In re Barnett, Bankruptcy No. 84 B 10036 (PBA).
Decision Date | 04 September 1984 |
Docket Number | Bankruptcy No. 84 B 10036 (PBA). |
Parties | In re Beth E. BARNETT, Debtor. |
Court | United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Southern District of New York |
Killian & Gephart, Harrisburg, Pa., for Pennsylvania Higher Education Assistance Agency; Jane G. Penny, Harrisburg, Pa., of counsel.
Horwitz & Associates, P.C., New York City, for Beth E. Barnett; Michael L. Moskowitz, New York City, of counsel.
On January 10, 1983, Beth E. Barnett ("Debtor") filed a petition under Chapter 13 of the Bankruptcy Code. Her schedule of creditors listed thirteen creditors owed a total of $31,054.76. Among the creditors scheduled was the following:
"Peoples Bank of Unity 301 Unity Center Rd Pittsburgh, PA 15239 (Re: Pa. Higher Ed Asst Agency) # 13095, student loan 1982 18,510.00"
This was one of two student loans listed, the other loan being scheduled in the amount of $5,913.00.
Under date of February 15, 1984 notice was sent to all scheduled creditors of the time and place of the § 341 meeting of creditors and the time and place of the confirmation hearing, scheduled for March 22, 1984. In addition to advising of the automatic stay, the notice also stated:
At the time of the filing of her petition, Ms. Barnett proposed a plan providing for payment of $150 per month for 36 months. The plan provided for pro rata distribution to unsecured creditors who filed proofs of claim, a yield to creditors of approximately 14%. As a result of a hearing held by the court on May 24, 1984 to determine the good faith efforts by the Debtor in repaying her Chapter 13 creditors, the Debtor proposed an amended plan on May 31, 1984 for 60 months, for aggregate plan payments of $9,000. The added length of the plan increased the yield to creditors to approximately 26%. On June 6, 1984, the plan was confirmed and the order of confirmation recites that no one appeared on behalf of creditors.
Six timely claims were filed totalling $11,136.24. The Peoples Bank of Unity did not file a proof of claim. A claim was filed with respect to Ms. Barnett's other student loan.
Bankruptcy Code § 521(1)1 provides:
In a Chapter 13 cases, this duty of the debtor is to be accomplished by means of the completion and filing of a Chapter 13 Statement conforming to Official Form No. 10. See Bankruptcy Rule 1007(a)(1) and (b).
Official Form No. 10 contains several pertinent provisions. Question 12C requires the listing of all unsecured debts, with complete mailing address, including zip code. The relevant portion of Ms. Barnett's statement is quoted above.
Question 13 is also material.
In response to each of Questions 13a, 13b and 13c, Ms. Barnett answered "None." It is apparent from the Debtor's schedules that PHEAA had guaranteed her loan from The Peoples Bank of Unity. The notes attached to PHEAA's memorandum in support of its application also clearly evidence the role of PHEAA as guarantor. Thus, the answers given in response to Question 13 were wrong, as both student loans were made under guarantee programs.
This court holds that the Debtor was obligated to schedule as a debt under Question 12c, and list in response to Question 13, the name and address of each guarantor of her student loans to the extent that she had actual knowledge of their existence and of their names and addresses or could have acquired this information after reasonable inquiry.
Due process requires no less than actual notice to PHEAA. In Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), the Supreme Court found notice by publication to the beneficiaries of a trust to be insufficient where the beneficiaries were known and had known places of residence.
339 U.S. at 314-315.
That PHEAA's interests could have been protected by The Peoples Bank of Unity is undeniable.2 However, it is equally undeniable that the Bank...
To continue reading
Request your trial