Everett C. Turner Realtors v. Carroll (In Re Carroll)

D. Oregon

Everett C. Turner Realtors v. Carroll (In Re Carroll)

61 B.R. 178, 1986 Bankr. LEXIS 6030

CourtUnited States Bankruptcy Court, D. Oregon

DecidedMay 21, 1986

Docket16-32198

StatusPublished

Cited by6 cases

This text of 61 B.R. 178 (Everett C. Turner Realtors v. Carroll (In Re Carroll)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Everett C. Turner Realtors v. Carroll (In Re Carroll), 61 B.R. 178, 1986 Bankr. LEXIS 6030 (Or. 1986).

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Opinion

MEMORANDUM OPINION

HENRY L. HESS, Jr., Bankruptcy Judge.

This matter came before the court upon the plaintiff-creditor’s “complaint to deny discharge.” The complaint is actually one *179 which objects to the dischargeability of a debt and the court will treat it as such.

The facts are agreed upon. One of the debtors herein was convicted of first degree theft in 1983. The creditor herein was the victim. As a condition of probation, the state court ordered the debtor to pay restitution to the victim. Thereafter, the debtors filed this chapter 13 case. The creditor asserts that the restitution obligation is not a “debt” under 11 U.S.C. § 101(11) and (4).

While there is a split of authority on this question, this court believes that the better-reasoned analysis is that in In Re Robinson, 776 F.2d 30 (2nd Cir.1985). In Robinson, the court held that a criminal restitution obligation was a “debt” for bankruptcy purposes. Accordingly, the restitution obligation was subject to the various discharge provisions of the code. This court agrees.

In the instant case, therefore, the complaint is premature. In the event the debtor completes the plan, he will be entitled to a discharge of all debts except support and long-term debt. 11 U.S.C. § 1328(a). If the debtor does not complete the payments, he may seek a “hardship” discharge under § 1328(b). In that event, the creditor will be given an opportunity to object to the dischargeability of the debt in question at that time.

Accordingly, the complaint will be dismissed without prejudice to the later refiling of it if the debtor seeks a hardship discharge or converts to chapter 7.

This opinion constitutes the court’s findings of fact and conclusions of law.

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MEMORANDUM OPINION

HENRY L. HESS, Jr., Bankruptcy Judge.

This matter came before the court upon the plaintiff-creditor’s “complaint to deny discharge.” The complaint is actually one *179 which objects to the dischargeability of a debt and the court will treat it as such.

The facts are agreed upon. One of the debtors herein was convicted of first degree theft in 1983. The creditor herein was the victim. As a condition of probation, the state court ordered the debtor to pay restitution to the victim. Thereafter, the debtors filed this chapter 13 case. The creditor asserts that the restitution obligation is not a “debt” under 11 U.S.C. § 101(11) and (4).

While there is a split of authority on this question, this court believes that the better-reasoned analysis is that in In Re Robinson, 776 F.2d 30 (2nd Cir.1985). In Robinson, the court held that a criminal restitution obligation was a “debt” for bankruptcy purposes. Accordingly, the restitution obligation was subject to the various discharge provisions of the code. This court agrees.

In the instant case, therefore, the complaint is premature. In the event the debtor completes the plan, he will be entitled to a discharge of all debts except support and long-term debt. 11 U.S.C. § 1328(a). If the debtor does not complete the payments, he may seek a “hardship” discharge under § 1328(b). In that event, the creditor will be given an opportunity to object to the dischargeability of the debt in question at that time.

Accordingly, the complaint will be dismissed without prejudice to the later refiling of it if the debtor seeks a hardship discharge or converts to chapter 7.

This opinion constitutes the court’s findings of fact and conclusions of law.

In Re Lorraine Johnson-Allen. Commonwealth of Pennsylvania Department of Public Welfare v. Lorraine Johnson-Allen. In Re Ruby Steffler A/K/A Ingrid J. Steffler. Commonwealth of Pennsylvania Department of Public Welfare v. Ruby Steffler A/K/A Ingrid J. Steffler. Appeal of Lorraine Johnson-Allen and Ruby Steffler. In Re Edward and Debora Davenport. Edward and Debora Davenport v. Commonwealth of Pennsylvania, Department of Public Welfare and Court of Common Pleas of Bucks County, and Edward Sparkman, Trustee. Appeal of Edward and Debora Davenport

871 F.2d 421 (Third Circuit, 1989)

Commonwealth of Pennsylvania Department of Public Welfare v. Johnson-Allen (In re Johnson-Allen)

871 F.2d 421 (Third Circuit, 1989)

Superior Court for the State of California v. Heincy (In re Heincy)

858 F.2d 548 (Ninth Circuit, 1988)

In Re Heincy

858 F.2d 548 (Ninth Circuit, 1988)

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61 B.R. 178, 1986 Bankr. LEXIS 6030, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-c-turner-realtors-v-carroll-in-re-carroll-orb-1986.

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