In re McGinness

586 B.R. 14
CourtUnited States Bankruptcy Court, E.D. Tennessee
DecidedMarch 2, 2018
DocketNo. 4:17–bk–14746–SDR
StatusPublished
Cited by1 cases

This text of 586 B.R. 14 (In re McGinness) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re McGinness, 586 B.R. 14 (Tenn. 2018).

Opinion

Shelley D. Rucker, UNITED STATES BANKRUPTCY JUDGE

The court has before it an objection to confirmation of the debtor's chapter 13 *16plan filed by Nissan Motor Acceptance Corporation ("Nissan"). [Doc. No. 23]. The plan provides for the payment of an installment loan on a vehicle that the debtor purchased within 910 days of filing her petition for bankruptcy under chapter 13. The issue before the court is whether the hanging paragraph found in 11 U.S.C. § 1325(a) is applicable to this loan. Specifically, the court must determine whether the vehicle was "acquired for the personal use of the debtor" such that the provisions of 11 U.S.C. § 506 may not be used to reduce the amount of the secured claim owed to the objecting creditor. See 11 U.S.C. § 1325(a) (hanging paragraph).

The court has jurisdiction to determine this matter pursuant to 28 U.S.C. §§ 1334(b) and 157(b)(2)(L). These are the court's findings of fact and conclusions of law as required by Fed. R. Bankr. P. 7052, made applicable to contested matters by Fed. R. Bankr. P. 9014.

1. Facts

The parties have stipulated to the following facts.

The debtor purchased a 2016 Nissan Altima on July 2, 2016. The purchase price was financed by Nissan, and the debt was secured by a lien on the vehicle. [Claim No. 1, at 2]. The debtor filed a chapter 13 petition with this court on October 18, 2017. [Doc. No. 1]. The parties agree that the vehicle was purchased within 910 days of the date of filing. On October 23, 2017, Nissan filed a claim in the amount of $27,867.56. [Claim No. 1, at 2]. The debtor's plan provides for Nissan to be paid a value of $15,000 with interest of 4% and a monthly payment of $277. [Doc. No. 2, at 1]. Nissan filed an objection to confirmation of the debtor's plan on December 12, 2017, based on the "910-day" provision found in 11 U.S.C. § 1325(a)(5) in the hanging paragraph. [Doc. No. 23].

The retail installment sale contract, which is attached as an exhibit to the claim filed by Nissan, provides that the "primary use for which" the vehicle was purchased was "[p]ersonal, family, or household unless otherwise indicated below." [Claim No. 1, at 6]. There is no other use indicated on the face of the contract. The debtor testified during her Rule 2004 examination that no one at the dealership reviewed that provision of the contract or otherwise asked her about the purpose of the vehicle or whether it was being purchased for personal or commercial use.

Schedule I indicates that the debtor is a healthcare provider employed by a non-profit corporation identified as Pauline and Thomas Healthcare, Inc., in Murfreesboro, Tennessee. [Doc. No. 1, at 34]. The debtor testified that she is a "healthcare provider" but is not a nurse, LPN, or RN. She testified that among her duties she is required to pick up patients under the care of her employer and take them to various events and medical appointments. She testified that she does this a minimum of three and a half hours to a maximum of six hours per day. She typically works five days a week but sometimes works as much as seven days per week. She stated that she uses the vehicle in question for the purpose of meeting her job requirements. She explained that it is a condition of her employment that she has a vehicle available to transport patients during her entire workday.

The debtor testified that she does not have a commercial insurance policy on the vehicle because her employer does not require it. She stated that she does have a commercial driver's license but that it is not required for her employment. She explained that she needed a commercial driver's license for a prior job and maintained it as a personal choice. The debtor receives reimbursement for all mileage on the vehicle *17during her employment based on the rates approved by the State of Tennessee. She testified that she also uses the vehicle for all of her personal uses, including grocery shopping, personal shopping, and visiting friends and family. She testified that she rarely, if ever, uses the vehicle to take a vacation because she cannot afford to do so.

2. Legal Analysis

Section 1325(a)(5)(B) of the Bankruptcy Code provides that, for a chapter 13 plan to be confirmed, it must provide for the payment in full of each allowed secured claim, with interest. A plan may generally specify the value of the collateral, and the creditor will have a secured claim to that extent and an unsecured claim to the extent that the debt exceeds the collateral value. See 11 U.S.C. § 506(a)(1). However, there is an exception that appears at the end of section 1325(a). The language that has come to be known as the "hanging paragraph" provides, in part, that section 506 shall not apply if:

the creditor has a purchase money security interest securing the debt that is the subject of the claim, the debt was incurred within the 910-day period preceding the date of the filing of the petition, and the collateral for that debt consists of a motor vehicle ... acquired for the personal use of the debtor....

11 U.S.C. § 1325(a) (hanging paragraph). Given its broadest interpretation, the hanging paragraph prevents the cramdown of a claim incurred within 910 days of the filing of a bankruptcy petition when the claim is secured by a vehicle that the debtor bought for his or her personal use.

The only one of these requirements that is contested in this case is whether the vehicle was "acquired for the personal use of the debtor" within the meaning of the hanging paragraph. The debtor contends that because she uses the vehicle to perform her job, her use of the vehicle is not "personal use" and, therefore, the hanging paragraph does not apply.

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Cite This Page — Counsel Stack

Bluebook (online)
586 B.R. 14, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mcginness-tneb-2018.