In re Zellmer, 465 B.R. 517, 521–25 (Bankr. D. Minn. 2012) (O’Brien)

Modified plan can reduce amount of monthly payment to reflect higher expenses and loss of income from nonfiling spouse, but reduction of number of monthly payments from 36 to 31 was without cause and violated good faith. Confirmed plan for debtor with CMI less than applicable median family income required monthly payments of $716 for 36 months. Postconfirmation the debtor failed to make five payments because of garnishment of nonfiling spouse’s income and increased expenses. Debtor moved to modify plan to reduce the monthly payment to $500. Modified plan did not provide for payments missed during the five months of default. Trustee objected to modification. “The language in § 1325(b)(1)(B) connecting the duration of the plan (the applicable commitment period) with the due date of the first payment arguably suggests that the number of payments is the core, defining element of plan length. A plan life of thirty-six months creates a schedule for thirty-six payments. The minimum term of a plan and the number of plan payments are the same number. . . . Zellmer’s proposed modified plan provides 31 payments instead of 36 payments as contemplated by the applicable commitment period of 36 months, without cause. . . . Understanding the plan duration limits as based on a number of plan payments and not simply total months of an active Chapter 13 case does not offend the policy of protecting debtors from an enslaving Chapter 13 process of indefinite length; but it does not count months in which payments are not made, unless cause would require otherwise. . . . In the Eighth Circuit, ‘applicable commitment period’ is understood to be a ‘temporal’ requirement when the debtor has actual projected disposable income . . . . To allow Zellmer to confirm the amended plan as proposed presents the same problem occasioned by debtors who would, post-confirmation, seek to ‘pay off’ their Chapter 13 plans with proceeds realized post-confirmation as a result typically of an exempt asset. It would allow evasion of the minimum plan length mandated by the statutory applicable commitment period. . . . For Zellmer, the time period over which payments must be made is thirty-six months. The months during which the case was active but payments were not made do not run against the applicable commitment period. . . . Zellmer has not suffered an ongoing substantial change in circumstances that precludes completion of the applicable commitment period of thirty-six months of payments. . . . [T]he plan proposes to limit total payments to thirty-one months, thereby melting down the overall final percentage distribution to unsecured creditors. . . . [R]educing the total number of plan payments to less than the original applicable commitment term, without cause, is an attempt to unfairly manipulate the provisions of the Bankruptcy Code. While Zellmer has documented an unanticipated substantial change in circumstances affecting his ability to proceed with payments as required under the terms of the original Chapter 13 plan, that does not warrant a reduction in the plan’s duration. There is no cause why Zellmer cannot cure the default of the applicable commitment period by extending the post-confirmation modified plan by five additional months. While the reduction in the amount of each plan payment is reasonable, Zellmer’s good faith is called into question by his willingness to enjoy the benefits of Chapter 13 without contributing his projected disposable income by making the full thirty-six payments of the commitment term.”

No Author Biography has been linked to this Article.

Related Articles

November 15, 2020
By David Cox,1 Cox Law Group, PLLC (Lynchburg, VA) Click here for Part 1 II. Dealing With Balloon, Short Term and Related Mortgage Secured Claims Under §§ 1322(c)(2) And 1325(a)(5). § 1322(c)(2) provides that: “Notwithstanding subsection (b)(2) and applicable nonbankruptcy law . . . It looks like you are not signed in or registered! This content is only available to...
Members
September 15, 2019
By The Honorable William Houston Brown (Retired) Manufactured home did not become accession to real property. The creditor holding security interest in a manufactured home objected to confirmation, on the basis that § 1322(b)(2)’s anti-modification provision prevented bifurcation of its claim into secured and unsecured parts. The Eighth Circuit noted that the Bankruptcy Code does not resolve the issue of...
Members
NBR cropped 2
November 26, 2023
“ . . . how can I not write about an opinion that begins, “This is a case of sue first and ask questions later”? We all know that Judge Christopher Klein has a way with words and a precise and methodical way of approaching statutory analysis.”
Members
March 7, 2021
By Chris Hawkins, Bradley Arant Boult Cummings LLP (Birmingham, AL) The Consumer Financial Protection Bureau (CFPB) published its debt collection final rule in the Federal Register on November 30, 2020, revamping the Fair Debt Collection Practices Act (FDCPA) for the first time since its enactment in 1977. Despite written comments submitted by several industry groups requesting clarity in areas where...
Members
Molly Pro picture
June 26, 2022
Consider if you will that your client has just filed a Chapter 13 Bankruptcy. They have intelligently chosen to surrender a luxury item - a boat or 4-wheeler or even that extra vehicle they don’t need. Because the creditor would like to preserve the value of the collateral by obtaining possession quickly, they file a Motion for Relief shortly after...
Members
Academy Circle Logo Final
January 16, 2022
There is no special language/verbiage. Keep is simple. Stick to one issue per NOE. Pertinent loan/debtor information – “name, rank, and serial number” Called bank twice. Tried to get borrower reviewed for FHA Recovery Mod. Both times I was essentially told that the loan was “too many months delinquent” to be reviewed for FHA Recovery Mod. I was also told...
August 25, 2019
Employers who provide paid family and medical leave to their employees might qualify for a credit that can reduce the taxes they owe. It’s called the employer credit for family and medical leave. Here are some facts about the credit to help employers find out if they might be able to claim it. To be eligible, an employer must: Have...
Copy of Hildebrand-2016
March 31, 2024
Debtors’ attorney’s fees can be calculated as a percentage of the presumptively reasonable “no-look” fee for cases involuntarily dismissed prior to confirmation and is an allowed administrative claim which can be paid under § 1326(a)(2).
Members
February 23, 2020
By The Honorable John P. Gustafson, United States Bankruptcy Judge, Northern District of Ohio (Toledo) There are two legal battles going on that may end up being dysfunctionally related…. 1. What Happens If The Automatic Stay Is Not Extended In A “Second Case Pending Within One Year”? A split of authority has been percolating since 2005, involving the all too...
Members
September 29, 2019
By Academy Staff Jeffrey M. Kellner graduated from THE Ohio State University in 1975. Between then and entering law school, Jeff worked in Montana for the park service. He graduated from Capital University College of Law in 1985. After law school, he worked for two years as a law clerk for Judge Calhoun in Columbus, OH. He then went to...

Looking to Become a Member?

ConsiderChapter13.org offers a forum to advance continuing education of consumer bankruptcy via access to insightful articles, informative webinars, and the latest industry news. Join now to benefit from expert resources and stay informed.

Webinars

These informative sessions are led by industry experts and cover a range of consumer bankruptcy topics.

Member Articles

Written by industry experts, these articles provide in-depth analysis and practical guidance on consumer bankruptcy topics.

Industry News

The Academy is the go-to source for the latest news and analysis in the Chapter 13 bankruptcy industry.

To get started, please let us know which of these best fits your current position: