In Re Drew

Facts

Ps filed Chapter 13. Their plan was confirmed. Ps were to pay $350.00 per month to D for a minimum term of thirty-six months (totaling $12,600.00) in order for unsecured creditors' allowed claims to receive a minimum ten percent dividend. The order confirming the plan provided that if the unsecured creditors would receive one hundred percent of their allowed claims, they could pay less than the aggregate sum of $12,600.00. At the time D's motion was filed, January 24, 2005, Ps had not made thirty-six months of payments under the confirmed plan. They paid a total of $9,380.00.

Ms. Ashby-Fox filed Chapter 13 and her plan was confirmed. The plan required her to make monthly payments of $190.00 for a minimum term of thirty-six months (totaling $ 6,840.00) in order for her unsecured creditors to receive at least ten percent of their allowed claims. The order confirming the plan provided for a lesser total to be paid if unsecured creditors would receive one hundred percent of their allowed claims. Ms. Ashby-Fox contends that as of March 2, 2005, she paid a total of $7,020.84, which is more than the $6,840.00 in monthly payments of $ 190.00 for thirty-six months. She maintains that her payments allow unsecured creditors a dividend of approximately forty-seven percent on their claims. She argues that she has paid more than is needed for the minimum ten percent dividend to the unsecured creditors, and has successfully complied with the terms of her confirmed plan. The Court notes that the Trustee's website indicates that a total of $7,020.84 was paid to the Trustee after the receipt of $ 3,215.84 on February 10, 2005, after the instant motion was filed. Thus, at the time the Trustee filed the motion on January 24, 2005, Ms. Ashby-Fox's confirmed plan had not been fully consummated.

On January 19, 2005, the Court granted Ps' motions to obtain credit in order to refinance their properties. In Ps' case, the Trustee alleges that at the time of confirmation, their real estate was valued at $90,000.00, and they refinanced it for $ 105,000.00. In the case of Ms. Ashby-Fox, the Trustee alleges that she valued her property for confirmation purposes at $90,000.00, and she refinanced the property for $ 102,860.00. D seeks to amend each plan to increase the effective dividends to unsecured creditors by the cash amount of the refinancing proceeds received by the Debtors that exceeds the payoff of the extant mortgages or other liens encumbering the properties.

Issues

Rule of Law

Holding and Decision

Legal Analysis

© 2007-2024 ABN Study Partner.