In re Kane
In re Kane
Opinion of the Court
Debtor Ronald Martin Kane has general unsecured debt that has reached an impressive amount: $193,741.46. Over sixty six percent of that large number-$128,612.02-is nondischargeable student loan debt. Debtor has proposed a Chapter 13 repayment plan that pays his student loan debt after his administrative expenses and secured and priority creditors, but before other unsecured creditors. In other words, Debtor proposes treating his student loans as a special class that will be paid in advance of his other general unsecured debt. The Chapter 13 Trustee, Jan Hamilton, objects to Debtor's proposal.
The Court concludes that Debtor's proposed discrimination in favor of his student loan claims is "unfair" discrimination under
I. Background and Procedural History
Debtor filed his Chapter 13 bankruptcy petition on February 27, 2019, and his proposed Chapter 13 payment plan the same date. Debtor's Schedule A/B included a 2014 Ford F150, valued at $24,500, various other household supplies and firearms, and a personal injury claim being handled by an attorney separate from his bankruptcy counsel. Debtor listed secured debt of $31,000 to GM Financial for the Ford F150 and $1000 to Mattress Firm for a mattress/bed set.
*493Debtor's proposed plan is for a monthly payment of $3000 per month, which Debtor proposes will pay attorney's fees, the filing fee, the priority taxes, and the debts to GM Financial on the Ford F150 and to Mattress Firm on the mattress/bed set. Debtor's plan then includes the following non-standard provision: "Section 14 General Unsecured Creditors. Student loans will be paid without interest and after administrative expenses, secured and priority creditors in advance of other unsecured creditors."
The Trustee objected to Debtor's plan on April 2, 2019 based on unfair discrimination among classes within the plan ( § 1322(b)(1) ) and other grounds. The parties have briefed only the unfair discrimination issue and the Court therefore confines its consideration to that objection.
On April 16, 2019, the IRS filed an amended proof of claim, and that amended claim differs substantially from Debtor's projections at filing. The IRS claims a total owed of $60,562.38, of which $3881.75 is secured bearing interest at 6% annually, $3272.75 is priority, and $52,407.89 is general unsecured. A claim for $128,612.02 from the student loan creditor has been filed. This amount is also different than Debtor's estimate at filing. The Trustee calculates Debtor's total "pool" amount to be paid to general unsecured creditors as $137,625.80.
Assuming payments at $3370 per month, the Trustee calculates that if Debtor's student loan claims are paid pro rata along with other general unsecured claims, the pro rata share to all unsecured claims would be 71.03%, the student loan creditor would receive approximately $91,362.47, and the other general unsecured claimants would share the balance of approximately $46,263.33. If, however, the student loan is paid 100% from the net pool before any funds go to the other general unsecured creditors as Debtor proposes, then only $9013.78 would be paid to general unsecured creditors, or approximately 13.84%. The difference between the 71.03% dividend and the 13.84% dividend is $37,249.55. Debtor does not challenge these calculations from the Trustee in his response brief.
II. Analysis
Plan confirmation is a contested matter, and a core proceeding over which this Court may exercise subject matter jurisdiction.
A. Unfair Discrimination
Section 1322(b)(1) permits a plan to designate classes of unsecured claims, as long as the plan does "not discriminate unfairly against any class so designated." In other words, the Code "permits the designation of separate classes of unsecured claims and different treatment of the separate classes, as long as the classification does not cause 'unfair' discrimination."
The Code does not define "unfair" discrimination. This Court has recently considered the issue in In re Salazar .
The Court in Salazar first addressed the two main tests that have been used to determine whether proposed discrimination in a plan is fair: the Leser/Wolff
In In re Knowles ,
'When a plan prescribes different treatment for two classes but, despite the differences, offers to each class benefits and burdens that are equivalent to those it would receive at the [statutory] baseline, then the discrimination is fair. On the other hand, when the discrimination alters the allocation of benefits and burdens to the detriment of one class, the discrimination is unfair and prohibited.'24
Ultimately, the court in Knowles concluded that it was not unfair discrimination for an above-median debtor to make direct payments to student loan creditors from discretionary income the Bankruptcy Code did not require them to pay into their plan.
Applying the Bentley test, this Court in Salazar determined that the debtor's proposed discrimination therein was unfair.
Finally, this Court in Salazar considered a comparison of what the debtor's general unsecured creditors would receive if the discrimination were not permitted, and noted that the debtor's proposal to not pay general unsecured creditors pro rata was an effort "to rearrange the priorities Congress established in Chapter 13," which was "simply not permissible."
*496While it is true that the requirement for the Debtor's other nonpriority unsecured creditors to share pro rata with her student loan creditor in any distributions that may be available from the contributions Chapter 13 requires her to make to her plan will leave her owing a larger student loan debt if she completes her plan than she would owe if her proposal were accepted, this is a consequence of Congress's clear decision to make student loans nondischargeable, but to not make them priority claims.31
The Court expressed sympathy for the debtor's plight in Salazar , but acknowledged only Congress could change what the current system required of debtors.
B. Case Law in this District Since Salazar: In re Engen
Since this Judge issued the decision in Salazar , a fellow Judge of this Court has issued a decision in a similar case but found no unfair discrimination, and it is this newer decision that Debtor rests his argument on. In In re Engen ,
The Court in Engen discussed the presumed nondischargeability of student loans in bankruptcy, and the potential pitfalls that can cause,
Although the decisions are fairly uniform against separate classification,
C. Application to Debtor's Proposed Plan
Debtor proposes to pay his student loan creditors before his other general unsecured debt: he proposes to pay the student loan in full, but pay only an approximately fourteen percent dividend to his other general unsecured creditors. The differences are fairly stark in this case: if Debtor were to pay all unsecured claims pro rata, then the pro rata share to all unsecured claims would be seventy one percent. If, however, the student loan is paid one hundred percent from the net pool before any funds go to the other general unsecured creditors, as Debtor proposes, then, as stated above, general unsecured creditors would receive about a fourteen percent dividend.
The following are the factors addressed in Bentley for analyzing Debtor's proposed discrimination: "(1) equality of distribution; (2) nonpriority of student loans; (3) mandatory versus optional contributions (a comparison of what the dischargeable unsecured creditors would receive in a pro rata distribution of the mandatory contribution under chapter 13); and (4) the debtor's fresh start."
Obviously, regarding the first factor and third factor, there is no equality of distribution herein and no additional funds contributed beyond what is required by the Code. The difference between the distribution caused by the proposed discrimination is the difference between a seventy one percent distribution and a fourteen percent distribution. Unlike in this case, it is this factor that swayed the Court in Engen : the debtor therein had made substantial payments to the general unsecured debt that was being discriminated against by the debtor's plan. That is simply not the situation herein. Debtor asks why this should matter? But it matters because it means there is nothing equalizing distribution in this case, and therefore this factor weighs in favor of finding unfair discrimination.
Regarding the second factor, as discussed in Salazar , Congress, however wisely, has chosen to make student loans nonpriority debt, despite being presumptively nondischargeable. As a result, there is nothing in the Code that justifies treating the student loan claims more favorably than other claims, and the second Bentley *498factor therefore weighs in favor of finding unfair discrimination as well.
The fourth factor asks for an analysis of the debtor's fresh start post-bankruptcy. Debtor's student loans are presumptively nondischargeable in his Chapter 13 case. As the Court noted in Engen , adversary proceedings seeking an undue hardship discharge of student loans under § 523(a)(8) are "expensive," "demanding," and "challenging and confusing for debtors."
The balance of the four factors, however, shows that the proposed discrimination in favor of Debtor's student loan claims cannot be permitted under the current Code. As the Court stated in Bentley , when proposed discrimination "alters the allocation of benefits and burdens to the detriment of one class, the discrimination is unfair and prohibited."
III. Conclusion
The Trustee's objection to confirmation of Debtor's plan on the basis of unfair discrimination under § 1322(b)(1) is sustained. Debtor has not carried his burden to show his current plan is confirmable. Debtor should file an amended Chapter 13 plan conforming to the holding of this Opinion within twenty-one days.
It is so Ordered .
Debtor appears by Frank Taff, and the Chapter 13 Trustee appears personally.
All future statutory references will be to title 11 of the United States Code, unless otherwise specified.
Debtor listed the debt to Mattress Firm as "lease to own." On Schedule G, Debtor then elaborated that the parties have a one-year lease-to-own contract, and Debtor should complete his payments within six months.
A plan's "applicable commitment period" is defined by § 1325(b)(4) and requires three years of payments of the debtor's "projected disposable income" unless the debtor's current monthly income is higher than the median family income for a household of similar size. Debtor's income is above median, and his applicable commitment period is, therefore, five years.
Doc. 2 p. 6.
§ 1325(b)(2)(A)-(B). Because the Trustee has objected to Debtor's proposed plan, Debtor's plan may not be confirmed unless "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." § 1325(b)(1)(B). The Trustee reports in his brief that he does not contest Debtor's plan calculation of $1975 for the best interest of creditor's test. § 1325(a)(4).
This Court has jurisdiction pursuant to
Alexander v. Hardeman (In re Alexander) ,
In re Knowles ,
The Leser/Wolff test is named for Mickelson v. Leser (In re Leser) ,
Bentley v. Boyajian (In re Bentley ),
Id. at 673-74.
Id. at 674.
Id. at 416 (quoting In re Bentley ,
Id. at 413-14.
In re Salazar ,
There are far too many cases addressing the same issue as herein to detail them all here. But in general, the decisions issued after appeal have uniformly rejected the proposal. See, e.g. , Groves v. LaBarge (In re Groves) ,
In re Knowles ,
In re Engen ,
In re Bentley ,
Reference
- Full Case Name
- IN RE: Ronald Martin KANE, Debtor.
- Cited By
- 7 cases
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- Published