In re Hernandez

549 B.R. 551, 2016 Bankr. LEXIS 556, 2016 WL 721560
CourtUnited States Bankruptcy Court, D. Puerto Rico
DecidedFebruary 23, 2016
DocketCASE NO. 15-05744
StatusPublished

This text of 549 B.R. 551 (In re Hernandez) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Hernandez, 549 B.R. 551, 2016 Bankr. LEXIS 556, 2016 WL 721560 (prb 2016).

Opinion

OPINION & ORDER

Brian K. Tester, U.S. Bankruptcy Judge

Before the court is the Joint Stipulation Regarding Treatment of BPPR’s Secured Claim under Debtor’s Chapter 12 Plan filed by the Debtor and Banco Popular de Puerto Rico (“Joint Stipulation”), the Chapter IS Trustee’s (“Trustee”) Memorandum of Law in Support of Trustee’s Objection to the Confirmation of the Plan dated September lk, 2015 (“Memorandum”), and Banco Popular de Puerto Rico’s (“BPPR”) Memorandum of Law and Response to the Trustee’s Objection to the Confirmation of the Chapter 12 Plan [Dkt. No.’s 55, 66 & 84]. After several procedural turns1 not relevant to the Court’s analysis, what remains pending is the treatment of BPPR’s secured claim as set forth in the Joint Stipulation.2 The Trustee’s objection is premised on three (3) main arguments:

• Whether payments to secured creditor BPPR, provided for by the chapter 12 plan, which debt has been modified using 11 U.S.C. § 1222(b)(2), should be made by the trustee, or could be made directly to [553]*553the secured creditor by the debtor. 11 U.S.C. §§ 1225(a)(5)(B)(ii) and 1226(c).
• Whether Debtor, by making payments directly to secured creditor instead of payments through the Trustee, to a claim which has been impaired under the plan terms, can avoid the payment of the Standing Trustee Fee fixed by the Attorney General pursuant to 28 U.S.C. § 586(e), and which collection is required by 11 U.S.C. § 1226(b)(2).
• Whether the treatment of BPPR’s claim No. 4 under Class 3 of the proposed plan violates the plan mandatory requirement of 11 U.S.C. § 1222(a), causing a failure to comply with § 1225(a)(1) as well as the good faith confirmation requirements under § 1225(a)(3).

In sum, the Trustee argues that by providing direct payments and conferring “unwarranted concessions” to BPPR the plan fails to comply with 11 U.S.C. §§ 1222(a), 1226(a), (b)(2), 1225(a)(1) and the good faith requirement for confirmation of sec-tionl225(a)(3).

The parties agree that there are no cases in the First Circuit that squarely address this particular issue. However, other circuits have adjudged that debtors are allowed to provide for direct payments to their creditors under their reorganization plans. There is no provision in Chapter 12 of the Bankruptcy Code that prohibits direct payments from debtors to creditors. See In Re Pianowski, 92 B.R. 225 (Bankr.W.D.Mich.1988); In Re Land, 82 B.R. 572 (Bankr.D.Colo.1988); In Re Foster, 670 F.2d 478 (5th Cir.1982). Courts have generally concluded that section 1225 authorizes direct debtor payment of all secured claims to the extent that they are in compliance with the requisites of sections 1225(a)(5)(A)-(C). See In Re Overholt, 125 B.R. 202 (S.D.Ohio 1990).

Courts have also held that impaired secured claims that debtor's continue to pay outside of bankruptcy are permissible. Id. Moreover, courts have determined that since the trustee cannot continue to make payments on secured claims after the plan period expires, and it is the debtor that must assume this task, that it is clear that Congress intended to allow debtors to make direct payments from the effective date of the plan. Id.quoting 5 Collier on Bankruptcy ¶ 1226.01, at 1226-4 (C. Cyr, H. Minkel, R. Rogers, H. Sommer, W. Taggert & AWinkler eds., 15th ed.). (“Rather than have the debtor substitute for the trustee after the trustee’s dismissal, it makes more sense for the debtor to make such payments directly from the outset.”). In his Memorandum, the Trustee concedes that 11 U.S.C. § 1225(a)(5)(B)(ii) contemplates that for “each allowed secured claim provided for by the plan,” property may be distributed under the plan by the trustee or the debtor, and further recognizes the court’s discretion, pursuant to sections 1226(c) or 1225(a)(5)(B)(ii), to authorize direct payments to the «’editors by the debtor, under the terms of a confirmed chapter 12 plan.

Other cases have provided a set of factors to be considered when allowing the debtor to make a direct payment rather than through a trustee. In In Re Perez, 339 B.R. 385, 389 (Bankr.S.D.Tex.2006), the court explained that the rationale for the chapter 13 trustee to serve as the disbursing agent is:

• (a) in order for consumer debtors to successfully reorganize, they need to be shielded from all their creditors so that they can focus on generating maximum income to pay the trustee;
[554]*554• (b) in order for creditors to timely receive payments on their claims without having to spend undue time and expense, they need to avoid having to deal extensively with troubled borrowers and their attorneys; and
• (c) the trustee serves as a buffer between debtors and creditors by assuming the responsibility for receiving payments from debtors and remitting funds to claim holders.

In the case before this Court, these factors are not material. It is important to note that: (1) the debt is a commercial debt not a consumer debt; (2) both BPPR and the Debtor have a high level of sophistication to manage the payments; (3) the payment is being made by Suiza Dairy directly to both BPPR and the Trustee; and (^Debt- or has no need to be shielded from BPPR, nor is there a need for the Chapter 12 Trustee to serve as a buffer. BPPR will receive their payments in a more timely manner through Suiza Dairy. The alternative would have BPPR wait for the Trustee to receive the payments from Sui-za Dairy and then wait for the Trustee to pay BPPR.

Together with the above criteria, the court in In re Perez, interpreting identical provisions in chapter 13 cases (11 U.S.C. § 1326(c)), also compiled 21 factors to consider using the trustee as the disbursing agent. Id. at 409-10.3 Essentially, it is the Trustee’s position that when a secured claim is modified in a chapter 12 case using the Code provisions of 11 U.S.C. §§ 506(a), 1222(b)(2) and 1225(a)(5)

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Related

In Re Gregory
143 B.R. 424 (E.D. Texas, 1992)
In Re Perez
339 B.R. 385 (S.D. Texas, 2006)
In Re Genereux
137 B.R. 411 (W.D. Washington, 1992)
First Bank & Trust v. Gross (In Re Reid)
179 B.R. 504 (E.D. Texas, 1995)
In Re Land
82 B.R. 572 (D. Colorado, 1988)
Matter of Pianowski
92 B.R. 225 (W.D. Michigan, 1988)
In Re Bettger
105 B.R. 607 (D. Oregon, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
549 B.R. 551, 2016 Bankr. LEXIS 556, 2016 WL 721560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-hernandez-prb-2016.