In re Deutsch

529 B.R. 308, 2015 Bankr. LEXIS 1368, 2015 WL 1804006
CourtUnited States Bankruptcy Court, C.D. California
DecidedApril 20, 2015
DocketCase No.: 6:14-bk-21126-SY
StatusPublished
Cited by6 cases

This text of 529 B.R. 308 (In re Deutsch) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Deutsch, 529 B.R. 308, 2015 Bankr. LEXIS 1368, 2015 WL 1804006 (Cal. 2015).

Opinion

MEMORANDUM DECISION DENYING CONFIRMATION OF DEBTOR’S CHAPTER 13 PLAN

Scott H. Yun, United States Bankruptcy Judge

Carolyn Deutsch (the “Debtor”) filed her voluntary, chapter 71 petition on September 2, 2014, and later converted her case to chapter 13. The Debtor’s Chapter 13 Plan (the “Plan”) relies on contributions from a nondebtor third party in order to enable her to make plan payments. Without the contributions, the Debtor’s monthly take-home income is insufficient to pay all of her expenses, let alone the proposed Plan payments.

Chapter 13 plans premised on contributions from family or friends are much too common before the court, and are often proposed by debtors in their impractical and mostly futile attempts to save homes that are over-encumbered by secured debts. Many of these chapter 13 plans not only fail to meet the requirements for confirmation under § 1325 but also defeat the primary purpose of bankruptcy for individual debtors — that of the fresh start. See Kenneth N. Klee & Whitman L. Holt, Bankruptcy and the Supreme Court: 1801-20U, at 316-19 (2015) (quoting Williams v. United States Fidelity & Guaranty Co., 236 U.S. 549, 35 S.Ct. 289, 59 L.Ed. 713 (1915)). Rather than providing a discharge and a fresh start, a chapter 13 plan premised on contributions spreads the burden of satisfying the debtor’s debts and obligations to others (often to the debtor’s children or parents). The Debt- or’s Plan is just such a plan and is the very antithesis of the fresh start that the Bankruptcy Code intended.

The court now denies confirmation of the Debtor’s Plan because it is not feasible as required by 11 U.S.C. § 1325(a)(6) and because the Debtor is not an individual with regular income as defined by 11 U.S.C. § 101(30). Since the Debtor will be unable to continue under chapter 13, her case will be converted back to chapter 7.

[311]*311I. PROCEDURAL BACKGROUND

The Debtor originally filed her bankruptcy case under chapter 7, and the chapter 7 trustee’s Report of No Distribution was entered on October 9, 2014. Rather than obtaining a discharge under chapter 7, the Debtor subsequently filed a motion seeking conversion of her case to chapter 13, which the court granted. Debtor’s Mot. to Convert Case, ECF No. 14; Order on Debtor’s Mot. to Convert Case, ECF No. 27. At the same time, she also filed her proposed Chapter 13 Plan and amended schedules.2 Ch. 13 Plan, ECF No. 17; Amended Schedules, ECF No., 16. The Debtor subsequently filed the Contribution Declaration of Ben Mayo in support of her proposed plan on October 28, 2014 (the “Mayo Declaration”). Mayo Decl., ECF No. 20.

The hearing on confirmation of the Debtor’s Plan was originally held on December 30, 2014, and was continued to February 24, 2015. At the February 24, 2015 confirmation hearing, the court raised its concerns regarding the Debtor’s reliance on a nondebtor contribution to fund her plan payments. The hearing was then continued to April 7, 2015, and the Debt- or’s counsel was afforded the opportunity in the interim to file whatever supplemental briefing or evidence he thought appropriate on the contribution issue. The Debtor then filed the Contribution Declaration of Avelina Valle on March 9, 2015, which was executed by her mother, (the “Valle Declaration”). Valle Deck, ECF No. 65. No other documents were filed, and counsel did not offer any further evidence at the continued hearing on April 7, 2015. He instead argued that the Debtor was current on plan payments, that the remaining issues with the chapter 13 trustee had been resolved, and that the “backup” contributions from the Debtor’s mother were sufficient. The court took this matter under submission at the conclusion of that hearing.

II. FACTUAL BACKGROUND

The Debtor’s Plan requires her to make payments of $490.00 per month for 57 months, followed by payments of $1,188.00 per month for three months. Ch. 13 Plan, ECF No. 17. The Debtor’s amended Schedule I reflects that she has $5,000.00 in combined monthly income, which includes $700.00 per month described as “[c]ontribution income from boyfriend.” Sch. I: Your Income, ECF No. 16. The Debtor’s Schedule J reflects $4,510.00 in monthly expenses, leaving $490.00 in net income per month. Sch. J: Your Expenses, ECF No. 16. Based on her schedules, the Debtor is incapable of making her proposed Plan payments, or plan payments in any amount, if she does not receive the nondebtor contribution.

At the February 24, 2015 confirmation hearing, the Debtor’s counsel confirmed that Ben Mayo (“Mayo”) was the Debtor’s boyfriend and indicated that the relationship was relatively recent. Mayo testified in his declaration that he lives with the Debtor, that he intended to begin contributing $700.00 per month to the Debtor in November 2014, that his income is regular, and that he intends to contribute money to the Debtor for as long as he can financially afford to do so. Mayo Deck ¶¶ 1-4. Attached to the declaration are what appear to be two unauthenticated paystubs for Mayo issued in the month of October 2014. [312]*312Id. at Ex. A. The paystubs reflect $864.69 in net income for that month. Id.

Avelina Valle (“Valle”) testified that in the event that Mayo fails to pay part or all of the $700.00 monthly contribution she will step in and pay it for the duration of the case. Valle Decl. ¶¶ 3, 5. She' stated in her declaration that her income consists of Supplemental Security Income from Social Security in the amount of $1,182.35 per month and business income in the approximate amount of $2,795.00 per month attributable to a partial ownership interest in a hospice in Colorado. Id. at ¶ 4. Attached to her declaration is a one-page, unauthenticated printout that appears to reflect transactions in a bank account for the period from February 10 to 24, 2015. Id. at Ex. A. The printout does show two deposits in the amounts of $1,182.35 and $2,795.00. Id. However, it also shows that the account balance was only $554.60 before the $1,182.35 deposit, and it had dropped to $52.33 before the $2,795.00 deposit. Id. The balance drops again to $54.33 before another deposit in the amount of $120.00 is made from an online transfer. Id.

The Debtor did not provide any evidence other than the two declarations in support of the contribution payments from either Mayo or Valle.

III. DISCUSSION

A. Feasibility

The Debtor’s Plan is only feasible if her income includes the $700.00 monthly contribution from Mayo or Valle because the Debtor’s own take-home income of $4,300.00 is insufficient to meet even her regular monthly expenses of $4,510.00. In order for a chapter 13 plan to be confirmed, a debtor must demonstrate that she “will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). Rebanee on contributions from family is disfavored, but not prohibited. In re Schwalb, 347 B.R. 726, 759 (Bankr.D.Nev.2006).

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

Related

Louis John Sullivan
D. Colorado, 2025
George Gordon Strong, III
C.D. California, 2024
In re: Rita Ramos Curiel
Ninth Circuit, 2023
In re: Alicia Marie Richards
Ninth Circuit, 2022

Cite This Page — Counsel Stack

Bluebook (online)
529 B.R. 308, 2015 Bankr. LEXIS 1368, 2015 WL 1804006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-deutsch-cacb-2015.