Baxter v. Wynn (In re Wynn)

487 B.R. 595
CourtUnited States Bankruptcy Court, S.D. Georgia
DecidedMarch 8, 2007
DocketNo. 06-10318
StatusPublished

This text of 487 B.R. 595 (Baxter v. Wynn (In re Wynn)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baxter v. Wynn (In re Wynn), 487 B.R. 595 (Ga. 2007).

Opinion

ORDER

SUSAN D. BARRETT, Bankruptcy Judge.

This matter comes before the Court on the Chapter 13 Trustee’s Objection to Confirmation of Debtor’s proposed Chapter 13 bankruptcy plan based upon Debtor’s alleged ineligibility to obtain a discharge and Debtor’s Motion for Order Determining Eligibility of Debtor for Discharge under 11 U.S.C. § 1328(f).1

The issue before the Court is whether the time period to determine eligibility to receive a chapter 13 discharge following a previous chapter 13 discharge runs from case “filing” to ease “filing”, or from previous “discharge” to current case “filing”. For the reasons discussed below, the Court finds the period runs from the date of the filing of the previous chapter 13 petition to the date of filing of the current chapter 13 petition.

FINDINGS OF FACT

The relevant facts are:

• Toland Terrill Wynn (“Debtor”) filed this current chapter 13 bankruptcy petition on March 16, 2006.

• On May 14, 2001, Debtor filed a previous chapter 13 bankruptcy.

• On December 3, 2004, Debtor received a chapter 13 discharge in his previous chapter 13 case.2

• The Chapter 13 Trustee filed an Objection to Confirmation of Debtor’s current chapter 13 plan, alleging Debt- or is not entitled to discharge since he received a chapter 13 discharge within two years of the filing of his current chapter 13 case.

CONCLUSIONS OF LAW

At issue is the meaning of 11 U.S.C. § 1328(f)(2) which was added by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) and provides in pertinent part:

[597]*597Notwithstanding subsection (a) and (b), the court shall not grant a discharge ... if the debtor has received a discharge—
(1) in a case filed under chapter 7, 11, or 12 of this title during the 4-year period preceding the date of the order for relief under this chapter, or
(2) in a case fíled under chapter 13 of this title during the 2-year period preceding the date of such order.

11 U.S.C. § 1328(f) (emphasis added).

Prior to BAPCPA, there was no express statutory time restrictions preventing debtors from filing chapter 13 bankruptcy proceedings immediately after receiving a discharge in a previous chapter 7,11, 12 or 13. With the adoption of BAPCPA, Congress barred debtors from receiving a chapter 13 discharge if they received a previous discharge within a certain time period. The issue is whether the eligibility period runs from filing to filing or discharge to filing.

Debtor argues he is eligible for a chapter 13 discharge because § 1328(f)(2) only prevents a discharge in chapter 13 cases filed within 2 years of each other, when the first case resulted in the debtor receiving a chapter 13 discharge. The Chapter 13 Trustee filed an objection to confirmation noting Debtor has “[rjeceived a discharge in last 4[sic]3 years [and is] not entitled to discharge.” Nevertheless, at the hearing the Chapter 13 Trustee indicated he takes no position as to whether Debtor is statutorily entitled to a discharge and merely filed the objection to inform the parties and the Court of the possibility that Debtor may be ineligible for discharge.

Debtor focuses on the “such order” language of § 1328(f)(2) and argues this refers to the “order of relief’ referenced in § 1328(f)(1), rather than the “discharge” referred to in the main text of § 1328(f). Pursuant to the plain meaning of the statute, the Court agrees “such order” refers to the “order of relief’ rather than the discharge. Lamie v. United States, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). Furthermore, since the commencement of a voluntary bankruptcy case constitutes the “order for relief’, pursuant to the plain meaning of the statute, the Court finds that the look-back period runs from chapter 13 case filing to subsequent chapter 13 case filing. See 11 U.S.C. § 301(b); Lamie v. United States, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004).

Concluding the § 1328(f)(2) look-back period runs from filing to filing creates a symmetrical interpretation of the look-back period of § 1328(f) with the comparable successive chapter 7 discharge look-back provisions of § 727(a)(8) and (a)(9)4 which clearly run from case filing to case filing. “A court must ... interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole.... ” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 [598]*598L.Ed.2d 121 (2000) (internal quotations and citations omitted).

The look-back period under § 1328(f) has been the subject of several published opinions. See In re West, 352 B.R. 482, 487 (Bankr.E.D.Ark.2006) (addressing successive chapter 13 cases and focusing on the legislative history and the “filed under” language holding that a plain reading of the statute supports the conclusion that the look-back period runs from filing to filing. The West court noted that “[a]l-though Congress may have intended otherwise, the Court must enforce the statute as written and conclude that a Debtor is not entitled to a chapter 13 discharge under § 1328(f)(2) if the Debtor has received a discharge in a case filed under chapter 13 within two years of the current case’s filing.” Id. at 487) (emphasis in original); In re McGhee, 342 B.R. 256, 258 (Bankr. W.D.Ky.2006) (“based on the plain meaning of § 1328(f) and § 301(b) ... it is clear that a debtor who received a discharge in a Chapter 7, 11, or 12 case filed within four years of the debtor filing a subsequent Chapter 13 petition is ineligible for a discharge in his/her subsequent Chapter 13 case. Similarly, a debtor who received a discharge in a Chapter 13 case filed within two years of the debtor filing a subsequent Chapter 13 petition may not receive a discharge in the second Chapter 13 ease.”)(emphasis in original); In re Knigh-ton, 355 B.R. 922, 926 (Bankr.M.D.Ga. 2006) (“[§ 1328(f)(1) ] bars discharge ... if the debtor received a prior discharge in a case filed under chapter 7 ... during the 4-year period preceding the date of the order for relief in the pending case. Because the order for relief arises on the date of filing, a plain reading of § 1828(f)(1) indicates that the lookback period runs from the filing date of the prior case to the filing date of the current case.”)(emphasis in original); In re Rat-zlaff, 349 B.R.

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Related

Lamie v. United States Trustee
540 U.S. 526 (Supreme Court, 2004)
In Re McGhee
342 B.R. 256 (W.D. Kentucky, 2006)
In Re Knighton
355 B.R. 922 (M.D. Georgia, 2006)
In Re Bateman
341 B.R. 540 (D. Maryland, 2006)
McDow v. Ratzlaff (In Re Ratzlaff)
349 B.R. 443 (D. South Carolina, 2006)
In Re West
352 B.R. 482 (E.D. Arkansas, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
487 B.R. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baxter-v-wynn-in-re-wynn-gasb-2007.