In re Smith

600 B.R. 570
CourtUnited States Bankruptcy Court, S.D. Texas
DecidedApril 25, 2019
DocketCASE NO: 16-30718
StatusPublished
Cited by8 cases

This text of 600 B.R. 570 (In re Smith) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Smith, 600 B.R. 570 (Tex. 2019).

Opinion

Marvin Isgur, UNITED STATES BANKRUPTCY JUDGE

Americredit Financial Services, Inc. filed an objection to Katie Smith's amended modification to her confirmed chapter 13 plan. On December 13, 2018, the Court overruled Americredit's objection, and asked the parties to brief the issue of whether a chapter 13 plan modification becomes effective at the time of filing, upon the Court's approval, or at some *573other time. Despite the Court's ruling, Americredit maintains that under res judicata, Ms. Smith cannot retroactively modify her confirmed plan to alter her contract interest rate or change the disbursing agent. Americredit further contends that the language of 11 U.S.C. § 1329(a) does not allow Ms. Smith's proposed changes. In the alternative, Americredit proposes the date of filing as the time at which the modification would take effect if such modification were allowed.

The Court approves Ms. Smith's modified plan, which is effective retroactively to the date it was filed.

Background

On November 19, 2015, Ms. Smith entered into a Motor Vehicle Retail Installment Sales Contract with Americredit Financial Services for the purchase of a 2016 Chrysler 200 for her personal use. (ECF No. 43-2 at 1 ). The amount financed was $ 31,722.98 at a 15.50% per annum interest rate. (ECF No. 43-2 at 1 ). The loan was payable in 72 monthly installments beginning on December 19, 2015. (ECF No. 43-2 at 1 ).

On February 8, 2016, Katie A. Smith filed chapter 13 bankruptcy. (See ECF No. 1 ). On March 2, 2016, Americredit Financial Services, Inc. filed a proof of claim in Ms. Smith's bankruptcy case, alleging a right to repayment of $ 31,445.64 based on Americredit's security interest in the vehicle. (See ECF No. 2 at 7 ; ECF No. 63 at 2 ). At the time Americredit filed its proof of claim, Ms. Smith was current on her loan payments. (ECF No. 63 at 2 ). The Court confirmed Ms. Smith's chapter 13 Plan on April 26, 2018. (See ECF No. 28 ). Pursuant to the Plan, Ms. Smith was to act as the disbursing agent for Americredit's claim. Accordingly, Ms. Smith was to make payments to Americredit directly "in accordance with [their] pre-petition contract[ ] ...." (ECF No. 2 at 6 ).

Ms. Smith eventually fell behind on her payments to Americredit. (ECF No. 65 at 1 ; ECF No. 64 at 2 ). As a consequence, Americredit filed a Motion for Relief from the Automatic Stay on August 16, 2018. (See ECF No. 43 ). Americredit alleges that at the time of its Motion, Ms. Smith had made direct payments to Americredit in the amount of $ 2,034.78 pursuant to the Plan. (ECF No. 64 at 2 ).

Americredit's Motion was resolved through an Agreed Order Conditioning the Automatic Stay, which the Court approved on September 14, 2018. (See ECF No. 47 ). Under the agreement, the parties stipulated that the total post-petition, delinquent amount owed was $ 2,253.62. (ECF No. 47 at 1 ). The agreement required that Ms. Smith complete one of the following actions within 14 days from the date of entry: (i) pay the entire stipulated post-petition, delinquent amount of $ 2,253.62, or (ii) file a Plan modification to include an interest rate of 6.0% on the agreed post-petition, delinquent amount owed. (ECF No. 47 at 1 ). The agreement further required that Ms. Smith resume regular payments on or before October 19, 2018. (ECF No. 47 at 1 ). Whether the payments were to be made directly or through the trustee was dependent on the terms of the modified plan. (ECF No. 47 at 1 ).

On September 20, 2018, Ms. Smith filed a proposed plan modification. (See ECF No. 49 ). The Modification provided that the Trustee would pay Americredit Financial Services $ 2,630.43 at 6.0% interest. On October 23, 2018, Ms. Smith filed an amendment to the Modification. (See ECF No. 50 ). The Amended Modification corrected the cure amount to reflect the stipulated amount of $ 2,253.62 found in the Agreed Order. (ECF No. 50 at 1 ). The Amended Modification, like the original Modification, also provided payment of the postpetition, delinquent amount owed *574through the Trustee. (ECF No. 50 at 8 ).1 Americredit did not object to the Amended Modification "because it comported with the terms of the Agreed Order." (ECF No. 64 at 3 ). The Court denied the proposed Amended Modification on November 13, 2018. (November 13, 2018 Hearing at 9:32 a.m.). The Court's denial was based on a lack of explanation for the Amended Modification. (November 13, 2018 Hearing at 9:32 a.m.). Additionally, the Court noted that the proposed modification failed to reflect distribution and payment of both the original amount and the arrearage amount to be made by the Trustee as was customary when a default occurs. (November 13, 2018 Hearing at 9:32 a.m.).

In response to the Court's denial, Ms. Smith filed a Second Modification on November 26, 2018. (See ECF No. 55 ). The Second Modification provided for payment of Americredit's entire remaining claim of $ 23,772.63 at 6.0% interest over 25 months.2 (ECF No. 55 at 7 ). It further provided that the Trustee would disburse all payments due. (ECF No. 55 at 17 ). On December 6, 2018, Americredit filed an Objection to Ms. Smith's Second Modification. (See ECF No. 59 ). The Objection alleged that Ms. Smith could not amend her Plan to reduce Americredit's contract interest rate from 15.5% to 6.0% because the parties were bound by the terms of the Plan, and because "[n]othing in 11 U.S.C. § 1329 allows [Ms. Smith] to modify a confirmed plan to change the interest rate provided for in the Plan." (ECF No. 59 at 2 ).3 Americredit further argued that the Second Modification fails to provide for adequate protection as required by Bankruptcy Local Rule 4001-1(e)(6). (ECF No. 59 at 2 ).

The Court held a hearing on Ms. Smith's Second Modification on December 13, 2018. (See ECF No. 62 ). At the hearing, the Court overruled Americredit's objection to Ms. Smith's Second Modification. (December 13, 2018 Hearing at 9:30 a.m.). The Court found there was no res judicata issue because § 1329 allows for plan modifications at any time, so long as the Plan meets the requirements of 11 U.S.C. § 1325. (December 13, 2018 Hearing at 9:30 a.m.). However, the Court reserved ruling on whether the Second Modification was effective on the date of the filing of the proposed modification, upon approval by the Court, or on some other date. The Court requested further briefing from the parties addressing when a modification becomes effective. (December 13, 2018 Hearing at 9:32 a.m.).

Parties' Subsequent Briefing

Americredit objects to Ms. Smith's Second Modification on the basis of (i) res judicata principles and (ii) statutory interpretation. In its subsequent briefing, Americredit maintains that Ms.

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Cite This Page — Counsel Stack

Bluebook (online)
600 B.R. 570, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smith-txsb-2019.