In Re Goodman
- Reporters:
- , , ,
- Before:
- Brown
This Chаpter 13 debtor filed a motion to modify his confirmed plan pursuant to
SUMMARY OP FACTS
The debtor filed for Chapter 13 relief on April 26, 1989, and his plan was confirmed on June 14, 1989. The confirmation order provides that “[t]he percentage to be recеived by unsecured creditors is to be determined by the trustee upon the expiration of the 90 day bar date for the filing of claims,” with a separate order being entered on September 21, 1989, fixing the percentage for prepetition unsecured creditors at thirty percent. The debtor on December 12,1991, filed the present motion to add one postpetition unsecured creditor, a collection agency, for a claim of $223.00, which motion seeks to pаy that creditor the “percentage available” to unsecured creditors, presumably thirty percent, rather than one hundred percent. The motiоn also seeks to “allow [the] added creditor(s) 90 days from the date [of] the order to file proof of claim.” [sic]
CONCLUSIONS OF LAW
(1) increase or reduce the amount of payments on claims of a particular class provided for by the plan;
(2) extend or reduce the time for such payments; or
(3) alter the amount оf the distribution to a creditor whose claim is provided for by the plan, to the extent necessary to take account of any payment of such clаim other than under the plan.
It is obvious from the clear language of this statute than post-confirmation modifications do not contemplate the forced addition of postpetition debts.
Section 1322(b)(6) permits a Chapter 13 plan to “provide for the payment of all or any part of any claim allоwed under section 1305 of this title.” Therefore, it is necessary to look to § 1305 to determine which postpetition claims may be allowed. That Code sectiоn is captioned “Filing and allowance of postpetition claims,” and subsection (a) of § 1305 provides:
(a) A proof of claim may be filed by any entity that holds a claim against the debtor—
(1) for taxes that become payable to a governmental unit while the case is pending; or
(2) that is a consumer debt, that arises after the date of the order for relief under this chapter, and that is for property or services necessary for the debtor’s performanсe under the plan.
A reading of this statute makes it obvious that it is within the postpetition creditor’s control whether a proof of claim is filed for a postpetition debt. There is no provision in
The debtor’s counsel stated at the hearing that this particular creditor was a collection agency for a medical bill. This Court agrees with the conclusion reached in
In re Pritchett,
55 B.R. 557, 559 (Bankr.W.D.Va.1985), where that Court stated that postpetition medical services were within the contemplation of the language found in
Further, as two Courts have observed, debtors may not “sidestep”
These conclusions are consistent with the discharge provisions found in
(d) Notwithstanding any other provision of this section, a discharge grаnted under this section does not discharge the debtor from any debt based on an allowed claim filed undersection 1305(a)(2) of this title if prior approval by the trustee of the debtor’s incurring such debt was practicable and was not obtained.
Obviously, this language requires the debt- or, if practicable, to obtain prior apprоval from the Chapter 13 Trustee before incurring postpetition consumer debt, if the debtor hopes to obtain a discharge of that debt. Moreover, such a creditor still may not be forced into a Chapter 13 plan unless that creditor consensually files a proof of claim.
1
Too often, this Court is faced with Chapter 13 consumer debtors who incur postpetition debt, both secured and unsecured, without prior approval of the Chapter 13 Trustee or of the Court. And, in further disregard of the Code‘s provisions as discussed herein, such debtors are frequently attempting to force those postpetition creditors into the confirmed plan by seeking orders adding the creditors and giving the creditors a limited time within which to file claims. Such a procedure gives to the postpetition creditor the false impression that the creditor is required to file a proof of claim, and the Code simply is not so structured. Only postpetition debts which аre allowed after the consensual filing by the creditor of a proof of claim are subject to possible discharge in the Chapter 13.
CONCLUSION
Based upon the foregoing analysis, this Court must deny this debtor’s motion to include a postpetition unsecured creditor to be paid the “percentage availablе” to unsecured creditors in the previously confirmed plan. In the future, in order for Chapter 13 debtors to add postpe-tition consumer debt to a confirmed plan, the Court will require a showing by the debtors that they either obtained prior approval from the Chapter 13 Trustee for the incurring of that debt or that priоr approval was not practicable.
SO ORDERED.
Notes
. The Court does not have before it a question of the application of § 362 or § 1306 to this postpetition creditor.