In re Amaya
Opinion of the Court
I. INTRODUCTION
The Southern District of Texas utilizes a Uniform Chapter 13 Plan and Motion for *405Valuation of Collateral across its seven Divisions. In the case sub judice, a secured creditor objects to the debtor's chapter 13 plan on two bases: to wit, (i) the plan's purported failure to provide for fixed and equal payments in accordance with
II. FINDINGS OF FACT
This Court makes the following Findings of Fact and Conclusions of Law pursuant to Fed. R. Bankr. P. 7052, which incorporates Fed. R. Civ. P. 52, and 9014. To the extent that any Finding of Fact constitutes a Conclusion of Law, it is adopted as such. To the extent that any Conclusion of Law constitutes a Finding of Fact, it is adopted as such. This Court made certain oral findings and conclusions on the record. This Memorandum Opinion supplements those findings and conclusions. If there is an inconsistency, this Memorandum Opinion controls.
On July 31, 2017, Evette Amaya ("Debtor ") filed for bankruptcy under title 11, chapter 13 of the United States Bankruptcy Code. ECF No. 1. On Schedule D, Debtor listed, inter alia , a secured claim held by Propel Funding National 1, LLC ("Propel ") in the amount of $23,963.48 secured by Debtor's homestead.
On November 20, 2017, Debtor filed her amended chapter 13 plan ("Plan "), which provisions for two monthly payments in the amount of $1,100.00 and fifty eight monthly payments in the amount of $1,200.00 for total of sixty monthly Plan payments. ECF No. 37. Paragraph 2 of the Plan provides for Debtor's Counsel's administrative priority claim of $2,968.00 to be paid pro-rata from months one through fifty-eight.
On November 21, 2017, Propel filed its Objection to Debtor's Plan ("Objection "). ECF No. 41. Propel grounded its Objection on two points: to wit, (i) the Plan does not provide fixed and equal payments to Propel in accordance with
On November 30, 2017, this Court conducted a hearing on both confirmation of Debtor's Plan and Propel's Objection. Both Debtor and the chapter 13 Trustee ("Trustee ") argued against Propel's Objection and in support of confirmation. Regarding the lien retention language in the Plan, the Parties contemplated filing a motion to include non-standard language in the Plan.
*406After hearing arguments, the Court abated confirmation and ordered briefing from the parties. On December 13, 2017, Propel filed its Brief in Support of its Objection ("Propel's Brief "). ECF No. 48. On January 10, 2018, Debtor filed her Brief in Support of the Plan ("Debtor's Brief "). ECF No. 49. On January 18, 2018, Trustee filed its Brief in Support of Confirmation ("Trustee's Brief "). ECF No. 50. Briefing has now closed and the matter is ripe for consideration.
III. CONCLUSIONS OF LAW
A. Jurisdiction & Venue
This Court holds jurisdiction pursuant to
This Court may only hear a case in which venue is proper.
B. Constitutional Authority to Enter a Final Order
This Court has an independent duty to evaluate whether it has the constitutional authority to sign a final order. Stern v. Marshall ,
C. Debtor's Plan Appropriately Provides for Equal Monthly Payments in Accordance With § 1325(a)(5)(B)(iii)(I)
The overarching question before this Court is whether Debtor's Plan can be confirmed over Propel's Objection, which is two-fold. First, Propel complains that Debtor's Plan fails to provide for "the Lender to receive fixed and equal payments." ECF No. 41. Propel's Objection is based upon the allegation that Debtor's Plan proposal to pay Propel's claim with interest, pro-rata over a period of 58 months rather than in fixed, equal monthly payments from month one, coupled with Trustee's policy of paying administrative claims prior to distributing funds, pro rata, to creditors violates the equal monthly payment requirement of § 1325(a)(5)(B)(iii)(I). This Court must determine whether pro rata payments to Propel distributed after Trustee fully pays administrative claims violate the equal monthly payment requirement of § 1325(a)(5)(B)(iii)(I). See
It is undisputed that a bankruptcy court shall confirm a chapter 13 plan if, inter alia , the plan provides, with respect to each allowed secured claim, that "if the property to be distributed pursuant to this subsection is in the form of periodic payments such payments shall be in equal monthly amounts."
*407
A debtor's attorney fees are considered to be administrative priority claims and have priority above other claims, after claims for domestic support obligations.
The prevailing authority in the Southern District of Texas on the equal payment provision of § 1325 is In re DeSardi . Considering the statutory construction of § 1325(a)(5)(B)(iii)(I), our sister court determined that the equal monthly amount clause "require[s] payments to be equal once they begin, and to continue to be equal until they cease," but does not require equal payments to begin during the first month of the plan. In re DeSardi ,
Here, Debtor's Plan proposes to pay, inter alia , the claims of Debtor's Counsel and Propel from months one through fifty-eight. ECF No. 37. Paragraph 2 of the Plan reads as follows:
From the payments made by the Debtor(s) to the Trustee, the Trustee shall pay in full, all claims entitled to priority under § 507. Payments shall be made in the order of priority set forth in § 507(a) and § 507(b). Payments of equal priority shall be made pro rata to holders of such claims. Priority claims arising under § 503(b)(2) shall be paid only after entry of an order by the Bankruptcy Court approving payment of the claim.
Id. at 2. The Plan explicitly proposes to pay Propel's claim beginning in month one on a pro rata basis. Id. at 7. Propel's Objection stems, in part, from Trustee's policy of paying administrative priority claims in full-such as Debtor's Counsel's claim-prior to paying other creditors. ECF No. 48 at 4. Propel contends that Trustee's policy results in Propel receiving $0.00 for several months until the administrative claims are paid, thereby violating *408the "equal payment" provision of § 1325. Id. Propel argues that the only way to reconcile the "equal payment" provision of § 1325 with the requirement to pay administrative claims of § 1326(b) is to simultaneously pay administrative claims and secured claims beginning at the first month of the Plan. ECF No. 48 at 3-5.
Propel's reconciliation of the Code is erroneous. This Court agrees with our learned sister court and will not read extraneous language into the Code. See In re DeSardi ,
Propel's Objection largely focuses on Trustee's internal distribution procedures. ECF No. 48. Trustee is required to retain plan payments until confirmation-with the exception of adequate protection and ongoing home mortgage payments-and after confirmation "shall distribute any such payment in accordance with the plan as soon as practicable." § 1326(a)(2) (emphasis added). Here, Trustee distributed payments to Debtor's Counsel prior to confirmation and has chosen to utilize a procedure to pay Debtor's Counsel in full up front prior to beginning equal distributions to Propel and other creditors. Trustee is also required to pay any unpaid § 507(a)(2) claim "before or at the time of each payment to creditors under the plan." § 1326(b)(1). The Court will not direct Trustee to distribute plan payments in a rigid manner because of the flexibility of individual chapter 13 plans; however, Trustee must balance her directives under the Code and make distributions in accordance with the terms of a confirmed plan while also ensuring administrative claims receive priority. Compare § 1326(a)(2)with § 1326(b)(1). Irrespective of Trustee's distribution procedures, Debtor's Plan provides for Propel to be paid pro rata in months one through fifty-eight. ECF No. 37 at 7. An objection to confirmation must be based on the actual terms of a chapter 13 plan and not a chapter 13 trustee's internal procedures. See § 1325.
Propel's Objection to Debtor's Plan is also based on Debtor's proposition to distribute on a "pro rata" basis rather than specified, equal monthly payments. ECF No. 41. As discussed above, secured creditors must receive equal monthly payments once the payments begin. In re DeSardi ,
Irrespective of the requirements a debtor must abide by to confirm a plan, the chapter 13 trustee must follow the Code. § 1326(a)(2) ("If a plan is confirmed, the trustee shall distribute any such payment in accordance with the plan as soon as is practicable."). In a chapter 13 bankruptcy, the debtor submits payments to the chapter 13 trustee and "[t]he trustee *409shall make payments to creditors under the plan." § 1326(c). Courts following the reasoning of DeSardi have noted that § 1325(a)(5)(B)(iii) only requires a debtor "to make equal monthly payments to the plan, ... not to a particular creditor." In re Marks ,
For the first two months of Debtor's Plan, Debtor will make equal payments of $1,100.00 to Trustee, and beginning in month three of Debtor's Plan, Debtor will make equal monthly payments of $1,200.00 to Trustee that will continue until month sixty. ECF No. 37 at 1. The Plan pays Debtor's secured creditors throughout the life of the Plan and does not propose a balloon payment. See
Further, this Court agrees with the reasoning in Marks and Butler . Propel's Objection conflates the requirements to confirm a plan with Trustee's duties to distribute payments to creditors. Compare § 1325with § 1326. Trustee is not governed by the requirements of § 1325 when making plan distributions, but rather is governed by § 1326 and is well within the confines of the Code to distribute payments to creditors on a pro-rata basis. See In re Butler ,
D. Debtor's Plan Provides that Propel Shall Retain Its Lien
Additionally, Propel objects to Debtor's Plan because it does not comply with § 1325(a)(5)(B)(i)(II) by providing that Propel shall retain its lien in case Debtor's case is dismissed or converted. At the November 30, 2017 confirmation hearing, the parties contemplated filing a motion for non-standard language to note that creditors shall retain their lien to the extent recognized by applicable nonbankruptcy law if the case is dismissed or converted without completion of the Plan. However, as of the time, Debtor has not filed a motion for non-standard language. Irrespective of the comments made at the confirmation hearing, this Court considers whether the existing language in Debtor's Plan satisfies the requirements of § 1325(a)(5)(B)(i)(II).
A chapter 13 plan shall provide that "if the case ... is dismissed or converted without completion of the plan," the secured creditor shall retain that lien to "the extent recognized by applicable nonbankruptcy law." § 1325(a)(5)(B)(i)(II). Paragraph 8 of Debtor's Plan-which contains treatment of Propel's claim-provides as follows:
Subject to disposition of a timely filed motion to avoid a lien under § 522, or a *410complaint to determine the extent or validity of a lien filed under Fed. R. Bankr. P. 7001, each secured creditor shall retain the lien securing its claim. The lien shall be enforceable to secure payment of the claim the lien secures, as that claim may be modified by the plan. The holder of a claim secured by a valid lien may enforce its lien only pursuant to § 362.
ECF No. 37 at 6 (emphasis added). In this case, Debtor has not filed a motion to avoid Propel's lien nor has she filed an adversary to challenge the extent or validity of Propel's lien. The Court agrees with Propel's contention that a chapter 13 plan must provide that secured creditors retain their lien in accordance with the Code. § 1325(a)(5)(B)(i)(II). However, the Court finds that the existing language in the Plan satisfies the requirements of § 1325(a)(5)(B)(i)(II).
The Plan explicitly states that "each secured creditor shall retain the lien securing its claim." ECF No. 37 at 6. Although Paragraph 8 of the instant Plan does not directly track the language of § 1325(a)(5)(B)(i)(II), the plain language of the Plan requires and ensures that secured creditors retain their liens, which would include Propel retaining its lien in the case of dismissal or conversion. Moreover, the Court shall confirm a plan that "has been proposed in good faith and not by any means forbidden by law." § 1325(a)(3). Debtor's Plan proposes that secured creditors retain their liens in accordance with the Code and therefore does not propose anything forbidden by law. ECF No. 37 at 6. There is no evidence-nor does Propel suggest-that Debtor filed her Plan in bad faith. Therefore, this Court finds that Propel's Objection should be overruled because Debtor's Plan satisfies the requirement of § 1325(a)(5)(B)(i)(II).
IV. CONCLUSION
Each time a chapter 13 plan is brought before this Court, the Court is tasked with determining whether the plan complies with the requirements of the Code. In this case, Propel objected to Debtor's Plan on the basis that it did not comply with the requirements of § 1325(a)(5)(B)(iii)(I) and § 1325(a)(5)(B)(i)(II), respectively. This Court found that the Plan satisfies the equal monthly payment requirement of § 1325(a)(5)(B)(iii)(I) by provisioning for pro rata payments to secured creditors. Further, this Court found that the Plan adequately provides that Propel-and all other secured creditors-retain their lien in accordance with § 1325(a)(5)(B)(i)(II). Thus, Debtor's Plan complies with the requirements of § 1325 and this Court must confirm the Plan. In re Foster ,
An Order consistent with this Memorandum Opinion will be entered on the docket simultaneously herewith.
"[A] proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case."
Reference
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- IN RE: Evette AMAYA, Debtor
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