In Re Dark
MEMORANDUM OF OPINION AND ORDER
This matter came on for hearing upon the motion of Alice C. Dark (Debtor) for a hardship discharge. Upon due notice to all parties entitled thereto, the matter was heard and, submitted. Pursuant to Rule 7052, Bankr.R., the following constitutes the Court’s findings and conclusions:
I.
This is a core matter under provisions of 28 U.S.C. § 157(b)(2)(A) and (0), with jurisdiction further conferred under 28 U.S.C. § 1334, and General Order No. 84 of this District. On July 17, 1983, William G. and Alice C. Dark caused to be filed their joint petition seeking an order of relief under Chapter 13 of the Bankruptcy Code. After successive hearings, their amended modified plan was confirmed on February 3, 1984. Thereupon the Debtors began funding their repayment plan. 1
The dispositive issue for the Court’s determination is whether the Debtor, Alice C. Dark, has adequately fulfilled the requirements for a hardship discharge. In support of her motion, the Debtor states that her terminated marriage, loss of former contribution from her deceased mother, and personal surgery which caused a substantial reduction in her employment and income have rendered her unable to make the required plan payments. She further contends that her present and foreseeable financial status is unlikely to improve to allow her to make future plan payments. In opposition to a hardship discharge, the Trustee contends that the Debtor is ineligible for such a discharge as she has not complied with an earlier order of this Court and, otherwise, does not meet all the requirements for a hardship discharge.
II.
In consideration of this issue, the following provisions of § 1328 of the Code [11 U.S.C. § 1328] are relevant:
11 U.S.C. § 1328. Discharge.
(b) At any time after the confirmation of the plan and after notice and a hearing, the court may grant a discharge to a debtor that has not completed payments under the plan only if
(1) the debtor’s failure to complete such payments is due to circumstances for which the debtor should not justly be held accountable;
(2) the value, as of the effective date of the plan, of property actually distributed under the plan on account of each allowed unsecured claim is not less than the amount that would have been paid on such claim if the estate of the debtor had been liquidated under Chapter 7 of this title on such date; and
(3) modification of the plan under section 1329 of this title is not practicable.
Herein, the Debtor, aged 43 years, avers that her financial situation is not likely to improve, and she is unable to continue making plan payments. No medical or other documentation was offered in support of that contention, except for certain payroll receipts. To warrant a grant of a hardship discharge, unsubstantiated and conclusory statements regarding an inability to fund a plan are insufficient. As noted from the above-quoted provision, the granting of a hardship discharge is discretionary with the Court. When considered, however, the three elements of § 1328(b) must be satisfied. The Trustee does not contest the impact of § 1328(b)(1) and (3) on the Debtor’s situation. He does, however, strenuously argue that the Debtor
IT IS SO ORDERED.
Notes
. Upon the Trustee’s application for instructions, co-debtor William G. Dark was dismissed from the case by Order dated February 24, 1988.
. 11 U.S.C. § 1325(a)(4): "Except as provided in subsection (b), the court shall confirm a plan if —
(4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the Debtor were liquidated under Chapter 7.... ”
.
See, In re McNealy,