In re Mast

541 B.R. 487, 74 Collier Bankr. Cas. 2d 1490, 2015 Bankr. LEXIS 4082, 2015 WL 7730849
CourtUnited States Bankruptcy Court, S.D. California
DecidedNovember 17, 2015
DocketBANKRUPTCY NO: 11-02982-MM13
StatusPublished

This text of 541 B.R. 487 (In re Mast) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Mast, 541 B.R. 487, 74 Collier Bankr. Cas. 2d 1490, 2015 Bankr. LEXIS 4082, 2015 WL 7730849 (Cal. 2015).

Opinion

[489]*489MEMORANDUM DECISION AND ORDER GRANTING TRUSTEE’S MOTION TO ENFORCE THE TERMS OF THE CONFIRMED PLAN

MARGARET M. MANN, JUDGE, United States Bankruptcy Court

Before the Court is a motion brought by Chapter 18 Trustee David L. Skelton (“Trustee”) entitled “Motion to Enforce the Terms of the Confirmed Plan” (“Motion”), by which Trustee seeks to increase the plan length and the dividend to unsecured creditors under the confirmed Chapter 13 plan (“Plan”) of Debtors PHILLIP E. and VICTORIA ROSE K. MAST.( Debtors oppose the Motion claiming it is an invalid attempt to modify the Plan, which they have fully performed by paying creditors the full 74% promised return.

To rule on the Motion, the Court must interpret the recently decided and controlling authority of Danielson v. Flores (In re Flores), 735 F.3d 855 (9th Cir.2013), in the context of the Southern District of California Bankruptcy Court’s form Chapter 13 plan used by Debtors in this case. This form plan, although it is recommended rather than required, has been widely used in this Court for many years. Because many similar motions have come before the Court in recent months, the Court writes this decision to set forth its analysis that the proper characterization of the Motion is one to enforce the Plan rather than to amend it, and that only as so characterized, can the Motion be granted.

I. FACTS

The facts here are not disputed.

Nearly four years ago Debtors confirmed the Plan, as amended, on February 23, 2012. Their income at the time was above the median established for this geographic area. The Plan in paragraph 13 provides for distributions to unsecured, non-priority creditors of “74% or a pro-rata share” of an uncompleted blank space in the form; ie., zero. The Plan’s prescribed distribution of 74% has been paid early, after only 55 months of payments. When the early payoff became apparent, Trustee brought his Motion seeking to increase the dividend paid to unsecured creditors to 100%, and extend the Plan length to 60 months, while maintaining the current monthly plan payment of $1,340. He does not assert this was due to Debtors’ changed financial circumstances.

II. CONTENTIONS OF PARTIES

Trustee claims the Motion must be granted under Flores, 735 F.3d at 858, because Debtors were above median debtors at the outset of the case and must make payments for the full 60-month applicable commitment period (“ACP”). Although not claimed in his initial Motion, Trustee later asserted that modification of the percentage payment is required by the Plan under paragraph 13. He further argues paragraph 13 should be given res judicata, or preclusive, effect.

Debtors claim the Motion is a disguised modification of the Plan that does not meet the standards under 11 U.S.C. § 13291 because no changed circumstances apply. Debtors also contend they completed the payments under the Plan by making the specified 74% payout and that changing the length of the Plan would be an impermissible modification.

III. ANALYSIS

A. Effect of Flores

Flores, 735 F.3d at 558, held that the AGP is a temporal requirement determined at the inception of the case because [490]*490Congress intended the ACP requirement contained in § 1325(b)(1)(B) to ensure a plan duration that gave meaning to § 1329’s modification procedure. The Ninth Circuit reasoned that mandating plan payments over the entire ACP provides a mechanism for post-confirmation adjustments for unforeseen changes in a debtor’s income. Id. (citing Fridley v. Forsythe (In re Fridley), 380 B.R. 538, 540 (9th Cir. BAP 2007) (debtors could not confirm a plan that accelerates plan payments to shorten the plan length to 14 months and avoid the application of the ACP because the ACP is a temporal requirement)). However, as noted above, there are no changed circumstances to consider in this case.

The import of Flores, id., is that the ACP, as established by the means test, is set in stone as calculated when the case is filed. See In re Moglia, 2014 WL 7405443, at *2-3, 2014 Bankr LEXIS 5197, *6-7 (Bankr.D.Or. Dec. 30, 2014) (ACP is not a “moving target”); In re Pasley, 507 B.R. 312, 320-21 (Bankr.E.D.Cal.2014) (citing Villanueva v. Dowell (In re Villanueva), 274 B.R. 836 (9th Cir. BAP 2002)) (debtors could amend their plan to reduce the plan length from 44 to 36 months because 36 months was the initial ACP at the time the case was filed).

While Flores, 735 F.3d at 558, required that the Plan contain a 60-month length, the Court must enforce the Plan here as written unless it can be properly modified. Chapter 13 plans such as Debtors’ Plan, are binding on the parties under § 1327 and entitled to preclusive effect, even if they contain terms contrary to law. United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 278-279, 130 S.Ct. 1367, 176 L.Ed.2d 158 (2010). The sole exception to the bar of preclusion is where the plan may be modified in accordance with § 1329. See, e.g., DeHart v. Eckert (In re Eckert), 485 B.R. 77, 83 (Bankr. M.D.Pa.2013) (absent a proper amendment the original plan as confirmed would remain binding under § 1327).

B. Trustee Cannot Modify the Plan to Increase the Length and Percentage Return

The Court must thus address whether the Plan, can be modified to increase the return and length in a manner consistent with the statute. Four enumerated subsections of § 1329(a) permit only certain types of plan modifications: (1) changing the monthly payments; (2) changing the plan length; (3) changing the distribution to creditors who receive a payment outside of the plan; and (4) reducing the plan payments to enable a debtor to buy health insurance. A change in the percentage return as sought by Trustee is not a permissible modification under § 1329(a)(3) unless the change is made to accommodate payments made to a particular creditor outside the plan. There were no such payments made, and a change in the return is thus not a permissible modification.

Unlike the proposed percentage modification, a change in plan length is a permissible type of modification under § 1329(a)(1), but only if it the length change modification meets the statutory standards. Timing of a proposed plan modification is critical. A plan may not be modified after payments are completed under § 1329(a). See Schlegel v. Billingslea (In re Schlegel), 526 B.R. 333, 342 (9th Cir. BAP 2015). Other modification standards are prescribed under § 1329(a)(b)(1), which incorporates the plan confirmation tests of §§ 1322(a) and (b), 1323(c), and 1325(a). Notably absent in these statutory requirements is § 1325(b), which requires that unsecured creditors receive Debtors’ projected disposable income for the length [491]*491of the ACP, which under Flores, 735 F.3d at 558, is set at the heart of the case. Flores, id.,

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Related

United Student Aid Funds, Inc. v. Espinosa
559 U.S. 260 (Supreme Court, 2010)
Miller v. United States
363 F.3d 999 (Ninth Circuit, 2004)
Ana Flores v. Rod Danielson
735 F.3d 855 (Ninth Circuit, 2013)
Fridley v. Forsythe (In Re Fridley)
380 B.R. 538 (Ninth Circuit, 2007)
Sunahara v. Burchard (In Re Sunahara)
326 B.R. 768 (Ninth Circuit, 2005)
Villanueva v. Dowell (In Re Villanueva)
274 B.R. 836 (Ninth Circuit, 2002)
Powers v. Savage (In Re Powers)
202 B.R. 618 (Ninth Circuit, 1996)
In Re Mattson
468 B.R. 361 (Ninth Circuit, 2012)
Badie v. Bank of America
79 Cal. Rptr. 2d 273 (California Court of Appeal, 1998)
Bank of the West v. Superior Court
833 P.2d 545 (California Supreme Court, 1992)
DeHart v. Eckert (In re Eckert)
485 B.R. 77 (M.D. Pennsylvania, 2013)
In re Pasley
507 B.R. 312 (E.D. California, 2014)

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Bluebook (online)
541 B.R. 487, 74 Collier Bankr. Cas. 2d 1490, 2015 Bankr. LEXIS 4082, 2015 WL 7730849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mast-casb-2015.