In re Formaneck

534 B.R. 29, 2015 Bankr. LEXIS 2307, 2015 WL 4241154
CourtUnited States Bankruptcy Court, D. Colorado
DecidedJuly 13, 2015
DocketCase No. 10-20070 MER
StatusPublished
Cited by6 cases

This text of 534 B.R. 29 (In re Formaneck) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Formaneck, 534 B.R. 29, 2015 Bankr. LEXIS 2307, 2015 WL 4241154 (Colo. 2015).

Opinion

ORDER

Michael E. Romero, Chief Judge United Stated Bankruptcy Court

Gambling with a Chapter 13 discharge is a risky proposition, particularly where a material default is discovered in month fifty-eight of a confirmed Chapter 13 plan. This is the issue presented to this Court in the Chapter 13 Trustee’s Motion to Dismiss, the Debtors’ response thereto, and [31]*31the briefs submitted by the parties.1 After submission of the parties’ briefs, the Court took this matter under advisement. The Court, having reviewed the record and all relevant pleadings, hereby makes the following findings and conclusions.

BACKGROUND FACTS

The relevant facts are undisputed. The Debtors’ primary residence is located at 9404 S. Shadow Hill Circle, Lone Tree, CO 80124 (“Residence”). The Residence is subject to a first priority lien in favor of Wells Fargo Home Mortgage (“Wells Fargo”). Pre-petition, the Debtors defaulted on their monthly payments to Wells Fargo.

On April 28, 2010, the Debtors filed for relief under Chapter 13 of the Bankruptcy Code. On December 17, 2010, the Court entered an Order2 confirming the Debtors’ Amended Chapter 13 Plan (“Confirmed Plan”).3 The duration of the Debtors’ Confirmed Plan is sixty months, with the final payment due April 28, 2015. Section IV.B.l. of the Confirmed Plan provides -for a cure of the $43,055 pre-petition arrears owed to Wells Fargo in connection with their Residence, and regular post-petition mortgage payments to be paid directly to Wells Fargo outside the Confirmed Plan beginning May 30, 2010.4

According to the parties, the Debtors completed all required monthly payments to the appropriate standing Chapter 13 Trustee under the Confirmed Plan, and the Trustee disbursed $43,055 to Wells Fargo for the pre-petition arrears. Contrary to the terms of Sections IV.B.1. and V.A., the Debtors failed to make regular post-petition mortgage payments directly to Wells Fargo after October 2012.

On April 29, 2014, the Trustee filed a Notice of Final Cure Payment.5 After Wells Fargo responded, the Debtors filed their Objection to Wells Fargo’s Statement in Response to Trustee’s Notice of Final Cure Payment.6 Notably, the Debtors’ Objection states:

Debtors object to the additional and superfluous statement that the Debtors currently have a post petition arrearage of $96,098.17. Such a statement may lead one to believe that the Debtors have not been making house payments on their residence.
Based upon information and belief from the Debtors’ fínancial records, the Debtors were current through October of 2012 with mortgage payments. Thereafter, the Debtors experienced difficulties in making regular payments to the mortgage company and. maintaining the regular chapter 13 trustee payment.7

According to the Stipulation later approved by this Court, the Debtors and Wells Fargo later agreed the total amount of post-petition arrears owed to Wells Fargo through February 2015, is $109,022.42.8 [32]*32During the pendency of the Debtors’ bankruptcy case, Wells Fargo did not seek relief from the automatic stay to pursue its state law rights with respect to the Residence. Furthermore, the Debtors never sought any modification of their Confirmed Plan.

DISCUSSION

Section 1307(c)(6) of the Bankruptcy Code provides:

(c) Except as provided in subsection (f) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including:—
(6) material default by the debtor with respect to a term of a confirmed plan[.]9

Where there is a material default, “dismissal or conversion is not automatic, but rather a matter of the Court’s discretion.” 10

On February 6, 2015, the Trustee filed his Motion to Dismiss, seeking dismissal of the Debtors’ case for two reasons. First, the Trustee asserts dismissal is proper under 11 U.S.C. § 1307(c)(6) because the Debtors’ failure to make post-petition payments directly to Wells Fargo is a “material default” by the Debtors with respect to a term in their Confirmed Plan. Accord-' ing to the Trustee, “[t]he direct pay mortgage was in fact the most material part of this plan, the mortgage payment being over three times the amount of the trustee plan payment.”11 Second, and as independent grounds, the Trustee asserts dismissal is in the best interests of creditors and the estate for “cause” under § 1307(c) because the “Debtors failed to notify anyone, including the - [Trustee] that they were not making their monthly mortgage payments, thus defaulting under their [Confirmed Plan].”12 For these two reasons, the Trustee seeks entry of an order dismissing this bankruptcy case.

In response, the Debtors admit a material default with respect to Wells Fargo, stating:

The Debtors do not deny that Wells Fargo has the ability to request relief from the automatic stay, nor do they deny the Well Fargo has the ability to request a meaningful remedy under 11 U.S.C. § 1307 and dismiss the Debtors’ case for a default in the plan as such failure to pay the current mortgage payments is material to Wells Fargo.13

The Debtors also agree the Trustee has legal "standing to prosecute the Motion to Dismiss.14 However, the Debtors allege their default is not “material” with respect to the Trustee or unsecured creditors, and in the absence of any harm to the Trustee’s administration of the Confirmed Plan, only Wells Fargo may file a motion to dismiss. Relying on § 1327(b), the Debt[33]*33ors also argue their postpetition income vested in the Debtors after confirmation, and they may “choose how to utilize their vested assets for post-petition payments.” 15 In other words, the Debtors argue their failure to make any monthly post-petition mortgage payments to Wejls Fargo is no concern of the Trustee and a request to dismiss by the Trustee is improper. The Court disagrees.

A. The Debtors’ Failure to Make Post-Petition Payments Directly to a Secured Creditor Outside a Confirmed Plan Constitutes a Material Default With Respect to a Term of the Confirmed Plan

Sections IV.B.l. and V.A. of the Confirmed Plan provide for sixty post-petition mortgage payments to be made directly to Wells Fargo.16 Section 1327(a) provides the provisions of the Confirmed Plan are binding on the Debtors.17 The Court concludes these binding provisions are “terms” of the Confirmed Plan.18

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Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 29, 2015 Bankr. LEXIS 2307, 2015 WL 4241154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-formaneck-cob-2015.