In re Russell

503 B.R. 788, 70 Collier Bankr. Cas. 2d 1766, 2013 WL 6858133, 2013 Bankr. LEXIS 5445
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedDecember 31, 2013
DocketNo. 13-50045
StatusPublished
Cited by2 cases

This text of 503 B.R. 788 (In re Russell) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.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 Russell, 503 B.R. 788, 70 Collier Bankr. Cas. 2d 1766, 2013 WL 6858133, 2013 Bankr. LEXIS 5445 (Ohio 2013).

Opinion

MEMORANDUM OPINION AND ORDER ON TRUSTEE’S OBJECTION TO CONFIRMATION OF CHAPTER 13 PLAN

JOHN E. HOFFMAN, JR., Bankruptcy Judge.

I. Introduction

In her Chapter 13 plan, Erica Jane Russell proposes to pay a higher dividend to holders of cosigned consumer debts than to her other general unsecured creditors. The Chapter 13 trustee contends that this differential treatment unfairly discriminates against creditors holding debts that are not cosigned. But the Bankruptcy Code permits a Chapter 13 debtor’s plan to pay a higher dividend to creditors holding cosigned consumer debts than it pays to other unsecured creditors, and there is no other basis to conclude that the plan discriminates unfairly against creditors holding non-cosigned debts. The Court finds, therefore, that the plan does not violate the Bankruptcy Code’s prohibition against unfair discrimination.

II. Jurisdiction

The Court has jurisdiction to hear and determine this contested matter pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding. See 28 U.S.C. § 157(b)(2)(L).

III.Background

On January 3, 2013 (“Petition Date”), Russell commenced her bankruptcy case by filing a petition for relief under Chapter 13 of the Bankruptcy Code. That same day, she filed a Chapter 13 plan. Jeffrey P. Norman, the Chapter 13 trustee (“Trustee”), objected to the plan because, among other things, it gave creditors holding cosigned consumer debts more favorable treatment than those creditors holding non-cosigned debts. Russell filed an amended plan, followed by a second amended plan (Doc. 18) (“Plan”). Like the original plan, the Plan called for the payment of a higher dividend to holders of cosigned consumer claims than it provided to other unsecured, nonpriority claim holders. Apparently anticipating another objection from the Trustee, Russell filed a memorandum in support of confirmation (Doc. 25) in which she took the position that the Plan treated all of her unsecured creditors fairly. The Trustee filed an objection to the Plan (“Objection”) (Doc. 26) on the ground that it “does not meet the requirements of 11 U.S.C. § 1322(b)(1),” which prohibits unfair discrimination in the treatment of unsecured claims in Chapter 13 cases. The Trustee also filed a memorandum supporting the Objection (Doc. 28).

The parties also filed joint stipulations of facts (“Stipulations”) (Doc. 27), which state:

1. ... If confirmed and completed, the Plan will pay approximately 1.6% to general unsecured creditors.
2. The Plan contains Special Provisions separately classifying the claims [of] Arrowood Indemnity/Tuitiongard (“Arrowood”) and Peoples United (“Peoples”), providing for monthly payments [791]*791of $200.00 to Arrowood and $100.00 to Peoples.
3. [Jane Regan, Russell’s mother, cosigned] [t]he Arrowood and Peoples loans.
4. Prior to filing the present case, [Russell] entered into informal forbearance agreements with Arrowood and Peoples in which the lenders have agreed not to pursue [Regan] in exchange for monthly payments of $200.00 and $100.00, respectively.
5. If the Plan is confirmed and completed, and assuming Arrowood and Peoples have allowed claims, then during the 60 month commitment period Arrowood will receive payments totaling approximately 17.9% of its claim, and Peoples will receive approximately 65.4% of its claim.
6. If the separate classifications were removed and the Arrowood and Peoples claims were included in the pool of general unsecured creditors, then the Plan would pay approximately 15% of general unsecured claims.
7. [Russell incurred] [t]he Arrowood and Peoples debts ... to pay [her own] tuition and/or educational] expenses .... These claims constitute “consumer debts” pursuant to 11 U.S.C. § 101(8).
8. [Russell’s] motivation for paying more to Arrowood and Peoples is to protect [Regan] from collection upon the student loans that were incurred for the benefit of [Russell].
9. The sole basis for separate classification of the Arrowood and Peoples claims is the co-signed nature of the claims, in order to protect [Regan],

Stipulations at 1-2.

IV. Legal Analysis

A. Section 1322(b)(1)

The Trustee’s only objection to confirmation is that the Plan violates § 1322(b)(1) by discriminating unfairly against creditors holding non-cosigned debts. The Court interprets § 1322(b)(1) by “starting] where all such inquiries must begin: with the language of the statute itself.” Ransom v. FIA Card Servs., N.A., — U.S.-, 131 S.Ct. 716, 723, 178 L.Ed.2d 603 (2011) (internal quotation marks omitted). Under § 1322(b)(1), a Chapter 13 plan may:

designate a class or classes of unsecured claims, as provided in section 1122 of this title, but may not discriminate unfairly against any class so designated; however, such plan may treat claims for a consumer debt of the debtor if an individual is liable on such consumer debt with the debtor differently than other unsecured claims[.]

11 U.S.C. § 1322(b)(1).

The Trustee relies on the first part of § 1322(b)(1), which states that a plan “may not discriminate unfairly against” any class of unsecured claims. In this context, discrimination means treating a class of unsecured claims in a different manner than other classes of unsecured claims. See Bentley v. Boyajian (In re Bentley), 266 B.R. 229, 237 (1st Cir. BAP 2001) (discussing dictionary definitions of the word discriminate). Thus, a plan discriminates against a class of unsecured claims if it treats that class less favorably than it treats other classes of unsecured claims. Section 1322(b)(1) prohibits this differential treatment if it is unfair. But, as discussed below, the statutory text of § 1322(b)(1) contains more than a general prohibition against unfair discrimination.

Russell relies on the final clause of § 1322(b)(1), under which a plan that separately classifies claims for consumer debts “may treat claims for a consumer debt of [792]*792the debtor if an individual is liable on such consumer debt with the debtor differently than other unsecured claims.” 11 U.S.C. § 1322(b)(1).1 Because this part of § 1322(b)(1) begins with the word “however,” courts commonly refer to it as the “however clause.” See, e.g., Meyer v. Renteria (In re Renteria), 470 B.R. 838, 841 (9th Cir. BAP 2012).

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Cite This Page — Counsel Stack

Bluebook (online)
503 B.R. 788, 70 Collier Bankr. Cas. 2d 1766, 2013 WL 6858133, 2013 Bankr. LEXIS 5445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-russell-ohsb-2013.