In re Miceli

587 B.R. 492
CourtUnited States Bankruptcy Court, N.D. Illinois
DecidedJuly 9, 2018
DocketBankruptcy No. 17-82877
StatusPublished
Cited by8 cases

This text of 587 B.R. 492 (In re Miceli) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Miceli, 587 B.R. 492 (Ill. 2018).

Opinion

Thomas M. Lynch, United States Bankruptcy Judge

Associated Bank, N.A., a secured creditor, objects to confirmation of the amended Chapter 13 Plan proposed by Anthony Miceli. (ECF No. 30.) Associated Bank objects to the Debtor's proposal to distribute smaller monthly payments to the secured creditor for its mortgage arrearage claim until the allowed claim of the Debtors attorneys is paid in full, after which the payments to the creditor will increase. The creditor contends that this arrangement violates the requirement for confirmation that periodic payments under section 1325(a)(5)(B)(iii)(I) be "in equal monthly amounts." The Debtor argues in response that subsection (B)(iii)(I) does not prohibit a pro rata distribution to certain creditors and, in any case, the requirement does not apply to mortgage arrearage claim at issue here. For the reasons discussed below, this Court concludes that the plan provides for periodic, pro rata payments on secured claims that do not satisfy the equal monthly amount requirement. Because this arrangement is not accepted by the affected creditor the plan as proposed cannot be confirmed and the objection will be sustained.

JURISDICTION AND PROCEDURE

The Court has jurisdiction to decide this matter pursuant to 28 U.S.C. § 1334 and Internal Operating Procedure 15(a) of the United States District Court for the Northern District of Illinois. This matter involves confirmation of a bankruptcy plan and, therefore, is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(L).

BACKGROUND

The facts are largely undisputed. The Debtor filed his Chapter 13 Petition on December 7, 2017. Two proofs of claim were timely filed and both claimants assert their claims to be fully secured. Of particular interest is the claim of Associated Bank for $72,202.62 secured by a mortgage in the Debtor's principal residence. In it the bank alleges that $23,943.42 of its claim is the "[a]mount necessary to cure any default as of the date of the petition."1 (Claim No. 2-1.)

The Debtor prepared his plan on Official Form 113, the new national model plan implemented in December 2017. The plan treats Associated Bank's arrearage claim as secured in Part 3.1, captioned "Maintenance of payments and cure of default, if any." Under the plan the Debtor will continue to pay his monthly contractual installments, currently $477.83, directly to Associated Bank.2 It provides that the existing arrearage will be paid in full through *495disbursements by the trustee, and lists the arrearage to be $23,943.42, for which it provides an interest rate of "0.00%". It bears noting while the plan indicates "$0.00" to be the monthly payment on the arrearage, it estimates that the total payments on the arrearage will be $23,943.42. The plan states that "[u]nless otherwise ordered by the court, the amounts listed on a proof of claim filed before the filing deadline under Bankruptcy Rule 3002(c) control over any contrary amounts listed below as to the current installment payment and arrearage." (Amended Plan, Part 3.1.)

General Order No. 17-02 of this Court took effect on December 1, 2017. It provides that:

Unless otherwise provided in a chapter 13 plan, claims of creditors will be paid pro rata in the following order: (1) current mortgage payments under 1322(b)(5); (2) monthly payments on non-mortgage secured claims; (3) costs of administration; (4) mortgage arrears under 1322(b)(5); (5) priority unsecured claims other than costs of administration; and (6) other unsecured claims.

Mr. Miceli's plan provides for sixty monthly payments of $500 to be paid to the trustee, totaling $30,000. From this amount, the Debtor estimates that the trustee will distribute $5,743.00 on administrative expenses and priority claims over the term of the plan, including an estimated $1,800 in trustee's fees and $3,600 attorney's fees.3 While the plan states that it anticipates paying 100% of allowed unsecured claims, it estimates them to be "$0".

In an apparent attempt to square the plan's $0.00 proposed monthly payment with the anticipated total arrearage distribution of $23,943.42, the Debtor states in his response to the objection that his plan intends to pay the Associated Bank arrearage from the Debtor's $500 monthly installments. He explains that the trustee will distribute the funds according to the "waterfall" distribution arrangement provided in General Order No. 17-02. The plan proposes to treat the first 6% of each of the trustee's $500 monthly distribution as a cost of administration. The remainder of the trustee's monthly distribution will be paid first to the Debtor's attorney for his fees "estimated to total $1,800" until the attorney's claim is paid in full. After that, the remainder will be distributed to Associated Bank to pay in full its mortgage arrearage claim.

The parties stand on their briefs and oral argument. The Chapter 13 trustee takes no position on the objection. This determination is based upon these submissions, and takes judicial notice where appropriate of the court's docket of the case and the filings therein and with consideration of the argument of counsel. See, e.g., Lulay Law Offices v. Rafter, 579 B.R. 827 n.1 (N.D. Ill. 2017) (taking "judicial notice of matters of public record, such as filings in the bankruptcy court, even where not specifically referenced by the parties") (citing United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991) ).

DISCUSSION

A. Equal Monthly Payment Required by Section 1325(a)(5).

The court must confirm a Chapter 13 Plan that satisfies the criteria of 11 U.S.C. § 1325(a). Under section 1325(a)(5) :

*496(i) the plan [must] provide[ ] that--
(I) the holder of such claim retains the lien securing such claim until the earlier of--
(aa) the payment of the underlying debt determined under nonbankruptcy law; or
(bb) discharge under section 1328; and
(II) if the case under this chapter is dismissed or converted without completion of the plan, such lien shall also be retained by such holder to the extent recognized by applicable nonbankruptcy law;

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Cite This Page — Counsel Stack

Bluebook (online)
587 B.R. 492, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-miceli-ilnb-2018.