In re Mendez

464 B.R. 63, 2011 Bankr. LEXIS 3617, 2011 WL 4459093
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedSeptember 26, 2011
DocketNo. 10-42488-MSH
StatusPublished
Cited by5 cases

This text of 464 B.R. 63 (In re Mendez) 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 Mendez, 464 B.R. 63, 2011 Bankr. LEXIS 3617, 2011 WL 4459093 (Mass. 2011).

Opinion

MEMORANDUM OF DECISION ON DEBTOR’S MOTION TO ADMINISTRATIVELY CLOSE INDIVIDUAL CHAPTER 11 CASE

MELVIN S. HOFFMAN, Bankruptcy Judge.

This matter is before me on the debtor’s unopposed motion to administratively close this case now that the debtor’s Chapter 11 plan has been confirmed and payments to creditors have commenced. The motion seeks relief from a hardship inflicted on individual Chapter 11 debtors by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPC-PA”) with respect to quarterly fees owed to the United States trustee (“UST”). Quarterly fees are due from a debtor until his Chapter 11 case is “converted or dismissed,” 28 U.S.C. § 1930(a)(6), or as courts have recognized, until the case is [64]*64closed.1 In re Sedro-Woolley Lumber Co., 209 B.R. 987, 990 (Bankr.W.D.Wash.1997); In re Burk Dev. Co., 205 B.R. 778, 785 (Bankr.M.D.La.1997). UST fees range from $325 to $30,000 per quarter and are based upon the debtor’s disbursements for the quarter. 28 U.S.C. § 1930(11). The disbursements include not just the debtor’s payments to creditors under a plan but ordinary business expenses of both individual and corporate Chapter 11 debtors, In re Sgaverdea, 377 B.R. 308, 310 (Bankr.D.N.M.2007); In re P.J. Keating Co., 205 B.R. 663, 667 (Bankr.D.Mass.1997) and, for the individual debtor, ordinary household expenses. In re Belcher, 410 B.R. 206, 210 n. 5 (Bankr.W.D.Va.2009); In re Owens, 207 B.R. 520, 526 (Bankr.E.D.Ky.1996). See also In re Postconfirmation Fees, 224 B.R. 793, 799 (E.D.Wash.1998) (“The term disbursements includes all post-confirmation expenditures by the debtor until the case is closed or dismissed or converted.”). Thus quarterly fees can be quite substantial and, in the case of certain pot plans, actually reduce the cash available to pay creditors. In re Johnson, 402 B.R. 851, 857 (Bankr.N.D.Ind.2009).

Entry of a final decree closing a chapter 11 case should not be delayed solely because the payments required by the plan have not been completed. Factors that the court should consider in determining whether the estate has been fully administered include (1) whether the order confirming the plan has become final, (2) whether deposits required by the plan have been distributed, (3) whether the property proposed by the plan to be transferred has been transferred, (4) whether the debtor or the successor of the debtor under the plan has assumed the business or the management of the property dealt with by the plan, (5) whether payments under the plan have commenced and (6) whether all motions, contested matters, and adversary proceedings have been finally resolved.

Bankruptcy Code § 350(a) directs the court to close a case “[a]fter an estate is fully administered and the court has discharged the trustee.” Fed. R. Bankr.P. 3022 instructs the court to issue a final decree closing a case on its own motion or on motion of a party in interest once the case has been fully administered. In this district, once a Chapter II plan is confirmed the case is deemed fully administered unless a matter is pending sixty (60) days following the entry of the final confirmation order. MLBR 3022-l(a).2 Following entry of a final decree closing a case, the case may be reopened “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). The fee to reopen a Chapter 11 case is currently set at $1,000. 28 U.S.C. § 1930(11).

Prior to BAPCPA an individual Chapter 11 debtor’s discharge entered upon plan confirmation. BAPCPA effected a profound change to individual Chapter 11 cases by requiring that in most individual Chapter 11 cases the debtor will be discharged only upon completion of plan payments, 11 U.S.C. § 1141(d)(5), a period that is generally at least five years. 11 U.S.C. § 1129(a)(15). Thus, keeping an [65]*65individual debtor’s Chapter 11 case open until the debtor receives his discharge would burden individuals with UST fees ranging from $325 to $30,000 per quarter during the entire post-confirmation period.

[64]*64The court should not keep the case open only because of the possibility that the court's jurisdiction may be invoked in the future. A final decree closing the case after the estate is fully administered does not deprive the court of jurisdiction to enforce or interpret its own orders and does not prevent the court from reopening the case for cause pursuant to § 350(b) of the Code.

[65]*65In the early years following the enactment of BAPCPA, debtors’ efforts to close cases prior to the entry of discharge generated inconsistent results. Compare In re Necaise, 443 B.R. 483 (Bankr.S.D.Miss.2010) (rejecting debtor’s request for an early discharge but allowing the case to be closed prior to the completion of plan payments); Johnson, 402 B.R. at 857 (overruling United States trustee’s objection and permitting case to be closed before the debtor’s discharge entered) with Belcher, 410 B.R. at 217-18 (debtors’ motion for an early discharge or in the alternative waiver of its obligation to pay quarterly fees denied). United States trustees typically opposed individual debtors’ efforts arguing that “paying quarterly fees is an integral part of what Congress expects a Chapter 11 debtor to do, much like the Chapter 13 trustee’s fee for administering the plan.” Johnson, 402 B.R. at 856-57. For authority they cited In re Ball, 2008 WL 2223865 (Bankr.N.D.W.Va.2008), which held that avoiding payment of the UST’s fees is not a sufficient reason to close the case before a plan has been completed. Id.

In Shotkoski v. Fokkena (In re Shotkoski), 420 B.R. 479 (8th Cir. BAP 2009), the bankruptcy appellate panel, applying an abuse of discretion standard, affirmed the bankruptcy court’s denial of the debtors’ motion for entry of a final decree closing their case. But in doing so the BAP noted that not all individual Chapter 11 cases must remain open for the entire post-confirmation period. Id. at 481. After undertaking an examination of the sections and rules cited by the bankruptcy court as well as the Advisory Committee Note (1991) to Fed. R. Bankr. 3022 and Bankruptcy Code § 350(a), the BAP concluded that

we believe that the decision as to whether an estate is “fully administered” is one that falls within the discretion of the bankruptcy judge. To be clear, by affirming the bankruptcy court in this case, we are not holding that every individual Chapter 11 case must remain open until such time as all long-term plan payments have been completed and a discharge is entered. In fact, since the Bankruptcy Code expressly contemplates the reopening of cases and the exercise of continuing jurisdiction by the bankruptcy court (see 11 U.S.C.

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Cite This Page — Counsel Stack

Bluebook (online)
464 B.R. 63, 2011 Bankr. LEXIS 3617, 2011 WL 4459093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mendez-mab-2011.