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Personal Bankruptcy under Chapter 13
Chapter 13 is a bankruptcy for an individual, including one who is engaged in a business, who has a regular source of income and who desires to repay all or a percentage of her debts pursuant to a plan, which she has the exclusive right to propose.
A case under Chapter 13 is very different from Chapter 7 liquidation, inasmuch as someone filing under Chapter 13 usually remains in possession of her property, and makes certain interim payments to creditors, through the Chapter 13 trustee, prior to receiving a bankruptcy court discharge.
To file for bankruptcy under Chapter 13, you must meet certain eligibility requirements. First, you must be able to maintain regular monthly payments over the life of your plan in an amount determined by your lawyer, subject to your agreement and the approval of the court. Second, your unsecured and secured debts must meet the specific dollar limitations. Finally, only voluntary cases are permitted. No one can force you to file for chapter 13 bankruptcy relief.
Specific Dollar Limitations under Chapter 13
Chapter 13 relief is available to an individual: 1. who has regular income, 2. whose unsecured debts total less than $307,675, and 3. whose secured debts total less than $922,975.
For unsecured debts, the amounts set forth above must be non-contingent and liquidated liabilities. For secured debts, most courts apply the general rule that a claim is secured only up to the value of the collateral, with the balance constituting an unsecured claim.
Income sources for chapter 13 plans
In most cases, a Chapter 13 debtor's regular income is generated from her wages or salary, but it may be derived from almost any legitimate source, such as interest income, rental income, a business, a pension, a trust, social security, or even welfare, if it is regular enough to fund the debtor's plan of repayment.
Voluntary petition only
A Chapter 13 case may be commenced only by the filing of a voluntary petition.
Individuals not eligible for Chapter 13 Relief:
Stockbrokers and commodity brokers are not eligible for relief under Chapter 13. Also, an individual debtor in a case that was dismissed in the preceding 180 days is not eligible if the dismissal was due to the debtor's intentional failure to obey court orders or appear before the court, or was a result of the debtor's request for a voluntary dismissal of the case following a party's request for relief from the automatic stay.
Co-Debtor Stay
One of the unique features of a Chapter 13 case is that the automatic stay applies not just to the debtor but also to creditors of non-filing co-debtors of the debtor.
Relief from the co-debtor stay:
A creditor may be granted relief from the co-debtor slay under any of the following circumstances:
C. ADMINISTRATION OF CHAPTER 13 CASE
1. Appointment of Chapter 13 Trustee: In regions where many Chapter 13 cases are filed, the United States trustee ordinarily appoints a qualified individual to serve as a standing trustee. Otherwise, the United States trustee appoints a disinterested person as the trustee for a particular case, or the United Stales trustee may serve as the trustee in the case himself.
a. Duties of trustee: The duties of a Chapter 13 trustee include the following:
Use and Sale of Property
In a Chapter 13 case, you the exclusive right to use, sell, or lease property that you own when you filed. Under certain circumstances you might want to surrender or sell unnecessary and unencumbered property to reduce your plan payments to an easily affordable amount. A sale plan allows you to sell luxury property to help pay off your plan. You can also create a plan that allows you to surrender unnecessary secured collateral back to the creditor in full satisfaction of your obligations to that creditor.
Self employed or operating DBA
A debtor engaged in business is a self-employed individual who incurs trade credit in producing income from her business, which she is entitled to operate unless the court orders otherwise. Usually, a Chapter 13 debtor engaged in business has, in addition to the rights described in the preceding paragraph, the exclusive right to use, sell, or lease property in the ordinary course of business and to obtain credit. However, these rights are subject to any limitations specified in those sections, as well as to any restrictions or conditions imposed by the court.
D. CHAPTER 13 PLAN
1. Filing a Plan: Only the debtor may file a Chapter 13 plan, and it must be filed with the petition or within fifteen days thereafter, unless the court grants an extension for cause. [B.C. §1321; Bankruptcy Rule 3015(b)l
2. Mandatory Provisions: A Chapter 13 plan must include the following provisions [B.C. §1322(a)l:
a. Sufficient income to be turned over to trustee: The plan must provide that such amount of the debtor's future earnings or other future income as is required for the implementation of the plan will be turned over to the Chapter 13 trustee. [B.C. l322(a)(l)]
b. Full payment of priority claims: The plan must provide that all priority claims will be paid fully in deferred cash payments, unless a particular creditor consents to different treatment. [B.C. §1322(a)(2) (1) Note: While priority claimants in a Chapter 13 case are entitled to receive payments totaling the full amount of their claims, the payments need not equal the present value of their claims.
c. Same treatment for claims of a class: If the plan designates classes of claims, it must provide identical treatment for all claims within any one class. B.C. §1322(a)(3)J
3. Permissive Provisions: A Chapter 13 plan may include any of the following provisions [B.C. §!322(b)]:
a. Classification of claims: The plan may specify various classes of unsecured claims in accordance with Bankruptcy Code section 1122 , provided that it does not discriminate unfairly against any particular class. However, the Code expressly permits a Chapter 13 plan to provide different treatment for a consumer debt on which an individual co-debtor is also liable than for other unsecured claims. [B.C. §1322(b)(l)]
(1) "Unfair discrimination": Some courts apply the following criteria in determining whether discrimination against a class is fair: (i) Whether there is a reasonable basis for the discriminatory treatment; (ii) Whether the plan could be implemented without the discrimination; (iii) The presence or absence of good faith and (iv) The manner in which the class is treated under the plan. (a) Example: Debtor files a Chapter 13 petition and a plan designating two classes of unsecured claims, Class I consists of debts incurred in u business that Debtor has closed, and Class 2 consists of consumer debts. Debtor's plan proposes to pay nothing to the claimants in Class I, and to pay 100 percent to the claimants in Class 2. The plan is unfairly discriminatory under the four criteria above, and thus the court denies confirmation. (b) Compare: Debtor files a Chapter 13 petition accompanied by a plan proposing the following: Class 1— all priority claims, to be paid in full; Class II-—child support claims, to be paid in full; Class III—unsecured claims of $100 or less, lo be paid in full; and Class 1V-—all other unsecured claims, to be paid eighteen percent. The trustee objects to confirmation of the plan because of the difference in treatment between Classes II and IV. However, "in light of the overwhelming public policy in favor of providing support for children" and the virtual impossibility of a successful Chapter 13 plan not providing full payment of child support, Debtor's plan is not unfairly discriminatory and therefore is confirmed by the court.
Modification of creditors' rights: The plan may modify the rights of secured creditors or unsecured creditors (such as by "changing the size and timing of installment payments"), except where the creditor's claim is secured solely by a security interest in real property constituting the debtor's principal residence. [B.C. §1322(b)(2); Grubbs v. Houston First American Savings Association, 730 F.2d 236 (5th Cir. 1984). Note that the Code defines a security interest as a lien created by an agreement. (B.C. §101(51)] Of course, any such modification must be consistent with the pertinent requirements for confirmation of a Chapter 13 plan. [B.C. §1325(a)(4), (5); (1) Example: Debtor owes Bank $10,000, at an interest rate of twenty-three percent, secured solely by a first mortgage on real property constituting Debtor's principal residence. Debtor files a Chapter 13 plan proposing to repay Bank at a rate of fourteen percent. The modification will not be permitted since it falls squarely within the exception. [B.C. §I322(b)(2); In re Rorie, 58 Bankr. 162 (Bankr. S.D. Ohio 1985); see also First National Fidelity Corp. v. Perry, 945 F.2d 61 (3d Cir. 1991)—provision to pay foreclosure judgment on debtor's home over five-year life of plan is an impermissible modification since the lien was the product of a consensual arrangement) (2) Compare: Finance Company is the holder of a claim secured by a mortgage on real property on which Debtor resides and on which there also exist two rental units that generate forty-six percent of Debtor's income. The rate of interest on the mortgage note is eighteen percent. Debtor's proposed Chapter 13 plan may modify Finance Company's rights by reducing the interest rate on the mortgage note since the claim is not secured solely by real property that is the principal residence of debtor. [B.C. §1322(b)(2);In re Ramirez, 14 Bankr. Ct. Dec. 748 (Bankr. S.D. Cal. 1986)] Confirmation, however, will depend upon whether the plan satisfies Bankruptcy Code section 1325(a)(5). Similarly, modification of a secured creditor's rights would be permitted where the creditor's security interest also includes personal properly, where the security interest is in real property that is not the debtor's principal home, or where the creditor's lien is one that was not created by agreement (e.g., in the case of a judicial lien or a statutory lien).
(3) Bifurcation of home mortgage: Although not all bankruptcy courts agree, the prevailing view at the appellate level is that the unsecured portion of an under-secured mortgage can be modified, since the mortgage is bifurcated [B.C. §506(a)] and only the secured claim is protected by section 1322 (b)(2). [In re- Hart, 923 F.2d 1410 (10th Cir. 1991))
c. Cure or waiver of default: The plan may cure or waive any default. [B.C. §1322(b)(3)
d. Order of payments: The plan may provide for any general unsecured claim to be paid concurrently with any secured claim or with any unsecured priority claim. [B.C. §1322(b)(4)]
e. Long-term debts: The plan may provide for the curing of any default within a reasonable time and the maintenance of payments, during the period that the case is pending, on any long-term secured or unsecured debt for which the final payment is due after the final payment required by the Chapter 13 plan. |B.C. §1322(b)(5)] This section, by specific statutory authorization, frequently is applied with respect to claims secured solely by the principal residence of the debtor, notwithstanding the exception contained in Code section 1322(b)(2) concerning non-modification of such home mortgages. (1) Comment: In most jurisdictions, the right to cure a default exists even alter the creditor has accelerated the debt and obtained a foreclosure judgment, but only up until the time of an actual foreclosure sale. However, in states where a mortgage becomes merged into the foreclosure judgment, some courts have held that the right to cure terminates upon the entry of a foreclosure judgment. In re Roach, 824 F.2d 1370 (3d Cir. 1987) (2) "Reasonable time": [§l 146] What constitutes a reasonable time to cure a default depends on the circumstances of the particular case. Some of the factors that the court is likely to take into account include: (i) the amount and reason for the arrearage; (ii) the availability of the debtor's discretionary income to cure the default; (iii) whether the debtor is putting forth her best effort to cure the default; and (iv) the debtor's ability to meet the obligations of the plan and to continue current payments on the installment obligations.
Interest on arrearages; Although the courts are split, the better rule is that, unless provided for in the contract or required under non-bankruptcy law, a mortgagee whose only collateral is the debtor's principal residence is not entitled to receive interest on the arrearages when a Chapter 13 debtor cures a default and reinstates the mortgage. Thus, while the mortgagee ordinarily is entitled under the contract to receive accrued interest on the unpaid principal, he may not receive interest on the portion of the unpaid installments that constitute interest. (Landmark Financial Services v. Hall, 918 l;.2d 1 150 (4th Cir. 1990)
I. Post-petition tax claims or necessary consumer debts: The plan may provide for the payment of any allowed post-petition claims for taxes that become due during the pendency of the case, or for necessary consumer debts incurred after the order for relief. [B.C. §§1322(b)(6), 1305]
g. Assumption or rejection of executory contracts or unexpired leases: The plan may provide for any previously unrejected executory contract or unexpired lease to be assumed, rejected, or assigned in accordance with section 365.
h. Property used to pay claims: The plan may provide for particular claims to be paid from property of the estate or from the debtor's property.
i. Vesting of property: The plan may provide for property of the estate to vest in the debtor or in another entity when the plan is confirmed or at a subsequent lime. |B.C. §l322(b)(9)]
j. Miscellaneous provisions: The plan also may contain any other provisions that are appropriate and consistent with the Bankruptcy Code. [B.C. §1322(b)(I)] ( 1 ) Exception — lien avoidance: Where the debtor seeks to avoid a lien under Bankruptcy Code section 522(f), the proper procedure is to file a motion to avoid the lien, and not to include it as a provision of the plan. (2) Example: mortgage lien securing discharged obligation: The Supreme Court has held that, in light of the broad definition of "claim" (see supra, §§15, 34) it is permissible to provide for a mortgage lien in a Chapter 13 plan, even though the underlying personal debt that the mortgaged property secures has been discharged in an earlier Chapter 7 case. [Johnson v. Home State Bank, 1 1 1 S. Ct. 2150 (1991)]
4. Duration of Plan: The payments under a Chapter 13 plan may not extend beyond three years unless, for cause, the court approves a longer payback period, up to a maximum of five years. [B.C. §!322(c); In re Grecr, 14 Bankr. Cl. Dec. 588 (Bankr. C.D. Cal. I986)|
5. Modification of Plan: The debtor has the exclusive right to modify a plan prior to confirmation. The modified plan must meet the specifications set forth in section 1322 [B.C. §1323]
E. 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
e. 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.
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.
Best Efforts of Debtor: Where an objection to confirmation is filed by an unsecured creditor or the Chapter 13 trustee, the court may not confirm the plan unless: (i) the plan proposes to pay the objecting creditor the total amount, although (according to Collier) not necessarily the present value, of his allowed claim (or, if the objection is made by the trustee, the plan proposes to fully satisfy all (he allowed unsecured claims), or (ii) all of the debtor's expected disposable income for three years from the due date of the first payment under the plan will be used to make payments under the plan.
a. Disposable income: The Code defines disposable income as that portion of the debtor's income which is "not reasonably necessary" to maintain or support the debtor or her dependents, and (in applicable cases) to pay the expenses required for the continuation, operation, and preservation of the business of a debtor engaged in business. (I) Example: Debtor files a Chapter 13 plan proposing to repay unsecured creditors fourteen percent of their claims. Debtor's budget includes excessive expenses for Debtor's children's tuition at college and private secondary school and excessive expenses for food and housing. The proposed payments under the plan total $132 per month. An unsecured creditor objects lo confirmation, and the court finds that the debtor's disposable income is $510 per month. Since the creditor will not receive the total amount of his claim and not all of debtor's disposable income is being used to make payments, confirmation will be denied.
Payment Orders: Alter a plan has been confirmed, the court may order the debtor's employer, or any other entity providing income to the debtor, to make direct payments to the Chapter 13 trustee. The Social Security Administration, however, is not subject to such income deduction orders concerning the debtor's social security benefits.
PAYMENTS: Commencement of Payments: The debtor's payments under a proposed plan must begin within thirty days after the plan is filed, unless the court rules otherwise. Any payment made before confirmation of a plan must be held by the trustee until the confirmation hearing. If the plan is confirmed, then the trustee makes distribution as provided for by the plan, However, if confirmation is denied, the money must be returned to the debtor, less any unpaid administrative expenses that have been allowed. [B.C. §1326(a)(2)] I).
Distribution: Ordinarily, the payments under a confirmed plan are sent to creditors by the trustee unless the plan or the confirmation order provides otherwise, such as where a debtor engaged in business is allowed to perform this function. [B.C. §1326(c)
Administrative Expenses: Prior to or concurrent with each payment to creditors under a Chapter 13 plan, the trustee is required to pay any unpaid administrative expenses or bankruptcy lees or charges, as well as the percentage fee set for a standing trustee (where one has been appointed). [B.C. §!326(b)] The deadline for paying the entire filing fee for the Chapter 13 petition is the time of the first payment to creditors.
C. POST-CONFIRMATION MATTERS
1. Effects of Confirmation: A confirmed plan binds the debtor and every creditor, regardless of whether a creditor has accepted or rejected the plan or has objected to confirmation of the plan, or whether his claim is provided for by the plan. a. Property: Unless the Chapter 13 plan or the confirmation order provides otherwise, confirmation causes all property of the estate to vest in the debtor "free and clear of any claim or interest of any creditor provided for by the plan." [B.C. §l327(b),(c)] (I) Liens: Although there is authority holding that a creditor's lien not provided for by the plan passes through bankruptcy undisturbed, even if the secured party fails to file a proof of claim [B.C. §§1327(c), 506(d); In re Thomas, 883 l;.2d 991 (11th Cir. 1989)1, the more cautious practice, in light of the language of section 1327(c), is for the secured party to file a proof of claim. b. Debts: In a Chapter 13 case, confirmation does not operate as a discharge of the debtor's debts. [B.C. §1328]
2. Chapter 13 Discharge: The debtor will be granted a discharge under Chapter 13 after she has made all payments under the plan unless, subsequent to the order for relief, she has executed a court-approved written waiver of discharge. [B.C. §1328(a)]
a. Debts discharged: A standard Chapter 13 discharge includes all debts that are provided for by the plan or that have been disallowed by the court under section 502, except for [B.C. §1328(a)]: (1) Long-term debts for which the plan has provided for the curing of a default within a reasonable time and the maintenance of payments during the case, with the final payment being due after the last payment required by the Chapter 13 plan [B.C. §§1328(a)(l), 1322(b) (2) Alimony, maintenance, and spousal or child support [B.C. §§ 1328(a)(2), 523(a)(5); 3) Student loans, unless there will be an undue hardship on the debtor and her dependents if the debt is not discharged. B.C. §§1328(a)(2), 523(a)(8); (4) Health Education Assistance Loans (HEAL), where the three conditions for discharge required by the applicable federal non-bankruptcy statute have not been satisfied (5) Liability for drunk or drugged driving that caused death or personal injury (6) Criminal restitution that is included in the debtor's sentence | (7) Allowed post-petition claims for necessary consumer debts which were not approved in advance by the trustee, under circumstances where procuring his prior approval was practicable b. Note; applicability of section 523(a): In a chapter 13 case, only the debts described above are nondischargeable, and any other debts that would be nondischargeable under the general dischargeability provisions of section 523(a) are discharged by the standard chapter 13 discharge. c. Hardship discharge: If the debtor has not made all payments under the plan, the court, after notice and a hearing, may award a hardship discharge where the following three conditions exist: (i) The reason for the debtor's failure to complete the payments under the plan is not one for which, in fairness, she should be held accountable (ii) Those unsecured creditor holding an allowed claim has received property under the plan, having a present value as of the effective date of the plan, of not less than the amount that he would have received for his claim in a case under Chapter 7 if the estate had been liquidated (i.e., the "best interests of creditors test |B.C. §l328(b)(2)]; and (iii) Modification of the plan is not practicable [B.C. §1328(bK3)].Example:Debtor files a Chapter 13 plan, proposing to pay forty monthly installments of $140 each. The plan is confirmed, and Debtor makes the payments, as scheduled, for thirty-seven months, before dying. All of the unsecured creditors have received more than they would have received on their claims if the estate had been liquidated under Chapter 7. Under these circumstances, a hardship discharge is appropriate. (2) Debts discharged in hardship case: [§1181] A Chapter 13 hardship discharge includes the unsecured debts that would be discharged under a standard Chapter 1 3 discharge, except that it does not discharge any debts that would be nondischargeable under section 523(a). Any long-term debts provided for under the cure provision of Code section 1322(b)(5) also are nondischargeable.
d. Revocation of discharge: The court may revoke a Chapter 13 discharge that was obtained by the debtor's fraud if the party in interest seeking the revocation did not discover the fraud until after the discharge was awarded. The statute of limitations for requesting revocation of a discharge is one year from the date the discharge was granted, and notice and a hearing are required. [B.C. §I328(e)]
Post-Confirmation Modification: The debtor, the trustee, or an unsecured creditor may request a modification of a plan at any time after it has been confirmed but before all payments have been made. Modification may result in larger or smaller payments to a particular class, a longer or shorter payout period, or a change in the amount to be paid to a creditor to adjust for any payment obtained from a third party or from property outside of the plan. Generally, a request for post confirmation modification of a plan occurs under circumstances where the income or expenses of the debtor have changed materially and unexpectedly. For example, where the debtor's annual income (which at the time of confirmation had been approximately $80,000) had risen to almost $200,000, the court granted an unsecured creditor's motion (i) to increase the debtor's monthly payments under the plan from $800 to $1,500, and (ii) to extend the payment period from three years to five years. [In re Arnold, 869 F.2d 240 (4th Cir. 1989)] In another case, the debtor was permitted to increase payments to a secured creditor to cure post-petition arrearages that had accrued during a period when the debtor was unemployed for health reasons and was not receiving wages. However, the modification had to satisfy the requirements for confirmation, and, more specifically, the cram down provisions of Bankruptcy Code section 1325(a)(5).
4. Revocation of Confirmation Order: Within 180 days after an order confirming a Chapter 13 plan has been entered, a party in interest may request that the order be revoked on the ground that it was procured by fraud. Revocation is discretionary. If after notice and a hearing the confirmation order is revoked, the court may grant the debtor time to propose and obtain confirmation of a modified plan. Otherwise, the court must convert or dismiss the case under section 1307.
5. Debtor's Failure to Make Payments: If the debtor fails to make all payments under the plan, a party in interest or the United States trustee may move for dismissal of the case or conversion to Chapter 7. Alternatively, the debtor might request a hardship discharge if the circumstances warrant. |
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