[CLBS] Proposed Model Chapter 13 Plan

[Alex Caval]

Ken,

1. I suppose that language in Paragraph 4.4 could read "as funds become
available..." rather than "from available funds" for clarity. This language
makes it easier to administer plans by giving us flexibility on when we pay
priority claims, but it doesn't affect how much we pay them over the life of
the plan. I confirm a lot of plans that have stepped up plan payments built
in such that the plan funds but there may be some months where the plan
payments are less than the total monthly payments for priority and secured
debt payments. The language lets me pay the priority claims a little less
for those months where the plan payments are lower but more when the plan
payments increase. However, over the term of the plan I would pay the entire
priority amount. A plan will not get confirmed unless it provides for all
priority claims to be paid in full; that one of the things we check for
pre-confirmation.

2. Section 5.1 could probably benefit from the inclusion of "(PMSI)" in the
heading. That's fixable. 

3. Paragraph 5.3 is the old 5.2 cure paragraph. The language hasn't changed
in this new version. I'm not exactly sure what you mean when you say,
"non-conforming POC." If the mortgage company files its POC listing the
arrearage after the case is confirmed then the Trustee would pay the
arrearage amount per the proof of claim regardless of the amount the debtor
estimated when you were filling out Paragraph 5.3 (provided your plan funds;
if it doesn't then your Chapter 13 Trustee will be the first to tell you and
prompt you to take steps to make it fund). I don't see a conflict between
the confirmation order and the proof of claim when the order says that the
proof of claim controls.

4. Section 5.5 was changed to track the language of local bankruptcy rule
4003.2. We noted that a lot of the motions to avoid the judicial liens were
usually lacking specificity and we thought the boxes would be a good way to
get the required information in there. 

5. Section 8 deals with the leases. The thought behind the language about
allowing the proof of claim to control is to reduce the need for amended
plans in situations where the plan already funds; if a debtor is assuming a
lease then he/she is going to want to cure any arrearages for it. If there's
a dispute about the amount of the arrearage then you always have the option
to object to the proof of claim.


Alexandra O. Caval
Staff Attorney
Office of Kathleen A. McCallister
Chapter 13 Trustee
P.O. Box 1150
Meridian, ID 83680
T: (208) 922-5100
F: (208) 922-5599


-----Original Message-----
From: Ken Anderson [mailto:kenanderson at clearwire.net] 
Sent: Monday, July 02, 2012 3:48 PM
To: 'Alex Caval'; clbs at admws.idaho.gov
Subject: RE: [CLBS] Proposed Model Chapter 13 Plan

2 July 2012

Some off-the-cuff comments on the proposed Ch 13 plan... Generally this is
an improvement but I do have a few concerns.

1.	Sec. 4.4. "From available funds..."  Can a priority-class creditor
reading this feel assured that his total claim will be paid during the plan?
(The language seems a little uncertain.)  
2.	Sec. 5.1. Some creditors probably don't know what "PMSI" means.
Consider slightly altering the all-caps title to this section to read
"...HOLDERS OF CERTAIN PURCHASE MONEY SECURITY INTERESTS (PMSI'S) IN MOTOR
VEHICLES..."
3.	 Sec. 5.3. Suppose a plan is confirmed before the secured creditor
files the non-conforming POC. Is the debtor's attorney responsible for
identifying the problem and modifying the plan? Or does the plan even need
modification ---or does the trustee just disregard the order of confirmation
to the extent it conflicts with the allowed POC? What about Espinosa and the
Supreme Court's emphatic language about the finality of Ch 13 confirmation
orders? 
4.	Sec. 5.5. Does this comply with the Section 522(f) statute (and
related caselaw) concerning demonstrating the application of the formula? Or
does this just provide the facts to enable a concerned creditor to work
through the formula himself?
5.	Sec. 8.  See Sec. 5.3.

-Ken Anderson


-----Original Message-----
From: clbs-bounces at admws.idaho.gov [mailto:clbs-bounces at admws.idaho.gov] On
Behalf Of Alex Caval
Sent: Wednesday, June 13, 2012 12:45 PM
To: clbs at admws.idaho.gov
Subject: [CLBS] Proposed Model Chapter 13 Plan

Everyone:

Please see the attached memorandum and the proposed model Chapter 13 Plan
that the Chapter 13 Advisory Committee has been working on for the last few
months. We need input from the bankruptcy bar regarding whether or not the
proposed model plan should be submitted to the Rule Committee for approval.
The Advisory Committee needs your input by July 3, 2012 for the next Rules
Committee meeting that is scheduled for July 6, 2012. If you would prefer to
email a specific member of the Advisory Committee rather than posting to the
entire ListServ, then you may do so by clicking on the member's name in the
attached memorandum.

 

Alexandra O. Caval

Staff Attorney

Office of Kathleen A. McCallister

Chapter 13 Trustee

P.O. Box 1150

Meridian, ID 83680

T: (208) 922-5100

F: (208) 922-5599