In re Linkous

339 B.R. 375, 2006 Bankr. LEXIS 654, 2006 WL 759737
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedMarch 24, 2006
DocketNo. 03-04429
StatusPublished

This text of 339 B.R. 375 (In re Linkous) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Linkous, 339 B.R. 375, 2006 Bankr. LEXIS 654, 2006 WL 759737 (Va. 2006).

Opinion

DECISION AND ORDER

ROSS W. KRUMM, Bankruptcy Judge.

The matter before the court is SunTrust Bank’s motion for relief from the § 362 automatic stay. The Court conducted a hearing on the motion for relief on October 5, 2005. Following the conclusion of the hearing, the court ordered the parties to submit any additional authority in support of their positions by October 31, 2005. [377]*377The debtors did not provide additional authority to supplement their original response to the motion for relief. SunTrust filed a letter to the court with supplementary authority for its position on October 31, 2005. See Docket Entry no. 39. The parties have agreed to submit the matter on the pleadings and memoranda. The matter is ripe for decision. For the reasons stated in this Decision and Order, SunTrust Bank’s motion for relief from the § 362 automatic stay is denied.

BACKGROUND

On October 17, 2003, the debtors filed a Chapter 13 voluntary petition for relief and a Chapter 13 debt repayment plan. On November 3, 2003, SunTrust filed a proof of claim for indebtedness of $20,302.78, secured by a lien on the title of a 2001 Chevrolet K1500 “Silverado LS 1500 4WD EXT CAB” four-door pickup truck with vin 1GCEK19V61E142362. See Claim no. 2. According to the terms of the loan agreement, the debtors were to pay SunTrust in equal installments of $453.60 per month commencing on May 24, 2001 and continuing thereafter for fifty (50) months, followed by one (1) lump sum payment of $13,571.38 due and payable on July 24, 2005. On January 14, 2004, the court conducted a hearing on confirmation of the debtors’ Chapter 13 plan and ordered the plan confirmed on January 15, 2004.

The debtors’ confirmed Chapter 13 plan provides for direct repayment of the debt to SunTrust in monthly installments of $453.60. While the plan indicates the amount of the indebtedness for the two other secured creditors to be paid outside of the plan, there is no mention of the amount of the indebtedness to SunTrust or the value of the vehicle in the plan. Nor is there mention of a plan date for the termination of payments to SunTrust. The plan simply states that payment will be made directly to SunTrust by the Debtors in monthly payments of $453.60.

On September 14, 2005, SunTrust motioned for relief from stay with regard to the truck for default on plan payments by the debtor. SunTrust claimed the lump sum payment and last contractual installment payment remained unpaid following the July 24, 2005 due date. The debtors responded that some arrears may be outstanding in regard to plan payments, but denied that they were in default. The debtors argue that SunTrust received notice of the proposed Chapter 13 plan to pay $453.60 to SunTrust for 60 months to resolve the debt, and that the plan was confirmed without objection. SunTrust contends that the payments under the plan were to be made according to the original terms of the antecedent debt, regardless of the literal terms of the Chapter 13 plan repayment. SunTrust notes that neither debt held by the two other secured creditors in the same class as SunTrust will be satisfied at the conclusion of 60 months under the debtors’ interpretation of the plan terms.1 SunTrust seeks a construction of the plan that requires the debtors to pay their debt according to their contract with SunTrust and SunTrust argues that when the debtors default in their plan obligation cause exists to lift the post confirmation stay.

LAW AND DISCUSSION

This court has jurisdiction over the parties and subject matter of this proceeding under 28 U.S.C. §§ 151, 157, and 1334. This is a ease filed under Title 11, and the court may hear and determine this core [378]*378proceeding under 28 U.S.C. § 157(b)(2)(G). Venue is proper in this District under 28 U.S.C. § 1409(a).

Following proper notice and a hearing, the court shall grant a request for relief from the § 362 stay for cause.2 The only cause articulated by SunTrust is that the plan does not provide repayment pursuant to the terms of the contract. Instead, the plan ignores the contractual terms for a balloon payment on July 24, 2005, and provides for a payout of the loan at the monthly installment payment provided in the contract for the duration of the plan. Thus, the plan deletes the balloon payment and extends the repayment period well beyond the original repayment period.3

Only the debtor may propose a plan under Chapter 13. 11 U.S.C. § 1321. Debtors in Chapter 13 may modify the rights of certain secured claimants through the plan. 11 U.S.C. § 1322(b)(2). The debtor may also provide terms in the plan for the curing or waiving of any defaults on payment to creditors. 11 U.S.C. § 1322(b)(3). The Code at 11 U.S.C. § 1325(a)(5) sets forth three criteria for confirming a plan which modifies a secured creditors rights: (1) Acceptance by the creditor, (2) lien retention, and (3) payment of a value that is not less than the allowed amount of the claim. Once a plan is confirmed, the debtor and each creditor are bound by the terms of the plan, regardless of whether the plan provides for the creditor’s claim, and regardless of whether such creditor has raised an objection, accepted, or has rejected the plan. 11 U.S.C. § 1327(a).4

It is undisputed that on October 17, 2003, the debtors submitted their original plan, and following notice and an opportunity for hearing, the court ordered the plan confirmed on January 14, 2004. The debtors submitted the plan on the proper form (Form 3015-A) as prescribed by the Local Rules in force at the time. Sun-Trust had notice of the plan.

In the plan, the debtors provided for payment of three secured-debt claims by direct payment outside of the plan to each of three different creditors.5 The plan did not list the value of SunTrust’s debt, but the plan did direct a payment to SunTrust of $453.60 per month, which is the monthly payment under the original terms of the automotive financing contract. The plan does not indicate the number of payments each secured creditor is to receive before their secured claim is paid in its entirety.6 [379]*379However, the term of the plan is 60 months. SunTrust does not raise payment of the value of the allowed amount of the claim as an issue. There is nothing in the record to indicate that SunTrust objected to confirmation of the debtors’ plan within the time provided by the Bankruptcy Rules.

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Cite This Page — Counsel Stack

Bluebook (online)
339 B.R. 375, 2006 Bankr. LEXIS 654, 2006 WL 759737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-linkous-vawb-2006.