In re Cassell

107 B.R. 536, 1989 Bankr. LEXIS 2066, 1989 WL 145766
CourtDistrict Court, E.D. Virginia
DecidedNovember 29, 1989
DocketBankruptcy No. 7-88-01881-BKC-HPA
StatusPublished
Cited by1 cases

This text of 107 B.R. 536 (In re Cassell) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cassell, 107 B.R. 536, 1989 Bankr. LEXIS 2066, 1989 WL 145766 (E.D. Va. 1989).

Opinion

MEMORANDUM OPINION AND ORDER

H. CLYDE PEARSON, Chief Judge.

The issue before this court is what interest rate an undersecured creditor is entitled to on the secured portion of the creditor’s debt. Another way of stating this issue is what is the appropriate discount rate that a Chapter 13 plan must apply to the allowed amount of a secured claim being paid over time in accordance with the terms of the plan.

The essential facts are as follows: The secured creditor, Dominion Bank, N.A., (“Bank”) has a security interest in Ira Hampton and Shirley Jean Cassell’s (“debtors”) 1985 Ford, F-150, four wheel drive, pickup truck. At the meeting of the creditors, the vehicle was valued at $6,400.00. This valuation of the collateral has been agreed to by Bank.

The debtors filed a Chapter 13 plan which provides that Bank shall receive $6,400.00, the allowed amount of its secured claim, in installments over a period of 36 months, with interest thereon at a rate of eleven and one-half percent per annum. The Bank objected to the plan because the said interest rate was below the market rate. Bank claimed that the plan’s application of the eleven and one-half percent interest rate, as opposed to the market rate, resulted in the present value of property distributed under the plan on account of the claim to be less than the allowed amount of the claim.

This is a troublesome issue before this Court, and apparently other Courts administering Chapter 13 cases. The task of resolving each secured claim in the numerous cases filed annually in this Court, is an impossible undertaking.

The question of interest on Chapter 13 claims arises out of the requirement of Section 1325(a)(5)(B)(ii) that a court confirm a plan only if,

with respect to each allowed secured claim provided for by the plan ... the value, as of the effective date of the plan, of property to be distributed under the plan on account of such claim is not less than the allowed amount of such claim; ...

Bankruptcy Code Section 1325(a)(5)(B) allows a debtor to “cramdown” a plan repaying only the allowed secured claim, i.e., the amount of the debt to the extent it is [538]*538secured by the present value of the collateral. The creditor is assured that the plan will require the debtor to pay the value, as of the effective date of the plan, or property to be distributed. But, since that amount will not be paid immediately and the creditor is forced to receive installment payments under the cramdown provisions, interest should be assessed on the amount which the debtor will repay to compensate for use of the creditor’s money.

The pivotal issue in this case is what interest the court must assess on the allowed secured claim for the present value of the vehicle in order to avoid dilution of the value of the claim during a delay in payment.

The Court has found a wilderness of rules courts have waded through to determine the proper interest rate in prior cases. 66 ALR Fed 537. It has been said that the search for an appropriate interest rate in Chapter 13 cramdown cases is like the search for the Holy Grail. In re Benford, 14 B.R. 157 at 159 (Bankr.W.D.Ky.1981).

The Bank contends that it is entitled to interest which it might negotiate upon a new loan, however that is not the rule to be applied. The funds distributed to secured creditors, by Chapter 13 trustees in administering these plans, impacts upon all creditors. Excessive interest payments to secured creditors diminishes the amount of funds available for all other creditors.

The highly respected authority in this field is set forth in 5 Colliers on Bankruptcy, (15 edition) Section 1325.-06[B], which states:

Section 1325(a)(5)(B)(ii) requires the court to determine the value of the property to be distributed under the plan. In other words, the court must ascertain the then present value of the property to be distributed. In order to implement section 1325(a)(5)(B)(ii) the court must capitalize deferred payments by converting the deferred payments proposed to be distributed under the chapter 13 plan into an equivalent capital sum as of the effective date of the plan. Section 1325(a)(5)(B)(ii) cannot be faithfully implemented simply by comparing the sum total of all deferred payments proposed by the plan with the amount of the allowed secured claim. An appropriate discount factor must be arrived at by the court, so as to fairly discount value proposed to be given in the future on account of the allowed secured claim.
The simplest method of equating the present value of deferred future payments with the amount of the allowed secured claim is to propose interest payments over and above the face amount of the allowed secured claim at whatever interest rate is equivalent to the discount rate selected by the court or agreed upon by the parties. Accordingly, in addition to deferred principal payments aggregating the face amount of the allowed secured claim, a chapter 13 plan need only propose to pay interest on the face amount of the allowed secured claim at the appropriate discount rate over the course of the payment extension period.
The purpose of the present value requirement is to place the holder of an allowed secured claim in the same position economically as if the ¡ debtor exercised the option of surrendering the collateral. Through the payment of interest, the creditor is compensated for the delay in receiving the amount of the allowed secured claim, which would be received in full immediately upon confirmation if the collateral were liquidated. Since the creditor is deprived of these funds to the extent they are deferred through the plan, the creditor must obtain them elsewhere, for whatever purposes they were to be used. In view of this purpose, the appropriate discount rate is one which approximates the creditor’s cost of funds in its business borrowings. If the holder of an allowed secured claim receives interest which compensates it in full for any additional interest costs incurred due to the deferral of payment, it is not harmed by that deferral.
Thus, contrary to the holdings of a number of courts, it is rarely appropriate to select the rate charged to the debtor in the original transaction as the present value discount rate. Treating the chap[539]*539ter 13 deferral of payments like a new loan transaction, as those courts have done, provides the holder of the allowed secured claim with not only the cost of the funds it would lend but also the costs of a new loan transaction, which would not be incurred, and the profit that would be earned in that transaction. Neither of these latter two amounts would be received if the collateral were surrendered; the lender would have to incur new transaction costs to earn an additional profit. To include them in the present value discount rate would give the holder of an allowed secured claim more than the equivalent of immediate payment of that claim in full. Such a reading of the statute would also ignore the fact that, during the legislative process leading to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Congress specifically considered an amendment requiring the contract rate of interest to be paid and rejected it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Dominion Bank v. Cassell (In Re Cassell)
119 B.R. 89 (W.D. Virginia, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
107 B.R. 536, 1989 Bankr. LEXIS 2066, 1989 WL 145766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cassell-vaed-1989.