In re Niday

498 B.R. 83, 2013 WL 4525207, 2013 Bankr. LEXIS 3499
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedAugust 27, 2013
DocketNo. 11-72491
StatusPublished
Cited by2 cases

This text of 498 B.R. 83 (In re Niday) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Niday, 498 B.R. 83, 2013 WL 4525207, 2013 Bankr. LEXIS 3499 (Va. 2013).

Opinion

MEMORANDUM DECISION

WILLIAM F. STONE, JR., Bankruptcy Judge.

Although a number of motions and other pleadings are before the Court,1 the issue which has been presented by the parties by agreement for decision at this time is limited in scope. Counsel for the Debtors 2 poses the question as follows:

Does the [2005] amendment to section 1325(b) [of the Bankruptcy Code] prohibit debtors operating under a confirmed 36-month plan from receiving a prompt discharge upon early payment of the full amount due under the plan? The question assumes that the debtors are otherwise qualified for discharge, and that unsecured creditors are to receive a dividend of less than 100%.

[85]*85(Debtors’ Br. at 1, ECF No. 109). The Court would state the issue somewhat differently as follows:

Does a Chapter 13 below median income debtor now have the unqualified right to pay off early the remaining payments due under the terms of a confirmed plan providing for payments over a term of thirty-six months when the total of such remaining payments would be insufficient to pay all allowed unsecured claims in full?

For the reasons stated below, this Court concludes that there is no such unqualified right, but that such a debtor may seek modification of the confirmed plan for that purpose under the provisions of Code § 1329. This written decision follows the Court’s announcement of an oral ruling to the same effect in open court on August 12, 2013 after hearing the arguments of counsel. On August 21, 2013 the Chapter 13 Trustee filed a Motion to Modify the Plan which is not presently before the Court for decision.

A brief summary of the factual background of the present dispute may be helpful. The Debtors’ financial difficulties stem from their decision in 2002 to purchase and operate a business known as Night and Day, LLC. At that time they had accumulated, apparently, some significant assets which were reflected in a financial statement dated January 31, 2002 as having a net value of $499,000. They elected to finance the acquisition and provision of working capital for this business by means of loans totaling $487,000 which they acquired from the Bank of Fincastle (“the Bank”). Unfortunately the business was notably unsuccessful and ultimately failed, precipitating the filing of this case. The conduct of the case has been marked by acrimony between the Bank and the Debtors evidenced by the former’s efforts to challenge various actions taken by the Nidays which, from the Bank’s perspective, have indicated an intention on their part to be generous to their adult children rather than attempting to the best of their ability to pay their creditors, principally the Bank. Not surprisingly, this background resulted in a contested confirmation process which ultimately was resolved, however, under the terms of an agreed Plan confirmed on November 8, 2012. Under this Plan the Debtors committed to making a lump sum payment of $61,127.95 within twenty-one days of the confirmation order plus twenty-seven monthly payments of $500 each in addition to $5,717 previously paid, resulting in an estimated distribution to general unsecured creditors of approximately 20% upon their allowed claims. The Debtors’ pre-confirmation budget included a monthly allotment of $502 to life insurance premiums for policies upon the lives of the Nidays. As relevant to the present dispute, two of those policies were policies upon the life of Mrs. Niday in the amounts of $15,0003 and $50,000 of which Mr. Niday was the indicated beneficiary. On or about December 3, 2012, less than a month after obtaining confirmation of the Plan, the Debtors tendered to the Chapter 13 Trustee a check in the amount of $12,3654 representing the balance due under the terms of the Plan for the remaining twenty-four months of its specified thirty-six month duration. The Trustee declined to accept this payment as satisfaction of the Debtors’ remaining obligations under the Plan. The previously noted pleadings now before the Court represent the Debtors’ efforts to [86]*86complete their Plan and obtain a discharge of their remaining indebtedness to their creditors and the Bank and the Trustee’s combined efforts to prevent their doing so before the thirty-six month term of their Plan is over and any possibility of making a claim against the life insurance proceeds from the policies on Mrs. Niday’s life is lost.5

CONCLUSIONS OF LAW

This Court has jurisdiction over this proceeding by virtue of the provisions of 28 U.S.C. §§ 1334(a) and 157(a) and the delegation made to this Court by Order from the District Court on July 24, 1984 and Rule 3 of the Local Rules of the United States District Court for the Western District of Virginia. Matters involving confirmation of plans are explicitly included in the nonexclusive list of “core” bankruptcy proceedings by virtue of 28 U.S.C. § 157(b)(2)(L). The issue before the Court, which deals with the modification of a confirmed plan, certainly appears to be a “core” proceeding by virtue not only of subsection (b)(2)(L) but also pursuant to subsection (b)(2)(0) (“other proceedings affecting ... the adjustment of the debtor-creditor ... relationship”). The Court further concludes that it has the constitutional authority to enter a final order ruling upon the various pleadings now before the Court.

The present dispute among the parties largely swirls around the introduction of the term “applicable commitment period” in Code § 1325(b)(4) with respect to Chapter 13 plans as a part of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Succinctly, the “applicable commitment period” for most Chapter 13 debtors is three years, but for debtors for which the “current monthly income of the debtor and the debtor’s spouse combined, when multiplied by 12, is not less than ... [the applicable according to household size] median family income of the applicable State,” the commitment period is five years. At the time of plan confirmation a bankruptcy court “may not” confirm a plan over the objection of the Trustee or the holder of an allowed unsecured claim unless either the claim is paid in full or all of the debtor’s “projected disposable income” during the “applicable commitment period” is devoted to plan payments. Code § 1325(b)(1). As previously noted, for the Debtors in this case the “applicable commitment period” is three years.

There have been a significant number of decisions, including one by Judge Krumm (now retired) of this Court, which have examined the question in the context of plan confirmation whether the number of months in a case’s applicable commitment period has a temporal component or whether it is simply a multiplier to be used in calculating a debtor’s obligation under a confirmed plan. Judge Krumm, in accord with a majority of the cases which have considered the issue,6 held that, in a ease [87]*87involving above median income debtors, the five year commitment period is a temporal requirement. In re Hylton, 374 B.R. 579, 587 (Bankr.W.D.Va.2007); See also In re Moose, 419 B.R. 632, 635 (Bankr.E.D.Va.2009); But see Lundin,

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Cite This Page — Counsel Stack

Bluebook (online)
498 B.R. 83, 2013 WL 4525207, 2013 Bankr. LEXIS 3499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-niday-vawb-2013.