In re Wilkinson
In re Wilkinson
Opinion of the Court
ORDER DENYING TRUSTEE’S MOTION OBJECTING TO DISCHARGE
This matter is before the Court on the chapter 13 Trustee’s motion to deny dis
(f) Notwithstanding subsections (a) and (b), the court shall not grant a discharge of all debts provided for in the plan or disallowed under section 502, if the debtor has received a discharge—
(1) in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or
(2) in a case filed under chapter 13 of this title during the 2-year period preceding the date of such order.
The issue is whether under § 1328(f) “case filed under” should apply to the bankruptcy chapter under which a case is originally filed or, following conversion under § 348, to the bankruptcy chapter under which discharge was ultimately entered.
Background
Debtors previously filed a bankruptcy petition in the District of Kansas as Case No. 09-24357. The case was initially filed under chapter 13 and was twice converted before it was ultimately discharged under chapter 7. A brief chronology of the events in the prior case that are pertinent to the matter before the Court follows:
December 31, 2009 Chapter 13 case filed. Debtors did not obtain confirmation of their chapter 13 plan.
August 6, 2010 Case converted to chapter 11 on Debtors’ motion.
April 25, 2011 Debtors’ chapter 11 plan confirmed.
January 21, 2013 Chapter 11 case converted to chapter 7 on Debtors’ motion.
May 1, 2013 Chapter 7 discharge order entered.
The case sub judice was filed as a chapter 13 proceeding on July 21, 2013, and remains a chapter 13 proceeding. The Trustee filed his motion objecting to discharge on July 23, 2013.
Analysis
The meaning of § 1328(f) is plain and the effects of the conversion of a bankruptcy case under § 348 are precise. Section 348 provides:
*745 (a) Conversion of a case from a case under one chapter of this title to a case under another chapter of this title constitutes an order for relief under the chapter to which the case is converted, but, except as provided in subsections (b)and (c) of this section, does not effect a change in the date of the filing of the petition, the commencement of the case, or the order for relief.
(b) Unless the court for cause orders otherwise, in sections 701(a), 727(a)(10), 727(b), 1102(a), 1110(a)(1), 1121(b), 1121(c), 1141(d)(4), 1201(a), 1221, 1228(a), 1301(a), and 1305(a) of this title, “the order for relief under this chapter” in a chapter to which a case has been converted under section 706, 1112, 1208, or 1307 of this title means the conversion of such case to such chapter.
(c) Sections 342 and 365(d) of this title apply in a case that has been converted under section 706, 1112, 1208, or 1307 of this title, as if the conversion order were the order for relief.
(d) A claim against the estate or the debtor that arises after the order for relief but before conversion in a case that is converted under section 1112, 1208, or 1307 of this title, other than a claim specified in section 503(b) of this title, shall be treated for all purposes as if such claim had arisen immediately before the date of the filing of the petition.
(e) Conversion of a case under section 706, 1112, 1208, or 1307 of this title terminates the service of any trustee or examiner that is serving in the case before such conversion.
(f) (1) Except as provided in paragraph (2), when a case under chapter 13 of this title is converted to a case under another chapter under this title—
(A) property of the estate in the converted case shall consist of property of the estate, as of the date of filing of the petition, that remains in the possession of or is under the control of the debtor on the date of conversion;
(B) valuations of property and of allowed secured claims in the chapter 13 case shall apply only in a case converted to a case under chapter 11 or 12, but not in a case converted to a case under chapter 7, with allowed secured claims in cases under chapters 11 and 12 reduced to the extent that they have been paid in accordance with the chapter 13 plan; and
(C) with respect to cases converted from chapter 13—
(1) the claim of any creditor holding security as of the date of the filing of the petition shall continue to be secured by that security unless the full amount of such claim determined under applicable nonbank-ruptcy law has been paid in full as of the date of conversion, notwithstanding any valuation or determination of the amount of an allowed secured claim made for the purposes of the ease under chapter 13; and
(ii) unless a prebankruptcy default has been fully cured under the plan at the time of conversion, in any proceeding under this title or otherwise, the default shall have the effect given under applicable non-bankruptcy law.
(2) If the debtor converts a case under chapter 13 of this title to a case under another chapter under this title in bad faith, the property of the estate in the converted ease shall consist of the property of the estate as of the date of conversion.
(a) A voluntary case under a chapter of this title is commenced by the filing with the bankruptcy court of a petition under such chapter by an entity that may be a debtor under such chapter.
(b) The commencement of a voluntary case under a chapter of this title constitutes an order for relief under such chapter.
For purposes of a voluntary bankruptcy, the Code defines a “petition” as a petition filed under § 301 that commences a case under Title 11.
Conversion of a case under § 348 from one chapter of the Code to another does not change the petition date and only effects changes as provided in § 348.
Although conversion of a case from one chapter of the Code to another under § 348 constitutes an order for relief under the converted chapter, the “conversion does not affect the dates of the filing of the petition, the commencement of the case or the order for relief, except as provided in subsections (b) and (c).... ”
Conversion does not result in a new petition. For instance, in Standiferd v. U.S. Trustee,
If the debtor converts a case from chapter 11 to chapter 7, as occurred in these Debtors’ prior case, property of the estate is determined as of the original petition date and not as of the date of conversion.
The analysis in Hall v. United States
“Our primary task in construing statutes is to determine congressional intent, using traditional tools of statutory interpretation.” See N.M. Cattle Growers Ass’n v. U.S. Fish & Wildlife Serv., 248 F.3d 1277, 1281 (10th Cir. 2001). Supreme Court “precedents make clear that the starting point for [the] analysis is the statutory text. And where, as here, the words of the statute are unambiguous, the judicial inquiry is complete.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 98 [123 S.Ct. 2148, 156 L.Ed.2d 84] (2003) (citation and quotation omitted); see also Park ’N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 [105 S.Ct. 658, 83 L.Ed.2d 582](1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”).25
“[I]f an act is unambiguous, that ends the matter and resort should not be had to the statutory history.”26
Continuing, with respect to the absurdity doctrine and its application to statutory construction, the Taylor court observed:
The absurdity doctrine applies to unambiguous statutes “as a means to avoid applying the unequivocal language of a statute. But the doctrine has been strictly limited.” Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc). The absurdity doctrine applies “in only the most extreme of circumstances,” when an interpretation of a statute “leads to results so gross as to shock the general moral or common sense,” which is a “formidable hurdle” to the application of this doctrine. United States v. Husted, 545 F.3d 1240, 1245 (10th Cir. 2008); Robbins, 435 F.3d at 1241 (quotation omitted). It is not enough to show that Congress intended a different result from the one produced by the plain language of the statute. Robbins, 435 F.3d at 1241.
It Is the Chapter under Which the Debtors’ Prior Case Was Filed that Determines the Lookback Period under § 1328(f)
The Trustee cites to the Court two cases in support of his position.
The Grydzuk court also supported its finding based on the language of § 301(a), which provides for the filing of a voluntary bankruptcy; however, this subsection only provides that a bankruptcy case is commenced by the filing with the bankruptcy court of a petition under a chapter for which the debtor qualifies. Nothing in § 301(a) supports the notion that conversion of a bankruptcy case from one chapter to another alters the chapter under which a case is filed; if anything, the language supports the conclusion that conversion does not effect any change to the chapter under which a case is filed. The Grydzuk court concluded that the effect of § 348(a) is to literally render a debtor’s converted case that was initially filed under one chapter to a case filed under the converted chapter and that “it is clear that the discharge referred to in 11 U.S.C. § 1328(f)(1) refers to the chapter under which the discharge was actually entered, rather than the chapter under which the
The Trustee also relies on In re Finney.
The Finney court implies that a contrary reading to its holding may be illogical.
The Finney court observed that “the vast majority of courts that have considered the issue support ...”
Under the Hamilton court’s analysis, (1) § 301(a) provides that “[a] voluntary case under a chapter of this title is commenced by the filing with the bankruptcy court of a petition under such chapter by an entity that may be a debtor under such chapter”; (2) § 348(a) explicitly provides that conversion of a case does not effect a change in the commencement date for the case; and (3) Congress could easily have stated that the “look back period” set in § 1328(f) is determined based on the chapter under which a prior discharge was entered, which it did not do.47
Ironically, the Finney court noted that since the discharge eligibility lookback period is not tolled by a bankruptcy filing, then if Finney’s [debtor’s] bankruptcy case were dismissed, she would then be eligible for a chapter 13 discharge since the four-year lookback period under § 1328(f)(1) had expired during the pendency of the ease.
Here, the Debtors’ prior ease was filed under chapter 13 and the conversion to a chapter 7 case does not mean that the original case is deemed to have been filed under chapter 7. “Upon conversion, the date of filing does not change, nor does the fact that the case was originally filed under chapter 13.”
Under § 348(a), the conversion of a case from one chapter of the Code to another “constitutes an order for relief under the chapter to which the case is converted, but ... does not effect a change in the date of the filing of the petition, the commencement of the case, or the order for relief.” § 348(a) (emphasis added). In other words, a converted case is commenced on the date the initial bankruptcy petition was filed, not on the date it was converted. Thus, the plain language of § 348(a) clearly provides that, upon conversion, “the case” includes the proceedings that occur both before and after conversion. Consequently, when a debtor converts his case from Chapter 13 to Chapter 7, discharge may be denied under § 727(a)(6)(A) based on the debtor’s refusal to obey a lawful order of the court while the case was proceeding under Chapter 13.52
The integrity of the Debtors’ prior chapter 13 petition and the case commencement is maintained upon conversion. Section 348 does not state that conversion of a case to another chapter commences a bankruptcy case — it is a “housekeeping” statute that addresses the limited effects of a case conversion.
Conclusion
For purposes of § 1328(f), the term “case filed under” refers to the bankruptcy chapter under which the Debtors’ prior case was initially filed and not to the chapter under which the discharge order was ultimately entered. The conversion of the Debtors’ prior chapter 13 case, first to one under chapter 11 and ultimately to one under chapter 7, does not alter this rule despite the fact that the Debtors’ case was discharged under chapter 7. Since the Debtors’ prior bankruptcy case was filed under chapter 13 of the Code, it is the § 1328(f)(2) two-year lookback period for previously filed chapter 13 bankruptcy cases that applies to the Debtors’ eligibility to receive a discharge in this case.
IT IS SO ORDERED.
. Doc. 12.
. This matter is a core proceeding under 28 U.S.C. § 157(b)(2)(A), (D), (G), (M), and (O). This Court has jurisdiction under 28 U.S.C. § 157 and 1334. Venue is proper pursuant to 28 U.S.C. § 1408 and 1409. All future statutory references are to the Bankruptcy Code ("Code”), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 11 U.S.C. §§ 101 — 1532, unless otherwise specifically noted.
. Debtors appear by and through their attorney, Jonathan C. Becker, Lawrence, Kansas. William H. Griffin, the chapter 13 Trustee, also appears.
. Doc. 12.
. § 101(42).
. Petition, Doc. 1, in Case No. 09-24357. The Court will restrict its discussion to voluntary cases commenced under § 301.
. § 301(b).
. In re Hamilton, 383 B.R. 469 (Bankr.W.D.Ark. 2008).
. 3 Collier on Bankruptcy It 348.01, at 348-4 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2013).
. § 348(f)(2).
. Id.
. 3 Collier on Bankruptcy ¶ 348.02, at 348-7. Of course the conversion order triggers an order for relief under the chapter to which the case is converted, but this merely effects the requirement of § 301(b) for a voluntary petition. What is not changed is the chapter under which the petition and, by extension, the case was filed.
. Id.
. 641 F.3d 1209 (10th Cir. 2011).
. Of course, the fact that a debtor is not entitled to discharge does not prohibit the filing of a chapter 13 or a chapter 7 bankruptcy; however, a debtor who files prior to the expiration of the time limits to receive a discharge under the respective chapters is not entitled to a discharge. 6 Collier on Bankruptcy ¶ 727.11 [1][1], at 727-52 (Alan N. Res-nick & Henry J. Sommer, eds., 16th ed. 2013).
. See Casey v. Hochman, 963 F.2d 1347 (10th Cir. 1992).
. 3 Collier on Bankruptcy ¶ 348.02[1], at 348-9.
. 1 F.3d 1050 (10th Cir. 1993).
. This result was later codified in § 348(f) which maintains the vitality of the original petition and commencement date for most purposes. 3 Collier on Bankruptcy, supra note 9, ¶ 348.07[1], at 348-07.
. See Stinson v. Williamson (In re Williamson), 804 F.2d 1355 (5th Cir. 1986). Rule 1019 generally addresses conversion of a case originally filed under chapters 11, 12 or 13 to a chapter 7 case.
. - U.S. -, 132 S.Ct. 1882, 182 L.Ed.2d 840 (2012).
. In part, the amendment provided that taxes incurred by the bankruptcy estate that arise from a debtor family farmer’s post-petition sale of a farm asset is treated as a general unsecured claim.
. Hall, 132 S.Ct. at 1887, 1888.
. Id. at 1893.
. In re Taylor, 737 F.3d 670, 678 (10th Cir. 2013).
. Id. at 680, quoting Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1135 (10th Cir. 2011).
. In re Grydzuk, 353 B.R. 564 (Bankr.N.D.Ind. 2006); In re Finney, 486 B.R. 177 (9th Cir. BAP 2013).
. Grydzuk, 353 B.R. at 567.
. In re Grydzuk, 353 B.R. 564 (Bankr.N.D.Ind. 2006).
. Id. at 568.
. Id.
. Id.
. Id.
. Id.
. 486 B.R. 177 (9th Cir. BAP 2013)
. Finney, 486 B.R. at 180.
. Id. at page 181.
. Id. at 181.
. Hall, 132 S.Ct. at 1892.
. Id.
. Id. at 1893.
. Finney, 486 B.R. at 181, quoting from and citing to McDow v. Capers (In re Capers), 347 B.R. 169, 171-72 (Bankr.D.S.C. 2006).
.For example, writing for the majority, Justice Scalia observed: "The Bankruptcy Code standardizes an expansive (and sometimes unruly) area of law, and it is our obligation to interpret the Code clearly and predictably using well established principles of statutory construction.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, - U.S. -, 132 S.Ct. 2065, 182 L.Ed.2d 967 (2012) (concluding that a secured creditor’s right to credit bid under § 363(k) cannot be eviscerated in a chapter 11 plan of reorganization). Justice Scalia’s regard for the Bankruptcy Code continued when he explained the work of the Supreme Court: “Most of the time we are doing real law: We're figuring out the meaning of the Bankruptcy Code, the Internal Revenue Code. That is hard and really dull stuff.” (http ://www.houstonchronicle. com/news/ houston-texas/houston/article/At-Houston-lecture-Scalia-explores-Christian-4794443. php?t= 1 c711 cf5704c5e314b).
. Finney, 486 B.R. at 181.
. 383 B.R. 469 (Bankr.W.D.Ark. 2008).
. Id.
. Id. at 182, 183 n. 3. See also 3 Collier on Bankruptcy ¶ 1328.06[2], at 1328-33 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2013). "[A]n unsuccessful chapter 13 case filed before the time period set forth in section 1328(f)(2) has expired should not toll the running of that period.”
. Hamilton, 383 B.R. at 471.
. Id. at 470.
. Id. at 471.
. Standiferd v. U.S. Trustee, 641 F.3d 1209, 1215 (10th Cir. 2011).
Reference
- Full Case Name
- IN RE: Mark Robert WILKINSON and Theresa Jean Wilkinson, Debtors
- Cited By
- 2 cases
- Status
- Published