In re Abrams

• Decision Date: 08 March 2002
• Docket Number: No. 01-11493-MAM-13.,01-11493-MAM-13.
• Citation: 305 B.R. 920
• Parties: In re Ronnie Oneal ABRAMS, Daphne Lavonne Travis Abrams, Debtors.
• Court: U.S. Bankruptcy Court — Southern District of Alabama

305 B.R. 920

In re Ronnie Oneal ABRAMS, Daphne Lavonne Travis Abrams, Debtors.

No. 01-11493-MAM-13.

United States Bankruptcy Court, S.D. Alabama.

March 8, 2002.

Russell S. Terry, Mobile, AL, for Nuvell Financial Services Corporation.

John A. Lockett, Jr., Selma, AL, for the Debtors.

ORDER GRANTING IN PART MOTION OF NUVELL FINANCIAL SERVICES CORPORATION TO RECONSIDER CONFIRMATION ORDER AND DENYING MOTION OF NUVELL FINANCIAL SERVICES CORPORATION TO ALLOW IT TO AMEND ITS CLAIM TO INCLUDE POSTPETITION INTEREST

MARGARET A. MAHONEY, Chief Judge.

This case is before the Court on the motions of Nuvell Financial Services Corporation to reconsider the confirmation order of May 17, 2001 and to allow Nuvell to amend its claim to include postpetition interest. This Court has jurisdiction to hear these matters pursuant to 28 U.S.C. §§ 157 and 1334 and the Order of Reference of the District Court. This Court has authority to enter a final order. For the reasons indicated below, the Court is granting in part the motion seeking reconsideration of confirmation, but is denying the motion seeking amendment of the claim.

FACTS

The Abrams filed their chapter 13 bankruptcy case on March 24, 2001. They listed Nuvell Credit Corporation as a creditor. Nuvell held a lien on a 1998 Plymouth Breeze vehicle of the Abrams. The debtors valued the vehicle at $7,500 and listed Nuvell's debt as $11,083.24.

The Abrams' chapter 13 plan, sent to all creditors including Nuvell, indicated that Nuvell and the Abrams' other secured creditor, Wells Fargo, would be paid in the same manner. The plan listed the debts under "Secured Debts" as follows:

Nuvell Financial $7500, The value of the 1998 Plymouth Breeze Wells Fargo Financial $12300, The value of the 1999 Ford F150

The plan stated that no preferences would be paid.

The confirmation hearing was held on May 10, 2001. Nuvell did not appear at the hearing nor object to confirmation of the debtors' plan. Wells Fargo did object to the plan. The Abrams negotiated a compromise of Wells Fargo's objection. They agreed to pay Wells Fargo a preference payment of $426.23 per month¹ and agreed to pay interest of 18% on the value of the vehicle of $16,812 for a total payment of $25, 615. The confirmation order, issued on May 17, 2001, indicated that Wells Fargo was to be paid a preference as agreed on a total secured claim of $25, 615.80. Nuvell was to be paid $7,500. The plan also specified that, after payment of priority expenses, the trustee would pay 100% pro rata dividends to all secured creditors whose claims are allowed, including the following:

SECURED CREDITORS MONTHLY PAYMENT TOTAL SECURED CLAIM

WELLS FARGO $426.93 $25,615.80

...

NUVELL FINANCIAL $7,500.00

Nuvell Financial filed the motion to amend claim and the motion to reconsider the confirmation order on December 28, 2001. The chapter 13 trustee has paid $4,642.43 to Wells Fargo since distributions commenced and paid $0 to Nuvell. The chapter 13 trustee's practice is to pay priority claims first, then preference claims, then after preference claims are paid, other secured claims being paid pro rata without a preference, and then unsecured claims.² Therefore, Wells Fargo, with its preference, is receiving the bulk of the payments made by the trustee and will continue to do so until paid in full.

Nuvell filed a timely proof of claim. It used a form not used in this district. The form indicated that $11,516.48 was owed to it by the Abrams and that its debt was fully secured. The form stated in paragraph 1 that the claim amount of $11,516.48 included no unmatured interest and that "[i]nterest will be computed by the Trustee's office as provided in the Plan." The plan did not request that the trustee compute interest or provide for interest.

LAW

Nuvell filed two motions which the Court is considering in this order: Motion to allow amended claim increasing secured claim by amount equal to projected postpetition interest to accrue upon value of collateral; and Motion to reconsider and set aside confirmation order of May 17, 2001, or, in the alternative, for relief from the automatic stay or for adequate protection. The Court will consider each motion separately. Nuvell bears the burden of proof as to each motion.

A. Motion to Reconsider and Set Aside Confirmation Order

Nuvell seeks reconsideration of the confirmation order over seven months after its entry. Nuvell received the order when it was entered. Nuvell did not state upon what section of the Code or Rules its motion is based. There are only two possible provisions — § 1330 of the Bankruptcy Code or Fed. R. Bankr.P. 9024 (which incorporates Fed.R.Civ.P. 60 into the Bankruptcy Rules). Section 1330 provides for revocation of an order for fraud. Nuvell did not allege fraud. Nuvell's motion was also made outside the 180-day window of § 1330. The only other choice is Fed. R. Bankr.P. 9024. This Rule has been held inapplicable to chapter 13 plan revocations or modifications by many courts. See, e.g., Branchburg Plaza Associates, L.P. v. Fesq (In re Fesq), 153 F.3d 113 (3d Cir.1998) (Shadur, J.), cert. denied, 526 U.S. 1018, 119 S.Ct. 1253, 143 L.Ed.2d 350 (1999); United States v. Lee, 89 B.R. 250 (N.D.Ga.1987), aff'd, In re Hochman, 853 F.2d 1547 (11th Cir.1988) (affirming lower court decision that stated, without discussion or cites, and not as the main holding of the case, that confirmation orders could only be revoked for fraud pursuant to 11 U.S.C. § 1330); but see, Fesq, 153 F.3d at 120-24 (Stapleton, J., dissenting) (Rule 9024 does not limit the applicability of Fed.R.Civ.P. 60(b) to confirmation orders, but rather, incorporates the Rule 60(b) grounds as bases to vacate confirmation orders and simply adopts the Bankruptcy Code time limits applicable to motions or complaints to vacate confirmation orders); In re Cook, 205 B.R. 617, 625 (Bankr.N.D.Ala.1996) ("[A] party may challenge a confirmation order only by filing a motion under Rules 9023 or 9024 or by filing a notice of appeal pursuant to Rule 8001."). See also In re Benjamin M. Blomgren, Order Disallowing Late Filed Claim and Setting Adequate Protection Payments at $125 per Month, (S.D. Ala. June 12, 2000). In this case, Rule 9024 is the only possible avenue of relief available to Nuvell. Although some courts never allow relief under Rule 9024, this Court concludes that a rigid rule is inappropriate in this case. When a due process concern has been raised, the Court will vacate the order. Therefore, the motion will be judged on a Fed. R. Bankr.P. 9024 standard. Rule 9024 incorporates into the Bankruptcy Rules Fed.R.Civ.P. 60. The burden under Rule 60(b) for setting aside a final order is a heavy one for the movant since res judicata is being negated. Rezin v. Barr (In re Barr), 183 B.R. 531 (Bankr.N.D.Ill.1995).

Nuvell asserts that it should be granted relief on several different grounds. First, it asserts that the Abrams' plan is ambiguous. It does not mention postpetition interest and does not say that a secured creditor may get less than 100% of its debt paid (including interest). Second, Nuvell argues that the confirmation order is ambiguous. It states that secured creditors will be paid "100% pro rata dividends" and also states that Wells Fargo will receive a preference. Third, Wells Fargo's treatment in the plan as amended at confirmation should have been noticed to all creditors and there has been a lack of due process as to Nuvell. The amendment adversely affected Nuvell's payment and it was given no opportunity to object.

The Court concludes that the plan is not ambiguous. It does not say that postpetition interest will be paid. It does not say that Nuvell will be paid its claim without interest. It is not necessary that it state those things because what it does say, it says very clearly. It states that the debtors will pay Nuvell $7,500. If Nuvell did not understand that statement, it could have sought clarification. The debtor did not need to state three different ways that Nuvell would be paid only $7,500 when it is clear as stated.

The order confirming the plan is ambiguous in one respect. It states that Wells Fargo will be paid a preference and it also states that payments to Wells Fargo and Nuvell will be "pro rata." The manner in which preference claims are paid by the trustee is not "pro rata" for each payment. It is only pro rata over the life of the plan. Nuvell had no way of knowing that it would be paid after Wells Fargo. The amendment that gave Wells Fargo a preference, based upon the manner in which payments are made, should have been noticed to all creditors, particularly Nuvell, because it adversely affected Nuvell. "Due Process mandates `notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" U.S. v. Real Property, 129 F.3d 1266 (6th Cir.1997) (Table, unpublished disposition) 1997 WL 702771 *1-2 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Therefore, Nuvell should be able to object to the treatment of Wells Fargo and to seek amendment to its own treatment in this case.

The Court is going to allow reconsideration of the confirmation order as it pertains to payment of the secured creditors. Therefore, the Court is not granting relief from stay or adequate protection to Nuvell at this time. The Court will carry those requests to confirmation. The amended plan of the Abrams must treat the claims of Wells Fargo and Nuvell in a manner to which they consent or in a way that provides adequate protection to both of them in the future. This does not mean that Nuvell can reopen the questions of postpetition interest, however, since there is no ground for changing that part of the order as stated above and in section B below.

B. Motion to Allow Amended Claim Increasing Secured Claim by Amount Equal to...