In Re Anderson
- Reporters:
- , ,
- Before:
- Humphrey
Decision Sustaining in Part, and Overruling in Part, the Objection of eCast Settlement Corporation to the Debtors’ Chapter 13 Plan
GUY R. HUMPHREY, Bankruptcy Judge.
This contested matter is before the court on creditor eCast Settlement Corporation’s (“eCast”) objection to the confirmation of the Debtors’ Chapter 13 plan. eCast’s objection concerns various aspects of the Debtors’ proposed Chapter 13 plan (Doc. 7), as amended (Doc. 22) (collectively as amended the “Plan”), all of which affect how much nonpriority unsecured creditors, such as eCast, should be paid under the Plan. This court has jurisdiction pursuant to
I. Procedural Background
On September 7, 2007, the Debtors, Robert and Jennifer Anderson filed, among other documents, a Chapter 13 petition and their Official Form B22C (Doc. 1), Chapter IS Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income. The Debtors’ Plan, as originally filed, proposed to pay $1,466.00 each month for thirty-six (36) months and provided for a 25 % dividend for nonpriority unsecured creditors (Doc. 7). In addition, a consensual amendment to the Plan between the Chapter 13 Trustee and the Debtors includes the nonexempt portion of the Debtors’ tax refunds for the years 2007, 2008 and 2009 (Doe. 22) as additional payments to the Chapter 13 Trustee to be distributed to creditors under the Plan. 1 On November 2, 2007, eCast, the largest unsecured creditor in this case 2 , objected to the Plan (Doc. 29). The Debtors filed a response to the objection on December 10, 2007 (Doc. 41). On December 14, 2007, consistent with the court’s ruling at the confirmation hearing on December 11, 2007, the court issued an order (Doc. 43) to allow the parties an opportunity to more fully brief the issues in dispute. On January 14, 2008, the Debtors filed an amended response to eCast’s objection (Doc. 46) and an amended Official Form B22C (Doc. 45).
II. Issues
The ultimate issue before the court is whether the Debtors’ Plan should be confirmed. Bankruptcy Code § 1325(a)(1) provides that “[ejxcept as provided in subsection (b), the court shall confirm a plan if . . . the plan complies with the provisions of this Chapter and with the other applicable provisions of this title[.]”. Specifically, the issues are: 1) the meaning of “projected disposable income” under
III. Positions of the Parties
The Debtors filed a Chapter 13 petition (Doc. 1) and Plan (Doc. 7) on September 7, 2007. The Debtors are above median family income debtors (Doc. 7). As noted, the Debtors propose to contribute a total of $1,466 each month, for thirty-six (36) months, and pay a 25 % dividend to nonp-riority unsecured creditors (Doc. 7) and amended the Plan to contribute nonexempt post-petition tax refunds as additional plan payments (Doc. 22). The Plan provides
The Debtors completed the required Official Form B22C (Doc. 1) and later amended the Form (Doc. 45). Although much of the Form is not in issue, certain line items of the Form are central to some of the disputes between the parties. The disputes between the parties in this case revolve around application of changes made to Chapter 13 of the Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) and how those changes are embodied in Official Form B22C. 8
CMI is defined by
Pursuant to calculations made under
eCast also challenges the appropriateness of some of the Debtors’ other expenses. Specifically, in the Debtors’ original Form B22C, the Debtors deducted $471.00 as their IRS Local Standard ownership/lease expense (Doc. 1, p. 43, line 28) for the 2005 Chevrolet Trailblazer lease. Additionally, among other secured debt, the Debtors deducted $78.02 as the amortized monthly amount due on the same 2005 Chevrolet Trailblazer lease (total due on the lease, divided by 60). The Debtors
Finally, eCast argues that the Debtors’ Plan is not confirmable because the Debtors have provided for payments over a thirty-six (36) month period and should have provided for payments over a sixty (60) month period. Thus, eCast argues that the “applicable commitment period” has a temporal aspect and in this case is sixty months.
IV. Analysis
A. The Debtors’CMI
Every Chapter 13 debtor must first calculate his or her disposable income to determine the amount which must be paid to nonpriority unsecured creditors.
B. “Projected disposable income” as defined by
Code
As eCast acknowledges, CMI is the income part of the calculation of a debtor’s “disposable income” within
Without repeating all the different arguments and analyses developed in the numerous reported decisions on this issue, the court adopts
In re Kolb,
366 B.R. 802 (Bankr.S.D.Ohio 2007) regarding how one determines “projected disposable income.” In so doing, this court finds that
Kolb
properly gives deference to the plain meaning and holistic interpretation of the overall changes to
In adopting Kolb, the court notes that there is no statutory basis for using CMI as a mere guide or presumption in determining what is “projected disposable income.” CMI will almost never coincide exactly with a debtor’s actual income at confirmation. Therefore, even ignoring the lack of a reference to such a rebuttable presumption in the language of BAPCPA or its legislative history, it is difficult to understand what purpose CMI serves within Chapter 13 if the court can adjust it to actual income at confirmation.
In following the formulaic approach adopted in Kolb and other decisions which do not adjust CMI in accordance with the apparent “reality” of debtors’ financial situations at the time of confirmation, the court recognizes that in, some eases, such as in Kolb itself, debtors will be precluded from pursuing relief under Chapter 13, at least for a period of time, because their income at the time of confirmation will be significantly less than it was during the six months prior to the filing of the bankruptcy case. On the other hand, in other cases debtors’ income may be significantly higher at the time of confirmation than it was during the six months prior to the filing of the case, leading to what may appear to be a “windfall” to those debtors. Nevertheless, as suggested in footnote 22 of this Decision, this court believes that in adopting the “means test” for determining disposable income, Congress, with some exceptions, generally intended to reduce judicial discretion in favor of a process more akin to an administrative worksheet screening, qualification, and determination process. Thus, this court does not believe it is appropriate to adjust CMI at the time of confirmation to reflect the Debtors’ income at the time of the confirmation hearing or adjust it to predict what the Debtors’ income might be during the duration of the Chapter 13 Plan. 11
C. Calculation of the Debtors’ Disposable Income
CMI minus an above median family income debtor’s statutorily defined expenses in
1. Secured Debt Expense on Property to be Surrendered
The parties dispute whether, pursuant to
This dispute focuses on the language of
(iii) The debtor’s average monthly payments on account of secured debts shall be calculated as the sum of—
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition
There are two main lines of cases regarding whether pursuant to
The other line of cases on this issue is exemplified by In re Burden, 380 B.R. 194 (Bankr.W.D.Mo.2007). Burden summarized the minority position as follows:
[T]he term “scheduled” in§ 707(b) (2) (A) (iii) (I) has a bankruptcy-specific meaning which refers to how the debt is listed in a debtor’s schedules andstatements. Thus, if the debtor has indicated an intent to surrender the debt on his Statement of Intention, then the debt is not “scheduled as contractually due,” and the debtor cannot deduct the payment on that debt on the means test. The minority asserts that its approach better effectuates BAPCPA’s goal of ensuring that those debtors who can pay their debts do so.
Id.
at 200-01 (footnotes omitted). In
Burden,
the court found it appropriate to interpret “scheduled”, as that term is used in
This court finds the holding of
Sorrell
and of the other cases in the majority on this issue to be more persuasive. Without repeating the principles of statutory construction exhaustively reviewed and applied in
Sorrell,
the court notes that the Bankruptcy Code and Bankruptcy Rules specifically differentiate between “schedules” and “statements”
15
and in referencing “scheduled” secured debt in
Of course, Chapter 13 debtors do not complete a Statement of Intention. Instead, a Chapter 13 debtor provides for its treatment of secured collateral in proposing a Chapter 13 plan. The court also recognizes that, unlike Chapter 7, the expenses of
Congress may have wanted certainty of result for above median family income Chapter 13 debtors by relying on the phrase “scheduled as contractually due.” Regardless of congressional purpose, the result is not absurd, or even unique, as Congress chose this same approach for other
Pursuant to
2. Calculation of the Local Standard Transportation Ownership/Lease Expense
The parties dispute how much the Debtors can deduct for the lease expense on the 2005 Chevrolet Trailblazer. The Debtors originally deducted the lease balance remaining on the vehicle at $78.02 on a monthly basis amortized over sixty months.
eCast argues that the Debtors must use the lesser of: a) the Local Standard Transportation Ownership/Lease expense under
The court’s concern “with applying this language is the Bankruptcy Code, as amended by BAPCPA, does not incorporate this language and, in such context, the question is should bankruptcy courts, nevertheless, give deference to these IRS interpretations, which were developed for a different purpose.
18
Thus, in the context of a statute allowing the proper deduction for vehicle ownership, the question is whether this court should use the commentary in the Handbook as a definitive guide to the application of the Local Standards for purposes of Title 11. Even assuming this court could wade through the pool of federal administrative law to find legal support for such deference
20
, the court has no authority to raise the Handbook above the language Congress chose in writing BAPCPA. The language of BAPCPA provides separate subsections in
eCast has argued that Congress incorporated the Handbook into the language of BAPCPA by referencing “applicable monthly expense amounts” of the IRS for the National Standards and Local Standards.
However, the use of the word “applicable” can be better understood as a contrast with the use of the word “actual” when referencing the Other Necessary Expenses. The Other Necessary Expenses cannot denotatively be the “applicable expense amounts”, because there is no figure to “apply” as an expense. The IRS simply gives a list of these possible Other Necessary Expense categories and provides no “applicable expense amounts.” The only figure a debtor possibly could provide for an “Other Necessary Expense” is his actual expense. In re Weiderhold, 381 B.R. 626, 630 (Bankr.M.D.Pa.2008). By contrast, for the Local Standards and National Standards, the proper amount “applicable” for a National or Local Standard is always a specific number and not a debt- or’s actual expense. 21 Id.
This reading is also more consistent with the remainder of
eCast also argues that the reasonably necessary standard should still apply for expenses for above median family income debtors. The court finds it clear that Congress rejected the more amorphous “reasonably necessary” standard for above median family income debtors.
Assuming there is sufficient ambiguity to consider legislative history, we find not answers, but instead the same questions in a much less persuasive form than the language of BAPCPA itself. The prefatory problem is the often cited legislative history of BAPCPA, the House of Representatives Judiciary Committee Report (the “Report”), is fraught with limitations. Sorrell noted that: “Even assuming it is appropriate to consider the House Judiciary Report (which represents only a view of members of one committee of one house of the federal bicameral legislature) as a source of legislative history, it often contains a mere recitation of the eventually enacted statutory text and adds little, if any, assistance to the court’s efforts in determining Congress’s intent.” Sorrell, 359 B.R. at 176.
Based on the Debtors’ amended Official Form B22C, the parties also dispute an additional $200 deduction on a 2002 Buick Rendezvous which raises the Debtors’ Local Standard vehicle operating expense from $358 to $558. The court need not address this deduction. Allowing this $200 deduction, the Debtors’ projected disposable income is $9,620.40 ($160.34 x 60). Assuming, for purposes of argument that it is not proper, the Debtors’ disposable income with this $200 added would be $360.34 on a monthly basis and their projected disposable income for sixty (60) months would be $21,620.40. Without considering the tax refunds that the Debtors have agreed to contribute to Plan obligations, using the figure computed by eCast (Doc. 29, p. 3), the Debtors are paying $41,977.07 (after payment of Chapter 13 fees, attorney fees, secured debt and lease expenses) to nonpriority unsecured creditors, which is more than what they would be required to pay under the projected disposable income test of
D. The Meaning of the Term “applicable commitment period” as defined by
Once disposable income for an above median family income debtor is defined, that figure is multiplied by the amount of months of the debtors’ applicable commitment period to arrive at the total amount of “projected disposable income” that is to be paid over the duration of the plan period. Since the Debtors are defined as above median family income debtors, the “applicable commitment period” is five years, or sixty (60) months.
Another related issue is whether “applicable commitment period” serves to set the length of the plan or duration for which payments must be made to nonpriority unsecured creditors. The court agrees with Kolb that the plain language of § 1325(b)(4) ties the plan length to the “applicable commitment period” because § 1325(b)(4) speaks of “three years” or “five years,” depending on whether the Debtor is or is not an above median family income debtor. Kolb, 366 B.R. at 819. By its plain language, applicable commitment period has a temporal aspect. In this case, as the Debtors are above median family income debtors, the plan length for payments to nonpriority unsecured creditors must be five years and not the three years as proposed by the Debtors. 24
However, this may be a Pyrrhic victory for eCast in that the amount of funds to be distributed to nonpriority unsecured creditors remains unchanged once projected disposable income is determined. That is, based on the Plan, nonpriority unsecured creditors would simply receive the same dividend percentage over a longer length of time and, due to the time value of the funds, would, in reality, by receiving less. Thus, it would appear in the interest of all parties to simply allow the Debtors to pay their creditors the projected disposable income over a shorter length. As quoted in Kolb, “[A] few courts have suggested that it makes little sense for a trustee or unsecured creditor to object to confirmation in order to hold a debtor hostage for the full applicable commitment period; unsecured creditors will receive the same monetary return either way and most creditors would prefer to receive their return sooner rather than later.” Id. at 819, n. 22. This court holds that a Chapter 13 plan that proposes to pay nonpriority unsecured creditors over a period of time that is less than the applicable commitment period is confirmable only in the absence of an objection by a creditor or party in interest. 25
E. The Plan Satisfies the Projected Disposable Income Requirement of § 1325(b)(1)(B) Because It Pays Nonpriority Unsecured Creditors More than the Debtors’ Projected Disposable Income
The Debtors propose to contribute to the Plan a total of $52,776 over the term of the Plan and, in addition, three years of future nonexempt tax refunds as additional plan payments. eCast’s calculations suggest that after payments to the Chapter 13 Trustee for fees, payment of attorney fees, and payment of secured debt and lease expenses, the net amount to be paid to nonpriority unsecured creditors is $41,977.07. The Debtors’ projected disposable income is only $9,620.40 with the $200 amount attributable to the 2002 Buick Rendezvous operating expense and $21,620.40 without that $200 expense. Thus, the amount the Debtors propose to pay under their Plan to nonpriority unsecured creditors exceeds their projected disposable income and, therefore, the Debtors meet the requirement of § 1325(b)(1)(B) that they pay all of their projected disposable income to their nonpriority unsecured creditors.
Y. Conclusion
The objection of eCast Settlement Corporation (Doc. 29) to the Debtors’ Plan (Doc. 7), as amended (Doc. 22), is overruled in part, and sustained in part. eCast’s objection is overruled and the Plan is confirmable, except that, absent eCast’s consent to the Debtor’s current plan payments to nonpriority unsecured creditors being paid over a thirty-six (36) month period, the Debtors must amend their Plan to provide for their payments being stretched out over a sixty (60) month period. As noted, based on the currently proposed Plan, the length of the Debtors’ Plan shall not have any effect on the ultimate monetary distribution to nonpriority unsecured creditors.
eCast and the Debtors shall file an agreed order with respect to the limited issue of the Plan’s length within 20 days after the entry of the order on this decision. If such an agreement cannot be reached, the Debtors shall file a modified plan within 30 days after entry of the order on this decision. The modified proposed plan may be consistent with the Debtors’ currently proposed Plan, except to be confirmed by this court, it must change the applicable commitment period to sixty (60) months.
Notes
.The Debtors indicated that, based upon their average tax refund in the four years prior to the filing of this case, the additional payments would raise the dividend to approximately 32% (Doc. 46). eCast refers to a 26% dividend in its reply brief (Doc. 47, p. 1). This discrepancy, as explained in this Decision, is not outcome determinative.
. eCast was assigned the nonpriority unsecured claims of various creditors in this Chapter 13 case. See Proofs of Claim 14-1, 15-1, 16-1 and 17-1.
.
(B) the plan provides that all of the debtor’s projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to the unsecured creditors under the plan.”
. The Debtors are “above median family income” because, based on their household size of five, their income is more than the median income for such a household in Ohio. See
.
“(iii) The debtor’s average monthly payments on account of secured debts shall be calculated as the sum of—
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition; and
(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under Chapter 13 of this title, to maintain possession of the debtor’s primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor‘s dependents, that serves as collateral for secured debts;
divided by 60.”
.
.
“(4) For purposes of this subsection, the ‘applicable commitment period‘—
(A) subject to subparagraph (B), shall be—
. (i) 3 years; or
(ii) not less than 5 years, if the current monthly income of the debtor and the debt- or’s spouse combined, when multiplied by 12, is not less than—
(I) in the case of a debtor in a household of 1 person, the median family income of the applicable State for 1 earner;
(II) in the case of a debtor in a household of 2, 3, or 4 individuals, the highest median family income of the applicable State for a family of the same number or fewer individuals; or
(III) in the case of a debtor in a household exceeding 4 individuals, the highest median family income of the applicable State for a family of 4 or fewer individuals, plus $575 per month for each individual in excess of 4; and
(B) may be less than 3 or 5 years, whichever is applicable under subparagraph (A), but only if the plan provides for payment in full of all allowed unsecured claims over a shorter period.”
. As the issue has been raised by eCast in its filings, the court notes that the Official Forms can never trump the language of Title 11. In re Fox, 370 B.R. 639, 645 (Bankr.D.N.J.2007).
.
“(A) . . . the average monthly income for all sources that the debtor receives (or in a joint case the debtor and the debtor’s spouse receive) without regard to whether such income is taxable income, derived during the 6-month period ending on—
(i) the last day of the calendar month immediately preceding the date of the commencement of the case if the debtor files the schedule of current income required by section 52l(a)(l)(B)(ii); or
(ii) the date of which current income is determined by the court for purposes of this title if the debtor does not file the schedule of current income required by section 521 (a)( 1) (B) (ii); and
(B) includes any amount paid by any entity other than the debtor (or in a joint case the debtor and the debtor‘s spouse), on a regular basis for the household expenses of the debtor or the debtor’s dependents (and in a joint case the debtor‘s spouse if not otherwise a dependent), but excludes benefits received under the Social Security Act, payments to victims of war crimes or crimes against humanity on account of their status as victims of such crimes, and payments to victims of international terrorism (as defined in section 2331 of title 18) or domestic terrorism (as defined in section 2331 of title 18) on account of their status as victims of such terrorism.”
As the statute indicates, CMI is based on the Debtor’s six month pre-petition income, includes contributions of others to household expenses and has certain defined exclusions.
. Interestingly, the Debtors’ CMI of $7,453.99 is higher than the actual income figure, $7,263.71, that eCast argues should be used in this case. If the figure proposed by eCast was used, it would further reduce the Debtors’ disposable income and projected disposable income. Cf. Doc. 45, line 11 (Amended Form B22C) and Doc. 1, p. 25 (Schedule I).
. Since this matter is before the court on confirmation of the Debtors’ Plan and not on a proposed post-confirmation plan modification, the court is not determining through this decision whether a plan may be modified post-confirmation to adjust the income component of a debtor’s plan in the event of a change in the debtor’s income.
. The court notes that this Decision does not address what role the “special circumstances” provision of
. Other cases in the majority include: In re Burmeister, 378 B.R. 227 (Bankr.N.D.Ill.2007); In re Hayes, 376 B.R. 55 (Bankr.D.Mass.2007); In re Kelvie, 372 B.R. 56 (Bankr.D.Idaho 2007); In re Wilkins, 370 B.R. 815 (Bankr.C.D.Cal.2007); In re Kogler, 368 B.R. 785 (Bankr.W.D.Wis.2007); In re Longo, 364 B.R. 161 (Bankr.D.Conn.2007); In re Mundy, 363 B.R. 407 (Bankr.M.D.Pa.2007); In re Hartwick, 359 B.R. 16 (Bankr.D.N.H.2007); In re Randle, 358 B.R. 360 (Bankr.N.D.Ill.2006), aff‘d 2007 WL 2668727 (N.D.Ill. July 20, 2007); In re Nockerts, 357 B.R. 497 (Bankr.E.D.Wis.2006).
. Other cases in the minority include: In re Ray, 362 B.R. 680 (Bankr.D.S.C.2007); In re Harris, 353 B.R. 304 (Bankr.E.D.Okla.2006); In re Skaggs, 349 B.R. 594 (Bankr.E.D.Mo. 2006); In re Spurgeon, 378 B.R. 197 (Bankr.E.D.Tenn.2007); and In re Love, 350 B.R. 611 (Bankr.M.D.Ala.2006).
. See
. Although
Sorrell
and other cases also rely on the term “scheduled as” in
. eCast notes that the subject items being surrendered can be classified as “luxury goods” in that they do not appear to be necessary to the sustenance of the Debtors and their dependents (Doc. 47, p. 11, n. 1). The court notes that there may be circumstances under which a debtor‘s inclusion of secured debt relating to collateral being surrendered, particularly relating to luxury goods rise to a level to raise “good faith” issues under
. The IRS National Standards, Local Standards, Other Necessary Expenses and the commentary in the Handbook was developed by the IRS to negotiate Offers in Compromise with delinquent taxpayers. See generally Keith M. Lundin, The IRS Sneezes and the Advisory Committee on Bankruptcy Rules Catches a Cold, 2007 No. 11 Norton Bankr.L. Adviser 2 (Nov.2007).
. The Debtors, consistent with Official Form B22C, have agreed to a netting process, through which the secured debt expense is subtracted from the Local Standard ownership expense. Thus, the Debtor is deducting the greater of his actual secured debt expense for his vehicle and the IRS vehicle ownership expense. This result is consistent with the statutory language and avoids the result of the Debtors “double dipping” on the same expense. The Debtors’ approach is the most consistent with a holistic reading of the statutory allowed expenses in
.See generally Matthew Stephenson & Kristin Hickman, The Administrative Law of Borrowed Regulations:Legal Questions Regarding Bankruptcy Law’s Incorporation of IRS Standards, 2008 No. 1 Norton Bankr.L. Adv. 1 (January 2008) (discussion of the application of the Handbook into a new purpose, BAPC-PA, and the complicated question of the deference bankruptcy courts should give to the Handbook).
. The vehicle ownership Local Standard is a single figure for all above median family income debtors throughout the United States. Certain National and Local Standards vary based on area of the country and household size.
. It is more than possible that Congress simply wanted to limit judicial discretion, and limit individual adjustments to the disposable income formula based on particular fact patterns or simply failed to fully anticipate the consequences of its actions. See In re Echeman, 378 B.R. 177, 182, n. 6 (Bankr.S.D.Ohio 2007) (“The Supreme Court, in bankruptcy cases, has reminded the lower federal courts that absurdity does not equate to a poorly written statute, unintended consequences, or even subjectively poor policy choices.”). Although it is seductively simple to declare such assumed missteps as “absurd” to avoid the plain meaning of the language Congress chose, absurdity is a very narrow exception and, although the tortured statutory scheme of BAPCPA probably requires its application in some situations, the court declines to apply it here. See id at 181-82, n. 6 (After noting the absurdity doctrine is “very limited”, the court found, to the extent it relied on it in reaching its determination, it was invoked because the court could not “discern any theoretically plausible purpose for the result advocated by the Debtors.”).
. Footnote 65 of the Report states that ” ‘Local Standards,’ under the Internal Revenue Manual, establish expense standards for housing (e.g., mortgage or rent, property taxes, interest, parking, necessary maintenance and repair, homeowner’s or renter’s insurance, and homeowner dues and condominium fees) and transportation expenditures (e.g., vehicle insurance, vehicle payment, maintenance, fuel, state and local registration, parking fees, tolls, driver’s license fees, and public transportation). Utilities (e.g., gas, electricity, water, fuel, oil, bottled gas, wood and other fuels, trash and garbage collection, septic cleaning, and telephone) are included under the housing expense category. Housing standards are established for each county within a state. Transportation standards are determined on a regional basis....” H.R. Rep. 109-31 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 100, n. 65 (2005). The text where the footnote is found is similarly unhelpful. Id. at 100.
. The Debtors argue plan length is set by U.S.C. § 1322. However, § 1322(d) provides only a maximum plan length for a Chapter 13 debtor‘s plan generally, rather than a minimum length for payments to nonpriority unsecured creditors, which is defined by
. Since this matter is before the court on confirmation of the Debtors’ Plan and not on a proposed postconfirmation plan modification, the court is not determining through this decision whether’ a plan may be modified post-confirmation to provide for payment of the projected disposable income over a period of time that is less than the applicable commitment period over the objection of an impaired creditor.