In re Vonkreuter

545 B.R. 297, 75 Collier Bankr. Cas. 2d 142, 2016 Bankr. LEXIS 459, 2016 WL 587664
CourtUnited States Bankruptcy Court, D. Colorado
DecidedFebruary 12, 2016
DocketCase No. 15-13258 MER
StatusPublished
Cited by3 cases

This text of 545 B.R. 297 (In re Vonkreuter) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Vonkreuter, 545 B.R. 297, 75 Collier Bankr. Cas. 2d 142, 2016 Bankr. LEXIS 459, 2016 WL 587664 (Colo. 2016).

Opinion

ORDER

Hon. Michael E. Romero, Chief Judge, United States Bankruptcy Court

This matter comes before the Court regarding the Application for Payment of Administrative Claim1 (“Application”) filed [298]*298by counsel for the debtor (“Movant”), the response2 thereto filed by the former standing Chapter 13 trustee (“Trustee”), and Movant’s subsequent brief in support of the Application.3 In the wake of the United States Supreme Court’s Harris v. Viegelahn4 decision, Movant asks this Court to determine whether allowed administrative expense claims pursuant to 11 U.S.C. §§ 503(b) and 1326(a)(2)5 may be paid from undisbursed postpetition earnings upon the pre-confirmation conversion of a case from Chapter 13 to Chapter 7. The Trustee did not take a position, but responded seeking the same determination.

This Court can appreciate the need to address this issue, in light of the immediate impact of Harris on pending and future Chapter 13 cases. In Harris, the Supreme Court concluded undisbursed postpetition earnings held by a Chapter 13 trustee under a confirmed plan at the time a case is converted to a Chapter 7 may not be disbursed to creditors, and must be returned to the debtor:6 Although the Supreme Court did not address the precise question -at bar, as set forth below, this Court joins the growing post-Norris majority, holding absent bad faith conversion, the former Chapter 13 trustee must return any undisbursed postpetition earnings to the debtor upon conversion to Chapter 7.

BACKGROUND

The relevant facts are undisputed. On March 31, 2015, debtor James Alan Von-Kreuter (“Debtor”) filed for relief under Chapter 13 of the Bankruptcy Code through Movant. At the time this case was filed, Movant received $1,425.00 for the representation of the Debtor, with any allowed remaining balance to be paid through a Chapter 13 plan.

Prior to confirming a Chapter 13 plan, on September 21, 2015, the Debtor voluntarily sought conversion from Chapter 13 to Chapter 7 under § 1307(a). In support of conversion, the Debtor stated he was no longer able to make plan payments and was ineligible for Chapter 13 relief under § 109(e) due to the amount owed to unsecured creditors. On the same date, this bankruptcy case was converted to Chapter 7, and the Trustee was in possession of $665.00 in undisbursed postpetition wages from the Debtor. There are no allegations or evidence to suggest the Debtor sought conversion to Chapter 7 in bad faith.

On October 7, 2015, Movant filed the Application, seeking payment of an administrative expense claim for attorneys’ fees incurred during the pendency of the Chapter 13 case, and an order for the Trustee to pay the undisbursed $665.00 to Movant. As a result of the Harris decision, the Trustee filed his Objection to the Application taking no position, but seeking a determination on the issue presented.

DISCUSSION

A. Harris v. Viegelahn

The Supreme Court’s holding in Harris is clear—absent bad faith, any .undisbursed postpetition wages must be returned to the debtor upon conversion from Chapter 13 to Chapter 7.7 In reaching this conclusion, the [299]*299Supreme Court primarily relied on § 348, as well as several other provisions of the Bankruptcy Code. A review of the relevant Bankruptcy Code provisions as addressed by the Supreme Court is instructive before reaching the question raised in Movant’s Application.

At the outset of Harris, Justice Ruth Bader Ginsburg, writing for a unanimous United States Supreme Court, observed as follows:

This case concerns the disposition of wages earned by a debtor after he petitions for bankruptcy.... In a Chapter 13 proceeding, postpetition wages are “[plroperty of the estate,” 11 U.S.C. § 1306(a), and may be collected by the Chapter 13 trustee for distribution to creditors, § 1322(a)(1). In a Chapter 7 proceeding, those earnings are not estate property; instead, they belong to the debtor. See § 541(a)(1). The Code permits the debtor to convert a Chapter 13 proceeding to one under Chapter 7 “at any time,” § 1307(a); upon such conversion, the service of the Chapter 13 trustee terminates, § 348(e).8

After noting the § 348(f)(2) bad faith conversion exception, Justice Ginsburg added “§ 348(f) limits a converted Chapter 7 estate to property belonging to the debtor ‘as of the date’ the original Chapter 13 petition was filed. Postpetition wages, by definition, do not fit that bill.”9

Having eliminated the Chapter 7 estate from the equation and turning to the issue presented in Harris, the Supreme Court succinctly framed and answered the following:

What happens to postpetition wages held by a Chapter 13 trustee at the time the case is converted to Chapter 7? Does the Code require return of the funds to the debtor, or does it require their distribution to creditors? ■ We conclude that postpetition wages must be returned to the debtor.10

Although returning undistributed funds to a debtor is seemingly counterintuitive, the Supreme Court principally relied on § 348(f)(1)(A), which removes postpetition “earnings from the pool of assets that may be liquidated and distributed to creditors!,]” 11 and § 348(e), which terminates the services of a Chapter 13 trustee upon conversion.12 The Supreme Court reasoned that accumulated Chapter 13 plan payments could not be disbursed to creditors after conversion to Chapter 7 without violating those two provisions.13

In addition, the Supreme Court expressly rejected the former trustee’s arguments that undisbursed funds must be distributed to creditors pursuant to §§ 1326(a)(2) and 1327(a) upon conversion:

When a debtor exercises his statutory right to convert, the case is placed under Chapter 7’s governance, and no Chapter 13 provision holds' sway. § 103(i) (“Chapter 13 ... applies only in a case under [that] chapter.”). Harris having converted the case, the Chapter 13 plan was no longer “bind[ing].” § 1327(a). And Viegelahn, by then the former [300]*300Chapter. 13 trustee, lacked .authority to distribute “payment[s] in accordance with the plan.” § 1326(a)(2); . see § 348(e).14

The above pronouncement that “no Chapter 13 provision holds sway,” coupled with the Supreme Court’s unequivocal holding that “under the governing provisions of the Bankruptcy Code, a debtor who converts to Chapter 7 is entitled to return of any postpetition wages not yet distributed by the Chapter 13 trustee[,j”15 warrants the broad application of Harris to cases converted from Chapter 13 to Chapter 7. Ultimately, Harris

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Cite This Page — Counsel Stack

Bluebook (online)
545 B.R. 297, 75 Collier Bankr. Cas. 2d 142, 2016 Bankr. LEXIS 459, 2016 WL 587664, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-vonkreuter-cob-2016.