In re Hager

572 B.R. 848, 2017 Bankr. LEXIS 2585
CourtUnited States Bankruptcy Court, W.D. Michigan
DecidedSeptember 5, 2017
DocketCase No. 17-01593
StatusPublished
Cited by4 cases

This text of 572 B.R. 848 (In re Hager) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hager, 572 B.R. 848, 2017 Bankr. LEXIS 2585 (Mich. 2017).

Opinion

MEMORANDUM OF DECISION AND ORDER

HONORABLE SCOTT W. DALES, Chief United States Bankruptcy Judge

PRESENT: HONORABLE SCOTT W. DALES Chief United States Bankruptcy Judge

I. INTRODUCTION

Soon after getting a chapter 7 discharge in an earlier case in this court, Darcy A. Frantz-Hager (the “Debtor”) experienced job loss while receiving only sporadic support payments from her ex-husband and began a not-so-successful gambling streak, racking up new debt in the process. Unable to service her debts, old and new, she again turned to the court, this, time filing for relief under chapter 13.

The Debtor proposed a repayment plan that met with the approval of the chapter 13 trustee, but after her former lawyer and current creditor, Lawrence W. New-meyer, objected to confirmation, the court held an evidentiary hearing to consider whether to confirm her plan. The court heard her testimony, admitted 19 exhibits, most without objection, and took the matter under advisement.

The following constitutes the court’s findings of fact and conclusions of law in accordance with Fed. R. Civ. P. 52, made applicable to this contested matter by Fed. R. Bankr. P. 9014 and 7052. For the following reasons, the court will deny confirmation.

II. JURISDICTION

The Debtor’s filing of a chapter 13 petition with this court commenced a bankruptcy case within the jurisdiction of the United States District Court for the Western District of Michigan under 28 U.S.C. § 1334(a). Pursuant to 28 U.S.C. § 157(a) and L. Civ. R. 83.2(a) (W.D. Mich.), the District Court has referred the Debtor’s case and all related proceedings to the United States Bankruptcy Court. A confirmation hearing, such as the court held on August 17, 2017, is a “core proceeding” within the meaning of 28 U.S.C. § 157(b)(2)(L). The court, therefore, has ample authority to resolve the parties’ dis[851]*851pute about the confirmation of the Debt- or’s plan.

III. ANALYSIS

A. Applicable Law

At a confirmation hearing, the objecting party has the initial burden to produce evidence in support of an objection, but a debtor has the ultimate burden of establishing by a preponderance of the evidence that her chapter 13 plan meets the confirmation requirements prescribed in § 1325. In re Lofty, 437 B.R. 578, 584 (Bankr. S.D. Ohio 2010); see also Hardin v. Caldwell (In re Caldwell), 895 F.2d 1123, 1126 (6th Cir.1990); Ed Schory & Sons, Inc. v. Francis (In re Francis), 273 B.R. 87, 91 (6th Cir. BAP 2002).

In the present case, chapter 13 trustee Barbara P. Foley, Esq. (the “Trustee”) is satisfied that the Debtor has met the requirements, as evident in the Declaration of Courtney K. Roberts, Esq. (Exh. 14), and in Ms. Roberts’s statements at the hearing in her capacity as counsel for the Trustee. Nevertheless, the court has an independent obligation to evaluate every chapter 13 plan and reach its own conclusions. As Ms. Roberts observed during the hearing, “reasonably minds may disagree.” The principal disputes presented for decision at the confirmation hearing involved the feasibility of the Debtor’s chapter 13 plan and her good faith in filing it.

The question of a plan’s feasibility stems from the statute’s requirement that “the debtor will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. § 1325(a)(6). The prediction that the statute requires, though somewhat data-driven, is hardly scientific, and generally calls upon common sense, not prescience. In order to confirm a plan, the court must find, again by a preponderance of fhe evidence, that the debtor will perform as she proposes, generally by making payments necessary to fund a dividend to creditors, satisfying their claims in whole or (as in this case) in part. The finding that a plan is feasible, of course, is no guarantee of success, merely an informed forecast.

With respect to the other main point of contention—the Debtor’s good faith (or lack thereof)—the text of the Bankruptcy Code provides far less guidance. As the court observed in a slightly different context, the Bankruptcy Code does not define what it means for a debtor to commence or prosecute a case in “good faith,” although the requirement of good faith pervades every proceeding under Title 11. In re Riedy, 517 B.R. 88 (Bankr. W.D. Mich. 2014) (citing Alt v. United States (In re Alt), 305 F.3d 413, 419 (6th Cir.2002) (applying totality of circumstances test to chapter 13 dismissal motion); Metro Employees Credit Union v. Okoreeh-Baah (In re Okoreeh-Baah), 836 F.2d 1030, 1033 (6th Cir.1988) (applying totality of circumstances to determine good faith as part of confirmation); Hardin v. Caldwell (In re Caldwell), 851 F.2d 852, 859 (6th Cir.1988) (same).

Good faith is the foundation un-dergirding the “basic policy animating the Code” of granting relief only to the “honest but unfortunate debtor.” Cohen v. de la Cruz, 523 U.S. 213, 217, 118 S.Ct. 1212, 140 L.Ed.2d 341 (1998) (citing Grogan v. Garner, 498 U.S. 279, 287, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979)). Given the centrality of the principle, the Sixth Circuit Court of Appeals has,on several occasions and in different contexts identified guideposts or factors to assist the lower courts in making the determination. Riedy, supra, 517 B.R. at 91. Those criteria include:

[852]*852(1) the amount of the proposed payments and the amount of the debtor’s surplus;
(2) the debtor’s employment history, ability to earn and likelihood of future increase in income;
(3) the probable or expected duration of the plan;
(4) the accuracy of the plan’s statements of the'debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court;
(5) the extent of preferential treatment between classes of creditors;
(6) the extent to which secured claims are modified;

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Cite This Page — Counsel Stack

Bluebook (online)
572 B.R. 848, 2017 Bankr. LEXIS 2585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hager-miwb-2017.