In re Kwiatkowski

486 B.R. 409, 2013 WL 309863, 2013 Bankr. LEXIS 560
CourtUnited States Bankruptcy Court, E.D. Michigan
DecidedJanuary 25, 2013
DocketNo. 10-71359
StatusPublished
Cited by6 cases

This text of 486 B.R. 409 (In re Kwiatkowski) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.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 Kwiatkowski, 486 B.R. 409, 2013 WL 309863, 2013 Bankr. LEXIS 560 (Mich. 2013).

Opinion

OPINION REGARDING CREDITOR SUMMIT GROUP HOLDINGS, LLC’S OBJECTIONS TO CONFIRMATION

THOMAS J. TUCKER, Bankruptcy Judge.

I. Introduction

This case came before the Court for two hearings on confirmation of the Debtor’s proposed Chapter 13 plan (Docket # 12, the “Plan”). The Court then held an evi-dentiary hearing regarding the objection to confirmation of the unsecured creditor Summit Group Holdings, LLC (“Summit Group”), that the Debtor’s Plan is not proposed in good faith as required by 11 U.S.C. § 1325(a)(3).

The Court has considered all of the testimony and exhibits admitted into evidence at the evidentiary hearing, as well as the arguments of counsel. This opinion states the Court’s findings of fact and conclusions of law.

For the reasons stated in this opinion, the Court finds and concludes that the Debtor’s Plan is not proposed in good [412]*412faith, as required by 11 U.S.C. § 1325(a)(3). But more fundamentally, the Court also concludes that the Debtor is not eligible to be a debtor in Chapter 13, under 11 U.S.C. § 109(e), and that the Debt- or acted in bad faith in filing this case under Chapter 13, rather than under either Chapter 7 or Chapter 11. As a result, the Court will enter an order denying confirmation of Debtor’s Chapter 13 Plan. And the Court will require the Debtor to choose one of the following two options: that this case be converted to Chapter 7; or that this case be dismissed, with a one-year bar to refiling. The Court will not allow Debtor the option of now converting to Chapter 11.

II. Jurisdiction

This Court has subject matter jurisdiction over this adversary proceeding under 28 U.S.C. §§ 1334(b), 157(a) and 157(b)(1), and Local Rule 83.50(a) (E.D. Mich.). This is a core proceeding under 28 U.S.C. § 157(b)(2)(L). This proceeding also is “core” because it falls within the definition of a proceeding “arising under title 11” and of a proceeding “arising in” a case under title 11, within the meaning of 28 U.S.C. § 1334(b). Matters falling within either of these categories in § 1334(b) are deemed to be core proceedings. See Allard v. Coenen (In re Trans-Industries, Inc.), 419 B.R. 21, 27 (Bankr.E.D.Mich. 2009). This is a proceeding “arising under title 11” because it is “created or determined by a statutory provision of title 11,” including Bankruptcy Code §§ 109(e) and 1325(a)(3). And this is a proceeding “arising in” a case under title 11, because it is a proceeding that “by [its] very nature, could arise only in bankruptcy eases.”

III. Background

The Debtor, David J. Kwiatkowski, filed his voluntary Chapter 13 bankruptcy petition in this case on October 12, 2010. He filed his schedules and Statement of Financial Affairs on October 19, 2010,1 and he also filed his proposed Chapter 13 Plan that day.2 Debtor filed an amended Schedule F on January 17, 2011.3

The Chapter 13 Trustee and Summit Group each filed objections to confirmation of Debtor’s Plan.4 Summit Group objected on the ground that Debtor’s Plan was not proposed in good faith. The Court held two non-evidentiary hearings on confirmation, on June 23, 2011 and July 28, 2011. At the first hearing, the Court heard oral argument, then allowed Summit Group and the Debtor to file briefs regarding Summit Group’s objection.5 At the second hearing, the Court scheduled an evidentiary hearing on Summit Group’s objection. The evidentiary hearing occurred on November 14 and 22, 2011.

In its objection to confirmation, and later in its oral arguments and brief, and then in the evidentiary hearing, Summit Group made numerous arguments and allegations against Debtor, to try to demonstrate that the Debtor had not proposed his Plan in good faith. Summit Group’s bad-faith-related allegations included allegations that the Debtor had failed, in several specific ways, to fully and honestly disclose his assets, income, and other information about his financial affairs.

[413]*413In addition, at the evidentiary hearing, Summit Group presented evidence and argument relating to Debtor’s eligibility to be a Chapter 18 debtor, under 11 U.S.C. § 109(e). Summit Group argued that the Debtor is not eligible for Chapter 13 because his unsecured debts as of the petition date exceeded the $360,475 maximum in § 109(e).6 Summit Group also argued that the Debtor was guilty of bad faith because, among other reasons, the Debtor knew or had reason to know that his total unsecured debt exceeded the statutory maximum when he filed his petition, schedules, and Plan. But, according to Summit Group, Debtor improperly concealed the total amount of his unsecured debt in the schedules that he filed, including his original Schedule F.

The Chapter 13 Trustee’s written objections to confirmation also raised the issue of Debtor’s eligibility to be a Chapter 13 debtor. The Trustee objected to confirmation on the following ground, among others:

The Trustee is unable to determine whether the debtor meets the eligibility requirements for Chapter 13 Relief pursuant to 11 U.S.C. [§ ] 109(e) based upon the debtor’s Schedule F, which contains certain claims that fail to specify the amount of obligations owed by the debtor. The Trustee requests that the debtor amend Schedule F accordingly.7

IV. Discussion

A. Debtor’s ineligibility to be a Chapter 13 debtor under 11 U.S.C. § 109(e)

1. Section 109(e)

Bankruptcy Code § 109(e) limits who is eligible to be a debtor in Chapter 13, as follows:

Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $360,475 and noncontingent, liquidated, secured debts of less than $1,081,400 or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $360,475 and noncontingent, liquidated, secured debts of less than $1,081,400 may be a debtor under chapter 13 of this title.

11 U.S.C. § 109(e) (emphasis added).

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Cite This Page — Counsel Stack

Bluebook (online)
486 B.R. 409, 2013 WL 309863, 2013 Bankr. LEXIS 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-kwiatkowski-mieb-2013.