Pacana v. Pacana-Siler (In Re Pacana)

125 B.R. 19, 91 Daily Journal DAR 4173, 1991 Bankr. LEXIS 432, 21 Bankr. Ct. Dec. (CRR) 918
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMarch 29, 1991
DocketB.A.P. No. NC-89-1356 VAsJ, Bankruptcy No. 588-06195-WCMOR
StatusPublished
Cited by17 cases

This text of 125 B.R. 19 (Pacana v. Pacana-Siler (In Re Pacana)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacana v. Pacana-Siler (In Re Pacana), 125 B.R. 19, 91 Daily Journal DAR 4173, 1991 Bankr. LEXIS 432, 21 Bankr. Ct. Dec. (CRR) 918 (bap9 1991).

Opinions

OPINION

VOLINN, Bankruptcy Judge:

OVERVIEW

Appellant, a Chapter 131 debtor, challenges an order that granted his former wife relief from the § 362 stay to collect child support arrearages after confirmation of his plan which by its terms provided for payment on her claim. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 30,1988, Francisco Pacana filed a petition and plan under Chapter 13. His schedules show a total unsecured indebtedness of $34,500.00 which includes a $13,900 debt to his ex-wife, Marcalane S. Pacana-Siler, for child support arrearages. The remaining debts result from use of credit cards and consumer loans. The Chapter 13 plan is allegedly based on classification of Ms. Siler’s debt as “priority,” and provided for payment to her, but without any provision concerning the timing and amount of disbursements to be paid on the debt. The debtor’s plan provides for a 14 percent payment to unsecured creditors. In the “Plan Computation” filed with the plan the following is stated: [21]*21We note that the plan does not provide for payment of a priority claim, which appears at odds with the alleged classification of Ms. Siler’s debt as priority. Her debt is included in the unsecured creditors’ 14 percent calculation as indicated above.

[20]*20PLAN COMPUTATION
PRIORITY NONE NONE
SECURED 9,720.00
INTEREST ON SECURED 2,000.00
14 % OF UNSECURED 5,000.00
ATTORNEY FEE 700.00
Subtotal = 17,420.00
TRUSTEE FEE = 1,750.00
Total = 19,170.00

[21]*21On February 13, 1989, the plan was confirmed without appearance or objection by Ms. Siler. However, on the date of confirmation, there was outstanding an unresolved application, filed by Ms. Siler on or about January 20, seeking relief from stay to enforce the child support debt. After a hearing on March 3, 1989, the court granted relief from stay “to the extent that in addition to what is paid to moving party on her priority claim in the Chapter 13 she may collect an additional $250 per month from the debtor to be applied against the arrearages. This additional $250 may be collected upon immediately by agreement with or by levy upon the debtor’s wages or other moneys due him.” The court entered its written order on March 16, 1989. Mr. Pacana timely filed a notice of appeal. Ms. Siler did not cross-appeal and has taken the position in her appellee’s brief and in argument to the Panel that the order of the trial court should be affirmed.

Mr. Pacana contends that the court’s order renders his plan infeasible because he will have insufficient net income to pay living expenses after making plan payments. He contends that his plan by implication provides for 100 percent payment to Ms. Siler simply by designating her as a priority claimant, although, as stated, the plan contains no provision whatsoever for such payment. As indicated above she appears to have been treated as a member of the 14 percent unsecured creditor class.

ISSUE PRESENTED AND STANDARD OF REVIEW

Mr. Pacana appeals from an order granting Ms. Siler partial relief from stay to enforce her claim for child support payments on a limited monthly basis. We question, however, whether the automatic stay or the plan can affect at all her efforts to enforce that claim. These are legal issues subject to de novo review. See, e.g., Ragsdale v. Haller, 780 F.2d 794 (9th Cir.1986).

DISCUSSION

A. Statutory Framework

The debtor’s brief states that both the Code and the plan treat his child support obligation2 as a priority debt under § 507, which will be paid in full. We see nothing in § 507 that would apply to child support obligations. As discussed above, the payment provisions of the plan itself do not provide for any priority payments, either to appellee or otherwise.3 In any event, whether child support obligations are treated as priority claims or ordinary unsecured claims does not affect our analysis.

Section 1322 provides in pertinent part:

(a) The plan shall—
[[Image here]]
(2) provide for the full payment, in deferred cash payments, of all claims entitled to priority under section 507 of this title....
(b) ... the plan may—
[[Image here]]
(2) modify the rights ... of holders of unsecured claims ...;
(3) provide for the curing or waiving of any default....

Thus § 1322, standing alone, arguably permits a plan to provide for the deferred payment of a debtor’s child support obligation.

[22]*22Section 1327(a) provides for the consequences to creditors on confirmation stating that:

(a) The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.

This section, if applicable, also appears broad enough to bind the appellant to the provisions of the plan. Finally, § 1327(c) provides that after confirmation, the debt- or’s property is free from claims provided for by the plan. The pertinent provisions of § 1327 provide:

(b) Except as otherwise provided in the plan or the order confirming the plan, the confirmation of a plan vests all of the property of the estate in the debtor.
(c) Except as otherwise provided in the plan or in the order confirming the plan, the property vesting in the debtor under subsection (b) of this section is free and clear of any claim or interest of any creditor provided for by the plan.

However, § 362(b)(2) specifically excepts from the automatic stay “the collection of alimony, maintenance, or support from property that is not property of the estate_” See In re Stringer, 847 F.2d 549 (9th Cir.1988). Since under § 1327(b), “the confirmation of a plan vests all of the property of the estate in the debtor,”4 the effect of § 362(b)(2) is to except from the automatic stay any efforts to collect child support obligations owed by the debtor. In any event, while most ordinary debts are subject to discharge under § 1328, child support obligations are specifically excepted from discharge under §§ 1328(a)(2) and 523(a)(5),5 and therefore from the post-discharge injunction of § 524(a)(2).

Thus, Congress by virtue of § 362(b)(2) specifically excepted child support obligations from the effect of the bankruptcy stay while the case is pending, and through §§ 1328(a)(2) and 523(a)(5), it specifically excepted child support obligations from the effect of confirmation in the Chapter 13 bankruptcy case.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Owsley
494 B.R. 321 (E.D. Tennessee, 2013)
In Re Allen
241 B.R. 710 (D. Montana, 1999)
Mudd v. Jacobson (In Re Jacobson)
231 B.R. 763 (D. Arizona, 1999)
In Re Camacho
211 B.R. 744 (D. Nevada, 1997)
In Re Sokoloff
200 B.R. 300 (E.D. Pennsylvania, 1996)
In Re Slater
188 B.R. 852 (E.D. Washington, 1995)
In Re Price
179 B.R. 209 (E.D. California, 1995)
People v. Gruntz
29 Cal. App. 4th 412 (California Court of Appeal, 1994)
In Re Bunn
170 B.R. 670 (D. Minnesota, 1994)
Rogers v. Overstreet (In Re Rogers)
164 B.R. 382 (N.D. Georgia, 1994)
In Re Engel
151 B.R. 542 (D. Idaho, 1993)
In Re Walter
153 B.R. 38 (N.D. Ohio, 1993)
Lawson v. Lackey (In Re Lackey)
148 B.R. 626 (N.D. Alabama, 1992)
In Re Benner
146 B.R. 265 (D. Montana, 1992)
In Re Moralez
128 B.R. 526 (E.D. Michigan, 1991)
Pacana v. Pacana-Siler (In Re Pacana)
125 B.R. 19 (Ninth Circuit, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
125 B.R. 19, 91 Daily Journal DAR 4173, 1991 Bankr. LEXIS 432, 21 Bankr. Ct. Dec. (CRR) 918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacana-v-pacana-siler-in-re-pacana-bap9-1991.