Lawrence Tractor Co. v. Gregory (In Re Gregory)

HUGHES, Bankruptcy Judge,

concurring:

I write separately to emphasize the narrow issue decided. When all is said and done, we construe the term “provided for” as used in 11 U.S.C. § 1328(a). Our task is not facilitated by speculating on the theoretical advantages enjoyed by a creditor who is provided for in a plan but is paid nothing. Nor is it helped by questioning an order of confirmation that is not appealed.

Appellant holds a judgment for $16,540 arising from debtor’s embezzlement. The judgment would be nondischargeable under 11 U.S.C. § 523(a)(4) had the debtor filed Chapter 7 bankruptcy. However, the same judgment is dischargeable under 11 U.S.C. § 1328(a) if the debtor completes all pay*671ments under a Chapter 13 plan and if the judgment is a debt that is “provided for by the plan.”

Under the plan as confirmed, unsecured creditors were to receive nothing. That plan was amended after the fact to provide for payment of $110 (less than one-half of one percent) to unsecured creditors holding claims totalling $23,400.

Appellant argued that a plan that pays nothing to unsecured creditors does not “provide for” such creditors. It read the word “provided” in the sense of supplying a benefit. The term has other meanings, however, such as “deal with” or “stipulate.”

The foregoing distinction was noted by the Supreme Court of Missouri in Holden v. Elms Hotel Co., 338 Mo. 857, 92 S.W.2d 620 (1936). In construing a similar use of the term, the Court stated:

We do not understand the words “provided for” to mean “compensated for.” It is common legal parlance to refer to different parts of a statute as “provisions” thereof. .. One definition of the word “provided,” as found in Webster’s New International Dictionary, is “to stipulate.” It is in that sense we believe the Legislature used the word “provide for” in the exception clause.

I believe that Congress used the words “provided for” in section 1328(a) in the same sense.

Appellant was “provided for” when the debtor listed it as an unsecured creditor and stipulated in the plan what unsecured creditors receive. It is immaterial for purposes of section 1328(a), that what they receive is nothing.

I therefore concur in affirming the trial court’s order holding appellant’s debtor to be discharged under 11 U.S.C. § 1328(a).