[CLBS] Does the Code require payment of interest on 100% pay out plans?

Thu Aug 17 10:37:28 MDT 2017

There are always the exceptions and special cases.  It seems to me we should keep the goal in mind, on the windshield so to speak.  Creditors want to get paid.  Any lawyer I know would love to have the balance of an account paid, and would waive interest if charged.  Actually, most of us would gladly take something.  I think the same concept comes with chpt. 13's.  Get the creditors something, even if it is less than perfect.  In the long run the creditor is better off.  Look, a dismissal of a 13 does not guarantee the creditor payment, even in your $3,500 per month scenario.  You have to sue.  You have to get a judgment.  You have to execute .  you have to collect.  Again, it just seems to me that one cannot assume that the dismissal of the 13 will result in full payment to the creditor or creditors even if the money appears to be there.  Of course, it is a matter of judgment.    However, one should not assume that a payout of 75%  that you believe should be 90% necessarily represents a recovery by the creditors of that 90% because you get the case dismissed.  My experience is the opposite.  If the court assures 75% that is well above what they will recover after the bky is dismissed.   Just my thoughts.

-----Original Message-----
From: Kathleen McCallister [mailto:kam at kam13trustee.com] 
Sent: Thursday, August 17, 2017 10:16 AM
To: Jim Meservy; 'Randy French'; 'Wade Carolyn G'
Cc: CLBS at admws.idaho.gov
Subject: RE: [CLBS] Does the Code require payment of interest on 100% pay out plans?

Jim - Would your opinion be the same if you were representing an unsecured creditor and the debtor had $3500 a month available to make plan payments but proposed a payment of $500 per month and wanted to take the full 60 months?    What if the Debtors were close to retirement age or already retired and you could not be certain that the debtor would have a stream of income for the entire five years? While this scenario is way over the top,  it is an actual case currently pending before the court.  

Kathleen

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Jim Meservy
Sent: Thursday, August 17, 2017 9:01 AM
To: 'Randy French' <rfrench at rfrenchlaw.com>; 'Wade Carolyn G' <carolyn.g.wade at doj.state.or.us>
Cc: CLBS at admws.idaho.gov
Subject: Re: [CLBS] Does the Code require payment of interest on 100% pay out plans?

Perhaps reflective but why would one ever try to hold up a 100% payout anyway?  The idea is to get confirmed plans so creditors can start getting some funds they would otherwise likely never to receive.  The idea was to increase 13's to allow more creditors to get paid........at least something.  Thus the need to confirm 13's in the first place.  Agreed that standards should be met.  Some might say  "We have seen the enemy and they is us"..........the system defeats its own mission. 

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Randy French
Sent: Thursday, August 17, 2017 8:10 AM
To: 'Wade Carolyn G'
Cc: CLBS at admws.idaho.gov
Subject: Re: [CLBS] Does the Code require payment of interest on 100% pay out plans?

Paul Ross kindly provided the comment and citation to the following case:

See In re Gillen, Bankr. C.D. Ill. 19 May 2017 opinion for a recent court that says it is not required.

 <https://scholar.google.com/scholar_case?case=17495188722907907159&q=in+re+gillen&hl=en&as_sdt=200003&as_ylo=2017> https://scholar.google.com/scholar_case?case=17495188722907907159&q=in+re+gillen&hl=en&as_sdt=200003&as_ylo=2017

502(b)(2) expressly does not permit a claim to include unmatured interest.  What ground would the creditor/trustee then have to argue for post-petition interest, or unmatured interest?

Thanks.

Randy French

Law Office of Randal J. French, P.C.

Attorneys at Law

tP.O. Box 836 tBoise, ID 83701 t(208) 859-6881t 

IMPORTANT NOTICE: This communication, including any attachments, may contain information that may be confidential or privileged and is intended solely for the entity or individual to whom it is addressed. If you are NOT the intended recipient, you must delete this message and attachments and are hereby notified that any disclosure, copying, or distribution of this message is strictly prohibited. Nothing in this email, including any attachment, is to be a legally binding signature.

From: Wade Carolyn G [mailto:carolyn.g.wade at doj.state.or.us] 
Sent: Wednesday, August 16, 2017 6:48 PM
To: 'Randy French'
Subject: RE: [CLBS] Does the Code require payment of interest on 100% pay out plans?

First, you aren't reading 1325(b)(1)(A) properly.  It requires that "as of the effective date of the plan--(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim;"

The “as of the effective date of the plan” language is the language requiring interest.

§1325(a)(4) has the same phrase.

Carolyn Wade

Oregon Department of Justice

541.686.7846 (Eugene)

503.934.4459 (Salem)

-----Original Message-----
From: CLBS [mailto:clbs-bounces at admws.idaho.gov] On Behalf Of Randy French
Sent: Wednesday, August 16, 2017 5:36 PM
To: CLBS at admws.idaho.gov; clbs-bounces at admws.idaho.gov
Subject: [CLBS] Does the Code require payment of interest on 100% pay out plans?

List mates

I just had an issue arise in a ch 13 case that was a 100% pay out plan.  The Trustee objected to confirmation on the basis that the Debtors had additional income beyond what was used to funds the plan and therefore they should pay interest on all claims.  I think that one of you should present a segment on confirmation of ch 13 plans at the seminar in February that addresses that issue.  Submit your bid to speak on this topic to I believe it would be Alex Caval.  This would also make a good article for the newsletter and for the Advocate.

I objected on the basis that 1325(b)(1)(A) only requires that allowed unsecured claims must be paid in full (no interest) or else the remainder of 1325(b)(1), that being 1325(b)(1)(B), would apply.  

There may be one approach by which interest would have to be paid on allowed unsecured claims.  That would be based upon the application of 1325(a)(4), the liquidation test.  If a ch 13 debtor had sufficient non-exempt assets that, in a chapter 7, creditors would be paid in full, then under 726(a)(5), unsecured creditors would get interest at the legal rate.  That being the case under chapter 7, §1325(a)(4) would seem to require interest to be paid in the chapter 13.  I have done no research to see if case law supports this, but it seems to me to be a straightforward application of the code.

The legal rate is the rate applied to judgments issued in federal court.  I believe that rate is 1.22 % for the month of July, 2017.  So, if in a chapter 7 liquidation, an unsecured creditor would receive its claim plus interest at the federal judgment rate, then in a ch 13 the Trustee would have the basis to require that as part of satisfying the liquidation test.  Otherwise, the fact that creditors are being paid in full does not trigger a requirement that a debtor pay interest on unsecured claims.

28 USC ☻11961 is applicable:

Title 28. Judiciary and Judicial Procedure Part V--Procedure, Chapter 125--Pending Actions and Judgments, § 1961.Interest 

(a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding. [FN1] the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges. 

(b) Interest shall be computed daily to the date of payment except as provided in section 2516(b) of this title and section 1304(b) of title 31, and shall be compounded annually. 

(c) 

1. This section shall not apply in any judgment of any court with respect to any internal revenue tax case. Interest shall be allowed in such cases at the underpayment rate or overpayment rate (whichever is appropriate) established under section 6621 of the Internal Revenue Code of 1986. 

2. Except as otherwise provided in paragraph (1) of this subsection, interest shall be allowed on all final judgments against the United States in the United States Court of Appeals for the Federal circuit, at the rate provided in subsection (a) and as provided in subsection (b). 

3. Interest shall be allowed, computed, and paid on judgments of the United States Court of Federal Claims only as provided in paragraph (1) of this subsection or in any other provision of law. 

4. This section shall not be construed to affect the interest on any judgment of any court not specified in this section. 

Thanks.

Randy French

Law Office of Randal J. French, P.C.

Attorneys at Law

tP.O. Box 836 tBoise, ID 83701 t(208) 859-6881t 

IMPORTANT NOTICE: This communication, including any attachments, may contain information that may be confidential or privileged and is intended solely for the entity or individual to whom it is addressed. If you are NOT the intended recipient, you must delete this message and attachments and are hereby notified that any disclosure, copying, or distribution of this message is strictly prohibited. Nothing in this email, including any attachment, is to be a legally binding signature.

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