In re Gerard

495 B.R. 850, 70 Collier Bankr. Cas. 2d 206, 2013 WL 4011191, 2013 Bankr. LEXIS 3217, 58 Bankr. Ct. Dec. (CRR) 87
CourtUnited States Bankruptcy Court, E.D. Wisconsin
DecidedAugust 7, 2013
DocketNo. 12-21108-svk
StatusPublished
Cited by5 cases

This text of 495 B.R. 850 (In re Gerard) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gerard, 495 B.R. 850, 70 Collier Bankr. Cas. 2d 206, 2013 WL 4011191, 2013 Bankr. LEXIS 3217, 58 Bankr. Ct. Dec. (CRR) 87 (Wis. 2013).

Opinion

DECISION ON CONFIRMATION OF THE PLAN

SUSAN V. KELLEY, Bankruptcy Judge.

The Debtors are individuals who filed a Chapter 11 petition on February 2, 2012. On July 11, 2013, the Court held a confirmation hearing on the Debtors’ Chapter 11 plan. Kevin and Margaret Gerard objected to confirmation of the plan based on (1) lack of good faith; (2) failure to provide all projected disposable income; and (3) violation of the absolute priority rule.

On the good faith issue, after considering the testimony and documentary evidence, the Court determined that the scheduled $160,000 claim of Nancey Gerard’s brother, Norman Cerk, was not a loan but a gift. The Court concluded that the Debtors could cure the bad faith evidenced by including this claim by filing an objection to Cerk’s claim, and assuming the claim is disallowed, directing the dividend that would have gone to Cerk to Kevin and Margaret Gerard. With respect to the projected disposable income argument, the Court directed the Debtors to provide copies of their income tax returns to Kevin and Margaret Gerard’s attorney contemporaneously with filing them •with the taxing authorities. For each year of the Plan, to the extent the Debtors’ gross income exceeds 10% of the projected gross income in the Disclosure Statement, the Debtors must pay the amount in excess of such 10% to the unsecured creditor classes.

The remaining issue, application of the absolute priority rule, was taken under advisement. This decision constitutes the Court’s findings of fact and conclusions of [852]*852law on that issue. Most of the requirements for confirmation of the plan have been met in this case, but Kevin and Margaret Gerard (and the other two unsecured creditors who returned ballots) have not accepted the plan.

Since a class of unsecured creditors has not accepted the plan, the plan cannot be confirmed unless it is fair and equitable. 11 U.S.C. § 1129(b)(1). Section 1129(b)(2)(B) provides the definition of “fair and equitable” for unsecured claims:

(B) With respect to a class of unsecured claims&emdash;
(i) the plan provides that each holder of a claim of such class receive or retain on account of such claim property of a value, as of the effective date of the plan, equal to the allowed amount of such claim; or
(ii) the holder of any claim or interest that is junior to the claims of such class will not receive or retain under the plan on account of such junior claim or interest any property, except that in a case in which the debtor is an individual, the debtor may retain property included in the estate under section 1115, subject to the requirements of subsection (a) (1U) of this section.1

(emphasis supplied).

In turn, § 1115 provides:

(a) In a case in which the debtor is an individual, property of the estate includes, in addition to the property specified in section 541&emdash;
(1) all property of the kind specified in section 541 that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first; and
(2) earnings from services performed by the debtor after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 12, or 13, whichever occurs first,
(b) Except as provided in section 1104 or a confirmed plan or order confirming a plan, the debtor shall remain in possession of all property of the estate.

The fair and equitable test codifies the “absolute priority rule” for unsecured creditors and equity holders. Under the absolute priority rule, a junior class may not receive anything from the plan unless all dissenting senior classes have been paid in full.2 The rule is logical and easy to apply when considering a corporate debtor with classes of unsecured creditors and shareholders, but here, the individual Debtors are considered the junior class, and the unsecured creditors are the senior class. Nevertheless, individual debtors qualify for chapter 11 relief, and the Supreme Court has held that the absolute priority rule applies to individual debtors. See Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 108 S.Ct. 963, 99 L.Ed.2d 169 (1988) (holding that due to absolute priority rule, family farmer could not retain equity interest in farm).

With the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCA), Congress amended § 1129(b)(2)(B)(ii) and added § 1115 to the Bankruptcy Code, creating an exception to the absolute priority rule for individual debtors. Courts are divided [853]*853into two camps in construing these amendments. Although an emerging majority-embrace a narrow view, some courts favor a broad reading of the new exception-allowing the individual debtor to retain all property of the estate without paying creditors in full, thus escaping the harsh consequences of the absolute priority rule.

Jumping on the bandwagon, the Debtors argue that § 1115(b) renders the absolute priority rule inapplicable to cases involving individuals. While dozens of bankruptcy courts and three courts of appeals have analyzed the application of the absolute priority rule to individual debtor cases, none has seized on § 1115(b) as grounds for abrogation of the absolute priority rule.3 Rather, all of the published decisions to date have focused on § 1115(a). This is a natural reading of the statutory provisions because § 1129(b)(2)(B)(ii) provides an exception to the absolute priority rule for property “included under” § 1115. And § 1115(a)&emdash;not § 1115(b)&emdash;defines what is included in property of the estate. Section 1115(b), copied from 11 U.S.C. § 1306(b), merely states that the debtor retains possession of property of the estate. This confirms pre-BAPCPA law that the debtor is a “debtor in possession” unless a trustee is appointed or the chapter 11 plan appoints a liquidating agent or designated person.

Even assuming that the statute is ambiguous, no legislative history suggests that the amendment to § 1129(b)(2)(B) and addition of § 1115(a) or (b) abrogates the absolute priority rule for individual debtors. See In re Draiman, 450 B.R. 777, 821 (Bankr.N.D.Ill.2011) (“There is no relevant legislative history on § 1115 which would indicate its intent was to abolish the absolute priority rule.”); see also In re Shat, 424 B.R. 854, 861 (Bankr.D.Nev.2010) (tracing legislative history of individual debtor amendments to chapter 11, and noting that § 1115(b) was added in committee to allow a chapter 11 debtor to remain in possession of property of the estate, including post-petition service income). Based on a natural reading of the statute and in the absence of any support in the legislative history or case law, the Court rejects the Debtors’ argument that § 1115(b), authorizing the individual debt- or to remain in possession of estate property, abrogates the absolute priority mile.

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Cite This Page — Counsel Stack

Bluebook (online)
495 B.R. 850, 70 Collier Bankr. Cas. 2d 206, 2013 WL 4011191, 2013 Bankr. LEXIS 3217, 58 Bankr. Ct. Dec. (CRR) 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gerard-wieb-2013.