In re Curry

526 B.R. 276, 2015 Bankr. LEXIS 685, 2015 WL 1020641
CourtUnited States Bankruptcy Court, C.D. Illinois
DecidedMarch 5, 2015
DocketCase No. 14-70979
StatusPublished

This text of 526 B.R. 276 (In re Curry) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Curry, 526 B.R. 276, 2015 Bankr. LEXIS 685, 2015 WL 1020641 (Ill. 2015).

Opinion

OPINION

Mary P. Gorman, United States Chief Bankruptcy Judge

Before the Court is the Debtors’ First Amended Chapter 13 Plan. The Chapter [277]*27713 Trustee objects to confirmation, in part, because the Debtors propose to treat a consolidated student loan subject to income-based repayment terms as an executory contract. The Trustee asserts that the student loan obligation is not executory in nature and cannot be assumed and separately treated. For the reasons set forth herein, the Trustee’s objection to confirmation of the Debtors’ First Amended Chapter 13 Plan will be sustained.

I. Factual and Procedural Background

Eric Todd Curry and Tammy Renee Curry (“Debtors”) filed their joint voluntary petition under Chapter 13 of the Bankruptcy Code on May 27, 2014. On their Schedule F, the Debtors listed a total of $110,539.60 in unsecured nonpriority debt. That amount included a $73,212.95 debt for “2007 and 2008 Educational Loan — Consolidated Loans” owed by Mrs. Curry to the “Dept, of Education/NEL-NET.” FedLoan Servicing and Sallie Mae also were scheduled to receive “NOTICE ONLY.” On Schedule G- — -Executory Contracts and Unexpired Leases, the Debtors listed FedLoan Servicing as being party to an executory contract with the Debtors and described the contract as “Income Based Repayment Plan. ^Starts June 2014 for 25 years at 191.08 per month. Monthly payment is recalculated annually.” FedLoan Servicing filed a proof of claim in the amount of $73,737.52 for “student loan debt.” Attached to the claim was a letter stating that copies of the underlying loan documents were not included because they were never provided by the originating lender.

In their initial Chapter 13 Plan (“Plan”), the Debtors proposed to assume their alleged executory contract with FedLoan Servicing. The Plan provided for the Debtors to maintain monthly payments of $191.08 and noted that 300 payments remained due under the contract. In their First Amended Plan (“Amended Plan”) filed in September 2014, the Debtors again provided for payments on the executory contract with “Fed Loan Servicing (Dept of Education),” but lowered the monthly payment amount to “$0.00.” At the same time, the Debtors filed an Amended Schedule I, reporting post-filing changes in the monthly income of both Debtors resulting in a net decrease in household income of $1218.17 per month.

The Chapter 13 Trustee (“Trustee”) objected to the Amended Plan questioning the reduction in the monthly payment amount to FedLoan Servicing because “there was no change in income per the Amended Schedule I.” The Trustee requested proof that no payments to Fed-Loan Servicing were being made or were required to be made. The Trustee also objected to the treatment of the obligation as executory, asserting that a note with Income-Based Repayment (“IBR”) terms is not an executory contract. The Trustee asserted that if payments were being made or were required to be made under the IBR terms, separate treatment of the obligation would result in unfair discrimination against other unsecured creditors.

The Debtors responded by denying that there was no change in income, citing the overall decrease of $1218.17 in the Debtors’ combined net income shown on their Amended Schedule I. They further declared that they were not making payments to FedLoan Servicing and that their account had been automatically placed in “bankruptcy forbearance” for the pendency of their Chapter 13 case. The Debtors argued that the IBR terms in the consolidation loan documents created an executory contract that can be assumed in a Chapter 13 plan. The Debtors clarified that they want to remove the consolidated student loans from forbearance status and [278]*278resume repayment in accordance with the IBR terms. They stated that their projected IBR monthly payment under their current circumstances would be $23. The Trustee replied, arguing that the repayment obligation created by the IBR terms is not executory, and the simple appearance of mutual obligations does not make it executory. Both parties were requested to brief the legal issues presented by the Debtors’ classification of Mrs. Curry’s student loan obligations being paid under IBR terms as executory.

The Debtors filed a memorandum of authority that included a statement of facts and the attachment of supporting documents. According to the Debtors, Mrs. Curry obtained several student loans between 2007 and 2010. The loans were later consolidated into two new loans,1 owned by the Department of Education and serviced by FedLoan Servicing. Mrs. Curry elected to participate in the IBR option offered by the Department of Education, which generally provides for loan payments to be based on income, recalculated annually, and forgiveness of any remaining balance due after twenty-five years of payments. The Debtors attached a sample Master Promissory Note which included the terms of the IBR option. The Debtors also attached additional correspondence from FedLoan Servicing dated April 22, 2014, acknowledging Mrs. Curry’s IBR election and directing her to pay $191.08 per month for the first year under the IBR Plan, beginning June 10, 2014.

Notwithstanding the payment amount set forth in the April 22 nd' letter, the Debtors maintain that their current monthly payment under Mrs. Curry’s IBR election based on their changed circumstances would be $23. p They, calculated that amount using the “Repayment Estimator” and a downloadable information packet for borrowers from the Federal Student Aid website. The Debtors argue that Mrs. Curry’s election of the IBR terms created an executory contract because it resulted in both parties having obligations that have yet to be performed. Specifically, the Debtors argue that they must comply with the repayment terms of the IBR option, and FedLoan Servicing must forgive any loan balance after the Debtors make the required payments. The Debtors claim that these mutual obligations are significant and make the contract executory.

In his memorandum, the Trustee does not dispute the Debtors’ statement of facts or their general explanation of how the IBR option works. Rather, the Trustee argues that the IBR terms are not set forth in a separate contract distinct from the loan consolidation note. Instead, the Trustee asserts that the IBR terms simply provide an alternative repayment method for the original obligation. Additionally, the Trustee argues that the only significant remaining obligation under the note and the IBR terms is Mrs. Curry’s promise to repay the loans. The Trustee claims that any breach resulting from the failure to perform on the part of FedLoan Servicing would not be material and would not excuse performance by the Debtors.

[279]*279Because there are no factual disputes, an evidentiary hearing was not requested or required. The matter is ready for decision.

II. Jurisdiction

This Court has jurisdiction over the issues before it pursuant to 28 U.S.C. § 1334. Matters concerning the administration of the estate and confirmation of plans or affecting the debtor-creditor relationship are core proceedings. 28 U.S.C. § 157(b)(2)(A), (L), (0).

III. Legal Analysis

Section 1322 generally governs the contents of Chapter 13 plans. 11 U.S.C.

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Bluebook (online)
526 B.R. 276, 2015 Bankr. LEXIS 685, 2015 WL 1020641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-curry-ilcb-2015.