In re Lynn-Weaver

462 B.R. 310, 2011 Bankr. LEXIS 4718, 2011 WL 5911677
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedNovember 28, 2011
DocketNo. 06-11544-FJB
StatusPublished
Cited by2 cases

This text of 462 B.R. 310 (In re Lynn-Weaver) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Lynn-Weaver, 462 B.R. 310, 2011 Bankr. LEXIS 4718, 2011 WL 5911677 (Mass. 2011).

Opinion

MEMORANDUM OF DECISION

FRANK J. BAILEY, Bankruptcy Judge.

The debtor, who has completed payments on her confirmed chapter 13 plan and received a discharge, contends that her obligations to fund payments to creditors through the chapter 13 trustee are at an end. The trustee disagrees, arguing that if the debtor prevails on her pending adversary complaint against her mortgagee for damages for violation of the automatic stay, she will be obligated to turn the proceeds over to the trustee for distribution to creditors. By agreement of the parties, the matter has been submitted for adjudication. For the reasons set forth below, the court holds that where payments on the plan have been completed, modification of the plan is no longer possible, and therefore, even if the proceeds would be assets of the estate, there is no mechanism by which the trustee could reach the proceeds for distribution to creditors.

FACTS AND PROCEDURAL HISTORY

The facts are not in dispute. On May 24, 2006, Linda Lynn-Weaver (“the Debt- or”) filed a petition for relief under chapter 13 of the Bankruptcy Code. On December 15, 2006, she filed a chapter 13 plan that required that she make payments to the chapter 13 trustee (“the Trustee”) of $794 per month for 52 months; the plan specified the manner in which these payments would be distributed by the Trustee to creditors. Unsecured creditors would receive a distribution of 28 percent of their claims. By order of July 9, 2007 and without objection, the court confirmed this plan. On July 16, 2009, the Debtor moved to modify the confirmed plan, and, on October 30, 2009 and again without objection, [312]*312the court confirmed the plan as so modified. As detailed in the order of October 30, 2009, the plan was thereby modified to decrease the term from 52 months to 44 and to reduce the Debtor’s monthly payment from $794 to $748. Unsecured creditors would continue to receive a dividend of only 28 percent. On or around April 23, 2010, the Debtor completed her payments on the confirmed plan as modified.

The Debtor filed her bankruptcy petition to avert the then-pending foreclosure of a mortgage on her home. Early in the case and despite the automatic stay, the foreclosing mortgagee, on more than one occasion and without relief from the automatic stay, rescheduled the foreclosure sale from one date to another. The Debt- or believed these actions to constitute violations of the automatic stay. Accordingly, on September 20, 2006, the Debtor commenced an adversary proceeding against the mortgagee, its counsel, and its auctioneer (collectively, “the Mortgagee”) for compensatory and punitive damages under 11 U.S.C. § 362(k) (“the Adversary Proceeding”). On a motion for partial summary judgment filed in the Adversary Proceeding, the court has ruled that the actions in question were violations of the automatic stay. The Mortgagee twice sought interlocutory appellate review of the decision on summary judgment, but leave to appeal on an interlocutory basis was denied. The adversary proceeding remains pending; a trial will be necessary to quantify damages. The judgment will almost certainly be the subject of an appeal.

On April 21, 2010, the Debtor filed a motion for entry of discharge. The Chapter 13 trustee objected, arguing (without elaboration) that entry of discharge was premature because the Adversary Proceeding was still pending.1 The Debtor replied that the pendency of the Adversary Proceeding was not cause to delay entry of discharge. The Debtor had completed the statutory requirements for entry of discharge. Under 11 U.S.C. § 1328(a), she argued, the court was therefore obligated to enter a discharge “as soon as practicable after completion by the debtor of all payments under the plan,” and the pen-dency of the adversary proceeding was not cause to do otherwise.

At a hearing on the motion, the Trustee elaborated upon her position. Citing 11 U.S.C. § 1306 and In re Chung-Chan, Civil Action No. 09-CV-10926, 2009 WL 3837846, 2009 U.S. Dist. LEXIS 106857 (D.Mass. November 17, 2009), she argued that the cause of action that is the subject of the Adversary Proceeding is property of the bankruptcy estate, not of the Debtor, that any recovery in the Adversary Proceeding should therefore inure to the benefit of creditors and be made available for distribution to them through the Trustee, and that entry of discharge should not occur because, by operation of a local rule of this court, entry of discharge would trigger the divestment of the asset from the estate and vest it in the Debtor. The Debtor responded with further arguments: that the claim at issue in the Adversary Proceeding does not belong to the estate; that even if it does belong to the estate, nothing in the Bankruptcy Code or the confirmed plan requires that it be distributed to creditors; and that, as plan payments have been completed, it is too late to modify the plan to so provide.

[313]*313The hearing resulted in entry of an agreed order pursuant to which (i) discharge would and did enter forthwith and (ii) “notwithstanding the language in the Order Confirming Chapter 13 Plan that all property of the estate as defined in 11 U.S.C. § 1306 shall vest(s) in the Debtor only upon discharge, the court shall decide whether the proceeds (if any) from litigation in Adversary Proceeding No. 06-1364 were or are property of the estate and, if so, whether and when they vest in the Debtor.”2 The order provided that the parties would submit briefs on the issue of “whether the proceeds (if any) from litigation in Adversary Proceeding No. 09-1364 are property of the Debtor’s bankruptcy estate and available for payment to creditors in this ease notwithstanding the discharge” and that this court would render a decision on the issues raised in the briefs, “said decision to be binding on the Debtor and the Chapter 13 Trustee, subject to the right of any party to appeal from that decision.”3

The parties have briefed the issue at length. The Debtor advances the following arguments. First, damages for violation of the automatic stay under 11 U.S.C. § 362(k) can never be assets of a chapter 13 estate. Second, even if such damages are assets of the estate, the trustee and creditors have no right to them because they are entitled to only such assets as a debtor is obligated by a confirmed plan to pay to them, but the Debtor’s confirmed plan does not so provide, it cannot so provide except by modification, and the plan may no longer be modified because (i) 11 U.S.C. § 1329(a) permits modification only before payments on the plan have been completed but the Debtor’s payments on her plan have been completed and (ii) the cause of action at issue here was known to the trustee when the present plan was confirmed, and therefore the order confirming that plan precludes the Trustee from now arguing that its terms are inappropriate.

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Cite This Page — Counsel Stack

Bluebook (online)
462 B.R. 310, 2011 Bankr. LEXIS 4718, 2011 WL 5911677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-lynn-weaver-mab-2011.