SOUTHEASTERN BANKRUPTCY LAW INSTITUTE: THIRTIETH ANNUAL
SEMINAR ON BANKRUPTCY LAW
Post-Confirmation Changes in Income and Circumstances In Chapter 13 Cases
D. Jean Ryan Steel Hector & Davis LLP
200 S . Biscayne Blvd. Miami, Florida 33131-2398 Telephone: 305-577-7000 Facsimile: 305-577-7001
Grand Hyatt Atlanta Hotel Atlanta, Georgia
POST-CONFIRMATION CHANGES IN INCOME AND CIRCUMSTANCES IN CHAPTER 13 CASES
Most attorneys representing chapter 13 debtors would be absolutely delighted if, upon
confirmation of the chapter 13 debtors plan, their work was complete. However, life just
doesnt work that way, and frequently debtors encounter additional financial problems after their
chapter 13 case is confirmed. These financial difficulties may require modification of the
confirmed chapter 13 plan.
Section 1329 of the Bankruptcy Code provides for the modification of confirmed
chapter 13 plans, as follows:
8 1329. Modification of plan after confirmation
(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 of 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.
(2) The plan as modified becomes the plan unless, after notice and hearing, such modification is disapproved.
Title 1 1 of the United States Code. Prior to the 1984 amendments to 1329, only the debtor could request modification of a chapter 13 plan. The
Bankruptcy Amendments and Federal Judgeship Act of 1984 made it clear that the Trustee or the holder of an unsecured claim is also authorized to request a modification of a confmed chapter 13 plan.
(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.
In 1993, Federal Rule of Bankruptcy Procedure 3015(g) was added to provide further
guidance relating to the process involved in seeking modification of a confirmed plan. Fed. R.
Bankr. P. 3015(g) states:
(g) Modification of Plan after Confirmation. A request to modify a plan pursuant to 0 1229 or 0 1329 of the Code shall identify the proponent and 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. A copy of the notice shall be transmitted to the United States trustee. A copy of the proposed modification, or a s u m m a r y thereof, shall be included with the notice. If required by the court, the proponent shall furnish a sufficient number of copies of the proposed modification, or a summary thereof, to enable the clerk to include a copy with each notice. Any objection to the proposed modification shall be filed and served on the debtor, the trustee, and any other entity designated by the court, and shall be transmitted to the United States trustee. An objection to a proposed modification is governed by Rule 90 14.
This article will discuss some of the causes for, and the remedies to, some of the more
frequent changes in the debtors situation that would necessitate the filing of a plan modification,
such as: (1) the debtor falling behind on postpetition mortgage payments and then seeking to
modify the plan to provide for a cure of the postpetition defa~l t ;~ (2) a decrease in the debtors
income that would necessitate a reduction in plan payments, (3) seeking a modification to
increase the amount or number of payments in order to provide for a postpetition claim;4
In re Mendozu, 111 F.3d 1264 (5th Cir. 1997); In re Hoggle, 12 F.3d 1009 (11th Cir. 1994); In re McCullom, 76 B.R. 797 (Bankr. D. O r . 1987); In re Munnings, 47 B.R. 318 (Bankr. N.D. Ill. 1985); and In re Johnson, 708 F.2d 865 (2d Cir. 1983). 4 In the Mutter ofNelson, 27 B.R. 341 (Bankr. M.D. Ga. 1983).
(4) seeking the sale or refinancing of property, the payments for which are being provided for
under the confirmed plan; (5 ) seeking a modification to decrease the payments to a secured
creditor due to a payment outside the plan5 or (6) to modi@ the plan for the surrender of
collateral to a creditor which would render that creditor unsecured.6
Plan Amendments Based Upon Change of Circumstances
It should be noted that a showing of substantially changed circumstances is not a
prerequisite to modification of a confirmed chapter 13 plan. The plain reading of the statutory language certainly imposes no such requirement. However, local practice may impose a
requirement for a change in circumstances, or such a change will nonetheless be considered by
the court to justify the necessity for the modification. Furthermore, the majority of the
bankruptcy courts have held that the right of a trustee or an unsecured creditor to move for
modification of a confirmed chapter 13 plan should be limited to situations in which there have
been unanticipated changes in the debtors income and/or expenses.
It should also be noted that the language of 0 1329 does not allow for a secured creditor to
seek modification of a confirmed chapter 13 plan. In fact, it is widely held that an order
confirming a chapter 13 plan is a final order, and absent a timely filed appeal, such an order is
5 In re Tucker, 35 B.R. 35 (Bankr. M.D. Tenn. 1983).
In re Day, 247 B.R. 898 (Bankr. M.D. Ga. 2000); In re White, 169 B.R. 526 (Bankr. M.D. N.Y. 1994); but see 6 Chlysler Fin. COT. v. Nolan (In re Nolan), 232 F.3d 528 (6 Cir. 2000). 7 In re Sounakhene, 249 B.R. 801 (Bankr. S.D. Cal. 2000) citing In re Powers, 202 B.R. 618,622 (B.A.P. 9th 1996). But see In re Martin, 232 B.R. 29 ( B&. D. Mass. 1999). 8 In re Arnold, 869 F.2d 240 (4th Cir. 1989); In re Wilson, 157 B.R. 389 (Bankr. S.D. Ohio 1993) (denying trustees modification motion because change in circumstances was not unanticipated or substantial); In re Fitak, 19 C.B.C. 2d 1387,92 B.R. 243 (Bankr. S.D. Ohio 1988), a f d , 121 B.R. 224 (S.D. Ohio 1990). But see Barbosa v. Solomon, 235 F.3d 31 (1st Cir. 2000) (while modification does not require unanticipated change in circumstances, parties requesting modifications of chapter 13 plans must advance a legitimate reason for doing so, and they must strictly conform to the three limited circumstances set forth in section 1329); Matter of Witkowski, 16 F.3d 739 (7th Cir. 1994) (no change of circumstances need be shown); In re Brown, 219 B.R. 191 (B.A.P. 6th Cir. 1998) (unanticipated change of circumstances not prerequisite to modification motion); In re Powers, 37 C.B.C. 2d 192, 202 (B.R. 618) (B.A.P. 9th Cir. 1996) (substantial and unanticipated change of circumstances is not a prerequisite for a modification motion, but court can consider whether there has been such a change in deciding whether to grant the motion).
res judicata and the terms of the plan are not subject to collateral attack.' Even if the debtor
seeks to modi@ a confirmed plan, the terms of the original plan will be held to be res judicata as
to any creditor whose rights and payments remain unaffected by the proposed modification."
One of the most problematic post confirmation issues derives from the concern over what
effect is to be given to the order of confirmation emanating from the initial chapter 13 plan.
Take, for example, the situation where, at the beginning of the chapter 13 debtor's case, the
debtor has a house and two vehicles -- all of which have payments in arrears. The initial plan, as
filed by the debtor, provides for a cure of the arrears on the homestead property, as well as a cure
of the arrearages that have accrued on the two vehicles. Once the plan is confirmed, the values
of the real and personal prop