In re Roberts
In re Roberts
Opinion of the Court
ORDER DENYING IN PART AND GRANTING IN PART TRUSTEE’S OBJECTION TO CONFIRMATION
This matter comes before the Court on the Chapter 13 Trustee’s Objection to Con-
I. Jurisdiction.
The Court has jurisdiction and this is a core proceeding pursuant to 28 U.S.C. §§ 1334 and 157(b)(2).
II. Findings of Fact.
Ronald and Kathy Roberts (Debtors) filed for relief under Chapter 13 of the Bankruptcy Code on November 8, 2011, and filed an amended plan on May 18, 2012 (Plan).
According to Debtors, these junior liens were granted in an unsuccessful attempt to save Mr. Roberts’ business.
In addition to the first priority mortgage note payments paid through the Plan, Debtors have agreed to reaffirm the debt secured by the junior mortgage notes with creditor Bank of Blue Valley (BBV) for $107,816.47.
Debtors’ home is located in Johnson County, Kansas. The monthly mortgage note payment is $3,658,
III. Discussion.
The question before the Court is whether the Bankruptcy Code allows confirmation of a Chapter 13 plan in which debtors retain an expensive home and pay nothing to general unsecured creditors. The Trustee asserts that the answer to this question is no, and he provides three reasons. First, the Trustee asserts that the retention of the home is not reasonably necessary for the maintenance and support of the Debtors.
A. Whether the separate payments for the mortgage note, arrearage, and utilities are reasonably necessary for the maintenance and support of the Debtors according to the plain language of §§ 1325(b) and 707(b).
In order for a court to confirm a Chapter 13 plan over an objection by either the trustee or the holder of an unsecured claim, a debtor must pay in full each allowed unsecured claim
Under § 1325(b)(3), “[ajmounts reasonably necessary to be expended ... shall be determined in accordance with subpara-graphs (A) and (B) of section 707(b)(2)” if a debtor’s current monthly income, when multiplied by 12, is greater than the median family income for a household of the same size, and in the same state, as the debtor.
The Trustee claims that the Debtors should not be able to keep their home because the total costs associated with it are not reasonable and necessary for the maintenance and support of the Debtors.
1. The Mortgage.
The first deduction at issue is the mortgage note payment. Under the Means Test, mortgages and other secured debt are covered under § 707(b)(2)(A)(iii) which states:
The debtor’s average monthly payments on account of secured debts shall be calculated as the sum of-
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the filing of the petition; and
(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under chapter 13 of this title, to maintain possession of the debtor’s primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor’s dependents, that serves as collateral for secured debts;
divided by 60.
There is no language in this section directing courts to question the reasonableness, or necessity, of any payments “contractually due” on secured debt held by above-median debtors.
The Trustee argues that this reading of the statute results in a “blind, by-the-numbers approach” in which an above-median debtor may satisfy the “reasonably necessary” requirement simply by having a high
The Trustee cites In re Konowicz
This Court finds these cases unpersuasive. First, the court in Loper was speaking in dictum, and in any case, only looked to § 707(b)(2)(A)(ii) and ignored § 707(b)(2)(A)(iii). Similarly, the court in Konowicz also did not consider § 707(b)(2)(A)(iii). Because subsection (iii) deals specifically with payments for secured debt, subsection (iii) controls and therefore the Debtors’ actual payments, not the Local Standards, determine whether the expense is reasonable and necessary under § 1325(b).
Turning now to § 707(b)(2)(A)(iii), the decision by Congress to distinguish between two separate types of payments for secured debt belies the Trustee’s argument that a threshold “reasonable and necessary” analysis is required. Judge Karlin summarized the point in In re Hays:
In adopting § 707(b)(2)(A)(iii), Congress clearly chose to differentiate between normal, ongoing contractual payments due on secured debt, contained in subsection (I), and those payments that are required to cure a default on contractual payments due on a debtor’s “primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor’s dependents,” set out in subsection (II). Section 707(b)(2)(A)(iii)(I) allows a debt- or to divide “all amounts scheduled as contractually due to secured creditors” by 60 to arrive at a deduction for ongoing secured debt payments. Conversely, § 707(b) (2) (A) (iii) (II) only allows a debtor to deduct the additional payments necessary to cure a default on the debtor’s home, car or other property*591 “necessary for the support of the debtor and the debtor’s dependents.”36
If Congress had intended to include any of the restrictive language from § 1325(b)(2) or § 707(b)(2)(A)(iii)(II) in subsection (I), it could have done so. “Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
It is undisputed in this case that Debtors have above-median income. As a result, under §§ 1325(b)(3) and 707(b)(2)(A)(iii), Debtors are allowed to deduct the full amount of their monthly mortgage payment from their projected disposable income, even if the result is that nothing is left for general unsecured creditors. Although the “reasonable and necessary” requirement contained in § 1325(b)(2) remains “generally applicable,” the plain language of § 1325(b)(3) controls, and as a result, the amounts reasonably necessary to be expended “for the maintenance and support of the debtor or a dependent of the debtor” must be determined “in accordance with” § 707(b)(2)(A) and(B).'
2. The Arrearage.
As for the arrearage that Debtors propose to pay through the Plan, § 707(b)(2)(A)(iii)(II) allows a debtor to deduct additional payments necessary to cure a default on the debtor’s home, car, or other property “necessary for the support of the debtor and the debtor’s dependents.”
3. The Utilities.
The utilities, however, are listed under § 707(b) (2) (A) (ii) (I) and are guided by the Local Standards.
B. The Plan was Proposed in Good Faith.
1. Good Faith, Generally.
A plan may not be confirmed unless it has been proposed in good faith and not by any means forbidden by law.
Whether a plan has been proposed in good faith is a question of fact.
Determining whether a debtor has the requisite honesty of purpose in filing a plan can be a challenging endeavor.
In the Tenth Circuit, a determination of “good faith” requires an inquiry, on a case-by-case basis, into whether the plan abuses the provisions, purpose or spirit of Chapter 13.
The result of these revisions is that there are now four separate, enumerated economic tests for confirmation in Chapter 13 of the Code. These tests are: (1) the best-interest-of-creditors test in § 1325(a)(4), which requires that unsecured claim holders receive through the plan at least what they would be paid in a liquidation under Chapter 7; (2) the feasibility test in § 1325(a)(6), which provides the upper limit of the effort that can be required of a debtor in Chapter 13; (3) the disposable income test in § 1325(b); and (4) the duration limitation in 1322(d), which defines the length of Chapter 13 plans.
The enactment of these changes to the Code has caused debate as to whether many of the Flygare factors are still relevant. One need not look beyond this District to find decisions that struggle with whether a plan can satisfy these “economic” requirements, yet still not be proposed in good faith.
The court in Sandberg gave two reasons for its decision. First, the court held that because Congress chose not to amend § 1325(a)(3) in 2005, the existing case law was not affected.
Since Sandberg was decided, the Tenth Circuit has revisited the question of whether the good faith inquiry and the
The Tenth Circuit restated that the good faith determination requires an examination of the totality of the circumstances. However, the court went on to state that many of the factors are no longer relevant. It noted:
Since Flygare was decided ... the Bankruptcy Code was amended to include 11 U.S.C. § 1325(b). Section 1325(b)’s “ ‘ability to pay’ criteria subsumes most of the Estus factors” and, therefore, the good faith inquiry now “has a more narrow focus.” A bankruptcy court must consider “factors such as whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.”59
The Cranmer court concluded by stating that "[i]t was simply not bad faith for Cranmer to adhere to the provisions of the Bankruptcy Code and, in doing so, obtain a benefit provided by it."
Although the court in Cranmer was considering whether SSI deductions from projected disposable income were bad faith, and not deductions taken under § 1325(b)(3) and § 707(b)(2), the good faith analysis is the same. The SSI deduction is governed under § 101(10A)(B) and the deductions at issue here are found in § 707(b)(2). Both sections determine what is included in a debtor’s projected disposable income under § 1325. Since both sections control what can be deducted from a debtor’s projected disposable income, there is no reason to give more weight to one than the other, and therefore the good faith analysis detailed by the court in Cranmer also applies here.
2. Application.
i. Whether Inaccuracies in the Debtors’ Statements Were Attempts to Mislead the Court.
Intentional inaccuracy in the schedules and statements filed by a Chapter 13 debtor has often been a factor in denying confirmation or dismissing a case for bad faith.
The value ascribed to the Debtors’ home has admittedly changed several times throughout this bankruptcy proceeding. However, this Court does not find that this was done to mislead the Court or creditors for two reasons. First, this case was filed in the midst of the “Great Recession” and has proceeded at a time when house prices have fluctuated significantly. Second, the final value was reached in agreement among the Debtors and mortgagees and is close to the value given by an appraiser.
The Court also holds that the changes made to Schedules I and J were not fraudulent. Debtors increased their expected income on Schedule I from $144,000 to $161,000,
Finally the Trastee asserts the $1,027 per month reduction in expenses on the amended Schedule J constitutes “a nonproductive game of hide and seek in which debtors offer changing combinations of ‘discretionary’ and ‘essential’ expenses with budget amendments to answer every objection.”
After weighing the Trustee’s arguments, the Court finds that the documents and schedules filed by the Debtors have been accurate and do not evidence an attempt to mislead the Court.
ii. Unfair Manipulation of the Bankruptcy Code.
The Trustee argues that the Debtors are unfairly manipulating the Bankruptcy Code by keeping an expensive house while paying nothing to general unsecured creditors. When considering whether a debtor has unfairly manipulated the Bankruptcy Code, courts have treated this factor “as a catchall and base a finding of unfair manipulation of the Bankruptcy Code on a variety of circumstances ranging from inaccurate schedules and egregious prepetition conduct to serial fil
Here, the Debtors have attempted to follow the Bankruptcy Code; they have pared their expenses and share a single car, they have amended their schedules to more accurately reflect their financial situation, and they ask to keep their house in which they have lived for eight years. This Court finds that Debtors did not unfairly manipulate the Bankruptcy Code.
3. Conclusion.
After considering the totality of the circumstances and evaluating all the relevant factors, including the accuracy of Debtors’ statements, whether any inaccuracies were an attempt to mislead the Court, and whether the Debtors were attempting to unfairly manipulate the Bankruptcy Code, the Court finds that Ronald and Kathy Roberts filed their Plan in good faith in accordance with § 1325(a)(3).
C. Feasibility.
The final issue raised by the Trustee is that Debtors’ plan is not feasible. A Chapter 13 plan cannot be confirmed unless the debtor will be able to make all payments under the plan and to comply with the plan.
IV. Conclusion.
The Court concludes that the Bankruptcy Code does not prohibit Debtors from living in an expensive home while proceeding in a Chapter 13 case. With the enactment of 1325(b), Congress effected two key changes to the Code. Congress removed the discretion of the bankruptcy court to determine whether secured debt payments contractually due are reasonable and necessary for above-median income debtors. By creating specific economic requirements for confirmation, Congress prevented courts from making subjective, inconsistent determinations of good faith based on the economic components of debtors’ plans. Section 1325(a)(3) should not be used as a veto to disapprove plans on economic grounds when the proposed plan otherwise satisfies the specific requirements of § 1325(b).
However, because of the issue as to feasibility, the Court may not confirm the Debtors’ Plan as proposed. The Debtors are directed to file an amended plan as set out above.
IT IS SO ORDERED.
. Doc. 25.
. See Brief in Support of the Trustee's Objection to Confirmation, Doc. 89.
. Doc. 56.
. Stipulation of Facts attached to Debtors' Brief in Opposition to Trustee's Motion to Dismiss and Objection to Confirmation, Doc. 90-1 at 2.
. Debtors’ Brief in Reply to Trustee’s Brief in Support of the Trustee’s Objection to Confirmation, Doc. 93 at 2-3.
. Doc. 90-1 at 2.
. First Amended Chapter 13 Plan, Doc. 56.
. Id. at 1.
. Id. at 3-5.
. Joint Motion to Approve Compromise Between Debtors Ronald and Kathy Roberts and Bank of Blue Valley, Doc. 77.
. Id. at 2.
. Brief in Support of Trustee’s Objection, Doc. 89 at 1.
. Department of Justice, Means Testing Information, Local Housing and Utilities Standards (Apr. 19, 2012 6:18 PM) http://www. justice.govlust/eo/bapcpa/2011110 l/bci_data/ housing_charts/irs_housing_charts_KS.htm.
. Debtors' Brief in Opposition to Trustee’s Motion, Doc. 90-1 at 2.
. Brief in Support of Trustee’s Objection, Doc. 89 at 4.
. BAPCPA is an acronym for the 2005 amendments to the Bankruptcy Code titled the Bankruptcy Abuse Prevention and Consumer Protection Act.
. Any reference hereinafter to a section of law, without more, is to a section of the Bankruptcy Code, 11 U.S.C. §§ 101-1330 (2000) (hereinafter the Code).
. Brief in Support of Trustee’s Objection, Doc. 89 at 10.
. Id. at 17.
. 11 U.S.C. § 1325(b)(1)(A).
. 11 U.S.C. § 1325(b)(1)(B).
. 11 U.S.C. § 1325(b)(2); In re Hays, 2008 WL 1924233 (Bankr.D.Kan. 2008).
. Emphasis added.
. See In re Hays, 2008 WL 1924233, at *6.
. Brief in Support of Trustee's Objection, Doc. 89 at 4.
. See In re Wick, 421 B.R. 206 (Bankr.D.Md. 2010) (holding that the court may not redefine “disposable income” or adjust "projected disposable income,” simply because the amount of actual secured debt payments "appears disproportionate to the needs of the debtor”).
. Brief in Support of Trustee's Objection, Doc. 89 at 5.
. Id.
. 470 B.R. 725 (Bankr.D.N.J. 2012).
. Doc. 89 at 5.
. 470 B.R. at 728 (quoting Ransom v. FIA Card Services, N.A., - U.S. -, 131 S.Ct. 716, 725, 178 L.Ed.2d 603 (2011)(emphasis in Konowicz)).
. Id. at 728-29.
. Id. at 728.
. 367 B.R. 660 (Bankr.D.Colo. 2007).
.Id. at 666.
. 2008 WL 1924233, at *4.
. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983)(quoting U.S. v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)).
. In re Hays, 2008 WL 1924233, at *4 (quoting Colautti v. Franklin, 439 U.S. 379, 392, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979)).
. Baud v. Carroll, 634 F.3d 327, 347-48 (6th Cir. 2011), stating:
[A] majority of courts have held that above-median income debtors may deduct ongoing monthly payments on secured debt in accordance with the formula set forth in § 707(b)(2)(A)(iii) for property that debtors intend as of the date of confirmation to retain, regardless of whether the payments are subjectively reasonably necessary to be expended for the maintenance and support of the debtors or the debtors’ dependents.
. Hays, 2008 WL 1924233, at *4.
. “The debtor’s monthly expenses shall be the debtor's applicable monthly expense under the National Standards and Local Standards....” See also Ransom v. FIA Card
. 11 U.S.C. § 1325(a)(3).
. 8 Collier on Bankruptcy ¶ 1325.04[1] at 1325-17 (Alan N. Resnick & Henry J. ed. 2013).
. Robinson v. Tenantry (In re Robinson), 987 F.2d 665, 668 (10th Cir. 1993).
. In re Loper, 367 B.R. 660, 668 (Bankr.D.Colo. 2007).
. See Keach v. Boyajian (In re Reach), 243 B.R. 851, 856 (B.A.P. 1st Cir. 2000) ("In the absence of contrary evidence, and there is no relevant legislative history, Congress presumably used the phrase 'good faith' in its ordinary sense.”).
. Id. at 868.
. See Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 177. 1, at V 1, Sec. Rev. July 23, 2004, www.Ch13 online.com (stating that this short provision has proven to be one of the most litigated provisions of the entire Bankruptcy Code).
. Flygare v. Boulden, 709 F.2d 1344, 1347 (10th Cir. 1983) (citing In re Estus, 695 F.2d 311, 315 (8th Cir. 1982)).
. In re Cranmer, 697 F.3d 1314, 1318 (10th Cir. 2012); Flygare, supra.
. Flygare, 709 F.2d at 1347-48 (quoting Estus, 695 F.2d at 317). The 11 factors are: "(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
.Keith M. Lundin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 193. 1, at ¶ 2, Sec. Rev. June 7, 2004, and § 496.2 at ¶ 5, Sec. Rev. Apr. 21, 2010, www.Chl3 online.com.
. See In re Sandberg, 433 B.R. 837, 842 (Bankr.D.Kan. 2010) (questioning whether the “economic components of Flygare's good faith analysis have continued validity in light of the disposable income test of § 1325(b)(1)(B) as enacted by BAPCPA, and if so, what weight should be given them”), and In re Hays, 2008 WL 1924233, at *3 n.20 (Bankr.D.Kan. 2008) (stating that the court still maintains discretion to determine whether a plan has been proposed in good faith after it has found the challenged expenses reasonable and necessary, but declined to rule on the issue because it was not raised by the trustee).
. Sandberg, 433 B.R. at 840-41.
. Id. at 848.
. Id.
. In re Cranmer, 697 F.3d at 1319.
. Id.
. Id. at n.5 (internal citations omitted)(quoting Educ. Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir. 1987)).
. Id. at 1319.
. In re Wilcox, 251 B.R. 59, 65 (Bankr.E.D.Ark. 2000).
. Doc. 89 at 13-14.
. The house is listed at $665,000 in the Reaffirmation Agreement, and the appraisal value was $695,500.
.Doc. 89 at 14.
. Doc. 89 at 15 (quoting Keith M. Lundlin & William H. Brown, Chapter 13 Bankruptcy, 4th Edition, § 165. 1, at ¶ 19, Sec. Rev. June 14, 2004, www.Chl3online.com.).
. Wilcox, 251 B.R. at 66.
. See In re Rice, 72 B.R. 311 (D.Del. 1987).
. See 8 Collier on Bankruptcy ¶ 1325.04[1] at 1325-17 (Alan N. Resnick & Henry J. Som-mer, eds., 16th ed. 2013) (citing In re Sweet, 428 B.R. 917 (Bankr.M.D.Ga. 2010)).
. See 11 U.S.C. § 1325(a)(6).
Reference
- Full Case Name
- IN RE: Ronald Craig ROBERTS and Kathy Parker Roberts, Debtors
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