Lead Opinion
OPINION
At issue in this appeal is whether a debtor may modify a confirmed 36-month chapter 13
FACTS
Debtor commenced his chapter 13 case on September 26, 2003. The San Francisco and Oakland divisions of the Northern District of California have adopted a mandatory model chapter 13 plan. The model plan includes a provision providing that “[ujnless all allowed claims are paid in full, this Plan shall not be completed in fewer than 36 months from the first payment date.” All versions of Debtor’s plan include this required provision.
The chapter 13 trustee objected to Debt- or’s initial plan but the objections were resolved through Debtor’s third amended plan which was filed on May 3, 2004. This version of the plan provides for payment of $41,400 over 60 months, an estimated dividend of 50% to unsecured creditors. The hearing on the confirmation of the third amended plan was set for May 12.
One day prior to the confirmation hearing, on May 11, Debtor filed a pleading entitled “Motion to Refinance Real Estate, Pay Plan Base, and Terminate Case” (“Motion”). According to Debtor, a condition of his refinance loan was that the chapter 13 plan be completed and the case terminated. By the Motion, Debtor sought authority to refinance his real property for the purpose of paying in full the
The third amended plan was confirmed, unmodified, at the May 12 confirmation hearing and an order regarding the same was entered on May 21. Debtor apparently did not raise the issue of modification of the plan at the confirmation hearing.
The court subsequently heard argument on the Motion. The trustee objected that, under § 1327(a), Debtor was bound by the terms of his confirmed plan and that allowing the modification would violate the model plan’s prohibition against payment of a plan in fewer than 36 months unless, all allowed claims are paid in full. Further, the trustee argued, Debtor should have raised the issue prior to confirmation of the plan. Finally, the provision in the plan requiring annual review of Debtor’s income was included to permit the trustee to seek a modification of the plan in the event Debtor’s income increases over the life of the plan and, therefore, Debtor should not be allowed to terminate the plan early.
The court denied Debtor’s Motion, finding that if Debtor wanted to challenge the model plan, he should have done so prior to confirming a plan under it.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. § 1334 and § 157(b)(1) and (b)(2). This panel has jurisdiction under 28 U.S.C. § 158(b)(1).
ISSUES
1. Whether the Bankruptcy Code allows a chapter 13 debtor to modify his plan under § 1329 to pay the plan off in fewer than 36 months where unsecured claims will not be paid in full.
2. If such a modification is permitted under the Code, whether a court-mandated form plan which contains a contrary provision impermissibly abridges substantive debtor rights.
STANDARD OF REVIEW
The panel reviews de novo a bankruptcy court’s interpretation of the Bankruptcy Code and Rules. Predovich v. Staffer (In re Staffer),
DISCUSSION
I. Does the Bankruptcy Code permit payment of a chapter IS plan in fewer than 36 months ivhere debtor is not paying 100% of all allowed unsecured claims?
At issue here are §§ 1322(d), 1325(a), 1325(b) and 1329, and whether, collectively, they ought to be interpreted as requiring a debtor to make projected disposable income payments for a minimum term of 36 months, or, whether a debtor is entitled to modify the plan to complete such payments in fewer than 36 months without having to pay 100% of allowed unsecured claims.
Section 1322(d) provides:
The plan may not provide for payments over a period that is longer than three years, unless the court, for cause, approves a longer period, but the court may not approve a period that is longer than five years.
Section 1325(a) provides in part:
Except as provided in subsection (b), the court shall confirm a plan if—
(1) the plan complies with the provisions of this chapter and with the other applicable provisions of this title;
(2) any fee, charge, or amount required under chapter 123 of title 28, or by the plan, to be paid before confirmation, has been paid;
(3) the plan has been proposed in good faith and not by any means forbidden by law;
(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 of this title on such date;
Section 1325(b)(1) provides:
If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan—
*773 (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
Section 1329, which governs the modification of a confirmed plan prior to completion of plan payments, provides:
(a) At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder on an allowed unsecured claim, to—
(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 of 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 claim other than under the plan.
(b) (1) Sections 1322(a), 1322(b), and 1323(c) of this title and the requirements of section 1325(a) of this title
apply to any modification under subsection (a) of this section.
* % * * &
(c)A plan modified under this section may not provide for payments over a period that expires after three years after the time that the first payment under the original confirmed plan was due, unless the court, for cause, approves a longer period, but the court may not approve a period that expires after five years after such time.
The trustee argues that the foregoing provisions ought to be read to require the payment of monthly projected disposable income for a minimum of 36 months while Debtor contends that these sections include no such provision mandating the minimum length of a plan. According to Debtor, 36 months is not a measure of the lapse of time that must occur but, rather, a measure of the value that creditors must receive under the plan, i.e., 36 months worth of a debtor’s projected monthly disposable income.
Adopting the trustee’s interpretation that a debtor must make payments for a minimum of 36 months or pay all creditors in full requires reading § 1325(b)(1)(B) into § 1329 such that:
If the trustee or the holder of an allowed unsecured claim objects to the modification of the plan, then the court may*774 not approve the modified plan unless, as of the effective date of the plan—
(B) the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
11 U.S.C. § 1325(b)(1)(B) (emphasis and language added).
Courts are split as to the application of § 1325(b)(1)(B), i.e., the “disposable income test,” to a plan modification that provides for an early payout. As one court put it, “[bjankruptcy courts have arrived at vastly different results when faced with a debtor’s motion to make a one-time lump sum payment.” Massachusetts Housing Finance Agency v. Evora,
A. SURVEY OF CASES
1. Cases decided within the Ninth Circuit.
In re McKinney,
Max Recovery, Inc. v. Than (In re Than),
Because no objection to either the plan or the modified plan had been made by the trustee or a creditor, on appeal this panel did not have to address the interplay between §§ 1329(b) and 1325(b). Nevertheless, we did note in passing that § 1329(b) does not expressly incorporate § 1325(b). Id. at 434. In affirming the bankruptcy court’s ruling, we observed “[tjhe Code does not prohibit a plan that is less than 36 months in duration in the absence of an objection by the trustee or a creditor ‘to the confirmation of a plan.’ ” Id. at 437 citing § 1325(b)(1). By holding that § 1325(b) did not apply because no one objected to the plan or the modified plan, we left unresolved the applicability of § 1325(b) where an objection to the modified plan has been made.
In re Sounakhene,
In analyzing the plain language of the statute, the court declined to read § 1325(b) into § 1329. Id. at 805. Rather than applying the disposable income test, the court determined that the better approach would be to utilize the analysis underlying the disposable income test in exercising the court’s judgment and discretion. Id. citing In re Than,
Furthermore, the court held, even if § 1325(b)(1)(B) did apply, nothing therein prohibits a lump sum payment where no prepayment discount is sought.
2. Other cases analyzing the interplay between §§ 1329 and 1325(b).
a. The disposable income test of § 1325(b) does not apply to plan modification under § 1329.
Casper v. McCullough (In re Casper),
In re Phelps,
Plan completion, the court reasoned, occurs when the debtor has paid the percentage owed to each class of creditors as provided for in the plan. Id. citing In re Chancellor,
While Phelps did not address the particular issue of § 1325(b)’s disposable income test and the mandatory minimum of 36 months, its reasoning is instructive in that it interprets “completion of payments” as it is used in § 1329(a), i.e., focusing on payment of the required percentage owed rather than on the duration of the plan.
In re Easley,
The court sided with the debtor, determining (without specifically discussing § 1325(b)(1)(B)) that nothing in § 1329 prohibited the debtor from borrowing money to pay his existing creditors early. The court further reasoned that “he merely is substituting one set of creditors, his parents, for his former set of creditors addressed in the Plan. To the extent the loan proceeds from his parents became property of the estate, so would the corresponding liability.” Id. at 335. The court also noted that creditors would receive a substantial benefit under the modified plan because they would receive their funds sooner, without risking future defaults by the debtor. Id. at 336.
Forbes v. Forbes (In re Forbes),
The panel held that though case law is unsettled on the issue, Congress did not include § 1325(b) in the requirements for post-confirmation plans and the court
Application of the disposable income test at confirmation of a modified plan is at least confusing and may render many postconfirmation modifications impossible altogether.... Counting the three-year period in the disposable income test from the date the first payment is due under the modified plan would preclude approval of modification of a plan that is already more than two years old. Section 1329(c) clearly states that the court may not approve a modified plan that calls for payments after five years after the first payment was due under the original confirmed plan.... Mathematically, no proposed modified plan can satisfy both the disposable income test in § 1325(b) and the five-year limitation in § 1329(c) if the proposed modification is filed after two years after the commencement of payments under the original plan.
Id. at 192 quoting Keith M. Lundin, ChapteR 13 BANKRUPTCY, vol. 2, § 6.45 at 6-136 to 137. Thus, the panel concluded, there is only one plan from which the disposable income test’s three years run; it is not a factor to be considered by a court approving post-confirmation modifications. Id. at 192.
In re Smith,
The debtor’s 56-month plan was confirmed over the objection of a creditor.
The court overruled the objection and held that the creditor’s reliance on § 1325(b)(1) was misplaced because that section applies only to plan confirmations and arguably, because of a split in authority, to requests for modification. Id. at 625 n. 5 citing In re Forbes,
The court questioned the practice of some courts in treating a debtor’s motion to make an early payout as an implied motion to modify a confirmed plan, rather than characterizing the proposed payment as simply a single prepayment of all amounts due and owing under a confirmed plan. Id. at 625 n. 8; accord Matter of Casper,
The court further held that a debtor becomes statutorily entitled to discharge, under § 1328(a), the moment all of the payments prescribed in the confirmed plan are made, “whether received by the trustee singularly over a series of months, or received in an aggregate amount in one prepayment.”
Massachusetts Housing Finance Agency v. Evora,
On appeal, the district court held (without specifically discussing § 1325(b)(1)(B)) that because § 1329 is permissive and the motion did not purport to alter the confirmed plan, the motion was not necessarily an implicit modification of the plan. Id. at 343. The court commented further that though the decisions involving one-time lump sum payments are conflicting, they can be reconciled by focusing not on the number of payments to be made (i.e., duration of the plan) but on the amount to be paid to unsecured creditors. Id. at 342. Since both the debtors and the creditor were bound by the amount of allowed secured claims set forth in the plan, and since the motion did not violate the Code or purport to alter the confirmed plan to the detriment of the creditor, the court affirmed the bankruptcy court’s ruling allowing the one-time lump sum early payment. Id. at 342-43.
Pancurak v. Winnecour (In re Pancurak),
In re Golek,
The court treated the debtor’s motion as a post-confirmation motion to modify his plan under § 1329 and declined to read § 1325(b)’s disposable income test into § 1329, rejecting the trustee’s argument that § 1325(b) is incorporated by reference into § 1325(a). Id. at 337. The court commented,
When Congress wants to say something, it knows how to say it, and in this instance, Congress did not say it. Indeed, section 1329(b)(1) goes out of its way to include both sections 1322(a) and 1322(b) in its list of restrictions. While section 1325(a) is expressly listed, however, section 1325(b) is not. It is unclear why Congress would expressly include both subsections of section 1322, but simply state section 1325(a), if it in fact meant to include both sections 1325(a) and 1325(b). If this was a mere omission by .Congress, then it is for Congress, not this court, to fix this omission.
Id. Citing In re Sounakhene, among other cases, the court adopted the plain meaning approach and refused to apply the disposable income test to post-confirmation plan modifications. Id.
b. Cases favoring application of § 1325(b) to plan modification under § 1329.
In re McCray,
In re Guentert,
In re Martin,
Though there is no illuminating legislative history, the language of §§ 1329 and*780 1325 favors the interpretation that the disposable income test applies at confirmation of a modified plan.
Policy arguments favor application of the disposable income test at confirmation of a modified plan.... Applying the projected disposable income test at confirmation of a modified plan would go a long way to eliminating the “danger” that a Chapter 13 debtor would experience a significant improvement in financial condition after confirmation of the original plan and not share that good fortune with prepetition creditors.
The logic of the projected disposable income test does not support its application at modification of a confirmed plan ... If the projected disposable income test is applied again and again, each time the trustee or the holder of an allowed unsecured claim moves for modification of a plan after confirmation, then the concept of “projected” is meaningless ...
This conundrum only serves to emphasize that the interaction of the disposable income test in § 1325(b) and the modification of plans under § 1329 was not well conceived. The 1984 amendments enabling the Chapter 13 trustee and allowed unsecured claim holders to seek postconfirmation modification have exacerbated these problems of statutory construction. It is unlikely that the drafters of § 1329(b) intended to preclude modification of all plans that have survived two years after the first payment was due under the original plan and in which unsecured claim holders cannot be paid in full in less than three years.
Id. at 36-37 quoting 2 Keith M. Lundin, Chapter 13 BANKRUPTCY, § 6.46 (2nd ed.1994).
The court found the arguments excluding the application of the disposable income test were not as strong as those to include it. Id. at 37. However, in applying § 1325(b), the court did not interpret the language to mean that a debtor could not prepay a plan in fewer than 36 months. More specifically, the court found nothing in the statute prohibiting prepayment where no prepayment discount is sought. Id. “A lump sum payment in the aggregate amount of the Debtors’ disposable income during the three years of the Plan is simply an anticipatory satisfaction of the obligations under the Plan and is permissible.” Id.
Ultimately, the court denied debtors’ motion to modify their plan because, by not filing updated schedules I and J, they could not demonstrate under § 1325(b) that they were paying creditors the equivalent of their disposable income during the life of the plan. Id. at 38.
Even though Martin’s holding (§ 1325(b) applies to § 1329) is contrary to that in Sounakhene, the outcomes are the same. In both cases, the courts determined that debtors were entitled to prepayment of their plans upon refinancing of their homes and considered the debtors’ disposable income in determining whether to allow the plan modification. The operative difference is that in Martin, the court applied the § 1325(b) disposable income test as a dispositive requirement, while in Sounakhene, the court considered the disposable income as a component of the debtors’ overall financial condition in exercising its discretion under § 1329.
In re Fields,
Relying on Than and Sounakhene, the court determined that it was not necessary to decide whether the disposable income test applies “because the express language of § 1329(a) permits such a modification without the need to incorporate § 1325(b).”
B. ANALYSIS
Section 1329(b) expressly applies certain specific Code sections to plan modifications but does not apply § 1325(b). Period. The incorporation of § 1325(a) is not, as has been posed by some courts, the functional equivalent of an indirect incorporation of § 1325(b). Under § 1329(b), only the “requirements of Section 1325(a)” apply to modifications under § 1329(a). § 1329(b). As previously noted, § 1325(a) requires that “except as provided in [lS25]b, the court shall confirm a plan if .... ” Thus, the 1325(a) confirmation requirements incorporated into § 1329(b) exclude the provisions of § 1325(b).
Simply put, the plain language of § 1329(b) does not mandate satisfaction of the disposable income test of 1325(b)(1)(B) with respect to modified plans. Had Congress intended to impose such a requirement, it could have easily done so by making the appropriate incorporating reference. If the absence of the reference to § 1325(b) was indeed an oversight, it is the province of the legislature, and not the judiciary, to make the correction. See Lamie v. United States Trustee,
In our view, the approach adopted by the court in Sounakhene is the most sound in that it permits a married analysis that is consistent with both the plain language and the spirit of §§ 1329 and 1325. Under this approach, important components of the disposable income test are employed as part of a more general analysis of the total circumstances militating in favor of or against the approval of modification, without requiring tortured and illogical statutory interpretations (where the outcome differs depending upon which party is seeking the modification, whether a certain party has objected, or whether “extraordinary circumstances” exist, etc.). In re Sounakhene,
In determining whether to authorize a modification that reduces a plan term to less than 36 months without full payment of allowed claims, the bankruptcy court should carefully consider whether the modification has been proposed in good faith. See § 1325(a)(3). Such a determination necessarily requires an assessment of a debtor’s overall financial condition including, without limitation, the debtor’s
The trustee’s attempt to distinguish this case from Sounakhene based upon the identity of the party seeking plan modification is unpersuasive. The distinction is not at all relevant to the statutory requirements of § 1329. Under § 1329, a debtor, trustee or creditor all have an absolute right to seek modification of a confirmed plan.
We agree with the court’s holding in Sounakhene and conclude that the disposable income test of § 1325(b) is not implicated under a strict reading of § 1329 (except, as we have earlier noted, as a factor in determining the good faith of the plan modification). Therefore, the bankruptcy court may approve a debtor’s modification to his plan so as to complete it in fewer than 36 months without having to pay unsecured claims in full. Because we find nothing in the Code prohibiting Debt- or here from so modifying his chapter 13 plan, we must next address the issue of whether the Northern District’s mandatory model plan impermissibly abridges substantive debtors’ rights.
II. Does LBR 1007-1 impermissibly abridge debtor’s rights by mandating use of a Model plan which includes Chapter 13 payment requirements not found in the Code ?
District and bankruptcy courts have been delegated authority to adopt local rules prescribing the conduct of business but the rules must be consistent with the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure. Bersher Invs. v. Imperial Sav. Ass’n. (In re Bersher Invs.),
In Steinacher v. Rojas (In re Steinacher),
On appeal, we applied a three-part test, previously articulated in Garner v. Shier (In re Garner),
We concluded that the Six Month Rule, which limited the ability of certain chapter 13 debtors to cure pre-petition defaults through their plans, conflicted with § 1322 which allows a debtor to include in his or her plan a provision proposing to waive “any” defaults within a reasonable time. Id. at 773. We observed that while the local rule reflected an understandable attempt to redress abuses caused by repetitive filings, such abuses could not be prevented by imposing a general pre-petition cure requirement which exceeds that contemplated by the Code. Id. at 774. Because the Six Month Rule was inconsistent with the Code, we held it invalid under Rule 9029(a). Id.
In this case, the trustee argues that Steinacher is inapplicable because § 1325(b)(1)(B) is consistent with the language in the model plan. Not surprisingly, Debtor contends otherwise, that is, that LBR 1007-1 is inconsistent with § 1329 because it mandates use of the model plan which contains a provision abridging Debt- or’s rights under § 1329.
We agree with Debtor. As discussed at length above, the Code allows a debtor to modify a chapter 13 plan so as to conclude it in fewer.than 36 months, without payment of all claims in full. A local rule prohibiting Debtor from doing what he is entitled to do under the Code is inconsistent with an Act of Congress and is, therefore, invalid under Rule 9029(a).
At the hearing on the Motion, the bankruptcy court ruled that Debtor had waived the right to object to the requirements of the model plan after having already confirmed a plan containing the complained of provision. This reasoning is not persuasive. As Judge Jaroslovsky recently commented in a case before this panel involving the import of local rules in the plan confirmation process, a court-mandated form cannot cross over the line from “facilitating Chapter 13 administration to dictating Chapter 13 terms.” Cohen v. Tran (In re Tran),
given the practical realities of plan confirmation [the debtor] had little choice except to adopt the dictated language of the mandatory plan even though under the Bankruptcy Code he had a right to [do so].
Id.
Similarly, in this case, it does not seem reasonable to expect Debtor to challenge
CONCLUSION
Based on the foregoing, we REVERSE and REMAND with instructions to the bankruptcy court to enter an order either granting or denying Debtor’s motion to modify on grounds that are consistent with this ruling.
Notes
. Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1330, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9036.
. At the hearing, the court affirmatively deemed the Motion to be one to modify the confirmed plan pursuant to § 1329 and treated the trustee’s objection to be an opposition to proposed modification. The dissent expresses due process concerns and queries whether Debtor properly served its motion on all creditors in the case as required under Rule 3015(g). We note, however, that Debt- or’s counsel represented to the court that all creditors had received notice of the Motion:
Well, we noticed it out to all creditors as though it was a modification, Your Honor, so I thought we had — we had addressed the issue that would be presented in the modification, which is to tell the creditors what we propose to do.
Transcript of Proceedings, May 28, 2004, 5:3— 7. Notably, neither the trustee nor the court challenged this representation. The certificate of service, to which the dissent refers, does indeed indicate service only to the Trustee. However, that particular certificate does not conclusively establish that notice was not sent to all creditors.
. We respectfully disagree with the implication of our distinguished colleague in dissent that because Debtor did not challenge the provisions of the model plan at the time of confirmation, he was precluded from later seeking the modification of such provisions, and that, therefore, the issue is not properly before us. Nothing in § 1329 prohibits a debtor from seeking the modification of any plan term affecting the amount of payments on claims, the time for making such payments, or the amount of distributions to creditors. That the term to be modified involves a form provision in a court-mandated model plan should be of no consequence.
. As a practical matter, chapter 13 debtors often do pay off their plans in fewer than 36 months, but frequently do so without first seeking plan modification. By the time the trustee objects to the early payout, it is too late because courts generally hold that once all payments required under the plan have been made, the debtor is entitled to his discharge. See e.g., Profit v. Savage (In re Profit),
In this case, one of the conditions of Debt- or’s refinancing agreement was that the loan bring about the termination of his chapter 13 case, so Debtor was forced to seek the modification first rather than simply pre-paying the plan.
. Rule 9029(a) Local Bankruptcy Rules
(1) Each district court acting by a majority of its district judges may make and amend rules governing practice and procedure in all cases and proceedings within the district court’s bankruptcy jurisdiction which are consistent with — but not duplicative of — Acts of Congress and these rules and which do not prohibit or limit the use of the Official Forms. Rule 83 F.R.Civ.P. governs the procedure for making local rules. A district court may authorize the bankruptcy judges of the district, subject to any limitation or condition it may prescribe and the requirements of 83 F.R.Civ.P., to make and amend rules of practice and procedure which are consistent with' — but not dupli-cative of — Acts of Congress and these rules and which do not prohibit or limit the use of the Official Forms. Local rules shall conform to any uniform numbering system prescribed by the Judicial Conference of the United States.
. Hon. Alan Jaroslovsky, Bankruptcy Judge for the Northern District of California, participated in the decision by designation. The model plan at issue in Tran was mandated by the local rules of the Bankruptcy Court of the Central District of California. The provisions of that model plan analyzed by Judge Jaros-lovsky involve issues unrelated to those addressed in this case.
Dissenting Opinion
dissenting.
I respectfully dissent: as observed by the bankruptcy judge, debtor never challenged the model plan. Transcript, 28 May 2004, at 9:4. All four of debtor’s plans presumably contained the language now objected to (only the third amended plan is in the record before us). Neither party to this appeal has briefed the implications of that failure, and we should not answer questions not squarely presented in a procedurally correct fashion, particularly when, as here, neither party has addressed the issue in the bankruptcy court or on appeal.
Debtor does not just propose to pay off the plan, which requires payment in full of all claims if within the first 36 months, but to do two things: first, amend the plan to delete that requirement, and then to pay a lesser amount (assuming the total claims exceed the “pot” — the record before us does not disclose the total). And proposes to do so without notice to creditors, which Rule 3015(g), Fed. R. Bankr.P., requires for post-confirmation modifications:
A request to modify a plan ... shall be filed together with the proposed modification. The clerk, or some other person as the court may direct, shall give the debtor, the trustee, and all creditors not less than 20 days notice by mail of the time fixed for filing objections and, if an objection is filed, the hearing to consider the proposed modification, unless the court orders otherwise with respect to creditors who are not affected by the proposed modification....
Most local bankruptcy rules put the burden of giving notice on the proponent of the modification; that is likely the case in the Northern District of California, but we have no briefing on that point, either.
The certificate of service, of which we may take judicial notice, indicates service only on the trustee. Counsel’s representation that the notice had been served on all creditors, quoted in footnote 3 above, is not convincing: she does not say that she sent the notice to them, there’s no indication she even checked her file, and she contradicts the sworn statement of her paralegal in the proof of service filed 11 May 2004. The lack of notice to creditors precludes treatment of the motion as a modification to the confirmed plan, and raises questions of due process. See In re Bagby,
I would affirm.