In re Zisumbo
In re Zisumbo
Opinion of the Court
MEMORANDUM DECISION
The matters before the Court are Alicia Zisumbo’s Motion to Sell Property and Pay Off Remaining Balance of the Chapter 13 Plan (the “Zisumbo Motion”) and the Chapter 13 Trustee’s Motion to Modify the Plan of Ryan Craig Brumfield and Sandra Marie Brumfield (the “Brumfield Motion”). On August 4, 2014, Sarah Olson appeared on behalf of the Chapter 13 Trustee (the “Trustee”), Jeremy McCullough appeared on behalf of the Brumfields, and Aaron Nilsen appeared on behalf of Ms. Zisumbo. The issue in both cases is whether inheritances received postconfirmation by Ms. Zisumbo and the Brumfields (collectively the “Debtors”) are property of the respective bankruptcy estates.
The Court has heard oral argument, read the submissions of the parties, and conducted its own independent research. Based on this, the Court issues the following Memorandum Decision, which constitutes the Court’s findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, made applicable to these matters by Federal Rules of Bankruptcy Procedure 9014 and 7052.
I. JURISDICTION’ NOTICE, AND VENUE
The Court has jurisdiction over these contested matters pursuant to 28 U.S.C. § § 1334(a) and 157. The matters are core proceedings under 28 U.S.C. § 157(b)(2)(A). Venue is appropriately laid in this District under 28 U.S.C. §§ 1408 and 1409. Notice of the hearing was properly given in all respects.
II. BACKGROUND
The parties submitted statements of uncontested facts.
A. Ms. Zisumbo
Ms. Zisumbo filed for Chapter 13 relief on November 16, 2010.
Over a year after the date of petition, Ms. Zisumbo’s mother passed away on February 7, 2012.
In the Zisumbo Motion, Ms. Zisumbo requested, inter alia, authorization to pay off the remaining balance of her plan in the approximate amount of $6,079,
B. The Brumfields
Ryan Craig Brumfield and Sandra Marie Brumfield filed a Chapter 13 petition on April 8, 2011.
In December 2012,
In January 2014, Mr. Brumfield, one of the Debtor’s herein, passed away, and Ms. Brumfield, as a beneficiary of the term life insurance policies of Mr. Brumfield, re- • ceived $300,000.
Unlike Ms. Zisumbo’s Chapter 13 plan, under which plan payments have yet to be completed, Ms. Brumfield made the last plan payment under her confirmed Chapter 13 plan in April 2014.
III. DISCUSSION
These cases require an analysis of the plain meaning and interpretation of several Chapter 13 provisions. The provisions may seem at odds with one another; however, the Court believes its analysis herein harmonizes the potential conflict.
The Trustee first argues that the Zisumbo Motion should be treated as a motion to modify the plan under § 1329(a). Under § 1329(a), a Chapter 13 plan may be modified by the debtor to reduce the time for plan payments.
The Trustee next contends that the inheritances received by both Ms. Zisumbo and the Brumfields (collectively the “Debtors”) are property of the estate under 11 U.S.C. § 1306(a)(1).
The Debtors contend that the inheritances are not property of their respective bankruptcy estates because the property of the estates vested in the Debtors upon confirmation of their Chapter 13 plans pursuant to § 1327(b) and the confirmation orders. The Brumfields further argue that even if § 1306(a)(1) provides that the inheritance is property of the estate, the Brumfield Motion was untimely under § 1329(a) because the Brumfields made the final plan payment before the Trustee filed his motion.
The Court will first address the interplay between §§ 1306(a) and 1327(b) and then address if and how the respective Chapter 13 plans can be modified.
A. Sections 1306(a) and 1327(b)
The first issue raised by the Debtors is whether the- inheritances received more than 180 days after the date of petition are property of the Chapter 13 estates. Section 541(a)(5) provides that property of the estate includes any interest in property that a debtor “acquires or becomes entitled to acquire within 180 days after” or on the date of filing the petition.
In reaching this conclusion, the Court finds guidance from the Tenth Circuit Bankruptcy Appellate Panel (the “Tenth Circuit BAP”). The Tenth Circuit BAP explained in In re Vannordstrand that § 1306(a) “broadens the definition of estate property” to include any property specified in § 541 before the case is closed,
The more difficult issue presented, however, is the interplay between §§ 1306(a) and 1327(b). The Tenth Circuit Court of Appeals and the Tenth Circuit BAP have not directly ruled on the issue.
Although § 1306(a) provides that property received after the date of petition but before the closure, dismissal, or conversion of the case is property of the Chapter 13 estate, some courts have read the vesting provision of § 1327(b) to extinguish the Chapter 13 estate, thus rendering § 1306(a) inoperable unless otherwise provided for in the plan.
Sections 1306(a) and 1327(b) are part of a larger statutory scheme, the Bankruptcy Code. “[Statutory language cannot be construed in a vacuum.”
The Court also disagrees with the estate preservation approach and the estate transformation approach. Basic statutory interpretation requires that a statute not be construed, if possible, to render any portion of it inoperable.
In the view of this Court, the modified estate preservation approach provides the most harmonious reading of §§ 1306(a) and 1327(b). Under this approach, upon confirmation, unless otherwise provided for in the plan, the property of the Chapter 13 estate vests in the debtor free and clear of any liens pursuant to § 1327(b) and (c). This vesting, however, does not extinguish the Chapter 13 estate. Pursuant to § 1306(a), the Chapter 13 estate continues and is augmented by property acquired after confirmation until the closure, dismissal, or conversion of the case. As quoted by the Eleventh Circuit in In re Waldron, which is persuasive with the Court, “[i]f Congress had intended for confirmation to so dramatically affect the expansive definition of property of the estate found in [section] 1306, it knew how to draft such a provision.”
The Debtors argue, relying on In re Richardson,
Section 1329(a) provides in part: “At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified.” Any modification must satisfy the requirements of § 1325(a).
Different from the Zisumbo Motion, the Brumfield Motion was filed after the completion of plan payments. Here, the timing becomes critical. The Trustee argues that the language “completion of payments under such plan” provided in § 1329(a) is not satisfied until the Trustee submits his Notice of Completed Plan Payments and the Brumfields file a verification and request for discharge. He further argues that the Brumfields should not be shielded from a modification of then-plan because they delayed in filing an amended schedule B to disclose the inheritance. The Trustee noted at oral argument that a phone call was received from the Brumfields’ counsel potentially over two months before the amended schedule B was filed, but he argues that his office needed time to assess the character of the disclosure. The Trustee made no further argument regarding equitable tolling and why it should be applied in ruling on the Brumfield Motion.
The plain reading of § 1329(a) unambiguously provides that any modification must be before the completion of payments under the plan, not when the Trustee submits a Notice of Completed Plan Payments or the debtor seeks a verification and request for a discharge. Here, the Brumfield Motion was filed after the completion of plan payments. Based on the plain language of the statute, the plan cannot be modified.
This stated, a debtor has a duty to disclose when he or she receives post-petition assets specified under § 541(a)(5), which includes an inheritance.
On the other hand, the Trustee did not file the Brumfield Motion until June 2014, which was approximately three months after the final payment on the Brumfields’ 36-month plan and approximately four months after Ms. Brumfield filed the
IV. CONCLUSION
Based on the foregoing, the Zisum-bo Motion should be treated as a motion to modify her plan, and the Court determines that the inheritance received more than 180 days after plan confirmation is property of the Chapter 13 estate. As a result, and in addition to what the Court has already done in approving the sale, Ms. Zisumbo should turn over to the Trustee all funds from the proceeds of the sale now held in trust to the extent the funds are required to pay all allowed unsecured claims in full. However, the Brumfield Motion should be deemed untimely and denied.
. Any of the findings of fact herein are also deemed to be conclusions of law, and any conclusions of law herein are also deemed to be findings of fact, and they shall be equally binding as both.
. Case No. 10-35907 (Docket 47) and Case No. 11-25031 (Docket 41).
. Case No. 10-35907 (Docket 1).
. Case No. 10-35907 (Docket 11 and 13). The 60-month plan base is whatever amount accumulates through monthly plan payments and tax refunds as provided for in the plan.
. Case No. 10-35907 (Docket 47, ¶ 7).
. Case No. 10-35907 (Docket 13, ¶ 22).
. Case No. 10-35907 (Docket 47, ¶ 12).
. Id. ¶ 13.
. Id. ¶ 14.
. Case No. 10-35907 (Docket 45, ¶ 3)..
. Id.
. Id. ¶ 4-5.
. Case No. 10-35907 (Docket 29).
. Id.
. Case No. 10-35907 (Docket 47, ¶ 7).
. Case No. 10-35907 (Docket 47, ¶ 10 and Docket 44).
. Case No. 11-25031 (Docket 1).
. Case No. 11-25031 (Docket 6 and 16). The plan was confirmed without a hearing pursuant to Local Rule 2083-1 (j)(3).
. Id. ¶ 10.
. Case No. 11-25031 (Docket 41, ¶ 11).
. Case No. 11-25031 (Docket 16, ¶ 26).
. Case No. 11-25031 (Docket 41, ¶ 12).
. Id. ¶ 13.
. The record is not entirely clear whether Mr. Brumfield’s mother passed away in December 2012 or 2013, but the stipulated facts, which no party has contested, provide that she passed away in December 2012. Therefore, the Court uses that date. Whether Mr. Brumfield’s mother passed away in 2012 or 2013 does not affect the outcome of the Court's analysis.
. Case No. 11-25031 (Docket 41, ¶ 4).
. Id. ¶ 7. The Court notes that the Brum-fields’ case continues pursuant to Federal Rule of Bankruptcy Procedure 1016.
. Case No. 11-25031 (Docket 34).
. Id.
. Case No. 11-25031 (Docket 41, ¶ 15).
. Case No. 11-25031 (Docket 35).
. Section 1329(a)(2).
. All subsequent references are to Title 11 of the Untied States Code unless otherwise specified.
. Section 541(a)(5) (emphasis added).
. Section 1306(a) (emphasis added).
. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) ("[I]t is a commonplace of statutory construction that the specific governs the general.”).
.See HCSC-Laundry v. United States, 450 U.S. 1, 6, 101 S.Ct. 836, 67 L.Ed.2d 1 (1981) (explaining that the specific governs the general, especially when the statutes are “interrelated and closely positioned”).
. Vannordstrand v. Hamilton (In re Vannordstrand), Nos. KS-05-091, 02-40431-13, 2007 WL 283076, at *1 (10th Cir. BAP Jan. 31, 2007).
. See also Carroll v. Logan, 735 F.3d 147, 151 (4th Cir. 2013) (“The statutes' plain language manifests Congress’s intent to expand the estate for Chapter 13 purposes by capturing the types, or ‘kind,’ of property described in Section 541 (such as bequests, devises, and inheritances), but not the 180-day temporal restriction.”).
. See United States v. Richman (In re Talbot), 124 F.3d 1201, 1207 n. 5 (10th Cir. 1997) ("This court notes that contrary to the assertions of the IRS and the acquiescence of the Trustee, it is not without question that the vesting provisions of § 1327(b) operate to grant absolute 'ownership' of estate property to the debtor upon confirmation of a Chapter 13 plan.”); see also In re Vannordstrand, 2007 WL 283076, at *2 (noting that because the Chapter 13 plan at issue provided for a delay in vesting until discharge, the court could "affirm the bankruptcy court without deciding whether vesting under § 1327(b) is equivalent to ownership”).
. In re Vannordstrand, 2007 WL 283076, at *2.
. Case No. 10-35907 (Docket 13, ¶ 22) and Case No. 11-25031 (Docket 16, ¶26).
. See Oliver v. Toth (In re Toth) 193 B.R. 992, 996 (Bankr.N.D.Ga. 1996) (holding that after-acquired property did not become property of the estate because § 1327 ends the Chapter 13 estate).
. Security Bank of Marshalltown v. Neiman, 1 F.3d 687, 691 (8th Cir. 1993) ("[T]he clear language of § 1306 demonstrates that confirmation of a Chapter 13 plan is not relevant to determining whether property is or is not property of the estate. The relevant events in this determination are commencement of the case and either dismissal, closing or conversion of the case.”) (quoting In re Aneiro, 72 B.R. 424; 428-29 (Bankr.S.D.Cal. 1987)).
. Black v. U.S. Postal Serv. (In re Heath), 115 F.3d 521, 524 (7th Cir. 1997) (addressing the
. See Waldron v. Brown (In re Waldron), 536 F.3d 1239 (11th Cir. 2008); Barbosa v. Solomon, 235 F.3d 31 (1st Cir. 2000).
. Section 1327(c) provides that "the property vesting in the debtor under [§ 1327(b)] is free and clear of any claim or interest of any creditor provided for. by the plan.”
. See, e.g., Barbosa, 235 F.3d at 37 ("The estate does not cease to exist however, and it continues to be funded by the Debtors' regular income and post-petition assets as specified in section 1306(a).”).
. Davis v. Mich. Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989); see also United States v. Hinckley 550 F.3d 926, 933-34 (10th Cir. 2008) ("[W]e must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.”) (quoting U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993)).
. Section 1307(a).
. See TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ("It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”) (internal quotation marks and citation omitted).
. Hamilton v. Lanning, 560 U.S. 505, 513, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010) ("When terms used in a statute are undefined, we give them their ordinary meaning.”) (quotations and citation omitted).
. Black’s Law Dictionary (9th ed. 2009).
. Davis, 489 U.S. at 809, 109 S.Ct. 1500.
. In re Waldron, 536 F.3d 1239, 1242 (11th Cir. 2008) (quoting Sec. Bank v. Neiman, 1 F.3d 687, 689-91 (8th Cir. 1993)).
. In re Richardson, 283 B.R. 783 (Bankr.D.Kan. 2002).
. ' Section 1329(b)(1).
. Ms. Zisumbo did not argue that § 1325(a)(4) does not apply to a modified plan. However, in this case, the Court follows the majority of cases that find the "effective date of the plan,” as provided in § 1325(a)(4) and as referenced in § 1329(b)(1), is the date of the modification. See, e.g., In re Auernheimer, 437 B.R. 405, 408-409 (Bankr.D.Kan. 2010).
. Fed. R. Bankr.P. 1007(h).
. Id.
Reference
- Full Case Name
- In re Alicia ZISUMBO, Debtor. In re Ryan Craig Brumfield and Sandra Marie Brumfield, Debtors
- Cited By
- 4 cases
- Status
- Published