Piedmont Trust Bank v. Linkous (In re Linkous)

CHAPMAN, Senior Circuit Judge,

dissenting:

The issues in this case arise because the bankruptcy court confirmed Linkous’s Chapter 13 Plan before Piedmont timely filed its proof of claim.1 Because there is a strong interest to allow a debtor to begin making payments under a proposed plan as soon as possible, it is not unusual for the confirmation hearing to be scheduled before the deadline for a creditor to file its proof of claim. Piedmont received notice of the confirmation hearing and a plan summary in accordance with Rules 3015 and 2002(b).2

Section 1324 of the United States Bankruptcy Code, (“the Code”)3 permits any “party in interest” to object to the confirmation of the proposed plan at the confir*164mation hearing. 11 U.S.C. § 1324 (1988).4 Piedmont admits that the only reason it failed to appear at the hearing or object to the confirmation of Linkous’s proposed plan was because it misplaced its notice.

Two months after Linkous’s plan was confirmed, Piedmont filed a proof of claim for its security interest in Linkous’s car and mobile home. The same day, Piedmont filed a Motion to Revoke Order Confirming Plan. Linkous did not file an objection to Piedmont’s proof of claim. The bankruptcy court denied Piedmont’s motion.

Linkous’s plan was confirmed pursuant to § 1325. Section 1322(b)(2) permits a plan to “modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor’s principal residence....” 11 U.S.C. § 1322(b)(2) (emphasis added). Therefore, Linkous’s confirmed plan, although it did not provide for full payment to Piedmont of its secured loan on Lin-kous’s mobile home or car, did not violate any provision of the Code.

A confirmed plan may only be revoked if the order confirming the plan “was procured by fraud.” 11 U.S.C. § 1330(a), Section 1327 binds all creditors, whether they participate or not, to the provisions of a confirmed plan.5 Absent fraud, a creditor must protect its right to payment by objecting to a proposed plan before it is confirmed. There is no indication from the record that the order confirming Linkous’s plan was procured by fraud. Therefore, the bankruptcy court properly held that the confirmed plan was res judicata as to all of Piedmont’s claims concerning the payment it was to receive under Linkous’s plan.

Although Piedmont received notice of the confirmation hearing and the proposed plan, which complied with all provisions of the Code, and the confirmation order was not procured by fraud, the majority contends that Piedmont was denied due process under the Fifth Amendment to the United States Constitution. According to the majority, Piedmont was denied due process because its notice of the confirmation hearing failed to specifically indicate that, at the hearing, its collateral would undergo valuation pursuant to 11 U.S.C. § 506(a). An examination of the language of the Bankruptcy Code reveals, however, that the notice of the confirmation hearing and the copy of the plan summary received by Piedmont gave notice of what was to take place at the confirmation hearing and was sufficient to satisfy the requirements of both the Bankruptcy Code and the Fifth Amendment.

Notice of the Confirmation Hearing Satisfied the Code

The majority cites Bankruptcy Rule 3012 for the proposition that, before the bankruptcy court could undertake a valuation *165pursuant to § 506(a), it had to provide specific notice to Piedmont. The majority cites In re Calvert, 907 F.2d 1069 (11th Cir.1990), for the proposition that secured collateral may not undergo valuation during a confirmation hearing unless the secured creditor is given specific notice that valuation of its security will occur. Id. at 1072.

The majority fails to distinguish the facts of Calvert from the facts before us. In Calvert, the creditor filed a proof of claim pursuant to § 501, to which the debtor did not object, more than three months before the confirmation hearing. Id. at 1070.

A creditor must have an allowed secured claim to be entitled to the specific notice under Rule 3012. Rule 3012 only applies to valuation hearings conducted pursuant to § 506. A § 506(a) valuation hearing, which determines the extent to which a creditor’s claim is secured, is limited to the valuation of claims which are first “allowed” under § 502.6 Because filing a proof of claim.is a prerequisite to having a claim “allowed,” under § 502, a § 506(a) valuation hearing may only be held if the secured creditor (or debtor on the creditor’s behalf pursuant to Bankruptcy Rule 3004) has first filed a proof of claim. In re Hartford, 7 B.R. 914, 916 (Bankr.D.Maine 1981); In re Hotel Associates, Inc., 3 B.R. 340, 341-42 (Bankr.E.D.Pa.1980).

In Calvert, the court specifically found that, because the debtor had not submitted a written objection to the creditor’s proof of claim (which was filed before the confirmation hearing) the claim was deemed allowed under § 502(a). Calvert, 907 F.2d at 1071 n. 1. Specifically the court stated:

Given the lack of written objection, Green Tree’s claim was deemed allowed under § 502(a). The hearing on collateral valuation was part of the subsequent § 506 determination of the extent to which this allowed claim was secured. Thus, the question for the court is only whether the bankruptcy court followed the appropriate procedures, as dictated by § 506 and the Rules promulgated thereunder, in valuating the collateral as part of this determination.

Id.

In the case at bar, however, Piedmont did not file its proof of claim until two months after the confirmation hearing had been held. A § 506(a) hearing is an adversary proceeding.7 Because Piedmont did not file a proof of claim or object to Lin-kous’s proposed plan during the confirmation hearing, the terms of the proposed plan were uncontested. The confirmation hearing did not therefore constitute a § 506(a) hearing and the specific notice requirements of Rule 3012 did not apply.

It should also be remembered that, having failed to object to Linkous’s plan, Piedmont could have elected to sit out the bankruptcy proceedings, not file any proof of claim, not receive any payments under the plan, and merely retain its lien pursuant to § 506(d). Under this scenario, Piedmont’s lien on the mobile home and car would have survived the entire bankruptcy proceeding unaffected.

The Code does not require that notice of a confirmation hearing contain specific notice that collateral will be valuated. The purpose of the confirmation hearing is to determine whether the payments to be *166made by the debtor under the proposed plan satisfy the requirements of the Code. All parties should know that, in order for the court to determine whether payments are adequate, a valuation of the collateral will necessarily take place.

The notice of the confirmation hearing and the copy of the plan summary received by Piedmont, had they not been misplaced, provided it with sufficient notice before the confirmation hearing of the fact that the payments under Linkous’s proposed plan were clearly insufficient to fully repay the car and mobile home loan. Section 1324 permits any “party in interest” to file an objection to a proposed plan. Section 1324 does not require a party to first file a proof of claim before it may object to a proposed plan.

Contrary to the majority’s opinion, since Piedmont had filed no proof of claim, Lin-kous could not possibly notify Piedmont of any intent to “reclassify” it. Linkous did all that she was required to do under the Code. The majority incorrectly imposes a duty on Linkous to take it upon herself to contact Piedmont, interpret the plan summary, and spell out the consequences of the confirmation hearing if Piedmont fails to object. Although noble, such a requirement is nowhere to be found in the Code.

Chapter 13 contains numerous provisions that protect secured creditors. Secured creditors have the right to object to any proposed plan which might impair their secured status until they have filed their proof of claim. Once a creditor files a proof of claim, the creditor’s valuation of its claim constitutes prima, facie evidence of the amount to which the claim is secured unless the debtor files a timely written objection pursuant to Rule 3007. At that point a contested matter exists and the debtor may begin adversary proceedings to determine the creditor’s secured status pursuant to § 506(a). Only at that point should the creditor be entitled to notice pursuant to Rule 3012.

The Notice Satisfied Due Process Requirements

The notice of the confirmation hearing received by Piedmont also satisfied the due process requirements of the Fifth Amendment. Piedmont had not filed its proof of claim nor objected to the proposed plan, therefore, it was not entitled to a § 506(a) hearing and the specific notice requirements of Rule 3012 did not apply. The payment schedule contained in the plan summary combined with the notice of the confirmation hearing provided Piedmont with sufficient information upon which it could discern that its security interests would be impaired if it did not either file a proof of claim or object to the plan at the confirmation hearing. The notice afforded to Piedmont satisfied the due process requirements of the Fifth Amendment because it sufficiently apprised Piedmont of the pendency of the action and afforded it an opportunity to present its objections. Mullane v. Central Hanover Bank & Trust, 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950).

The law is constantly seeking finality. A single bankruptcy court may handle hundreds of cases filed under Chapter 13 each week. Their orderly disposition depends on the finality of confirmed plans. Chapter 13 cases will overburden the courts if a creditor may ignore the confirmation process and later mount a collateral attack on the payments it is to receive under the confirmed plan. The language of the Bankruptcy Code clearly states that an order confirming a Chapter 13 plan may only be revoked if procured by fraud. Therefore, the district court’s decision to vacate the confirmation order with respect to Piedmont’s claims should be reversed.

.The Federal Rules of Bankruptcy Procedure ("the Rules”) provide that "a proof of claim shall be filed within 90 days after the first date set for the meeting of creditors called pursuant to § 341(a) of the Code.” Fed.R. of Bankr.P. 3002(c). Rule 2002(b), however, only requires the bankruptcy court to provide creditors "not less than 25 days notice by mail ... of the time fixed for filing objections to and the hearing to consider confirmation of a plan.” It is therefore within the Rules for the court to hold a confirmation hearing before the expiration of the time allowed creditors for filing a proof of claim. Because there is a strong interest to allow a debtor to begin making payments under a proposed plan as soon as possible, it is not unusual for the confirmation hearing to be scheduled before the deadline for a creditor to file its proof of claim.

. Rule 3015(b) requires a debtor to file a Chapter 13 plan within 15 days of filing the petition. Rule 3015(d) requires the clerk to include either the plan or a summary of the plan with each notice of the hearing on confirmation pursuant to Rule 2002(b).

. Hereinafter, unless otherwise indicated, all references to specific sections are to sections' of the Bankruptcy Code.

. The term "party in interest" is not defined in the Code. The district court cites In re Stewart, 46 B.R. 73 (Bankr.D.Or.1985), for the proposition that Piedmont could not have objected to the plan until it had filed its proof of claim. In re Linkous, 141 B.R. 890, 898 n. 2 (W.D.Va.1992). The court in Stewart, defined “party in interest” narrowly to include only those parties with an "allowed secured claim." There is no indication in the Code that Congress intended "party in interest” to be so narrowly defined. Other courts have not disqualified creditors who have not filed a proof of claim from objecting to confirmation of a plan. See, In re Rite Autotronics Corp., 27 B.R. 599, 600 (Bankr. 9th Cir. 1982); In re Hardy, 56 B.R. 95, 96 (Bankr.N.D.Ala.1985).

. Section 1327 states:

The provisions of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan.

11 U.S.C. § 1327(a).

Generally, an Order of Confirmation in a Chapter 13 case is to be given res judicata effect as to all issues that were decided, or could have been decided, at the time of confirmation. See, In re Evans, 30 B.R. 530 (9th Cir. 1983); In re Guilbeau, 74 B.R. 13 (Bankr.W.D.La.1987); In re Russell, 29 B.R. 332 (Bankr.E.D.N.Y.1983). It was necessary for the bankruptcy court to determine the fair market value of Linkous’s mobile home and car during the confirmation hearing in order for the court to establish that her plan satisfied the requirements of § 1325. Therefore, the Order of Confirmation barred Piedmont’s assertion in its proof of claim that its collateral had a higher fair market value and it was entitled to greater payments than those provided for in the confirmed plan.

. The language of 11 U.S.C. § 506(a) limits its application to "allowed" claims. Specifically it states:

An allowed claim of a creditor secured by a lien on property in which the estate has an interest ... is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property ... and is an unsecured claim to the extent that the value of such creditor’s interest ... is less than the amount of such allowed claim. Such value shall be determined ... in conjunction with any hearing ... on a plan affecting such creditor’s interest (emphasis added).

Under 11 U.S.C. § 502(a), which governs the allowance of claims by the bankruptcy court, "[a] claim or interest, proof of which is filed under § 501 of this title, is deemed allowed unless a party in interest ... objects.’’ Therefore, when a creditor timely files a proof of claim under' § 501, such filing constitutes prima facie evidence of the validity and amount of its claim. In re Hartford, 7 B.R. 914, 916 n. 7 (Bankr.D.Maine 1981).

. Rule 7001 states that an adversary proceeding is a "proceeding in bankruptcy court ... (2) to determine the validity, priority, or extent of a lien or other interest in property....”