In re Nacci

586 B.R. 733
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedJuly 5, 2018
DocketCASE NO. 15-61536
StatusPublished
Cited by1 cases

This text of 586 B.R. 733 (In re Nacci) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Nacci, 586 B.R. 733 (Ohio 2018).

Opinion

Russ Kendig, United States Bankruptcy Judge

Chapter 13 debtors Christopher Adam Nacci and Elizabeth Ann Nacci moved the court for authority to borrow money, specifically to incur student loan debt on behalf of their daughter. Toby L. Rosen, the chapter 13 trustee ("Trustee"), objected to the motion. The court held a hearing on June 6, 2018. Thomas K. Mast, attorney for Debtors, and Trustee participated in the hearing. Debtors filed a post-hearing brief on June 11, 2018 and the court took the matter under advisement. The court convened an additional telephonic status conference on June 26, 2018. Mr. Mast and Robert Harbert, counsel for Trustee, participated in the conference.

The court has subject matter jurisdiction of this case under 28 U.S.C. § 1334 and the general order of reference entered by The United States District Court for the Northern District of Ohio on April 4, 2012. Gen. Order 2012-7. The court has authority to enter final orders in this matter. Pursuant to 11 U.S.C. § 1409, venue in this court is proper. The following constitutes *735the court's findings of fact and conclusions of law under Bankruptcy Rule 7052.

FACTS

On July 17, 2015, Debtors filed a chapter 13 petition. Their gross annual income was approximately $118,000, making them above-median debtors. They identified secured debts totaling over $183,000, including a residence and two vehicles. Their residence was underwater, valued at $130,730 with two mortgages totaling $160,443. They were also underwater on a 2013 Chevy Sonic, valued at $8,000 on which they owed in excess of $18,350. The balance of the loan on the second vehicle was roughly equal to its $4393 loan value. Debtors had substantial unsecured debt, around $158,000. Approximately $1,500 was priority tax claims, the balance was primarily credit card debt and payday loans.

They confirmed a plan on December 31, 2015 and are paying Trustee $1,900.00 per month. Although the plan represents unsecured creditors will receive a seventy-two percent (72%) dividend, the parties represented at hearing that Debtors will pay unsecured claims in full over the life of the plan.1 In March 2017, the court granted them authority to borrow money to purchase a 2013 Chevrolet Cruz. The loan on the Chrysler was paid, leaving them funds for the purchase without altering plan payments.

Debtors are the parents of two daughters, one a recent high school graduate set to enter college this fall ("Daughter"). After several college acceptances, she desires to attend Case Western Reserve University ("CWRU") to possibly study nutritional biochemistry or environmental studies. Debtors introduced the following figures in their post-hearing brief:

*736Costs Tuition $49,597 Housing & meals $15,190 _______ $64,787 Funding sources COW grant2 $36,000 Direct loans to Daughter 5,500 Campus employment 2,500 CWRU grant 5,050 _______ $49,050 Shortfall $15,737 Direct PLUS loan eligibility $18,553

[Editor's Note: The preceding image contains the reference for footnote2 ].

Debtors want to obtain a PLUS loan to cover the shortfall. Debtors represent payments will not be due until 2020, after chapter 13 plan payments are completed. Debtors anticipate that they will have sufficient funds to make the payments considering they will no longer be paying the $1,900 chapter 13 plan payment when they need to start repayment of the PLUS loan.

DISCUSSION

Debtors seek to borrow approximately $16,000 to help fund Daughter's first year of college. They contend there will be no impact on the plan or prepetition creditors because loan payments will start in 2020, after their plan is complete. The monthly loan installment will be much less than their $1,900 per month plan payment, leaving them ample funds to make the PLUS loan payment. Trustee opposes the motion to borrow, arguing that it may jeopardize Debtors' fresh start. She questions whether they have explored other, less expensive options, such as attending the College of Wooster and living at home or attending a public university, to avoid the necessity of borrowing money.

There is no provision in the Bankruptcy Code that specifically authorizes an individual chapter 13 debtor to incur postpetition debt. This is probably because the 1978 version of Congress never dreamed debtors would consider huge educational loans for children. While § 364 provides a statutory basis for obtaining unsecured credit and incurring unsecured debt, in chapter 13 cases the authority is granted *737to a trustee operating a debtor's business under § 1304. Only self-employed debtors engaged in business are entitled to exercise the § 364 powers of a trustee. Debtors are not self-employed and are not operating a business. Consequently, at least one court concluded this left debtors unable to avail themselves of § 364. See In re Ward, 546 B.R. 667 (Bankr. N.D. Tex. 2016).

Yet simultaneously, § 1305 creates a pathway for certain postpetition debt to be included in a plan. Id. This provision allows creditors to include postpetition claims for (1) taxes that come due and (2) for consumer debts "that arise[ ] after the date of the order for relief under this chapter, and that is for property or services necessary for the debtor's performance under the plan" in a plan. 11 U.S.C. § 1305(a)(1) and (2). Where practicable, a debtor must obtain the approval of the trustee. 11 U.S.C. § 1305(c). Plainly, Congress anticipated situations where a debtor incurs postpetition debt. Although there is no provision that authorizes it, § 1305 acquiesces its existence.

The tension between the lack of specific guidance against the reality of postpetition debt creates a mire:

Postpetition claims are a complex area of Chapter 13 practice. The Code and Bankruptcy Rules do not manage postpetition claims very well.

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Related

Christopher Zvoch
W.D. Pennsylvania, 2020

Cite This Page — Counsel Stack

Bluebook (online)
586 B.R. 733, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-nacci-ohnb-2018.