In re Heft

564 B.R. 389, 77 Collier Bankr. Cas. 2d 463, 2017 Bankr. LEXIS 451, 63 Bankr. Ct. Dec. (CRR) 196
CourtUnited States Bankruptcy Court, C.D. Illinois
DecidedFebruary 16, 2017
DocketCase No. 16-70536
StatusPublished
Cited by2 cases

This text of 564 B.R. 389 (In re Heft) 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 Heft, 564 B.R. 389, 77 Collier Bankr. Cas. 2d 463, 2017 Bankr. LEXIS 451, 63 Bankr. Ct. Dec. (CRR) 196 (Ill. 2017).

Opinion

OPINION

Mary P. Gorman, United States Chief Bankruptcy Judge

Before the Court is the Debtor’s Motion for Authority to Pay Secured Creditors Bank of Chestnut and Illinois National Bank. The motion asks that the Debtor be authorized to pay the two creditors directly and in contravention of the express terms of the Debtor’s pending, but not yet confirmed, Second Amended Chapter 12 Plan. Because the motion is procedurally and substantively deficient, it will be denied.

I. Factual and Procedural Background

Paul B. Heft (“Debtor”) filed his voluntary petition under Chapter 12 on March 31, 2016, In his statement of financial affairs, the Debtor disclosed that, after harvesting and selling his 2015 crop, he had ceased farming. He stated that he intended to liquidate his remaining farm equip-[391]*391raent and use the proceeds to pay creditors. On his Schedule A/B: Property, he listed a number of items of farm equipment valued in the aggregate at $73,850. On his Schedule D: Creditors Who Have Claims Secured by Property, he stated that the Bank of Chestnut had a lien on the farm equipment in the amount Of $18,370, and that- Illinois National Bank had a lien on the equipment and on other collateral to secure a debt of $30,000.

The Debtor timely filed his Chapter 12 Plan (“Plan”), which proposed that the Chapter 12 Trustee (“Trustee”) would pay the Bank of Chestnut and Illinois National Bank from the proceeds of the sale of the Debtor’s equipment. No projected amount of the proposed payments nor any interest rate to be used in the calculation of the payments was suggested; no details of how or when the equipment would be sold were disclosed. The Plan also proposed that the Trustee would distribute any surplus proceeds from the sale to unsecured creditors along with the Debtor’s disposable income for a period of three years. No information was included in the Plan, however, about how , disposable income would be calculated or when either that income or the sale proceeds would be paid to the Trustee for distribution to creditors.

At a confirmation hearing on the Plan held in July 2016, the Debtor’s attorney reported that no objections to the Plan had been filed and that he believed the Plan should be confirmed. The Court questioned what appeared to be inconsistencies in the Plan regarding the payment of income taxes related to the equipment sale, and the Debtor’s attorney conceded that the potential tax consequences of the sale had not been fully considered and that a provision for the payment of those taxes was needed. He acknowledged that providing for such taxes to be paid from the sale proceeds would benefit the Debtor and should have been included in the Plan.

The Court also questioned how the Plan could be implemented when it contained virtually no details regarding the Debtor’s obligations under it. The Court asked how anyone—the Trustee, creditors, or the Court—could ever determine whether the Debtor was in default under the Plan when it contained no dates by which the Debtor was required to do anything, no ongoing obligation on the part of the Debtor to account to the Trustee or creditors, and no formula by which disposable income was to be calculated. After discussing these issues at length, the Debtor’s attorney acknowledged, albeit reluctantly, that providing significantly more details of the what, when, and how of the Debtor’s proposed Plan would be beneficial. At the conclusion of the hearing, confirmation of the Plan was denied and the Debtor was given time to file an amended plan.

The Debtor’s First Amended Plan was filed September 22, 2016. The First Amended Plan provided a deadline for the equipment sale and required the Debtor to file a report of sale within 30 days of the sale. The report of sale was required to contain information about the tax consequences of the sale and a proposed amount to be held by the Debtor from the sale proceeds to pay such taxes. In the First Amended Plan, the Debtor proposed to turnover to the Trustee all net sale proceeds after the payment of sale expenses and the deduction of the tax holdback within 14 days after sending the report of sale to all creditors.

The First Amended Plan also provided for a minimum disposable income payment to the Trustee of $200 per month for 36 months and for an ongoing obligation of the Debtor to provide tax and financial information to the Trustee annually. Procedures were established in the First [392]*392Amended Plan for questions or objections to be raised by the Trustee or creditors to the Debtor’s annual disclosures.

The treatment of the Bank of Chestnut and Illinois National Bank under the First Amended Plan remained similar to that under the original Plan. Both were proposed to be paid by the Trustee from the equipment sale proceeds. No principal amount due nor rate of interest related to the Debtor’s obligation to either creditor was stated in the First Amended Plan.

At the confirmation hearing on the First Amended Plan, the Debtor’s attorney reported that the Debtor had recently, and unexpectedly, received $31,000 in government dividend checks related to prior crop years. He stated that he had discussed how the funds should be distributed with the Trustee and believed that another amended plan would be needed to address the disposition of the funds.' Accordingly, confirmation of the First Amended Plan was denied and the Debtor was given two weeks to file another amended plan.

The Debtor filed a Second Amended Plan that provided that the recently received funds would be used to pay the income taxes incurred for the 2016 sales, thereby reducing the amount to be held back from the equipment sale proceeds for the payment of such taxes. The Second Amended Plan also provided more detail regarding the standards by which the Debtor’s disposable income would be calculated. The treatment of the Bank of Chestnut and Illinois National Bank was unchanged from prior plans, but the Second Amended Plan did change the deadline for filing the report of sale of the equipment from 30 to 45 days.

While the Debtor was working through the changes in his several plans, he was also proceeding with the equipment sale. He obtained authority to hire Martin Auction Services and he filed both a motion to sell the equipment free and clear of liens and a notice of intent to sell the equipment at public auction. The motion to sell free and clear recited that the Debtor believed that both the Bank of Chestnut and Illinois National Bank had liens on the equipment, but it did not identify the amounts of any such liens and it specifically requested that any such hens attach to the sale proceeds with the validity and priority of the liens to be determined at a later date. All creditors and parties in interest received notice of their opportunity to object to the motion to sell free and clear and the proposed auction. In the absence of any objection, the Debtor was authorized to conduct an auction on November 19, 2016, and to sell the equipment free and clear of any liens of the Bank of Chestnut or Illinois National Bank.

A confirmation hearing on the Second Amended Plan was held November 29, 2016. The Debtor’s attorney reported that the auction of the Debtor’s equipment had been successfully completed. He stated that he had received no objections to the Second Amended Plan and that it should be confirmed. The Trustee, represented by counsel at the hearing, agreed that the Second Amended Plan should be confirmed.

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Cite This Page — Counsel Stack

Bluebook (online)
564 B.R. 389, 77 Collier Bankr. Cas. 2d 463, 2017 Bankr. LEXIS 451, 63 Bankr. Ct. Dec. (CRR) 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-heft-ilcb-2017.