In re Kane

603 B.R. 491
CourtUnited States Bankruptcy Court, D. Kansas
DecidedJune 18, 2019
DocketCase No. 19-40170-13
StatusPublished
Cited by7 cases

This text of 603 B.R. 491 (In re Kane) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Kane, 603 B.R. 491 (Kan. 2019).

Opinion

Dale L. Somers, United States Chief Bankruptcy Judge

Debtor Ronald Martin Kane has general unsecured debt that has reached an impressive amount: $193,741.46. Over sixty six percent of that large number-$128,612.02-is nondischargeable student loan debt. Debtor has proposed a Chapter 13 repayment plan that pays his student loan debt after his administrative expenses and secured and priority creditors, but before other unsecured creditors. In other words, Debtor proposes treating his student loans as a special class that will be paid in advance of his other general unsecured debt. The Chapter 13 Trustee, Jan Hamilton, objects to Debtor's proposal.1

The Court concludes that Debtor's proposed discrimination in favor of his student loan claims is "unfair" discrimination under 11 U.S.C. § 1322(b)(1).2 Debtor has not carried his burden to show that the discriminatory provisions of his proposed plan are fair, and as a result, his plan cannot be confirmed as proposed. The Trustee's objection to confirmation of Debtor's plan on this basis is sustained.

I. Background and Procedural History

Debtor filed his Chapter 13 bankruptcy petition on February 27, 2019, and his proposed Chapter 13 payment plan the same date. Debtor's Schedule A/B included a 2014 Ford F150, valued at $24,500, various other household supplies and firearms, and a personal injury claim being handled by an attorney separate from his bankruptcy counsel. Debtor listed secured debt of $31,000 to GM Financial for the Ford F150 and $1000 to Mattress Firm for a mattress/bed set.3 Debtor's Schedule E/F listed priority claims to both the IRS and the Kansas Department of Revenue for 2015 through 2018 taxes for $1400 and an unknown amount, respectively. Other nonpriority, unsecured debt totaled $15,0852-of that, $119,710 of student loans were listed, and $31,142 of other general unsecured debt was listed. Debtor's Schedules I and J show a net monthly income of $6377.52, but Debtor is an auto salesman, and his sales commissions are highly variable. Debtor's monthly expenses are $3078.12, leaving him a net surplus of $3299.40 to make his plan payment. Debtor is above median income, and must commit to five years of plan payments.4

*493Debtor's proposed plan is for a monthly payment of $3000 per month, which Debtor proposes will pay attorney's fees, the filing fee, the priority taxes, and the debts to GM Financial on the Ford F150 and to Mattress Firm on the mattress/bed set. Debtor's plan then includes the following non-standard provision: "Section 14 General Unsecured Creditors. Student loans will be paid without interest and after administrative expenses, secured and priority creditors in advance of other unsecured creditors."5

The Trustee objected to Debtor's plan on April 2, 2019 based on unfair discrimination among classes within the plan ( § 1322(b)(1) ) and other grounds. The parties have briefed only the unfair discrimination issue and the Court therefore confines its consideration to that objection.

On April 16, 2019, the IRS filed an amended proof of claim, and that amended claim differs substantially from Debtor's projections at filing. The IRS claims a total owed of $60,562.38, of which $3881.75 is secured bearing interest at 6% annually, $3272.75 is priority, and $52,407.89 is general unsecured. A claim for $128,612.02 from the student loan creditor has been filed. This amount is also different than Debtor's estimate at filing. The Trustee calculates Debtor's total "pool" amount to be paid to general unsecured creditors as $137,625.80.6 In order to pay the Trustee's pool amount, Debtor's plan payments would need to increase to $3370 per month.

Assuming payments at $3370 per month, the Trustee calculates that if Debtor's student loan claims are paid pro rata along with other general unsecured claims, the pro rata share to all unsecured claims would be 71.03%, the student loan creditor would receive approximately $91,362.47, and the other general unsecured claimants would share the balance of approximately $46,263.33. If, however, the student loan is paid 100% from the net pool before any funds go to the other general unsecured creditors as Debtor proposes, then only $9013.78 would be paid to general unsecured creditors, or approximately 13.84%. The difference between the 71.03% dividend and the 13.84% dividend is $37,249.55. Debtor does not challenge these calculations from the Trustee in his response brief.

II. Analysis

Plan confirmation is a contested matter, and a core proceeding over which this Court may exercise subject matter jurisdiction.7 Debtor, as proponent of his Chapter 13 plan, bears the burden of proof *494to show that his plan meets the requirements for confirmation found in § 1325(a).8

A. Unfair Discrimination

Section 1322(b)(1) permits a plan to designate classes of unsecured claims, as long as the plan does "not discriminate unfairly against any class so designated." In other words, the Code "permits the designation of separate classes of unsecured claims and different treatment of the separate classes, as long as the classification does not cause 'unfair' discrimination."9 This Court has "wide discretion" to determine whether a plan's proposed discrimination is "unfair" discrimination.10

The Code does not define "unfair" discrimination. This Court has recently considered the issue in In re Salazar .11 In Salazar , the below-median Chapter 13 debtor proposed a plan that placed her student loans in a special class.12 Like here, after paying her attorney's fee and the filing fee, the debtor planned to next pay her student loan creditor, rather than have the available funds distributed pro rata among all the debtor's unsecured creditors.13 Like the Debtor here, the debtor in Salazar did not have discretionary income with which to pay student loan creditors above the "disposable income" the Code declares a debtor to have.14 The Court first noted the quandary for debtors: "Congress has been sufficiently concerned about student loan debts to make them usually not dischargeable in Chapter 13, but not concerned enough to give them payment priority over other unsecured debts."15

The Court in Salazar first addressed the two main tests that have been used to determine whether proposed discrimination in a plan is fair: the Leser/Wolff16 test and the Bentley17 test.18 This Court rejected the Leser/Wolff

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Cite This Page — Counsel Stack

Bluebook (online)
603 B.R. 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kane-ksb-2019.