In the Matter of Green DuPREE, Jr., Angela DuPree, Debtors.
No. 1-80-00638.United States Bankruptcy Court, S.D. Ohio, W.D.
September 15, 1980.Wayne F. Wilke, Cincinnati, Ohio, for debtors.
Cortland E. Marshall, Cincinnati, Ohio, for creditor Associates Financial Corp.
Norman L. Slutsky, Cincinnati, Ohio, for creditor Avco Financial Corp.
LEONARD C. GARTNER, Bankruptcy Judge.
At Cincinnati, Ohio in said District on the 15th day of September , 1980
The amended plan (attached) of the above named Debtor, under 11 U.S.C. 1301 et seq., submitted by him on the 17th day of July , 1980, is in good faith and in accord with 11 U.S.C. 1325, with the following modification:
Monthly
Creditor Payment Amount
Avco Financial $30.00 $1225.00
Associates Finance Co.
(arrearage account) $44.00 until current
$1000.00 in hand to be turned over to trustee by debtor
COMMENT
In memoranda filed by creditor Associates takes the position that this court cannot confirm the amended modified plan because it is not in conformity with 11 U.S.C. 1322(b)(2) in that it attempts to alter the monthly payment to it even though it has security on residential real estate. However, it also had security on other personal property (auto).
11 U.S.C. 1322(b)(2) reads:
*477 "(2) 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, or of holders of unsecured claims."
Quo vadis? To what does the word "only" attach.
A reading of the "Legislative History" of the section of the Code lends no light as to the intent of Congress. And so the question remains-if the creditor has security in addition to that on residential real estate, is the prohibition in 1322(b)(2) excluded.
With knowledge of the overall intent of Chapter 13 to afford debtor relief, the Court travels in that direction.
Creditor Associates further objects to confirmation by virtue of 11 U.S.C. 1322(b)(5) which reads:
"(5) notwithstanding paragraph (2) of this subsection, provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due."
Associates urges that the curing of the default of its mortgage, as submitted in the plan, would occur after the deadline payment date in the creditors security instrument, and consequently is beyond the purview of 1322(b)(5).
Again, the Legislative History is of no assistance. While 1322(b)(5) states what can be incorporated in a plan regarding "a secured claim on which the last payment is due after the date on which the final payment under the plan is due," it doesn't cover a situation in which the final payment of the arrearage is due after the final payment in the security instrument. Is this condition, then, exclusionary.
Bear in mind 11 U.S.C. 1322(b) pertains to what a plan may provide.
It is a simple matter in this case to conform strictly to 11 U.S.C. 1322(b)(5) by providing monthly payment of $44.00 up to thirty days prior to the deadline of the mortgage and then "ballooning the last payment."
Again the Court will consider the overall intent of Chapter 13 and ride with the debtor.
See 1322(b)(10) which provides:
"(10) include any other appropriate provision not inconsistent with this title.
END OF COMMENT
IT IS ORDERED that Arthur C. Elliott, 26 E. Sixth Street, Room 306, Cincinnati, Ohio 45202, Trustee is to receive and disburse all funds to be paid under the plan, subject to the control of the Court, and that he and his sureties are held and bound by the general order made and entered by this Court, and the bond issued in pursuance thereof.
IT IS FURTHER ORDERED that the debtor make voluntary payments to the trustee in the amount of $300.00 a month.
This process to continue until further Order of this Court.
IT IS FURTHER ORDERED that the attorney for the Debtor herein be allowed and paid a fee by the Trustee, in accord with local custom.
IT IS FURTHER ORDERED that the Trustee herein deposit all funds that come under his control in a duly designated depository bank of this Court and that he furnish to the Court all reports, records and other information required by him to be made under the order of this Court.
CREDITORS ARE HEREBY ENJOINED AND STAYED from the commencement or continuation of any suit in any Court against the Debtor or from in any manner interfering with the Debtor in the possession and management of his property until further order of this Court.
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