In re Dugan
In re Dugan
Opinion of the Court
MEMORANDUM OPINION AND ORDER OVERRULING THE CHAPTER 13 TRUSTEE’S OBJECTION TO CONFIRMATION UNDER 11 U.S.C. §§ 1325(a)(3) AND (a)(7) AND DENYING THE MOTION TO DISMISS OR CONVERT DEBTORS’ CASE TO CHAPTER 7
The Chapter 13 Trustee (the Trustee) objects to confirmation and moves to dismiss or convert Debtors’ case to Chapter 7.
VENUE AND JURISDICTION
This Court has jurisdiction over the parties and the subject matter pursuant to 28 U.S.C. §§ 157(a) and 1334(a) and (b) and the Amended Standing Order of Reference of the United States District Court for the District of Kansas that exercised authority conferred by 28 U.S.C. § 157(a) to refer to the District’s bankruptcy judges all matters under the Bankruptcy Code and all proceedings arising under the Code or arising in or related to a case under the Code, effective June 24, 2013.
FINDINGS OF FACT
On June 15, 2015, Debtors Daniel Joseph Dugan (Daniel) and Karen Marie Dresch (Karen) filed their bankruptcy petition
Debtors’ Plan proposes .at least 36 monthly payments of $80.° Plan payments will pay $2,80
Debtors’ income from employment for 2013, 2014, and 2015 year to petition date was $17,742, $45,368, and $1,405, respectively.
Debtors do not own any real property.
Debtors’ Schedule F lists 44 nonpriority claims of which 27 are healthcare related.
Since 2010, Debtors have faced at least three garnishment cases in Shawnee County, Kansas, District Court.
On August 17, 2015, the Trustee objected to confirmation under 11 U.S.C. §§ 1325(a)(3) and (a)(7)
. Of note, the Trustee did not specifically object to feasibility or challenge the reasonableness of the Debtors’ attorney’s fees of $2,800.
LAW
Chapter 13 contains two good faith requirements. Debtors must propose plans and file petitions in good faith. Section 1325(a)(3) and (a)(7) provide:
(a) ... [T]he court shall confirm a plan if—
(3)the plan has been proposed in good faith and not by any means forbidden by law; ...
(7)the action of the debtor in filing the petition was in good faith.43
Congress did not define good faith in subsections (a)(3) and (a)(7).
(1) the amount of the proposed payments and the amount of the debt- or’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;
i (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 debt- or 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 which the plan’s administration would place upon the trustee.45
The Trustee relies on In re Puffer
The Court examines §§ 1325(a)(3) and (a)(7) simultaneously because the good faith analysis under each subsection is the same — the totality of the circumstances.
ANALYSIS
A. Debtors Filed Their Chapter 13 Petition and Chapter 13 Plan in Good Faith.
“The principal purpose of the Bankruptcy Code is to grant a ‘fresh start’ to the ‘honest but unfortunate debtor.’ ”
Chapter 13, commonly referred to as the wage earner chapter, is conceptually a personal or individual reorganization. Individuals with regular income obtain a discharge of most pre-petition debt after successfully completing a court-approved payment plan.
An important distinction lies between Chapters 13 and 7 in counsel’s ability to collect attorney’s fees for debtors seeking competent representation. In Chapter 13, debtors may pay their attorney’s fees through their plan over three to five years. In Chapter 7, debtors must pay their attorney up front before filing and counsel cannot advise debtors to incur debt to pay for representation.
Most debtors that are contemplating chapter 7 are on the brink of economic disaster. They have creditors harassing, them, calling them nonstop, garnishing wages and income tax returns, and seizing their vehicles to satisfy judgments. These hardworking individuals simply do not have the extra funds to pay a bankruptcy attorney up front in full to file a bankruptcy case to stop the creditors.65
In Chapter 13 cases, “the court does not approve the employment of a chapter 13 debtor’s counsel.”
Unlike other bankruptcy attorneys, a Chapter 7 attorney has no right to compensation under § 330.
Under Chapter 13, attorney’s fees are allowed pursuant to § 330(a) as an administrative expense described in § 503(b)(2). With the enactment of § 330, “Congress intended to provide adequate compensation, on a par with that available in other areas of practice, to attract competent counsel to the bankruptcy specialty.”
[i]t is absolutely imperative that competent counsel be motivated to seek, accept and ably handle Chapter 13 cases. That motivation starts with being fairly compensated for the work they perform. The complexity and importance of the work, alone, justify such compensation, but there are other reasons able counsel are vital to the system. The most important reason is that this Court rather routinely sees pro se debtors “give away” rights or property that they would otherwise be legally entitled to retain because of their ignorance of the law.80
At issue is whether the Code permits Debtors to file under Chapter 13 in good faith when allegedly the only reason they elected Chapter 13 is because they do not have the ability to pay up front for representation in Chapter 7.
The Eleventh Circuit in Brown
In Crager, the Fifth Circuit found that “[t]here is no rule in this circuit that a Chapter 13 plan that results in the debt- or’s counsel receiving almost the entire amount paid to the Trustee, leaving other unsecured creditors unpaid, is a per se violation of the ‘good faith’ requirement ....”
In Missouri, Arlen
Yes, there may be no distribution to unsecured creditors. Again, in a perfect world, all debtors would fde Chapter 13 plans and repay all their debts, and no creditor would walk away empty handed. But we do not live in that world.
Instead, this is a world where debtors are harassed by daily collection calls for admittedly delinquent debts. Where they are repeatedly required to miss work to attend a cattle call docket to explain why they haven’t paid old medical bills. Where they cannot afford to keep the gas on, and feel compelled to incur title or payday loans at exorbitant rates to feed their families. Where their meager wages are reduced even further by garnishments. Where they opt not to seek necessary medical care or take prescribed medication because they cannot afford it. This is the world these Debtors live in, and this real world sometimes requires bankruptcy, even if the debtor cannot save enough to pay the up front [sic] attorney’s fees required to file a Chapter 7.113
Courts rejecting attomey-fee-only Chapter 13 plans express concern that the filing itself solely benefits the attorney — not the debtor. In Kansas, and in general, attorney’s fees in Chapter 13 reorganizations are higher than Chapter 7 liquidations.
Chapter 13 cases are more work to prepare, are more involved, and expose a debtor’s attorney to nonpayment. Frequently, a Chapter 13 bankruptcy is financially a losing proposition for a debtor’s attorney. Most of an attorney’s work in the majority of Chapter 7 cases is completed up front during the early stages of a case that generally closes within six months. However, a Chapter 13 debtor’s attorney is obligated to her clients for three to five years during which much can happen requiring additional attorney time. Chapter 13 debtors’ attorneys often help their clients through payment defaults, repair or replacement of essential property such as vehicles and household appliances, unemployment or underemployment, and medical bills. All of this occurs after the debtor’s attorney successfully navigates plan confirmation but before the attorney receives full payment through the plan.
Some believe that “success in chapter 13 can be looked at by the percentage of cases in which a repayment plan is completed. With only a little over one-third of chapter 13 debtors achieving plan completion, some may conclude that chapter 13 is a failure.”
Under the totality of the circumstances, Debtors filed their petition and Plan in good faith in accordance with §§ 1325(a)(3) and (a)(7). Section 1325(b)(1) also provides for plan confirmation if the debtor commits all projected disposable income to the plan during the commitment period. This suggests “that the percentage of repayment to general unsecured creditors [is] not an issue of good faith.”
There is no doubt that Daniel and Karen need financial relief and their circumstances demonstrate they qualify for Chapter 13. Garnishments caused utilities to terminate services, leaving Debtors’ three minor children without hot water and electricity. Debtors are living day-today on the financial outskirts of the economy. Chapter 13 affords Debtors immediate relief. Debtors chose Chapter 13 after consulting with bankruptcy counsel because they could not afford the Chapter 7 upfront filing costs. Debtors have no previous bankruptcies, there are no inaccuracies in Debtors’ schedules, and no other statutory provisions prevent Chapter 13 relief. The Court does not find any evidence that Debtors’ petition or Plan are an attempt to abuse or game the provisions, purpose, or spirit of Chapter 13. The Court does not find the treatment of Debtors’ unsecured creditors unfair as those creditors would receive the same under Chapter 7 because Debtors do not hold any nonexempt property that a Chapter 7 trustee would liquidate.
Importantly, the Code does not require a minimum distribution to general unsecured creditors.
“[Cjourts have ‘repeatedly emphasized Congress’s preference that individual debtors use Chapter 13 instead of Chapter 7.’ ”
B. Debtors’ Chapter 13 Attorney’s Fees Are Reasonable.
Under § 330, the Court finds that Debtors’ attorney’s fees of $2,800 are reasonable based on the Court’s experience adjudicating Chapter 13 filings in the District of Kansas.
CONCLUSIONS OF LAW
Based on a totality of the circumstances, Debtors’ Chapter 13 petition and Plan were filed in good faith in accordance with §§ 1325(a)(3) and (a)(7). Debtors need not make a showing of special circumstances and nothing in the Code forbids attorney-fee-only Chapter 13 plans.
IT IS ORDERED that the Chapter 13 Trustee’s objection to confirmation is overruled and his motion to convert or dismiss is denied.
IT IS SO ORDERED.
The relief described hereinbelow is SO ORDERED.
. Doc. 23 and 24. Debtors, Daniel Joseph Dugan and Karen Marie Dresch. appear by their attorney, Chris W, Steffens, Topeka, KS. Trustee, William H. Griffin, appears pro se.
. The Trustee receives a percentage fee in accordance with 28 U.S.C. § 586(e)(1)(B). This percentage fee is assessed on all payments the Trustee receives under a Chapter 13 Plan. 11 U.S.C. § 1326(b)(2).
. D. Kan. Standing Order No. 13-1, printed in D. Kan. Rules of Practice and Procedure at 168 (March 2016).
. Doc. 1.
. Doc. 2.
. Doc. 6. Fed. R. Bankr. P. 1006(b) allows paying the 28 U.S.C. § 1930(a)(1) Chapter 13 filing fee in installments.
. Doc. 1, at 2 and 12-15.
. Id. at ¶ 3.
. Doc. 2.
. Doc. 1 at 43.
. Doc. 2.
. Doc. 1, at 4,
. Id. at 36.
. Id.
. Id. at 4.
. Id. at 37.
. Id. at 39.
. Id. at 18, ¶ 18.
. Id. at 16.
. Id. at 17-20.
. Id. at 21.
. Id. at 17-21.
. Id.
. Id. at 22 and 25-33.
. Doc. 23, at 2.
. Id., Doc. 2, Doc. 1, at 23-24 (Debtors list the Internal Revenue Service and Kansas Department of Revenue for notice purposes only).
. Doc. 1, at 25-33.
. Id. at 30, 33.
. Id. at 25-33.
. Id. at 6 ¶ 8.
. Doc, 30, at 3 ¶ e. 1.
. Doc. 1, at 5 ¶ 4.
. Doc. 30, at 3 ¶ g.
. Id.
. Id. at 3 ¶ e (emphasis in original).
. Id. at ¶ 2.
. Doc. 1, at 38-39.
. All future statutory' references are to the Bankruptcy Code (Code), as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), 11 U.S.C. §§ 101-1532, unless otherwise specifically noted.
. Doc.23.
.Id. at 2 ¶ 5.
. id. at 9 ¶ 14.
. Id. at 9 ¶ 15.
. BAPCPA added § 1325(a)(7) in 2005.
. William J. McLeod, Chapter 13 in 13 Chapters 69 (M. Regina Thomas ed., 2009).
. Flygare v. Boulden, 709 F.2d 1344, 1347-48 (10th Cir. 1983) (quoting United States v. Estus (In re Estus), 695 F.2d 311, 317 (8th Cir. 1982)) (defining good faith under § 1325(a)(3)). Notably, Congress amended the Code in 1984 to include the ability-to-pay test under § 1325(b). 8 Collier on Bankruptcy ¶325.11[1], at 1325-54 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2016). "[T]he good faith inquiry now has a more narrow focus.’ ” In re Cranmer, 697 F.3d 1314, 1319 n. 5 (10th Cir. 2012) (quoting Educ. Assistance Corp. v. Zellner, 827 F.2d 1222, 1227 (8th Cir. 1987)).
. 674 F.3d 78 (1st Cir. 2012).
. Note 96.
. In re Wark, 542 B.R. 522, 527 (Bankr.D.Kan. 2015). See McLeod, supra note 44, at 68 (stating that ''[g]ood faith is determined by considering the totality of the circumstances surrounding the filing of both the petition and the plan”).
. See McLeod, supra note 44, at 69 (emphasis added). See also In re Dicey, 312 B.R. 456, 459 (Bankr.D.N.H. 2004).
. Collier, supra note 45, ¶ 1325.04[ 1], at 1325-17 (citations omitted).
. Wark, 542 B.R. at 533 n. 35.
. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 367, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) (quoting Grogan v. Garner, 498 U.S. 279, 286, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991)).
. Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
. Supra note 40.
. Marrama, 549 U.S. at 367, 127 S.Ct. 1105.
. Harris v. Viegelahn, — U.S. -, 135 S.Ct. 1829, 1835, 191 L.Ed.2d 783 (2015).
. Id. at 1834. Of course, the Chapter 7 trustee does not ordinarily liquidate exempt assets.
. § 1325(b)(5). See also In re Taddeo, 685 F.2d 24, 29 (2d Cir. 1982) (stating that “ ‘curing a default’ in Chapter 11 means the same tiling as it does in Chapters 7 or 13: the event of default is remedied and the consequences are nullified.”).
. § 365.
. §§ 507 and 1326(b)(1).
. § 303. See also In re Harper-Elder, 184 B.R. 403, 408 (Bankr.D.D.C. 1995) ("Chapter 13 was intended to be purely voluntary-”).
. § 1307(b).
. In re Bateman, 515 F.3d 272, 279 (4th Cir. 2008) (quoting In re McDonald, 205 F.3d 606, 614 (3d Cir. 2000)). See also In re Jackson, 2006 Bankr.LEXIS 4327, at *3 (Bankr. N.D.Ga. Mar. 16, 2006) ("Congress wanted more debtors to file for relief under Chapter 13, rather than Chapter 7.”).
. Work, 542 B.R. at 531 n. 27.
. Amanda A. Page, Chapter 7 Attorneys’ Fees: Protecting Debtors While Ensuring Attorneys Get Paid, http://www.abi.org/committee-pos1/ chapter-7-attorneysS%or-fees-protecting-debtors-while-ensuring-attorneys-get-paid. Am. Bankr.Inst. (Feb. 2, 2015-15:07).
. In re Bell, 212 B.R. 654, 657 (Bankr.E.D.Cal. 1997) (citing In re Flicker, 131 B.R. 932, 939-41 (Bankr.E.D.Pa. 1991)).
. In re Arnold, 2008 WL 2224932, *1 (Bankr. S.D.Tex. 2008).
. In re French, 111 B.R. 391, 393 (Bankr. N.D.N.Y. 1989),
. William F. Stone, Jr., & Bryan A. Stark, The Treatment of Attorneys’ Fee Retainers in Chapter 7 Bankruptcy and the Problem of Denying Compensation to Debtors’ Attorneys for Post-Petition Legal Services They Are Obliged to Render, 82 Am. Bankr.L.J. 551, 552 (2008).
. Lamie v. United States Trustee, 540 U.S. 526, 124 S.Ct 1023, 157 L.Ed.2d 1024 (2004).
. Id. at 538-39, 124 S.Ct. 1023.
. See Stone, supra note 69, at 554.
. Richard I. Aaron, 1 Bankruptcy Law Fundamentals § 15:51.
. In re Wagers, 514 F.3d 1021 (10th Cir. 2007).
. Id., In re Mansfield, 394 B.R. 783 (Bankr.E.D.Pa. 2008).
. Wagers, 514 F.3d at 1029-30; Rittenhouse v. Eisen, 404 F.3d 395 (6th Cir. 2005).
. Lamie, 540 U.S. 526, 124 S.Ct. 1023.
. See e.g. DeLuca v. Seare (In re Seare), 515 B.R. 599 (9th Cir. BAP 2014) (unbundling or limited scope representation must comply with the rules of ethics and the Bankruptcy Code based on a qualitative analysis of each individual debtor’s case completed at intake to ensure that debtor’s reasonable goals and .needs are being met); In re Ruiz, 515 B.R. 362 (Bankr.M.D.Fla. 2014) (attorneys cannot pick and choose the services they provide to Chapter 7 debtors).
. In re Commercial Consortium of California, 135 B.R. 120, 126 (Bankr.C.D.Cal. 1991).
. In re Beck, 2007 Bankr.LEXIS 517, at *9 (Bankr.D.Kan. Feb. 21, 2007) (internal footnotes omitted).
. Alexander F. Clanton, Per Se Bad Faith? An Empirical Analysis of Good Faith in Chapter 13 Fee-Only Plans, 30 Emory Bankr.Dev. J. 473, 481 (2014).
. Lois R. Lupica, The Consumer Bankruptcy Fee Study: Final Report, 20 Am. Bankr.Inst. L.Rev. 17, 81 (2012).
. Id.
. See Page, supra note 65 (emphasis in original).
. Morgan D. King, Between the Charybdis of Biggar and the Scylla of Lamie: How Can a Debtor’s Lawyer Get Paid?, 2004 No. 6 Norton Bankr.L. Adviser 2.
. In re Busetta-Silvia, 314 B.R. 218, 228 (10th Cir. BAP 2004).
. Of course, there are myriad benefits to filing a chapter 13 case, such as the super discharge, § 1303 powers, retention of nonexempt property, and the binding effect of a confirmed Chapter 13 plan.
. In re Paley, 390 B.R. 53, 59 (Bankr.N.D.N.Y. 2008); In re Dicey, 312 B.R. 456, 459-60 (Bankr.D.N.H. 2004); In re Buck, 432 B.R. 13, 21-22 (Bankr.D.Mass. 2010).
. In re Brown, 742 F.3d 1309 (11th Cir. 2014); In re Puffer, 674 F.3d 78 (1st Cir. 2012); Matter of Crager, 691 F.3d 671 (5th Cir. 2012).
. See In re Banks, 545 B.R. 241 (Bankr.N.D.Ill. 2016) (finding special circumstances allowing debtor to file an attorney fee-only Chapter 13 instead of a Chapter 7); In re Wark, 542 B.R. 522 (Bankr,D.Kan. 2015); In re Elkins, 2010 WL 1490585, at *3 (Bankr.E.D.N.C. Apr. 13, 2010) (stating that a Chapter 13 trustee should not summarily object to the presumptive fees in a Chapter 13 case solely because the case is an attorney-fee-only case); In re Molina, 420 B.R. 825, 829-33 (Bankr.D.N.M. 2009); In re Guzman, 345 B.R. 640 (Bankr.E.D.Wis. 2006) (confirming debtors’ plan showing no disposable income); In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C. 2006) (debtors acted in good faith proposing a no projected disposable income plan),
. In re Puffer, 674 F.3d 78 (1st Cir. 2012).
. In re Brown, 742 F.3d 1309 (11th Cir. 2014).
. Matter of Crager, 691 F.3d 671 (5th Cir. 2012).
. In re Arlen, 461 B.R. 550 (Bankr.W.D.Mo. 2011). The Arlen Court found the record devoid of evidence supporting confirmation of an attorney-fee-only plan.
. Wark, 542 B.R. at 527.
. — U.S. -, 134 S.Ct. 1188, 188 L.Ed.2d 146 (2014).
. Daniel J. Sheffner, The Chapter 13 Debtors Absolute Right to Dismiss, 63 Clev. St. L.Rev. 833, 863 (2015).
. See Clanton, supra note 81, at 473.
. Id. at 1318.
. Id. at 1318 n. 7.
. 691 F.3d at 675-76.
. Id. at 675.
. Id.
. 461 B.R. 550.
. Id. at 558.
. 420 B.R. 825.
. Id. at 577-78 (citing In re Sandberg, 433 B.R. 837, 845 (Bankr.D.Kan.201-0)).
. Id. at 578.
.Id. at 531-33.
. The time value of money is the idea that money today is worth more than the same amount of money in the future due to its present earning capacity.
. See Clamon, supra note 81, at 483.
. Ed Flynn, Chapter 13 Case Outcomes by State, 33 Aug. Am. Bankr.Inst. J. 40, 78 (2014),
. See Work, 542 B.R. at 578.
. Flynn, supra note 117, at 41.
. Id. at 76,
. The United States Department of Justice, Chapter 13 Trus tee Data and Statistics, https:// www.justice.gov/ust/private-trustee-data-sta tistics/chapter-13-tmstee-data-and-statistics.
. Flynn, supra note 117, at 76.
. Id. at 76.
. See Claman, supra note 81. at 489-90.
. § 1325(a)(4). See also Claman, supra note 81, at 476 (“[T]he Code doesn’t necessarily require any repayment to unsecured creditors in chapter 13,”).
. In re Bateman, 515 F.3d 272, 279 (4th Cir. 2008) (quoting In re McDonald, 205 F.3d 606, 614 (3d Cir. 2000)).
. See Sheffher, supra note 98, at 863. See also Law v. Siegel, 134 S.Ct. at 1194-97.
. While the Kansas City Division has not established a baseline "no-look” Chapter 13 fee, the Topeka division in In re Beck set the fee for an average Chapter 13 below-median income debtor case at $2,800 "unless the debtor is an ‘above-median debtor,’ ... and unless counsel is required to file, for a repeat filer, a Motion to Extend the Automatic Stay.” 2007 Bankr,LEXIS 517, at *22-28 (Bankr. D.Kan. Feb. 21, 2007). See also Judge Janice Miller Karlin, Professional Fee and Expense Guidelines (January 7, 2010), http://www.ksb. uscourts.gov/index.php/chambers/judge-karlin/312-professional-fee-and-expense-gui delines (last visited Apr. 21, 2016) (the presumptively reasonable fee for an average Chapter 13 case for a below-median income
Reference
- Full Case Name
- IN RE: Daniel Joseph DUGAN and Karen Marie Dresch, Debtors
- Status
- Published