In re Cochran

555 B.R. 892, 2016 Bankr. LEXIS 3211, 2016 WL 4575557
CourtUnited States Bankruptcy Court, M.D. Georgia
DecidedSeptember 1, 2016
DocketCase No. 15-52314-AEC
StatusPublished
Cited by5 cases

This text of 555 B.R. 892 (In re Cochran) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cochran, 555 B.R. 892, 2016 Bankr. LEXIS 3211, 2016 WL 4575557 (Ga. 2016).

Opinion

MEMORANDUM OPINION

Austin E. Carter, United States Bankruptcy Judge

The primary issue -in this case is whether a plan that calls for distributions in the form of monthly payments followed by a balloon payment to a creditor holding a claim secured by the debtor’s real property complies with § 1325(a)(5)(B)(iii)(I) of the Bankruptcy Code.1

Factual Background

On August 28, 2009, the Debtor pledged his residence and the adjoining 157 acres of land as collateral on a loan from The Bank of Perry for the purchase of equipment for the Debtor’s automotive collision repair business. The Debtor was unable to pay the balance of the loan when it matured in 2012. However, the Debtor continued to make regular payments until The Bank of Perry assigned the note and its security interest to RREF II PB-GA, LLC (“RREF”) in 2015. RREF subsequently initiated foreclosure proceedings on the property. The Debtor filed a Chapter 13 petition on October 10, 2015 to avoid the foreclosure.

RREF timely filed a claim in the Debt- or’s bankruptcy case in the amount of $649,990.09, secured by the Debtor’s residence and the adjoining acreage (no. 2 on the claim register). RREF’s objection to confirmation concerns the Plan’s treatment of this claim.2 At the confirmation hearing, [895]*895the parties agreed that the value of the real property exceeds the amount of RREF’s claim.

The Plan proposes that, within the first twelve months after confirmation, the Debtor will make a balloon payment that will pay off the balance of RREF’s secured claim. Until such balloon payment, the Debtor will make monthly payments of $2,500. These payments are a continuation of -the adequate protection payments that the Debtor began making to RREF on account of its secured claim on December 7, 2015 under the Court’s Order Denying Motion for Relief from Automatic Stay and Granting Adequate Protection (Dkt. 33).3 (Such monthly $2,500 payments are hereinafter referred to as the “Adequate Protection Payments.”) RREF filed an objection to the confirmation of the Debtor’s Plan on two grounds: (1) § 1325(a)(5) is not satisfied because the proposed balloon payment is a periodic payment unequal to the preceding Adequate Protection Payments in contravention of § 1325(a)(5)(B)(iii)(I); and (2) § 1325(a)(6) is not satisfied because the balloon payment renders the Plan not feasible.4

At the confirmation hearing, the Debtor testified in support of the Plan. In order to acquire the funds necessary to satisfy RREF’s secured claim, the Debtor intends to transfer his interest in the real property to his wife, who will obtain a loan in her name to refinance the property. To qualify for the loan, the wife, a little more than a month prior to the hearing, received a salary increase from the Debtor’s business, Cochran Coachworks, Inc., where she is a long-term employee. According to the Debtor, his business can afford the increased salary to his wife. The Debtor testified, without objection, that a loan officer from Planters First Bank indicated that he sees “no problem” with a refinance of the property once the wife has a six-month historical record of receiving her increased salary. The Debtor can afford to pay RREF the Adequate Protection Payments until RREF’s secured claim is satisfied by the planned refinance.

RREF obtained the Debtor’s acknowledgment that the refinance is not certain to occur, and that he does not have a term sheet, commitment letter, or final loan approval. RREF did not otherwise challenge the Debtor’s testimony as to the refinance proposal or offer any rebuttal evidence.

The Debtor’s Plan proposes to pay unsecured claims a 100% dividend. The Chapter 13 trustee reports that the Debtor has made all of his Plan payments. The trustee does not oppose confirmation of the Plan.

Pursuant to the Court’s direction at the confirmation hearing, the parties filed post-hearing briefs in support of their respective arguments.

Legal Analysis

As noted above, RREF objects to the confirmation of the Plan on two grounds: (1) the Plan violates § 1325(a)(5)(B)(iii)(I) [896]*896by providing for monthly payments to RREF followed by a balloon payment;5 and (2) the Plan is not feasible as required under § 1325(a)(6).6

I. Section 1325(a)(5)(B)(iii)(I) does not prohibit balloon payments.

RREF contends that the balloon payment is part of the stream of periodic Adequate Protection Payments proposed by the Plan. For this reason, in RREF’s view, the balloon payment “is in the form of periodic payments” which must “be in equal monthly amounts” under § 1325(a)(5)(B)(iii)(I). Following this reasoning, because the balloon payment will not be equal to the previous monthly payments, it- is statutorily prohibited.

The Debtor disagrees with this conclusion, arguing that his proposed post-confirmation Adequate Protection Payments to RREF should not be considered “periodic payments” under § 1325(a)(5)(B)(iii)(I), and thus there is no stream of “periodic payments” with which the balloon payment must be equal.7 Secondarily, the Debtor [897]*897argues that the unique facts presented in this case invoke a balance of the equities in his favor.

1. The majority rule is that balloon payments are periodic payments proscribed by § 1325(a)(5)(B)(iii)(I).

RREF notes that an overwhelming majority of reported decisions on this issue take the position that § 1325(a)(5)(B)(iii)(I) proscribes confirmation of a plan with a balloon payment on a secured claim following a stream of periodic payments.8 However, none of these decisions are controlling law in the Eleventh Circuit.

While some of the cases cited by RREF are distinguishable,9 others are not, and RREF is correct in noting that there is a substantial body of case law holding that balloon payments are unequal periodic payments proscribed by § 1325(a)(5)(B)(iii)(I). These decisions are based on three primary rationales: (1) statutory language — where the plan also provides for periodic payments, balloon payments are prohibited because they are, by definition, not equal to such preceding periodic payments; (2) congressional intent— Congress intended to eliminate balloon payments by enacting § 1325(a)(5)(B)(iii)(I); and (3) precedent— the majority of courts so hold. See, e.g., Hamilton v. Wells Fargo Bank, N.A. (In re Hamilton), 401 B.R. 539 (1st Cir. BAP 2009) (most prominent case setting forth this position). For the reasons that follow, the Court finds none of these arguments persuasive.

2. The Court declines to follow the majority rule because it goes against the plain language and purpose of § 1325(a)(5)(B)(iii)(I).

A. The plain language of § 1325(a)(5)(B)(iii)(I) allows for balloon payments.

The arguments based on statutory language reason that balloon payments by [898]*898definition are not equal to the preceding payments, and thus cannot be “in equal monthly amounts,” so contravening § 1325(a)(5)(B)(iii)(I). This line of reasoning purports to rely on a dictionary definition of “periodic” as any payment that is repeated or regular. See, e.g., In re Hamilton, 401 B.R. at 544.

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Cite This Page — Counsel Stack

Bluebook (online)
555 B.R. 892, 2016 Bankr. LEXIS 3211, 2016 WL 4575557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cochran-gamb-2016.