Concurring.
I concur with the reasoning and result reached by the majority in the Tuttle matter. In the Buckner matter I concur in the result, but would do so for other reasons.
The Buckner case is before the Court in an odd procedural posture, and one that is not fully explained either by the record or the parties. In Buckner the district court entered its order reversing the order of the bankruptcy court that denied the United States’ motion for relief from stay. The mandate from the district court required the bankruptcy court to convene a hearing on the motion for relief from stay and to determine whether relief should be granted to permit the United States to effect its right of offset.
By the time the matter had been remanded to the bankruptcy court and the hearing was set, the reality was that Buckner had, by then, completed his plan and the right of the United States to set off any of the CRP payments that funded the plan had become moot. This was the explicit finding by the bankruptcy court in its Judgment. In re Buckner, 211 B.R. 46, 51 (Bankr.D.Kan.1997). Thus, the parties were not back before the bankruptcy court contesting the issues framed by the motion of the United States for relief from stay. Instead, the parties were then contesting the right of the United States to set off the CRP payment Buckner became entitled to receive late in 1996, after his plan was completed. Id.
The bankruptcy court held that the United States was bound by the terms of the debt- or’s Chapter 13 plan, and had retained no right of set off that it could effect after the plan payments were completed. The majority addresses the question of whether set off rights can be modified by a confirmed chapter 13 plan, but does so in the context of deciding whether the District Court Order was “clearly erroneous.” I do not believe the “clearly erroneous” analysis is apt.
Bankruptcy proceedings are not static; they are fluid and continuing. The bankruptcy court’s order denying the motion of the United States for relief from stay was on appeal at the time the court entered its order confirming Buckner’s chapter 13 plan. I agree with the bankruptcy court in its holding that the plan became final and binding on the parties and governed the future course of the chapter 13 ease. The mandate of the district court does not supersede the order of confirmation. Where I would part company with the bankruptcy court is in its conclusion that the plan cut off the right of the United States to exercise its right of set off post-consummation of the plan.
As the majority recognizes, this issue is not without controversy. Nevertheless, and without further lengthening this concurrence, I would follow the holding of the Ninth Circuit in the Carolco case, where it concluded that section 553 of the Code takes precedence over an order of confirmation. Carolco Television Inc. v. National Broadcasting Co. (In re De Laurentiis Entertainment Group), 963 F.2d 1269 (9th Cir.), cert. denied, 506 U.S. 918, 113 S.Ct. 330, 121 L.Ed.2d 249 (1992). Based on that precedent I would reverse the order of the bankruptcy court and remand for the entry of an appropriate order allowing the United States to exercise its right of set off as to any CRP payments that became payable to Buckner after consummation of his plan.