Carrión v. Rivera (Rivera)

490 B.R. 130
CourtBankruptcy Appellate Panel of the First Circuit
DecidedApril 5, 2013
DocketBAP Nos. PR 12-066, PR 12-067; Bankruptcy No. 11-07492-EAG
StatusPublished
Cited by3 cases

This text of 490 B.R. 130 (Carrión v. Rivera (Rivera)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrión v. Rivera (Rivera), 490 B.R. 130 (bap1 2013).

Opinion

FEENEY, Bankruptcy Judge.

José R. Carrion, the chapter 13 trustee, appeals the order confirming the chapter 13 plan proposed by the debtors, Waldo Martinez Rivera and Glenda Colón López.1 For the reasons set forth below, the order is AFFIRMED.

BACKGROUND2

The pertinent facts are uncontested. The debtors filed a chapter 13 petition on August 31, 2011. They filed their schedules of assets and liabilities and a chapter 13 plan, together with other required documents, on the same day. Their Chapter 13 Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income reveals that the debtors, whose income is above the median income for the District of Puerto Rico, have an applicable commitment period of 60 months and monthly disposable income of $543.29. The parties agree, however, that, after adjustment, their monthly disposable income is $501.29 and their projected disposable income for payment over the life of their plan is $30,044.40. Their schedules I and J-Current Income and Expenses of Individual Debtor(s) reveal that the debtors have monthly net income of $700.00.

Through their chapter 13 plan, the debtors proposed to pay to the trustee $700.00 per month for 12 months, $788.00 per month for 48 months, and $50,000.00 in one [132]*132lump sum within 56 months on or before the expiration of the plan term, for a total of $96,224.00. Pursuant to the plan, the trustee is to pay from the debtors’ plan payments his statutory commission; $2,900.00 in the debtors’ attorney’s fees;3 $9,900.19 in pre-petition arrears to secured creditor, Firstbank de Puerto Rico; $33,182.02 as payment in full to another secured creditor, Banco Bilbao Vizcaya Ar-gentaría (“BBVA”); $1,210.00 for insurance payable to the trustee; and $3,519.01 to pay in full priority claims filed by the Internal Revenue Service and the Puerto Rico Department of Treasury. The plan also provided for the making of adequate protection payments to BBVA prior to confirmation. The liquidation value of the debtors’ unencumbered, non-exempt assets totaled $1,436.00.

The plan also provided for payments to two additional classes of creditors, Cooper-ativa de Ahorro y Crédito Villa-Coop Agustín Burgos Rivera (“Villa-Coop”), and general unsecured creditors. Villa-Coop filed a proof of claim in the amount of $36,777.16. The claim arises from a personal loan obtained by the debtor, Waldo J. Martinez Rivera, which was guaranteed by his mother-in-law. The loan qualifies as a consumer debt under § 101(8).4 The claim is bifurcated into a secured portion of $11,315.21 and an unsecured portion of $25,461.95. The debtors proposed to satisfy the secured portion of Villa-Coop’s claim, “by setting-off the petitioning husband’s shares given in collateral” to Villa-Coop. They proposed to pay the unsecured portion of Villa-Coop’s claim, which represents 9.78 percent of the total unsecured claims, in full. The remaining unsecured creditors, whose claims total $260,403.74, will receive an estimated dividend of 4.51 percent. That dividend would increase to approximately 12 percent if the debtors distributed their projected disposable income of $30,077.40 pro rata to all unsecured creditors, including Villa-Coop.

On March 7, 2012, the trustee objected to the proposed treatment of the unsecured portion of Villa-Coop’s claim by filing “Trustee’s Unfavorable Report on Proposed Plan Confirmation under § 1325.” In his report, the trustee stated:

The proposed (amended) Plan can not be confirmed because it has the following deficiencies:
- Unfair Discrimination [11 U.S.C. § 1322(a)(3) & (b)(1) ]
This case has a general unsecured pool of $30,077.40. Although the plan is sufficient to pay the same, Debtor is allocating almost the entire amount to pay a co-debtor debt with Villa Coop. While Debtor may provide some preference to such debt, it is unfair discrimination to spend the general unsecured pool on just one debt. Debtor must amend plan to distribute the general unsecured pool among all unsecured creditors and any amounts left after such distribution may be used to pay ahead Villa Coop [sic].

The bankruptcy court held a confirmation hearing on March 13, 2012, and, on September 10, 2012, following the submission of a Statement of Uncontested Facts and briefs, issued an opinion, summarized below, in which it overruled the trustee’s objection and stated its intention to enter a confirmation order. See In re Rivera, 480 B.R. 112 (Bankr.D.P.R.2012). On the [133]*133same day, the bankruptcy court entered an order confirming the debtors’ plan.

The bankruptcy court determined that the debtors’ treatment of Villa-Coop’s unsecured claim was permissible under § 1322(b)(1), and that § 1325(b)(1) does not require pro rata distribution of the debtors’ projected disposable income. Noting disagreement among courts as to the proper interpretation of § 1322(b), the bankruptcy court followed the minority view and determined that “there is a strong pragmatic basis for exempting cosigned consumer debts-undertaken for debtor’s benefit-from the unfair discrimination restrictions applicable to other types of debt.” In re Rivera, 480 B.R. at 116 (citing In re Renteria, 456 B.R. 444, 449 (Bankr.E.D.Cal.2011), aff'd on other grounds, 470 B.R. 838 (9th Cir. BAP 2012) (“[Tjhis court is persuaded that Congress added the [hjowever [cjlause to § 1322(b)(1) specifically to carve out an exception to the ‘unfair discrimination’ test, an exception that only applies to co-debtor-consumer claims.”); In re Monroe, 281 B.R. 398, 400 (Bankr.N.D.Ga.2002) (“[Tjhe language of § 1322(b)(1) creates an exception to the unfair discrimination test in cases involving a co-signed debt.”)).

The bankruptcy court rejected the trustee’s argument that the debtors’ plan failed to satisfy the disposable income test set forth in § 1325(b)(1), reasoning that § 1325(b)(1) simply requires that all of debtors’ projected disposable income be paid to “unsecured creditors under the plan,” and emphasizing that “[tjhis section does not address how this income is to be allocated.” Rivera, 480 B.R. at 116 (citing In re Knight, 370 B.R. 429 (Bankr.N.D.Ga.2007)). The bankruptcy court concluded that because the debtors were dedicating all of their projected disposable income under their plan to pay either the unsecured portion of Villa-Coop’s claim or other unsecured claims, the plan complied with § 1325(b)(1). Id. at 116-17. This appeal followed.

JURISDICTION

We are empowered to hear appeals from: (1) final judgments, orders, and decrees; or (2) with leave of court, from certain interlocutory orders. 28 U.S.C. § 158(a); Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998). A decision is final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment,” id. at 646 (internal quotations and citations omitted), whereas an interlocutory order “ ‘only decides some intervening matter pertaining to the cause, and ... requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.’ ” Id. (quoting In re Am.

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Cite This Page — Counsel Stack

Bluebook (online)
490 B.R. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrion-v-rivera-rivera-bap1-2013.