In re Niday
In re Niday
Opinion of the Court
MEMORANDUM DECISION
Although a number of motions and other pleadings are before the Court,
Does the [2005] amendment to section 1325(b) [of the Bankruptcy Code] prohibit debtors operating under a confirmed 36-month plan from receiving a prompt discharge upon early payment of the full amount due under the plan? The question assumes that the debtors are otherwise qualified for discharge, and that unsecured creditors are to receive a dividend of less than 100%.
Does a Chapter 13 below median income debtor now have the unqualified right to pay off early the remaining payments due under the terms of a confirmed plan providing for payments over a term of thirty-six months when the total of such remaining payments would be insufficient to pay all allowed unsecured claims in full?
For the reasons stated below, this Court concludes that there is no such unqualified right, but that such a debtor may seek modification of the confirmed plan for that purpose under the provisions of Code § 1329. This written decision follows the Court’s announcement of an oral ruling to the same effect in open court on August 12, 2013 after hearing the arguments of counsel. On August 21, 2013 the Chapter 13 Trustee filed a Motion to Modify the Plan which is not presently before the Court for decision.
A brief summary of the factual background of the present dispute may be helpful. The Debtors’ financial difficulties stem from their decision in 2002 to purchase and operate a business known as Night and Day, LLC. At that time they had accumulated, apparently, some significant assets which were reflected in a financial statement dated January 31, 2002 as having a net value of $499,000. They elected to finance the acquisition and provision of working capital for this business by means of loans totaling $487,000 which they acquired from the Bank of Fincastle (“the Bank”). Unfortunately the business was notably unsuccessful and ultimately failed, precipitating the filing of this case. The conduct of the case has been marked by acrimony between the Bank and the Debtors evidenced by the former’s efforts to challenge various actions taken by the Nidays which, from the Bank’s perspective, have indicated an intention on their part to be generous to their adult children rather than attempting to the best of their ability to pay their creditors, principally the Bank. Not surprisingly, this background resulted in a contested confirmation process which ultimately was resolved, however, under the terms of an agreed Plan confirmed on November 8, 2012. Under this Plan the Debtors committed to making a lump sum payment of $61,127.95 within twenty-one days of the confirmation order plus twenty-seven monthly payments of $500 each in addition to $5,717 previously paid, resulting in an estimated distribution to general unsecured creditors of approximately 20% upon their allowed claims. The Debtors’ pre-confirmation budget included a monthly allotment of $502 to life insurance premiums for policies upon the lives of the Nidays. As relevant to the present dispute, two of those policies were policies upon the life of Mrs. Niday in the amounts of $15,000
CONCLUSIONS OF LAW
This Court has jurisdiction over this proceeding by virtue of the provisions of 28 U.S.C. §§ 1334(a) and 157(a) and the delegation made to this Court by Order from the District Court on July 24, 1984 and Rule 3 of the Local Rules of the United States District Court for the Western District of Virginia. Matters involving confirmation of plans are explicitly included in the nonexclusive list of “core” bankruptcy proceedings by virtue of 28 U.S.C. § 157(b)(2)(L). The issue before the Court, which deals with the modification of a confirmed plan, certainly appears to be a “core” proceeding by virtue not only of subsection (b)(2)(L) but also pursuant to subsection (b)(2)(0) (“other proceedings affecting ... the adjustment of the debtor-creditor ... relationship”). The Court further concludes that it has the constitutional authority to enter a final order ruling upon the various pleadings now before the Court.
The present dispute among the parties largely swirls around the introduction of the term “applicable commitment period” in Code § 1325(b)(4) with respect to Chapter 13 plans as a part of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Succinctly, the “applicable commitment period” for most Chapter 13 debtors is three years, but for debtors for which the “current monthly income of the debtor and the debtor’s spouse combined, when multiplied by 12, is not less than ... [the applicable according to household size] median family income of the applicable State,” the commitment period is five years. At the time of plan confirmation a bankruptcy court “may not” confirm a plan over the objection of the Trustee or the holder of an allowed unsecured claim unless either the claim is paid in full or all of the debtor’s “projected disposable income” during the “applicable commitment period” is devoted to plan payments. Code § 1325(b)(1). As previously noted, for the Debtors in this case the “applicable commitment period” is three years.
There have been a significant number of decisions, including one by Judge Krumm (now retired) of this Court, which have examined the question in the context of plan confirmation whether the number of months in a case’s applicable commitment period has a temporal component or whether it is simply a multiplier to be used in calculating a debtor’s obligation under a confirmed plan. Judge Krumm, in accord with a majority of the cases which have considered the issue,
Code § 1329(a)(2) expressly provides that a confirmed plan “may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim, to extend or reduce the time for such payments[.]” The plain language of that subsection would appear to be applicable to the effort of the Debtors here to “reduce” the time during which their confirmed Plan provides that they will make payments to the Trustee. Accordingly, the Court is not persuaded, as counsel for the Debtors asserts, that there was a pre-BAPCPA recognized right of a Chapter 13 debtor to pay off early the remaining balance due under the terms of a confirmed
In reaching this conclusion, the Court recognizes that it arguably ventures beyond the rationale employed by the Court of Appeals in the Arnold, and Murphy decisions which both focus on the source of the funding sought to be utilized to increase the distribution to general creditors, specifically, higher earned income, home mortgage refinancing, and sale of a condominium for a larger price than what might have been reasonably anticipated at the time of plan confirmation. The Court believes that a fresh analysis is warranted for several reasons. First, both were cases governed by pre-BAPCPA law which contained no provision for an “applicable commitment period” or the expanded powers provided by section 315(b)(2) of BAPC-PA, amending § 521 of the Code, to parties in interest to monitor a debtor’s post-confirmation financial circumstances. See 11 U.S.C. § 521(f). Granting such additional powers to creditors and bankruptcy trustees seems clearly intended to encourage them to utilize those powers in furtherance of their already existing authority to seek a modification of the terms of an existing confirmed plan pursuant to § 1329. Otherwise, what would be the point? Second, the rationale of Murphy looking to the source of funding to pay off
So, if the Debtor wants an early discharge before the end of his three year commitment period, he needs to obtain a modification of the Plan to do so. That is the result which was reached in the case of In re Fridley, 380 B.R. 538, 545-46 (9th Cir. BAP 2007), a decision in a case controlled by post-BAPCPA law and involving below median income debtors, and which this Court believes was correctly decided. If the modification is opposed, the debtor bears the burden of establishing compliance with the provisions of § 1329,
. Debtors' Motion to Modify Plan and the Bank of Fincastle's Objection thereto; the Debtors' Motion for Order Approving Early Completion of Plan, the Trustee’s Response, and the Bank of Fincastle's Objection thereto; and the Notice of Chapter 13 Discharge Hearing.
. The Court has been advised that since the date of confirmation of the Plan under which the Debtors have been operating in this case, Shirley Niday has died.
. The proceeds of the $15,000 policy have been “used to pay funeral and related expenses.” (Debtors' Br. at 1, ECF No. 98).
. The Debtors represent that these funds were obtained from an exempt workers’ compensation settlement obtained by the male debtor.
. Although the precise facts are not stipulated or otherwise before the Court at this time, the Court understands that the Trustee and the Bank assert that at some point before Mrs. Niday’s death, whether before or after confirmation of the Plan is unclear, the beneficiary of this policy was changed from Mr. Niday to the couple’s adult children. Neither is it clear who the actual owner of this policy was and therefore who actually effected this purported change.
. See, e.g., In re Slusher, 359 B.R. 290 (Bankr.D.Nev. 2007) (stating that the applicable commitment period stands for the appropriate amount of time during which the debtor has agreed to make payments); In re Cushman, 350 B.R. 207, 212-13 (Bankr.D.S.C. 2006) (concluding that Code never refers to applicable commitment period as a multiplier; the legislative history supports this view in that the caption of Section 318 of the Act is “Chapter 13 plan to have five year duration in
. The Court acknowledges that there is worthy judicial authority supporting this contention, such as In re Brumm, 344 B.R. 795, 801-04 (Bankr.N.D.W.Va. 2006) (citing and discussing cases on both sides). There is also authority to the contrary, see In re Sunahara, 326 B.R. 768, 781-82 (9th Cir. BAP 2005); In re Keller, 329 B.R. 697, 699-700 (Bankr.E.D.Cal. 2005); In re Drew, 325 B.R. 765, 772 (Bankr.N.D.Ill. 2005), and the Court's own experience has been that bankruptcy debtors seeking to complete their plan early have filed a motion to such effect and noticed the Trustee and the creditors. The Court also notes that while the Fourth Circuit's decision In re Murphy, 474 F.3d 143, 151 (4th Cir. 2007), expressly mentioned the disagreement among courts as to whether an early payoff of obligations amounted to a modification of the plan, it concluded that the issue was controlled by its decision of In re Arnold, 869 F.2d 240 (4th Cir. 1989), and that simply refinancing a home mortgage to provide funds to pay off a plan early did not "alter the financial condition of the debtor and, therefore, cannot provide a basis for the modification of a confirmed plan pursuant to §§ 1329(a)(1) or (a)(2).” The Murphy opinion actually dealt with two combined cases, one (the Goralskis) involving proceeds from a mortgage refinancing dealt with in the language just quoted, and the other (Mr. Murphy) involving a sale of the debtor’s condominium within about eleven months after filing his Chapter 13 petition for a price more than 50% higher than its scheduled value, which was higher than the parties’ expectations at the time of plan confirmation. The Court of Appeals affirmed the lower court decisions allowing modification of the confirmed plan to permit capture of enough of Mr. Murphy's unencumbered sales proceeds to permit payment of the allowed unsecured claims in full. This result seems to this Court to constitute a rejection of any assertion that within the Fourth Circuit there is or has been any unqualified right enjoyed by Chapter 13 debtors to pay off early the remaining monthly payments due under the terms of a confirmed plan.
. See Hon. Barry Russell, Bankruptcy Evidence Manual, § 301:76 at p. 387-91 (2013 ed.).
Reference
- Full Case Name
- In re Richard Wayne NIDAY, Shirley Ann Niday, Debtors
- Cited By
- 2 cases
- Status
- Published