In re Smith
Opinion of the Court
Before the Court is the confirmation of Debtor's Chapter 13 Plan (Doc. No. 28) and the objection thereto (Doc. No. 29) filed by the holder of a secured claim. For the following reasons, confirmation of the Plan is DENIED .
I. Jurisdiction, Core Status and Judicial Power to Enter this Order
This Court has jurisdiction over this matter pursuant to
The Supreme Court's ruling in Stern v. Marshall,
The Supreme Court has made clear that an order denying confirmation of *378a proposed Chapter 13 plan is not a final order. Bullard v. Blue Hills Bank, --- U.S. ----,
II. Procedural Background
On May 31, 2018 (the "Petition Date "), James Smith, Jr. ("Debtor ") filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code (Doc. 1). On June 12, 2018, Debtor filed his Chapter 13 plan (Doc. 9). After objections were raised by the Trustee (Docs. 19, 20), Debtor filed an Amended Plan (Doc. 23). After subsequent objections by both the Trustee (Doc. 27) and JPMorgan Chase Bank, National Association ("Creditor ") (Doc. 26), Debtor filed a second Amended Plan (Document No. 28). Creditor once again objected (Doc. 29) to confirmation of the Plan because it provided for an interest rate (6.75%) less than the contractual rate (9.25%) on Debtor's principal residence and the proposed interest rate is less than the presumptive rate contemplated by the Supreme Court's holding in Till v. SCS Credit Corp.,
Creditor's claim of approximately $11,000 (Claim No. 6) is secured by a first-priority mortgage on Debtor's principal residence valued at approximately $95,000 as evidenced by Debtor's schedules. (Doc. No. 8). Debtor's loan is scheduled to mature on May 1, 2022, and the final payment under Debtor's sixty (60) month Plan is scheduled for May 1, 2023. (Doc. 32). As a result, it is undisputed that: (1) Creditor is the holder of over-secured claim because the value of the collateral far exceeds the amount of the debt; and (2) Debtor's last payment on the original payment schedule is due to Creditor before the due date of the last payment under the Plan.
Creditor objected to the confirmation of the Plan on two grounds. First, Creditor argued it is entitled to its contractual interest rate (9.25%) from the Petition Date through the confirmation date pursuant to the provisions of § 506(b) of the Bankruptcy Code. Second, Creditor argued it is entitled to the Till interest rate as calculated on the confirmation date rather than the Petition Date. Importantly, Creditor did not challenge Debtor's "prime plus" formula used to calculate the Till rate (national prime rate plus 2%). Instead, with respect to the calculation of the Till rate, Creditor's sole objection was that Debtor used the wrong date. In this case, the date used for calculating the Till rate is significant because the prime rate increased after the Petition Date. Because the prime rate as of the Petition Date and the prime rate as of the confirmation date are different, the Court must determine which of these two dates to use-or whether to use some other date to calculate the cramdown interest rate under Till .
III. Analysis
For the reasons set forth below, this Court holds: (i) pursuant to the provisions of § 506(b) of the Bankruptcy Code, a secured creditor is entitled to the allowance of its contractual rate of interest from the Petition Date until the day before the confirmation date; and (ii) pursuant to the provisions of § 1325(a)(5)(B)(ii) of the Bankruptcy Code, a debtor may modify a secured creditor's rights, including the *379contractual interest rate, as of the date of the entry of the confirmation order.
1. Anti-Modifications provisions of § 1322(b) do not apply in this case .
Ordinarily, a chapter 13 debtor may not modify the contractual interest rate on a home mortgage through a confirmed plan because the Bankruptcy Code provides that a debtor's plan may "modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence."
[T]he last payment on the original payment schedule for a claim secured only by a security interest in real property that is the debtor's principal residence is due before the date on which the final payment under the plan is due, the plan may provide for the payment of the claim as modified pursuant to Section 1325(a)(5).
11. U.S.C. § 1322(c)(2).
In this case, all parties agree that the exception to the exception under § 1322(c)(2) applies which permits Debtor to modify the contractual interest rate on his home mortgage through a confirmed chapter 13 plan pursuant to § 1325(a)(5).
2. Cramdown confirmation standards
As noted by the Supreme Court, in order to obtain confirmation of a Chapter 13 plan, "the plan must accommodate each allowed secured creditor in one of three ways: (1) by obtaining the creditor's acceptance of the plan [
A debtor opting for the cramdown option must satisfy three (3) requirements imposed by § 1325(a)(5)(B). These are that the plan provide: (1) that the holder of a secured claim retain its lien until "payment of the underlying debt ... or discharge under Section 1328," (2) that payment on the debt be made in "equal monthly amounts," and (3) that the plan may be confirmed with respect to an allowed secured claim if "the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim."
In this case, Debtor's Plan satisfies the first two requirements of § 1325(a)(5)(B). The question is whether the Plan satisfies the third requirement mandating that it provide for the present value of the claim on the effective date of the Plan.
3. The Till rate should be calculated as of the Confirmation Date
In Till, the Supreme Court mandated a prime-plus formula for interest *380rates in the case of cramming down a claim. Such an approach begins with the national prime rate and then adjusts that rate, typically upwards, on account of the risk of nonpayment. This modified prime-plus approach is often described as the " Till rate."
Determination of the cramdown interest rate is governed by the cramdown provision in the Bankruptcy Code which reads as follows: "...[T]he court shall confirm a plan if ... with respect to each allowed secured claim provided for by the plan-the plan provides that ... the value, as of the effective date of the plan , of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim ...."
By its terms, § 1325(a)(5)(B)(ii) focuses on the value of property as of the effective date of the Plan. In re Texas Grand Prairie Hotel Realty, L.L.C.,
In the case at bar, Debtor interprets the phrase "as of the effective date of the plan" as used in § 1325(a)(5)(B)(ii) to mean the petition date. This Court rejects Debtor's interpretation. The Court concludes that a plan must be confirmed before it can have an effective date. The plan is not "effective" until it is confirmed, as § 1327 "Effect of Confirmation" clearly implies. While confirmation and the "effective date of the plan" may not always be the same date (which is commonplace in a Chapter 11 Plan), confirmation must happen first. To choose the petition date as the "effective date" would be to give effect to the plan before it has been confirmed, something the Bankruptcy Code does not permit.
Interpretation of the Bankruptcy Code "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enters., Inc. ,
Courts and commentators have generally agreed that for purposes of applying the cramdown provision of § 1325(a)(5)(B)(ii), the phrase "effective date of the plan" means the confirmation date.
*381Rake v. Wade ,
Although the instant case deals with the meaning of the phrase "effective date of the plan" as used in the cramdown provision of the Bankruptcy Code, § 1325(a)(5)(B)(ii), other courts have confronted the meaning of that same phrase as used in different provisions of the Code. For example, when applying the "disposable income test" of § 1325(b)(1)(B), the Supreme Court interpreted the meaning of the phrase "as of the effective date of the plan" to mean the date the plan is confirmed and becomes binding. Hamilton v. Lanning,
Notwithstanding the lack of uniformity of interpretation of the phrase "effective date of the plan" for the best-interests-of-creditors-test, this Court holds that for purposes of applying the cramdown provision of § 1325(a)(5)(B)(ii), the phrase "effective date of the plan" means the date the confirmation order is entered.
*3824. Oversecured creditor is entitled to contract rate of interest from the Petition Date until the "effective date" of the Plan
Having determined that the Till rate should be calculated as of the effective date of the Plan and that the Plan is not effective until the date it is confirmed, the Court now directs its attention to the determination of the proper interest rate between the Petition Date and the confirmation date. This is often referred to as "pendency interest" because it deals with the accrual of interest during the pre-confirmation pendency of the bankruptcy case.
In this case, there is no question that Creditor is oversecured. Section 506(b) provides that an oversecured creditor is entitled to interest on its claims. It is settled law in the Fifth Circuit that an oversecured creditor is entitled to the allowance of contract interest rates during the pendency of the bankruptcy case from the petition date until the effective date of the plan. In re Laymon,
Although the Fifth Circuit has dealt with pendency interest in the context of Chapter 11 cases, other Circuits have applied §§ 506(b) and 1325 together, and they have concluded those sections mean that contractual interest accrues under § 506(b) only until confirmation of the plan and upon confirmation of the plan, the cramdown interest rate calculated under § 1325(a)(5)(B) applies. In re Garner ,
Pursuant to the provisions of § 506(b), an oversecured creditor is entitled to the "benefit of his bargain" from a debtor until a confirmed plan becomes effective. Prior to the effective date of the plan, § 506(b) requires that a debtor pay the contract rate of interest-thus the secured creditor gets the benefit of its bargain, because if the creditor did not receive its prepetition interest rate on an oversecured claim, it *383would result in a windfall to a debtor holding the equity position. Upon the effective date of the plan, a new bargain is made through the cramdown provision of the Bankruptcy Code, and § 1325(a)(5)(C)(ii) requires that a creditor simply receive the "present value" of its secured claim for a cramdown confirmation to succeed.
IV. Conclusion
Pursuant to § 506(b) of the Bankruptcy Code, an oversecured creditor is entitled to the allowance of its contractual interest rate after the filing of the petition but prior to the date of the entry of the confirmation order (the pendency period). In this case, the Plan failed to provide for the payment of the contractual rate of interest on Creditor's claim during the pendency period.
Once a debtor invokes the cramdown power of § 1325(a)(5) of the Bankruptcy Code, a secured creditor's rights, including the contractual interest rate, are subject to modification as of the effective date of the plan. For purposes of § 1325(a)(5)(B)(ii) of the Bankruptcy Code, the effective date of the plan means the date the confirmation order is entered. In this case, Till bars Debtor from obtaining confirmation of the Plan because the proposed cramdown rate of 6.75% relied on the prime rate as of the petition date instead of the date the confirmation order is entered. Therefore, Debtor did not satisfy § 1325(a)(5)(B)(ii).
ACCORDINGLY, IT IS ORDERED that Debtor's request for confirmation of the chapter 13 Plan is denied without prejudice to Debtor filing an amended plan within 14 days of the entry of this Order that proposes to pay Creditor the contractual rate during the pendency period and the Till rate calculated as of the date of the entry of the confirmation order. Assuming the Court confirms a Plan, the effective date of the Plan will be the date of the entry of the confirmation order. Because no one knows what the prime rate will be on that date, the Plan will need to be further modified to reflect the change in the prime rate if another change occurs by that date.
SO ORDERED.
Technically, the effective date is the date the confirmation order becomes final. However, for purposes of implementing § 1325(a)(5)(B)(ii), the effective date is the date the order is entered confirming the plan which, in most cases, is the date of the confirmation hearing.
Reference
- Full Case Name
- IN RE: James SMITH, Jr., Debtor
- Cited By
- 2 cases
- Status
- Published