The bankruptcy court abused its discretion when it granted the trustee’s motion to modify the debtor’s chapter 13 plan to capture the $300.00/month the debtor saved when he refinanced his home loan where the change in the debtor’s financial circumstances was not “substantial” as a matter of law. Martinez v. Gorman (In re Martinez), No. 21-1077 (E.D. Va. June 16, 2022). Read More
Tag Archive: Plan modification
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3% Change In Debtor’s Income Not Enough for Modification
Posted by NCBRC - October 7th, 2022
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Covid Mortgage Forbearance Justifies Plan Modification
Posted by NCBRC - August 2nd, 2022
The court granted the trustee’s motion to modify the debtor’s chapter 13 plan, finding that the debtor’s mortgage deferral due to Covid was an “unanticipated and substantial” change in his financial status which he had a duty to disclose and which increased his income for 18 months during the plan. In re Ilyev, No. 17-12987 (Bankr. E.D. Va. July 26, 2022). Read More
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Bankruptcy Court Takes 7th Circuit to Task
Posted by NCBRC - July 28th, 2022
The bankruptcy court gave the debtors guidance on how to challenge a decision issued by the Seventh Circuit earlier this month by pointing out, among other things, that the circuit court decision addressed an order not actually on appeal before it. In re Terrell, No. 18-28674 (Bankr. E.D. Wisc. July 19, 2022). Read More
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Debtors May Not Modify Plan to Deprioritize State’s Claim
Posted by NCBRC - July 15th, 2022
The bankruptcy court erred in permitting the debtors to modify their chapter 13 plan to deprioritize the State of Wisconsin’s claim based on a public assistance overpayment, where the only authority for such modification would come from Rule 60(b)(1) and the debtors sought the modification too late to rely on that Rule. In the Matter of Terrell, No. 21-3059 (7th Cir. July 12, 2022). Read More
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Failure to Pay Property Taxes Precludes Discharge
Posted by NCBRC - May 12th, 2022
A mortgage refinance agreement approved by the court is not equivalent to a motion to modify under section 1329. The debtors, who failed to pay their property taxes directly as required by their plan were not entitled to discharge even though the mortgagee paid those taxes on their behalf and the debtors and mortgagee refinanced their lending agreement to encompass that change. In re Villarreal, No. 16-10106 (Bankr. S.D. Tex. April 12, 2022). Read More
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“Effective Date of the Plan” for Best Interests Test upon Modification
Posted by NCBRC - July 28th, 2021
The best interests test does not provide authority to compel turnover through plan modification of settlement funds from the debtor’s post-petition personal injury case where that money would not be available to unsecured creditors in a case converted from chapter 13 to chapter 7 under section 348(f). In re Taylor, No. 16-40873 (Bankr. D. Kans. July 21, 2021). Read More
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Modification under CARES Act
Posted by NCBRC - February 18th, 2021
For plan modification under the CARES Act, the debtor need not have been current in plan payments prior to enactment of the Act. In re Gilbert, No. 16-12120 (Bankr. E.D. La. Oct. 6, 2020).
In four separate cases, debtors sought to modify their chapter 13 plans under section 1329(d) which Congress added to the Bankruptcy Code as part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). In all four cases, the debtors’ plans were confirmed and they fell behind on payments prior to March 27, 2020. In three of the cases, the debtors sought modification of their plans to pay off the arrearages and extend the length of the plan beyond sixty months. In the fourth case, the debtor sought only to reduce payments to unsecured creditors. The trustee opposed the modifications arguing that the CARES Act permits modifications only if the debtors first fell behind in their plan payments after March 27, 2020, and the sole reason for the default was the pandemic.
The bankruptcy court disagreed. Read More
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Change in Circumstances Not Required for Plan Modification
Posted by NCBRC - October 16th, 2020
A change in circumstances is not a pre-condition to modification of a confirmed chapter 13 plan under section 1329(a). Whaley v. Guillen (In re Guillen), No. 17-13899 (11th Cir. Aug. 25, 2020).
When the debtor filed for chapter 13 bankruptcy, she listed two creditors with security interests in her home. Her proposed plan included payments toward her bankruptcy attorney’s fee of $4,900, as well as a challenge to Wells Fargo’s junior lien. She then initiated an adversary proceeding seeking to avoid that lien. The debtor and Wells Fargo eventually settled the adversary complaint with Wells Fargo agreeing to be treated as an unsecured creditor. Finding that it met the statutory requirements, including section 1325’s “best interest of creditors” test, the bankruptcy court confirmed her plan. Read More
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Trustee May Modify Plan to Capture Proceeds from Sale of Employee Stock Options
Posted by NCBRC - April 28th, 2020
The bankruptcy court did not abuse its discretion in permitting the chapter 13 trustee to modify the debtor’s plan to capture proceeds from the sale of stock options that the debtor received as part of his employment compensation. Berkley v. Burchard (In re Berkley), No. 19-1197 (B.A.P. 9th Cir. April 17, 2020).
Mr. Berkley’s chapter 13 plan was confirmed in April, 2015. In 2016, he became CEO of Antares Audio Technologies. Part of his compensation was receipt of stock options in the company. After he had completed 57 months of payments on his chapter 13 plan, Mr. Berkley notified the trustee that Antares was being sold and that his stock options would be bought out for $3.8 million. The trustee moved to modify the plan to incorporate a portion of the sale proceeds to pay off Mr. Berkley’s creditors at 100%. The bankruptcy court granted the motion to modify and Mr. Berkley appealed. Read More
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Plan May Be Modified to Incorporate HAVEN Act Veteran’s Benefits Exclusions
Posted by NCBRC - March 23rd, 2020
The Bankruptcy Court for the Eastern District of Michigan found that the debtor may modify her chapter 13 plan to reduce her plan payments based on the post-confirmation enactment of the HAVEN Act, which provides for exclusion of veteran’s disability benefits from CMI. In re Gresham, No. 18-56289 (Bankr. E.D. Mich. March 10, 2020).
In August, 2019, Congress enacted the Honoring American Veterans in Extreme Need Act (HAVEN), which articulates an “express exclusion to CMI for certain compensation, pension, pay, annuity, or allowance paid ‘in connection with a disability, combat-related injury or disability, or death of a member of the uniformed services.’” The stated purpose of the amendment was to correct an “obvious inequity” in section 101(10A) which excludes social security benefits from CMI but not similar veteran’s benefits. As a result of the new legislation, the chapter 13 debtor here sought to modify her 100% chapter 13 plan to exclude those benefits from her CMI and reduce her monthly plan payments. The trustee objected, seeking the court’s direction as to the appropriate application of the HAVEN Act in light of the fact that it was enacted after the debtor’s plan was confirmed without objection. Read More
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HAVEN Act Guide
The Honoring American Veterans in Extreme Need Act of 2019 (“HAVEN Act”) excludes certain benefits paid to veterans or their family members from the definition of current monthly income (“CMI”) found in the Bankruptcy Code. The HAVEN Act amends § 101(10A) of the Bankruptcy Code and supplements the 2005 amendments to the Code that excluded other government benefits, such as social security income.
This Guide provides an overview of the HAVEN Act identifies benefits that are excluded, and answers frequently asked questions.
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