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CONFIRMATION OF PLAN
1. Confirmation Hearing: After proper notice, the court conducts a hearing to determine whether a proposed plan satisfies the elements necessary for confirmation. An objection to confirmation may be filed by any party in interest. (B.C. § 1324; Bankruptcy Rule 3020(b)|
2. Requirements for Confirmation: A plan will be confirmed only if it satisfies the following statutory elements |B.C. §I325(a): a. Plan complies with Code provisions: |§11591 The plan must comply with the provisions of Chapter 13, as well as all the other applicable provisions of the Code. |B.C. §1325(a)(l). For example, a plan that classifies claims but provides dissimilar treatment for various claims within a particular class cannot be con firmed. [B.C. §1322(a)(3); see supra, §1137] Similarly, a plan filed by an individual who was a debtor in a case that was dismissed in the preceding 180 days because of the debtor's intentional failure lo obey court orders cannot be confirmed
b. Fees paid: All fees, charges, or amounts required lo be paid prior to confirmation by chapter 13 or by the plan, must have been paid. [B.C. §1325(a)(2)J
Plan filed in good faith: The plan must be proposed in good faith. [B.C. §1325(n) (3) Some of the factors used in determining whether there is good faith include: (i) The amount of the debtor's income from all sources; (ii) The debtor's living expenses and those of her dependents; (iii) The amount of attorney's fees; (iv) The probable or expected duration of the Chapter 13 plan: (v) The debtor's motivations and sincerity in seeking relief under Chapter 13 In re Mc Maire, 898 F.2d 1346 (8th Cir. 1990); (vi) The debtor's degree of effort (vii) The debtor's ability to earn and the likelihood of fluctuation in debtor's earnings; (viii) Special circumstances, such as inordinate medical expense; (ix) The frequency with which the debtor has sought relief under the Bankruptcy Reform Act and its predecessors; (x) The circumstances surrounding the debtor's debts and her demonstrated good faith, or lack thereof, in dealings with creditors; (xi) The burden that the plan's administration would place on the trustee; (xii) The accuracy of the plan's statements of debts and expenses and whether any inaccuracies are an attempt to mislead the court; and (xiii) The type of debt to be discharged and whether the debt would be nondischargeable under Chapter 7. Note: This last factor should not by itself constitute grounds for a finding of bad faith, since it is only one indicator among the various criteria to be considered under the particular circumstances.
(I) Nominal repayment: The size of the debtor's payment to the unsecured creditors should not, in and of itself, be determinative of whether the plan was proposed in good faith, since the Code provides a best efforts requirement for application of the debtor's expected disposable income over a period of three years. B.C. §1325(b), in addition to the "best interests of creditors test" (B.C. §1325(a)(4)); see below which prescribes the minimum amount that unsecured creditors must receive under the plan.
d. Unsecured creditor: "best interests of creditors" test met: The plan must provide that each unsecured creditor holding an allowed claim will receive property having a present value, as of the effective date of the plan, of not less than the amount he would receive for his claim in a Chapter 7 liquidation, taking into account the exemptions that would be available to the debtor. This element of confirmation usually is referred to as the "best interests of creditors test."
e. Secured creditors accept plan or receive collateral or amount of secured claim: Each allowed secured claim provided for by the plan must be treated by one of the following three methods [B.C. §1325(a)(5)]: (1) The secured creditor accepts the plan [B.C. § 1325(a)(5)(A)J; (2) The debtor surrenders the collateral to the secured creditor [B.C. §1325(a)(5)(C)]; or (3) The plan preserves the creditor's lien on the collateral and provides him with a distribution of cash installments or other property having a present value, on the effective date of the plan, of at least the amount of his allowed secured claim. [B.C. §1325(a)(5)(B)] As discussed earlier, a claim is treated as secured only up to the value of the creditor's collateral [B.C. §506(a); sec supra, §516], and for an oversecured creditor, the secured claim includes (as allowed by the court) any attorney's fees, costs, or other charges agreed upon in the contract, as well as post-petition interest. [B.C. §506(b); In re Colvin, 57 Bankr. 299 (Bankr. D. Utah 1986); see supra, §§522-524]
(a) Present value: In determining present value, many courts require the debtor to pay interest at the "rate charged by institutional lenders for similar commercial transactions" as the prevailing market rate. [In re Memphis Partners, L.P., supra, §1079;//? re Southern States Motor Inns, Inc., supra, §1079]
f. Plan is feasible: The plan must be feasible. Thus, the com I must find that the debtor will be able to carry out the plan, taking into consideration her budget as well as dependents.
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