Ellis v. Parr (In Re Ellis )

60 B.R. 432, 1985 Bankr. LEXIS 4720
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedDecember 23, 1985
DocketBAP CC-85-1019-AbVM
StatusPublished
Cited by65 cases

This text of 60 B.R. 432 (Ellis v. Parr (In Re Ellis )) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ellis v. Parr (In Re Ellis ), 60 B.R. 432, 1985 Bankr. LEXIS 4720 (bap9 1985).

Opinion

OPINION

SEYMOUR J. ABRAHAMS, Bankruptcy Judge:

The debtor (Ellis) appeals from an order of the bankruptcy court granting relief from the automatic stay after confirmation of her Chapter 13 plan. We affirm.

FACTS

Ellis executed a note and deed of trust in favor of appellees Collette A. Parr and Candiece Lindstrom for the unpaid portion of the purchase price of her residence. The note called for monthly payments of $1,000 beginning in October 1982. Because Ellis made no payments, appellees started the foreclosure process by recording a notice of default on January 4, 1983.

Ellis filed this Chapter 13 case on March 30, 1983. Her Chapter 13 plan provided that the trust deed arrearages of $6,250 would be paid over 36 months. The $1,000 current monthly payments — the maintenance payments of 11 U.S.C. § 1322(b)(5)— were to be paid directly to appellees. The plan was confirmed on May 23, 1983.

On August 1, 1984, appellees began the present relief from stay proceeding by filing and serving a verified complaint. 1 Ap-pellees alleged that Ellis had not made the $1,000 current monthly payments since *434 February 1984 and owed $4,750. 2 The bankruptcy judge heard the matter on August 29, 1984. Although we were not provided with a reporter’s transcript of the hearing, at oral argument the parties agreed as to what happened before the bankruptcy judge: Ellis admitted that the maintenance payments had not been paid. She tendered a check for the amount the complaint specified was due, although two additional maintenance payments had become due after the complaint was filed. The bankruptcy judge granted partial relief from the automatic stay, ruling that appel-lees could proceed with foreclosure but could not hold a foreclosure sale if Ellis (a) paid the two outstanding maintenance payments within two weeks and (b) ‘ promptly made all future payments. Ellis appeals from this order.

DISCUSSION

I.

Ellis broadly contends that 11 U.S.C. § 1327 3 means that a creditor can never obtain relief from the automatic stay of 11 U.S.C. § 362 after confirmation of a Chapter 13 plan. We think the issue is much narrower. Ellis did not identify the subsection of section 1327 that provides authority for her position. Subsection 1327(c) states that property of the estate vesting in the debtor is free and clear of any claim or interest of any creditor provided for by the Chapter 13 plan. That subsection, however, does not apply unless the property has vested in the debtor. Under subsection 1327(b), a plan may provide that property of the estate does not vest in the debtor. Ellis’ confirmed plan stated: “Property of the estate shall revest in the Debtor at such time as a discharge is granted or the case is dismissed.” The case has not been dismissed and a discharge cannot be granted until the terms of the plan have been completed. 11 U.S.C. § 1328(a). Therefore, subsections 1327(b) and (c) do not apply, and Ellis’ argument can only be based on subsection 1327(a). The principal issue presented by this appeal is the extent to which section 1327(a) affects relief from stay based on a post-confirmation default.

Under subsection 1327(a), the provisions of a confirmed plan bind the debtor and each creditor, whether or not such creditor has objected to, has accepted, or has rejected the plan. We previously held that subsection 1327(a) barred post-confirmation relief from stay based on grounds arising before confirmation. In re Evans, 30 B.R. 530 (Bankr. 9th Cir.1983). Evans was limited to facts “absent a post-confirmation default in carrying out the plan.” Id. at 531. In Evans, we concluded that there was a res judicata effect as to the issues that could have been decided at confirmation, including “adequate protection, lack of equity, and necessity for successful reorganization.” Id. Post-confirmation defaults would not be considered at the confirmation hearing and are therefore not subject to res judicata flowing from the order.

Ellis relies upon In re Brock, 6 B.R. 105, 107 (Bankr.N.D.Ill.1980), as holding that creditors’ only remedies after confirmation are conversion and dismissal motions. Because the plan in Brock vested the property of the estate in the debtor, that case involves subsection 1327(c) issues that are not present in this appeal. 4 Ellis has not *435 raised a persuasive argument as to why the reasoning of Brock should be extended beyond its facts. There is obvious reason why it should not be extended. If there is a post-confirmation default, relief from stay is a simpler and less drastic remedy than dismissal or conversion. For example, a plan that includes a secured creditor might not be feasible, but a plan without that creditor could be feasible and provide desirable protection for the unsecured creditors. Ellis would deprive the bankruptcy court of this remedy.

We hold that relief from stay after confirmation of a Chapter 13 plan is not barred here by section 1327(a) because the relief is based on defaults in post-confirmation payments.

II.

The bankruptcy court may grant relief from stay “for cause, including the lack of adequate protection of an interest in property.” 11 U.S.C. § 362(d)(1). Failure to make post-confirmation payments can constitute cause for lifting the stay. E.g., In re Quinlan, 12 B.R. 516 (Bankr.W.D.Wis.1981); cf. In re Pizzullo, 33 B.R. 740 (Bankr.E.D.Pa.1983). Ellis failed to make seven of the monthly payments after confirmation. Late or erratic payments — even with interest — are often not of equal practical value to one who relies on a steady income stream, particularly noninstitutional lenders as here.

Ellis contends that the stay can only be terminated if appellees show a lack of adequate protection. This argument, although frequently made, completely misconstrues essential elements of relief from stay litigation. First, the proponent of the stay — the debtor here — has the burden of showing that there is no cause to terminate the stay. See, e.g., In re Gauvin, 24 B.R. 578 (Bankr. 9th Cir.1982). Second, under section 362(d)(1), the stay must be terminated for “cause.” Lack of adequate protection is but one example of “cause” for relief from stay. 5

Ellis cites In re Shriver, 33 B.R.

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Bluebook (online)
60 B.R. 432, 1985 Bankr. LEXIS 4720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-parr-in-re-ellis-bap9-1985.