Flygare v. Boulden
Citation | 709 F.2d 1344,8 C.B.C.2d 1027 |
Decision Date | 01 June 1983 |
Docket Number | No. 81-1683,81-1683 |
Parties | 8 Collier Bankr.Cas.2d 1027, 10 Bankr.Ct.Dec. 1044, Bankr. L. Rep. P 69,298 Gordon R. and Sharon L. FLYGARE, Debtors-Appellants, v. Judith A. BOULDEN, Appellee. |
Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Richard Calder, Salt Lake City, Utah, for debtors-appellants.
Duane H. Gillman, Salt Lake City, Utah (Judith A. Boulden, Salt Lake City, Utah, with him on the briefs) Boulden & Gillman, Salt Lake City, Utah, for trustee-appellee.
Before HOLLOWAY, McKAY and SEYMOUR, Circuit Judges.
Gordon and Sharon Flygare appeal the denial of confirmation of their Chapter 13 bankruptcy plan. They argue that the denial was based on an erroneous construction of the "good faith" requirement of 11 U.S.C. Sec. 1325(a)(3) (Supp. IV 1980). We agree and remand for further proceedings.
The Flygares first filed a Chapter 13 petition in April 1980. The bankruptcy court denied confirmation and dismissed the case in June. The Flygares filed a second petition in July 1980. The second plan was similar to the first; however, the length of the plan was increased from thirty-six months to fifty months. At the confirmation hearing, the second plan was modified to extend for sixty months. The plan also provided for payment of a larger sum to cure the Flygares' default on their home mortgage. Under the plan, the unsecured creditors would be paid approximately three percent of their claims.
The bankruptcy court denied confirmation for two reasons. First, it held that the plan was "essentially similar to the earlier plan" which had been denied confirmation. 1 Rec., vol. II, at 17. Second, it found that "a payment of 1 percent or 2 percent to creditors on the facts of the case is not a meaningful payment as required under the good faith provisions of Chapter 13." Id. at 18. With respect to the latter holding, the court specifically relied on its prior decision in In re Iacovoni, 2 B.R. 256 (Bkrtcy.D.Utah 1980). The Flygares appealed to the district court, which cited Iacovoni and affirmed the bankruptcy court's order. This appeal followed.
Chapter 13 of the Bankruptcy Code, 11 U.S.C. Secs. 1301-1330 (Supp. IV 1980), contains liberalized provisions that enable certain debtors to repay all or a percentage of their debts according to a court-approved plan. Rather than having to surrender all non-exempt assets for distribution to creditors as required by Chapter 7, 11 U.S.C. Secs. 701-728 (Supp. IV 1980), Chapter 13 debtors make payments to creditors out of future income over a three-to-five year period, 11 U.S.C. Sec. 1322(c), after which they are entitled to a broad discharge of their obligations, 11 U.S.C. Sec. 1328(a). The bankruptcy court must confirm a Chapter 13 plan if it meets the criteria Congress set out in section 1325(a). 2 We are concerned here with the meaning of the section 1325(a)(3) requirement that "the plan has been proposed in good faith and not by any means forbidden by law."
In In re Iacovoni, the bankruptcy court considered eight Chapter 13 plans that proposed nominal or in some cases no payments to unsecured creditors. The court construed the "good faith" requirement of section 1325(a)(3) to mean "a good faith effort to make meaningful payment to holders of unsecured claims." 2 B.R. at 267 (emphasis added).
The meaning of "good faith" in section 1325(a)(3) has engendered no small controversy among the bankruptcy courts. Compare, e.g., In re Iacovoni with, e.g., In re Cloutier, 3 B.R. 584 (Bkrtcy.D.Colo.1980). See 5 L. King, Collier on Bankruptcy p 1325.01[c] at 1325-8.6 (15th ed. 1982) ().
The various bankruptcy court interpretations of the "good faith" requirement fall into three broad categories. See United States v. Estus (In re Estus), 695 F.2d 311, 314-16 (8th Cir.1982). In re Iacovoni is an example of cases holding that good faith requires substantial or meaningful repayment to unsecured creditors. Id. at 314. Cases at the other extreme seem to attach little independent meaning to the "good faith" requirement of section 1325(a)(3). These cases look only to the requirement of section 1325(a)(4) that Chapter 13 creditors receive as much as they would receive under Chapter 7. Because many consumer debtors have no nonexempt assets, their unsecured creditors would receive nothing in a Chapter 7 liquidation and hence a Chapter 13 plan providing for no payments to unsecured creditors would meet the subsection (a)(4) test. Id.
Those cases adopting a "middle road" approach do not find the amount of the payment dispositive of the issue of good faith. Id. at 315-16.
Six circuits have recently considered the divergent views of the bankruptcy courts, and all of them have adopted some formulation of the "middle road" approach. Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir.1983); In re Estus, 695 F.2d 311; Deans v. O'Donnell (In re Deans), 692 F.2d 968 (4th Cir.1982); Barnes v. Whelan (In re Barnes), 689 F.2d 193 (D.C.Cir.1982); Goeb v. Heid (In re Goeb), 675 F.2d 1386 (9th Cir.1982); Ravenot v. Rimgale (In re Rimgale), 669 F.2d 426 (7th Cir.1982). We also conclude that this analysis is appropriate.
In re Estus, 695 F.2d at 316-17.
We adopt the factors the Eighth Circuit listed as relevant to a determination of good faith. We reproduce them here for guidance on remand:
"(1) the amount of the proposed payments and the amount of the debtor's surplus;
(2) the debtor's employment history, ability to earn and likelihood of future increases in income;
(3) the probable or expected duration of the plan;
(4) the accuracy of the plan's statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court;
(5) the extent of preferential treatment between classes of creditors;
(6) the extent to which secured claims are modified;
(7) the type of debt sought to be discharged and whether any such debt is non-dischargeable in Chapter 7; (8) the existence of special circumstances such as inordinate medical expenses;
(9) the frequency with which the debtor has sought relief under the Bankruptcy Reform Act;
(10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; and
(11) the burden which the plan's administration would place upon the trustee."
Id. at 317. This list is not exhaustive, and the weight given each factor will necessarily vary with the facts and circumstances of each case.
In its determination that the Flygares' plan was not in good faith, the bankruptcy court made no findings but only cited its earlier decision in In re Iacovoni. 3 The record contains no evidence that the court considered any factor other than the small percentage of payment to unsecured creditors. The court's summary treatment of the Flygares' petition indicates that it was applying a per se rule. We agree with the Eighth Circuit that "[a] per se minimum payment requirement to unsecured creditors as an element of good faith would infringe on the desired flexibility of Chapter 13 and is unwarranted." 4 In re Estus, 695 F.2d at 316 (footnotes omitted).
Accordingly, we reverse and remand for further proceedings consistent with this opinion.
1 The trustee urges us to affirm on this ground. She argues: "Where the issue of the adequacy of the plan is essentially identical since the plan is not significantly...
To continue reading
Request your trial-
In re Jernigan
...the "meaningful" repayment rule tended to degenerate into a rigid but nonstatutory percentage payback requirement. In Flygare v. Boulden, 709 F.2d 1344 (10th Circ.1983), the Court of Appeals of this Circuit reversed a bankruptcy court's ruling that a Ch. 13 plan was in bad faith merely beca......
-
In re Styerwalt
...of Appeals, the seminal appellate precedent on the good faith requirement for plan confirmation in Chapter 13 is: Flygare v. Boulden , 709 F.2d 1344 (10th Cir. 1983). In Flygare , the Tenth Circuit Court of Appeals announced a "totality of the circumstances" approach in which:The bankruptcy......
-
In re Gosch
...of Appeals, the seminal appellate precedent on the good faith requirement for plan confirmation in Chapter 13 is: Flygare v. Boulden , 709 F.2d 1344 (10th Cir. 1983). In Flygare , the Tenth Circuit Court of Appeals announced a "totality of the circumstances" approach in which:The bankruptcy......
-
LeMaire, In re
...4 This approach was widely used in other circuits. See Neufeld v. Freeman, 794 F.2d 149, 152 (4th Cir.1986); Flygare v. Boulden, 709 F.2d 1344, 1347 (10th Cir.1983); In re Kitchens, 702 F.2d 885, 888-89 (11th Cir.1983); In re Goeb, 675 F.2d 1386, 1390 (9th Cir.1982); In re Rimgale, 669 F.2d......
-
Chapter VII Chapter 13
...(In re Cranmer), 697 F.3d 1314, 1319 n.5 (10th Cir. 2012).[489] The factors listed here are the Flygare factors. (Flygare v. Boulden, 709 F.2d 1344 (10th Cir. 1983)). Many courts do not consider factors resting on a debtor's ability to pay, finding that the disposable-income test, infra, in......
-
Tcl - the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 - February 2006 - Business Law
...of Sen. Metzenbaum). 53. 2005 Act, supra, note 1 at § 102(a)(2)(B)(ii) (amending 11 U.S.C. § 707(b)). 54. Id. 55. Flygare v. Boulden, 709 F.2d 1344 (10th Cir. 1983). 56. 2005 Act, supra, note 1 at § 102(a)-(d) (amending 11 U.S.C. § 707(b)); Stewart, supra, note 48. 57. Purpose & Summary, su......
-
Bankruptcy Law Update, 1989
...in favor of judging bad faith based upon the totality of the circumstances on a case-by-case basis. Id. (citing Flygare v. Boulden, 709 F.2d 1344 (10th Cir. 1983)). Although the bankruptcy court and district court had failed to find bad faith based upon the totality of the circumstances and......
-
Top Ten Topics in Bankruptcy for the Non-bankruptcy Attorney - February 2008 - Business Law
...seq. 16. 11 U.S.C. § 1325(b)(4). 17. 11 U.S.C. § 1325(a)(4). See also In re Nanes, 168 B.R. 715 (Bankr.D.Colo. 1994); Flygare v. Boulden, 709 F.2d 1344 (10th Cir. 1983). 18. 11 U.S.C. § 1307(b). See also In re Dulaney, 2285 B.R. 10 (D.Colo. 2002). 19. 11 U.S.C. §§ 362(a) and 1301. 20. See g......