KSB

Judge Karlin

09-41816 Brown (Doc. # 41) - Document Text

SO ORDERED.
SIGNED this 30 day of April, 2010.


________________________________________
JANICE MILLER KARLIN
UNITED STATES BANKRUPTCY JUDGE
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF KANSAS


In re: )
)
RONNIE LEE BROWN JR. and ) Case No. 09-41816
SECUNDA YVETTE HOPKINS-BROWN )
)
Debtors. )

__________________________________________)
ORDER DENYING CONFIRMATION OF DEBTORS’ FIRST AMENDED PLAN

This matter is before the Court on Debtors’ Amended Chapter 13 Plan.1 Debtors’ original
plan2 contained the standard language advocated by the Chapter 13 Trustee, essentially
acknowledging that one of the Debtors owed a domestic support obligation (DSO) 3 to two women,
estimating the pre-petition arrearage on those obligations at $500 each, and providing to pay through
the plan “[a]ny arrearage that existed as of the date of filing.” Several months later, Debtors

1Doc. 30.
2Doc. 4.
3This is now a defined term, found at 11 U.S.C. § 101(14A).

Case 09-41816 Doc# 41 Filed 04/30/10 Page 1 of 3


amended that plan and altered the standard DSO language to include the following language in
Paragraph 8:

Any arrearage that existed as of the date of the filing of this case will be paid through

the plan. Creditors listed below shall have an affirmative obligation to determine

the exact amounts of said domestic support arrearages; and further shall be required

to file a proof of claim for said arrearages, with the requisite supporting

documentation, or they shall be forever barred from claiming or collecting these

alleged arrearage (emphasis added).
In light of the recent decision by the Supreme Court in United
Student
Aid
Funds,
Inc.
v.
Espinosa,4
wherein the Supreme Court reiterated that bankruptcy courts may confirm a plan only if it complies
with the applicable provisions of the Bankruptcy Code, the Chapter 13 Trustee exercised his
gatekeeper role and brought this language to the Court’s specific attention.

Section 1328(a) of Title 11 provides that a debtor will generally be entitled to a discharge
after completion of a plan, but then specifies certain debts that cannot be discharged. One of those
debts is a debt of the kind specified in 11 U.S.C. § 523(a)(5). 5 Section 523(a)(5) debts are domestic
support obligations, as that term is specifically defined in § 101(14A). In addition, § 501(a) clearly
states that a creditor “may” file a proof of claim. Nothing in the Code requires a creditor to do so.

The Court must deny confirmation of a plan to the extent the plan provides that any pre-
petition domestic support obligation (DSO) that is not paid through the Chapter 13 plan is
dischargeable, and to the extent a plan places an affirmative duty on any DSO creditor to file a proof
of claim, lest his or her claim be discharged. Accordingly, for the reasons placed on the record at
the confirmation hearing conducted April 28, 2010, which are incorporated herein by reference, the

4___ U.S. ___, 2010 WL 1027825 (March 23, 2010).

511 U.S.C. § 1328(a)(2).

2

Case 09-41816 Doc# 41 Filed 04/30/10 Page 2 of 3


Court denies confirmation of Debtors’ Amended Plan because of the language these Debtors added
to Paragraph 8 when they amended their plan.6

Debtors are ordered to file a second amended plan (within 14 days) that does not violate 11

U.S.C. §§ 1328(a)(2) or 501, and that is in all other respects consistent with this decision.
IT IS SO ORDERED.
###


6This case also demonstrates why this judge, especially in light of Espinosa, is in favor of a standard Chapter
13 plan that requires debtors, when they elect to deviate from the standard plan because of unique needs or
circumstances, to place that non-standard language in a specific section of the plan, rather than burying it, in the same
typeface, with otherwise standard language. Especially when plans are now running well over 10 pages—Debtors’
amended plan is 13 single spaced-pages—the Court, the Trustee, and creditors are entitled to have non-standard
language emphasized so that language can be easily discovered and fairly analyzed.

3

Case 09-41816 Doc# 41 Filed 04/30/10 Page 3 of 3

 

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