Chapter 13 Hot Topics

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1 Chapter 13 Hot Topics The following outline relates to practice in the Western District of Missouri. The Chapter 13 trustee or trustee referred to herein is the standing trustee for the Western District of Missouri. The Eastern District of Missouri has its own materials which will be provided on the date of the Eastern District s program 1. Mortgage Issues a. Surrender i. Maintaining insurance and the taxes on the property until the creditor takes possession of the real estate: 1. Debtors keep insurance on property to avoid liability. 2. Real Estate Taxes: a. Creditor should pay and include in bid at sale; or b. Debtor should pay since still on the title. ii. Does the creditor have a duty to foreclose? 1. Recent Case Law Developments 2. Force creditor to take title through plan? b. Motion for Relief: i. Parameters that trigger a Motion to Relief from Automatic Stay: 1. Default in on-going payments; 2. No treatment in plan; 3. No proof of insurance. ii. If payments are being made by the Chapter 13 trustee: 1. Matching records from the trustee s office and the mortgage creditor. 2. Creditors should make sure a proof of claim has been filed before filing a Motion for Relief for default in on-going payments if it is paid through the trustee s office. c. After a Motion for Relief from the Automatic Stay is granted: i. Remedies available : 1. Foreclosure 1

2 2. Loan Modifications ii. What happens if the debtor continues to live in the property? 1. State court unlawful detainer actions 2. In re Wells 2015 WL (Bankr. E.D. Ark 2015): A creditor would not be granted relief from the automatic stay to evict debtor and obtain possession of residence after confirmation of plan. d. The Chapter 13 trustee reviews Motions for Relief in all cases. Where the mortgage is paid directly by the debtors for a significant default, the trustee may take action in cases where the debtors are not making their ongoing, post-petition mortgage payments pursuant to a confirmed plan. i. The trustee filed a Motion to Dismiss for Material Default with respect to a confirmed plan in In re McAtee Case # (WDMO). ii. See In re Formaneck, 534 B.R. 29 (Bankr. D. Colo. 2015) Chapter 13 case was dismissed on the trustee s motion due to debtors failure to make post-petition mortgage payments directly to the secured creditor per the confirmed plan. iii. See also In re Gonzales, 532 B.R. 828 (Bankr. D. Colo 2015) Chapter 13 debtors were not entitled to a discharge where debtors failed to make postpetition monthly payments to mortgage creditor per the confirmed plan. 2. Proof of Claims a. The creditor does not file a mortgage proof of claim, and the debtor has scheduled mortgage arrearages: i. If the mortgage is supposed to be made through the plan, the trustee will continue to reserve funds from the plan payments for the ongoing payments. ii. No funds are reserved for the arrearage claim. 1. In re Matteson 535 B.R. 156 (B.A.P 6 th Cir. 2016): Lack of a proof of claim merely waived right to payment through the plan, not the debt itself. iii. Should the debtor, or debtor s counsel file a proof of claim on behalf of the mortgage creditor? 2

3 1. Debtor s opinion? 2. Creditor s opinion? 3. Trustee s opinion? iv. Trustee s efforts to get a proof of claim on file: 1. Quarterly letters; 2. Follow-up with the creditor s attorney if an entry of appearance has been filed; 3. The trustee may have to file a Motion to Amend Plan if no claim is ever filed due to the plan running short of the applicable commitment period. 3. FRBP Rule a. Issues with Notice of Mortgage Payment Changes: i. Debtor Issues? ii. Creditor Issues? iii. Trustee Issues? b. Issues with Notice of Additional Fees: i. Fees incurred outside the 180 days period prescribed by FRBP ; ii. Case is completed; iii. The claim is not being treated under 11 U.S.C. 1322(b)(5). c. Issues with Trustee s Notice of Final Cure/Creditor s Responses i. Section 1329: plans cannot be modified after completion of payments. ii. The trustee has objected to amended plans filed after the Creditor s Response to the Trustee s Notice of Final Cure was filed. The Responses filed indicated a significant default in direct on-going mortgage payments. The debtors filed amended plan to surrender residence. Court denied confirmation. 4. Objections to claims a. 11 U.S.C. 1302(b)(1): i. The trustee shall perform the duties specified in sections 704(a)(5) 3

4 1. 11 U.S.C. 704(a)(5): The trustee shall, if purpose would be served, examine proofs of claims and object to the allowance of any claim that is improper. ii. The Chapter 13 trustee reviews all claims and will file objections as appropriate, but the debtors and debtor s counsel should review claims independently for their own objection. The debtors are in the best position to take action and file objections to claims. 1. Time barred debts a. The trustee will review and may file an objection to a claim where the statute of limitation for collections has run. b. The trustee will only file an objection if the proof of claim lists very specific information regarding the charge off date, the last payment date and the last transaction date. 2. Mortgage claims a. Generally, the trustee will not file objections to mortgage claims/mortgage arrears claim unless there is a patently obvious issue on the face of the claim or in the attachments. b. When filing objections to claims: i. Refer to the court claim number (not the trustee s internal claim number) and make sure you are objecting to the correct claim if there have been amended claims filed. 1. If an objection is already pending, and the creditor amends their proof of claim, then normally, the Court will deny the pending objection as moot, and if the debtor disagrees with the amended proof of claim, a new objection needs to be filed. ii. State specifically how you want the claim to be treated if the objection were to be granted (e.g. disallowed in its entirety, allowed as a nonpriority unsecured claim, allowed as a secured claim in xxx amount, etc.). iii. If you plead in the alternative (e.g., the claim should be allowed in xxx amount, or in the alternative, should be disallowed), the trustee will respond to the objection. 4

5 1. The trustee must be able to administer an order on an objection to claim; he cannot do that when an order grants an objection requesting alternative treatment or no treatment is specified. 5. Vehicle Issues a. Valuation: i. How is value determined by creditor? ii. How is value determined by debtor? b. WDMO Local Rule 3084-D: i. A secured claim must state a fair market value for each item of collateral. ii. The trustee will use the creditor s fair market value if clearly provided on the face of the proof of claim. iii. If the fair market value is not on the proof of claim, the trustee will use the value listed on Chapter 13 plan. iv. If the value is not listed in the plan, the trustee will use the value listed on debtor s schedules. 1. This may be a confirmation issue if discrepancy between plan and schedules. v. It is the trustee s position that for liquidation purposes, if the creditor s value and the debtor s value differ, the debtor may provide documentation that supports the debtor s value, and the trustee will accept for liquidation analysis or request his own appraisal. vi. It is the trustee s position that for distribution purposes, if the debtor is proposing to cram down a vehicle, and if the creditor s value and the debtor s value differ, the debtor should object to the proof of claim. Otherwise, the trustee will use the creditor s value on the proof of claim. 6. Other Vehicle issues a. Adversary Proceedings filed by the Chapter 13 trustee: i. The trustee will file an adversary to pursue lien avoidance if a creditor s lien was not properly perfected. ii. The trustee will not confirm a chapter 13 plan until the adversary is completed. 5

6 1. In re Bannon, 532 B.R. 834 (Bankr. D. Kan 2015): Confirmation of the chapter 13 plan, which treated a creditor s two claims as secured, precluded subsequent adversary proceedings by the Chapter 13 trustee to avoid the creditor s liens as unperfected. 7. Disposable Income a. The New Form 122C-1 and Form 122C-2 and Changes in Income: i. Line 46 Change in Income or Expenses: 1. If the income in Form 122C-1 or the expenses the debtor reported in Form 122C-2 changed or are virtually certain to change after the date of filing the petition and during the time the case will be open, the debtor is required to report said changes on Line 46. a. It is the trustee s observation that Line 46 is rarely used by debtors to report a change in income or expenses. 2. Examples of Use: a. Salary/Income Changes: i. Slight decrease or increase in income: the trustee will use Line 46 if Form 122C-2 will still result in disposable income and there is no other reason to deviate from the Means Test. ii. In Re Hughes, Case # drd-13 (WDMO)- 1. Facts: The only change in the means test and Schedule I/J was a $ decrease in income for Mr. Hughes. The trustee requested Line 46 be used to adjust Mr. Hughes income on Line 2 of the means test. This change still left $ in disposable income. This was after significant expenses including over $1,000 in student loan repayment and $1,000 in daycare were taken into account. 6

7 2. Outcome: Judge Dow agreed with the trustee s position in a bench ruling. The motion to deny confirmation was granted with 21 days to amend to a DIP-60 plan. ii. Other suggested uses: Bonus information, Monthly insurance premiums increase/decrease? b. Change in Circumstances to justify a deviation from the Form 122C-2 and proposing a Base plan: 1. Examples: one debtor loses a job, or has hours or income otherwise reduced. 2. It is the trustee s position the change in circumstances must be significant to deviate from the Means Test. 3. The trustee will object to a debtor proposing a Base based on anticipated retirement or job loss as this is not a readily ascertainable change. Amendments should be filed when and if the change actually happens. c. Other issues to consider when the trustee evaluates Form 122C-1 versus Schedule I and J: i. Feasibility the debtor often argues that she cannot afford a disposable income pot. The trustee will likely take the case before the Judge in these circumstances (as in Hughes above). ii. Good Faith if the debtor is keeping luxury items to the detriment of his unsecured creditors, the trustee will object. d. Other Changes to the Form 122C-1 and Form 122C-2: i. Line 16 Taxes/Refunds: The new form requires debtors to account for their tax refund (if the debtors expect a refund, the instructions on the form say to divide the expected refund by 12 and subtract from total amount withheld). 1. How are debtors determining anticipated refund? 2. How is the trustee calculating the deduction? 7

8 ii. Special Circumstances: The new form removed the other expenses category. The debtors can only use special circumstances to justify additional expenses. 1. What constitutes a special circumstance? a. 11 U.S.C 707(B)(i): Special circumstance examples: serious medical condition or call or order of active duty. b. Note: The trustee does allow for long-term student loans paid directly on this line because the Form 122C-2 does not account for this expense anywhere else. 2. The Form 122C-2 requires documentation and a detailed explanation, and there is no reasonable alternative on the form. e. Step Payments: i. Retirement Loans and Voluntary Contributions: 1. Repayment of the loan is a known or virtually certain change in the debtor s financial circumstances under Hamilton v. Lanning, 560 U.S. 505 (2010), and an increase in the payment is necessary under Seafort v. Burden (In re Seafort), 669 F.3d 662 (6 th Cir. 2012). The Western District of Missouri has followed In Re Seafort. 2. Therefore, a step payment should be proposed when the retirement loan or the monthly repayment should be pro-rated over the life of the plan on the budget and the means test. a. The trustee normally does not require step payment if the amount of repayment is minimal or the debtor s budget could absorb it for reasonable and necessary living expenses. 3. In general, the trustee has not objected to on-going contributions to retirement that were in existence at the time of filing as exclusions from disposable income. 4. Interesting Footnote 7 to Seafort: The trustee concedes that if a debtor is making voluntary retirement contributions when the bankruptcy petition is filed, such continuing contributions may be 8

9 excluded from disposable income. We do not agree with this assertion ii. Direct payments that payoff during the life of the plan (such as car leases): 1. If the change is known, it is the trustee s position the debtor should propose a step in plan payments at the time of the payoff. 2. If, at the time of the payoff, a new expense arises (i.e., the debtor needs a new car lease), then the plan can be amended again at that time. 8. Non-filing Spouse Cases: a. Including the non-filing spouse s income on the Form 122C-1 and Schedules: i. In re Rodgers, 2014 Bankr. Lexis 4384 (Bankr. W.D. Mo 2014)/Case # ii. Facts: The debtor was married, and lived with his non-filing spouse and son. The debtor listed no income for his wife on Schedules I, Form 122C, or Statement of Financial of Affairs. The trustee objected to the proposed chapter 13 plan because the non-filing spouse s income or contributions were not listed. The Debtor argued that the non-filing spouse refused to cooperate, and they did not pool their income and expenses. iii. The Court ruled that a plan proposing to pay less than 100% to unsecured creditors cannot be approved without disclosure of the regular contributions to the household and the expenses of the non-filing spouse. b. Marital deductions: i. Some expenses seem obviously deductible 1. Support arising from a previous relationship; 2. Debts incurred prior to the marriage ii. Should the non-filing spouse s credit card debt payments count as a marital deduction? 9. Inheritance/Life insurance Proceeds a. When it s included in the hypothetical liquidation test under 11 U.S.C. 1325(a)(4): 9

10 i. 11 U.S.C. 541: The Chapter 7 trustee may liquidate an inheritance or life insurance proceeds if the debtor s interest existed at the time of filing the petition or if the debtor becomes entitled to an inheritance or life insurance proceeds 180 days from the petition date. Therefore, in Chapter 13, the proceeds that the debtor is entitled to or becomes entitled to are counted in liquidation analysis if the debtor receives or is entitled to receive said proceeds 180 days from petition date. b. Duty to Disclose i. Inheritances and life insurance proceeds should be listed on Schedule A/B, if the Debtor is entitled to it at the time of filing, and it has not been received before filing. ii. If received before filing, any remaining proceeds should be listed on Schedule A/B. iii. After filing, Schedule A/B should be amended if, within 180 days of the petition date, the debtor becomes entitled to an inheritance or life insurance proceeds. The value of the inheritance or life insurance proceeds will be included in the liquidation analysis. iv. After the 180 day period? U.S.C 1306(a): Property of the estate includes, in addition to the property specified in 541, all property of the kind specified in such section that the debtor acquires after commencement of the case but before the case is closed, dismissed, or converted. 2. See Carroll v. Logan, 735 F. 3d 147 (4 th Cir. N.C. 2013): Three years after the bankruptcy was filed, the debtors inherited approximately $100,000. The chapter 13 trustee moved to modify the plan from a minimal dividend to unsecured creditors to a 100% plan. 3. The Court ruled that 11 U.S.C 1306(a) extends the timeline for including the kind of property specified in 11 U.S.C. 541 in Chapter 13 bankruptcy estates. 10

11 a. Does it extend time for hypothetical liquidation purposes or is this a disposable income issue? v. The WDMO Confirmation Order: Regardless of when the case was filed, the debtor shall report to the standing trustee any events affecting disposable income, including, but not limited to inheritances 1. The trustee will always review inheritances for disposable income purposes during the debtor s applicable commitment period. 2. What happens when the debtors don t report the inheritance? Report that they received it during the life of the case, but the case has already completed? Report it, but spend it without Court permission? a. In re Dugan Case # abf-13 (WDMO): The trustee received a letter in October 2014 indicating a possible inheritance the debtor was entitled to. The debtor received $75,000 in January The motion to retain the inheritance funds was not filed until January The debtor proposed to keep $43,875 and remit $31,125 to the trustee. The Court set the motion for hearing. The Court ordered that the debtor turn over $50,000. i. Perhaps due to the delay and that the debtor had already spent part of the funds? 10. Lawsuits a. When it s included in the hypothetical liquidation test under 11 U.S.C. 1325(a)(4): i. Pre-petition Assets: Debtors often list as unknown as value at the time of filing. ii. The amount the debtor actually receives can be liquidated by the Chapter 7 Trustee. The value could be $0 initially and later change to the amount received. b. Duty to Disclose 11

12 i. Pre-Petition actions/potential actions should be listed on Schedule A/B, if the cause of action is pending or injury has already occurred at the time of filing, and funds have not been received before filing. The value of the award or settlement (net) will be included in the liquidation analysis. ii. Post-Petition Actions: 1. There are disposable income implications when a debtor receives an award or settlement due to pending court case. 2. Settlement with trustee 11. Tax returns a. Reasons why the trustee needs the debtor s latest filed tax return before the 341(a) Meeting of Creditors: i. 11 U.S.C 521(e): not later than 7 days before the date first set for the first meeting of creditors, to the trustee a copy of the Federal income tax return required under applicable law (or at the election of the debtor, a transcript of such return) for the most recent tax year ending immediately before the commencement of the case and for which a Federal income tax return was filed; ii. Case Analysis for 341(a) meeting of creditors: 1. Prior year s income to compare to schedules and Statement of Financial of Affairs; 2. If the prior year s income is substantially different from Form 122C-1 CMI, then the trustee will likely request CMI paystubs; 3. Prior business income to compare to schedules and Statement of Financial Affairs; 4. Household size; a. The trustee will review the number of dependents compared to the schedules and make the necessary inquiries. 5. Filing status: 12

13 a. The trustee will review for correct filing status (single, married filing jointly, married filing single, Head of Household, etc.). b. If it appears the debtors were married at the end of the prior calendar year, and lived together during the last 6 months of that calendar year, and one debtor filed Head of Household, the trustee will advise the United States Trustee. 6. Prior year s refund a. The trustee will review schedules to determine if the refund was disclosed as an asset. b. The trustee will calculate non-exempt equity. c. The trustee will review to determine if the refund is prorated on Schedule I. d. High refunds will cause the trustee to review for potential over-withholding on schedules and the Form 122C-2 (see above). e. History of gambling b. Reasons debtors counsel are unable to provide 7 days prior to the 341 meeting of creditors: i. The debtors may not have a copy ii. The debtors may not have filed the returns iii. If the prior year s returns are not filed, provide the trustee with a copy of the next prior year s returns within 7 days prior to the 341. c. If no returns are received timely, the trustee will file a motion to dismiss under 11 U.S.C. Section 521(e). i. Possible result - dismissal: ii. 11 U.S.C. 521(e)(2)(B) states: If the debtor fails to comply with clause (i) or (ii) of subparagraph (A), the court shall dismiss the case unless the debtor demonstrates that the failure to comply is due to circumstances beyond the control of the debtor. 13

14 iii. The trustee will never withdraw the motion as the statute says the court shall dismiss. 1. The debtor s counsel should respond to the motion to dismiss as appropriate. 2. In our district, once returns are received after the deadline and filing of a motion to dismiss, the trustee will file a notice of compliance on PACER and the court will generally deny the motion to dismiss. d. Action by debtors counsel at the 341 if returns not yet filed: i. Do you request the meeting be held open? ii. Why or why not? e. Life of the case tax returns filed after the 341 through the end of the case i. Procedures used by debtors counsel to get the returns from their clients: 1. Request each year from the debtor? 2. How do you ensure the debtor does not spend any refunds prior to approval by the trustee or the court? 3. Review prior to sending to the trustee? 4. If income is higher, do you amend or wait to hear from the trustee? 5. If debtors are gambling, how do you counsel them? f. The trustee mails out letters in all cases specially flagged for tax returns (for review of income, bonuses, gambling, etc.) on January 1 of each year. i. If the returns are not received in those cases by May 1 of the same year, the trustee will file a motion to dismiss. ii. Non-exempt equity (first year return) vs. disposable income (following years) iii. Effect of the ACP 14

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