitled to priority under section 507, unless the holder of the claim agrees to a different treatment, and because all claims entitled to priority under
Further, chapter 13 debtors must pay post-petition interest on DSO claims despite section 1322(b)(10). Section 1322(b)(10), as amended by BAPCPA, states that a chapter 13 plan may "provide *862for the payment of interest accruing after the date of the filing of the petition on unsecured claims that are nondischargeable under § 1328(a)" but only to the extent that the debtor has disposable income available to pay such interest after making provision for full payment of all allowed claims.
But the predicate to § 1322(b) is that all of its subsections are "subject to subsection[ ] (a)."
Other provisions of the Bankruptcy Code support this conclusion. To get a discharge, chapter 13 debtors must certify that all DSOs due during the Chapter 13 case, including amounts due before the petition to the extent provided for by the plan, have been paid.
Debtors can separately classify a DSO, including all interest that accrues under nonbankruptcy law after the petition, for payment in full. For example, in In re Resendiz, No. 12-10603,
Interest, as it "matures" after the petition on a DSO debt, becomes part of the DSO debt itself under § 101(14A) "notwithstanding" any other provision of the Bankruptcy Code. Accordingly, post-petition interest on Mr. Moore's DSO claim is allowed and Debtor's plan must provide for the payment of interest accruing pursuant to nonbankruptcy law on his claim.
c. Mr. Moore did Not Waive His Interest Claim by Not Raising It in Debtor's Prior Case
Mr. Moore did not seek interest in the Debtor's prior chapter 13 case, but he *863is entitled to both pre- and post-petition interest on his DSO claim and he may seek it in this case.
The Bankruptcy Code provides interest on DSOs accrues automatically and is non dischargeable, and a creditor may pursue interest on a DSO claim even after the debtor completes her chapter 13 plan. Once confirmed, the treatment and payment of the domestic support obligation under the plan is res judicata, as long as due process was satisfied. Lynne F. Riley, Bapcpa at Ten: Enhanced Domestic Creditor Protections and Enforcement Rights,
Georgia courts have similarly found a creditor can seek interest on past due child support if the matter was not previously considered. See Dial v. Adkins,
d. Mr. Moore is Entitled to Interest at 7% Under Georgia Law
Georgia law provides all judgments in Georgia shall bear annual interest, O.C.G.A. § 7-4-12,
(a) All awards, court orders, decrees, or judgments rendered pursuant to Title 19 expressed in monetary amounts shall accrue interest at the rate of 7 percent per annum commencing 30 days from *864the date such award, court order, decree, or judgment is entered or an installment payment is due, as applicable. The court may modify the date on which interest shall begin to accrue. It shall not be necessary for the party to whom the child support is due to reduce any such award to judgment in order to recover such interest. The court shall have discretion in applying or waiving past due interest. In determining whether to apply, waive, or reduce the amount of interest owed, the court shall consider whether:
(1) Good cause existed for the nonpayment of the child support;
(2) Payment of the interest would result in substantial and unreasonable hardship for the parent owing the interest;
(3) Applying, waiving, or reducing the interest would enhance or detract from the parent's current ability to pay child support, including the consideration of the regularity of payments made for current child support of those dependents for whom support is owed; and
(4) The waiver or reduction of interest would result in substantial and unreasonable hardship to the parent to whom interest is owed.
O.C.G.A. § 7-4-12.1.
O.C.G.A. § 7-4-12.1 became effective on July 1, 1996. Prior to the adoption of O.C.G.A. § 7-4-12.1, the general provisions regarding statutory interest, O.C.G.A. § 7-4-12, did not apply to DSOs; rather, interest was within the trial court's discretion. Reid v. Reid,
Debtor argues this Court should exercise its discretion to waive the past due interest on Mr. Moore's claim. She contends paying the interest would result in substantial and unreasonable hardship to her because she is a stay-at-home mother of a special needs child.
The Court recognizes that, under Georgia law, it has discretion in determining whether to apply, waive, or reduce the amount of interest owed. The Court declines to exercise its discretion to waive or reduce the amount of interest owed here because the criteria set out in the statute have not been met. Debtor has not provided any explanation for the nonpayment of child support, other than stating that she cannot afford to pay it. That is not what the statute contemplates, and the Court finds this factor weighs against waiving or reducing the amount of interest owed.
Second, Debtor argues paying the interest would result in substantial and unreasonable hardship. The state court, which has had the opportunity to observe both parties through lengthy litigation, has not found that to be the case. The state court has never indicated the Debtor should be given any special dispensation when it comes to paying Mr. Moore. For example, the state court could have declined to award Mr. Moore attorney's fees and could have exercised its discretion to reduce the amount owed to him, but it did not. The Court has read all of the state court orders presented in this and the Debtor's prior case and does not find the Debtor to be entitled to any special relief. Accordingly, *865the Court finds the second factor weighs against waiving or reducing the amount of interest owed.
The third factor (applying, waiving, or reducing the interest would enhance or detract from the parent's current ability to pay child support, including the consideration of the regularity of payments made for current child support of those dependents for whom support is owed) is not applicable here. No ongoing child support is required of the Debtor since the children have reached the age of majority. The fourth factor (the waiver or reduction of interest would result in substantial and unreasonable hardship to the parent to whom interest is owed) does favor the Debtor as there is no evidence Mr. Moore would be placed in substantial and unreasonable hardship if he did not receive interest.
On balance, the Court finds, pursuant to Georgia law, Mr. Moore is entitled to 7% interest on his DSO claim and the Court will not exercise its discretion to modify the date on which interest began to accrue and will not waive or reduce the past due interest owed on his claim.
e. Mr. Moore is Entitled to a Priority Claim for Attorney's Fees that Were Previously Awarded
The Court awarded Mr. Moore attorney's fees in Debtor's prior case. In the Order on Motion to Disallow Claim (Doc. No. 70.), entered on October 14, 2016 and reiterated in the Order Allowing Modified Claim (Doc. No. 102), the Court found Mr. Moore had an allowed priority unsecured claim consisting of attorney's fees in the amount of $15,571.50.
The doctrine of collateral estoppel prohibits re-litigation of issues already adjudicated by a valid and final judgment of another court. In Re Bilzerian,
There is an identity of issues between the two cases. The Debtor and Mr. Moore are the same parties that litigated issues relating to Mr. Moore's claim in Debtor's prior case. They seek to litigate the same issue, whether attorney's fees should be allowed as part of Mr. Moore's priority unsecured DSO claim, in this case.
The question of whether attorney's fees should be allowed as part of Mr. Moore's claim was actually and finally litigated in the Debtor's prior case and the parties had a full and fair opportunity to litigate the issue. In general, "when a question of fact is ... submitted to the trier of fact for its determination, and is determined, that question of fact has been actually litigated." In re Williams,
Further, determining attorney's fees were part of Mr. Moore's allowed priority claim was a critical and necessary part of the Court's calculation in the Order on Motion to Disallow Claim (Doc. No. 70.), entered in Debtor's prior case. It was an important element of the Court's determination and not a peripheral issue.
Finally, the burden of persuasion in this case is not significantly heavier than the burden of persuasion in the initial action - it is the same.
The Court finds the issue in Debtor's prior case is identical to the issue in this case, the question of attorney's fees was actually and finally litigated in the prior case, the adjudication was essential to the earlier action, and the burden of persuasion is the same in this case as in the Debtor's prior case and, accordingly, its prior determination should be given preclusive effect.
Additionally, the allowance or disallowance of "a claim in bankruptcy is binding and conclusive on all parties or their privies, and being in the nature of a final judgment, furnishes a basis for a plea of res judicata." Siegel v. Fed. Home Loan Mortg. Corp.,
f. Additional Fees Included in Mr. Moore's Proof of Claim are Disallowed
Mr. Moore seeks to recover $175 for litigation expenses. These expenses were already included in the 2015 Douglas County order that awarded Mr. Moore $15,571.50 in attorney's fees and costs. Mr. Moore also seeks to recover $322 for costs incurred in the proceedings he initiated after the Debtor's prior bankruptcy case was dismissed. He contends the state court awarded him these fees in the order it issued on January 18, 2019. The order, however, did not award Mr. Moore these costs and it could not have because Debtor had already refiled bankruptcy and had a pending bankruptcy case. The state court order merely observed that Mr. Moore may have incurred court costs. Accordingly, the Court finds Mr. Moore may not include these fees in his proof of claim.
g. Amount of Claim and Payment Under the Plan
The parties filed a Joint Stipulation calculating Mr. Moore's pre-petition claim to be $22,104.00 (Doc. No. 54), but the stipulation did not differentiate between principal and interest. The Court *867asked the parties to stipulate to the amount of principal and the amount of interest, but they were unable to do so. Instead, they filed competing calculations, but neither comply with Georgia law.
Under Georgia law, payments of debts including judgments are applied first to interest and then to principal. O.C.G.A. § 7-4-17 ; Threatt v. Forsyth County,
III. CONCLUSION
For the reasons stated above,
IT IS ORDERED the Objection is GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that Mr. Moore is entitled to both pre- and post-petition interest on his DSO claim at 7%.
IT IS FURTHER ORDERED that Mr. Moore is entitled to a priority claim for attorney's fees that were previously awarded.
IT IS FURTHER ORDERED that Mr. Moore may not include $175 for litigation expenses and $322 for costs in his proof of claim.
IT IS FURTHER ORDERED that Debtor is directed to file an amended chapter 13 plan within fourteen (14) days of the entry of this Order to treat Mr. Moore's allowed pre-petition claim. The Chapter 13 Trustee is directed to re-notice confirmation thirty days after the plan is filed.
IT IS FURTHER ORDERED that Debtor's payments under the plan shall be applied first to the post-petition interest accruing on Mr. Moore's principal claim of $21,522.36, second to the pre-petition interest accrued of $669.65, and last to the pre-petition principal of the claim in the amount of $21,522.36.
EXHIBIT A
*868Moore-McKinney Balance Calculation Date Payment Amount Principal Interest Accrual Interest Period 2/24/2015 $0 $19,206.08 $0 N/A 03/2015 $115 $19,206.08 $0 N/A1 ($115.00) 4/2015 $120 $19,091.08 $111.37 3/24/2015-4/24/2015 ($8.63) ($111.37) 05/2015 $0 $19,082.45 $111.31 4/24/2015-5/24/2015 6/2015 $148.50 $19,082.45 $111.31 5/24/2015-6/24/2015 ($148.50) 7/2015 $247 $19,082.45 $111.31 6/24/2015-7/24/2015 ($61.57) ($185.43) 8/2015 $144.34 $19,020.88 $110.96 7/24/2015-8/24/2015 ($33.38) ($110.96) 9/2015 $0 $18,987.50 $110.76 8/24/2015-9/24/2015 10/2015 $144.34 $18,987.50 $110.76 9/24/2015-10/24/2015 ($144.34) 11/2015 $148.50 $18,987.50 $110.76 10/24/2015-11/24/2015 ($148.50) 11/2015 $146.42 $18,987.50 ($39.44) ($106.98) 12/2015 $0 $18,880.52 $110.14 11/24/2015-12/24/2015 1/2016 $144.34 $18,880.52 $110.14 12/24/2015-1/24/2016 ($144.34) 2/2016 $0 $18,880.52 $110.14 1/24/2016-2/24/2016 3/2016 $150 $18,880.52 $110.14 2/24/2016-3/24/2016 ($150.00) 4/2016 $0 $18,880.52 $110.14 3/24/2016-4/24/2016 5/2016 $0 $18,880.52 $110.14 4/24/2016-5/24/2016 6/2016 $0 $18,880.52 $110.14 5/24/2016-6/24/2016 7/2016 $0 $18,880.52 $110.14 6/24/2016-7/24/2016 8/2016 $0 $18,880.52 $110.14 7/24/2016-8/24/2016 *8699/2016 $0 $18,880.52 $110.14 8/24/2016-9/24/2016 10/2016 $0 $18,880.52 $110.14 9/24/2016-10/24/2016 11/1/2016 $500 $18,880.52 $110.14 10/24/2016-11/24/2016 ($500.00) 12/1/2016 $0 $18,880.52 $132.16 11/24/2016-1/1/2017 1/3/2017 $578.52 $18,880.52 ($578.52) 1/1/2017-2/1/2017 $110.14 2/1/2017 $219.62 $18,880.52 ($191.12) 2/1/2017-3/1/2017 ($28.50) $109.97 3/1/2017 $219.62 $18,852.02 ($109.97) 3/1/2017-4/1/2017 ($109.65) $109.33 4/3/2017 $219.62 $18,742.37 ($109.33) 4/1/2017-5/1/2017 ($110.29) $108.69 5/1/2017 $219.62 $18,632.08 ($108.69) 5/1/2017-6/1/2017 ($110.93) $108.04 6/1/2017 $0 $18,521.15 $108.04 6/1/2017-7/1/2017 7/1/2017 $439.24 $18,521.15 ($216.08) 7/1/2017-8/1/2017 ($223.16) $106.74 8/1/2017 $219.62 $18,297.99 ($106.74) 8/1/2017-9/1/2017 ($112.88) $106.08 9/1/2017 $219.62 $18,185.11 ($106.08) 9/1/2017-10/1/2017 ($113.54) $105.42 10/2/2017 $219.62 $18,071.57 ($105.42) 10/1/2017-11/1/2017 ($114.20) $104.75 11/1/2017 $220.75 $17,957.37 ($104.75) 11/1/2017-12/1/2017 ($116.00) $104.07 12/1/2017 $352.89 $17,841.37 ($104.07) 12/1/2017-1/1/2018 ($248.82) $102.62 1/1/2018 $0 $17,592.55 $102.62 1/1/2018-2/1/2018 2/1/2018 $420.75 $17,592.55 ($205.24) 2/1/2018-3/1/2018 ($215.51) $101.37 *8703/1/2018 $420.75 $17,377.04 ($101.37) 3/1/2018-4/1/2018 ($319.38) $99.50 4/2/2018 $420.75 $17,057.66 ($99.50) 4/1/2018-5/1/2018 ($321.25) $97.62 5/1/2018 $841.50 $16,736.41 ($97.62) 5/1/2018-6/1/2018 ($743.88) $93.29 5/17/2018 $6,461.97 *Additional Judgment* 6/1/2018 $420.75 $15,992.53 ($93.29) ($327.46) $0 $15,665.07 $51.85 6/1/2018-6/17/20182 6/17/2018 $0 +$6,461.97 $184.97 6/17/2018-8/1/2018 $22,127.04 8/1/2018 $841.50 $22,127.04 ($236.82) ($604.68) $0 $21,522.36 $125.55 8/1/2018-9/1/2018 $0 $21,522.36 $125.55 9/1/2018-10/1/2018 $0 $21,522.36 $125.55 10/1/2018-11/1/2018 $0 $21,522.36 $125.55 11/1/2018-12/1/2018 $0 $21,522.36 $125.55 12/1/2018-1/1/2019 $0 $21,522.36 $41.90 1/1/2019-1/11/20193 BALANCE $21,522.36 $669.65 TOTAL CLAIM: $22,192.01
"[Editor's Note : The preceding images contains the references for footnotes
This was true even under pre-BAPCPA law. As explained below, section 101(14A) enlarged the concept to define post-petition interest as part of the DSO claim itself.
The section provides:
(a) All judgments in this state shall bear annual interest upon the principal amount recovered at a rate equal to the prime rate as published by the Board of Governors of the Federal Reserve System, as published in statistical release H. 15 or any publication that may supersede it, on the day the judgment is entered plus 3 percent.
(b) If the judgment is rendered on a written contract or obligation providing for interest at a specified rate, the judgment shall bear interest at the rate specified in the contract or obligation.
(c) The postjudgment interest provided for in this Code section shall apply automatically to all judgments in this state and the interest shall be collectable as a part of each judgment whether or not the judgment specifically reflects the entitlement to postjudgment interest.
(d) This Code section shall apply to all civil actions filed on or after July 1, 2003.
Interest began accruing 30 days after entry of judgment.
Interest calculated on original balance since interest does not begin to accrue on additional judgment until 30 days after entry.
Calculation ends at petition date.
Reference
- Full Case Name
- IN RE: Janeene Hope Vickers MOORE-MCKINNEY, Debtor.
- Cited By
- 1 case
- Status
- Published