In re Hobdy, BAP No. CC-90-1115-VPJ
| Decision Date | 23 August 1991 |
| Docket Number | Bankruptcy No. LAX 87-55968-SB.,BAP No. CC-90-1115-VPJ |
| Citation | 130 BR 318 |
| Parties | In re Waymon HOBDY, Debtor. FIREMAN'S FUND MORTGAGE CORPORATION, f/k/a Manufacturers Hanover Mortgage Corporation, Appellant, v. Waymon HOBDY, Nancy Curry, Chapter 13 Trustee, Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
Billie L. Crowe, U.S. Justice Dept., Washington, D.C., for I.R.S., a creditor.
Harry A. Engberg, Sioux Falls, S.D., for debtor Dakota Industries, Inc.
Before VOLINN, PERRIS, and JONES, Bankruptcy Judges.
OVERVIEW
Secured creditor Fireman's Fund Mortgage Corporation ("FFMC") appeals an order denying its motion for allowance of claim as filed against debtor Waymon Hobdy ("Hobdy"). The bankruptcy court ruled that FFMC's motion was an inappropriate means for contesting a provision relating to the claim in a confirmed Chapter 13 plan.1 We REVERSE.
Hobdy filed his Chapter 13 bankruptcy petition on December 4, 1987. As of that date, FFMC was owed a total of $36,787.55 in arrearages on a note secured by Hobdy's principal residence. In the Chapter 13 statement filed with the petition, Hobdy indicated that he owed FFMC $35,000 in pre-petition arrearages.
On or about December 9, 1987, FFMC received notice of the petition, the Chapter 13 statement, the § 341(a) hearing, and the confirmation hearing. On December 18, 1987, Hobdy filed his proposed Chapter 13 plan in which he listed the total amount of unpaid pre-petition arrearages owed to FFMC as $4,532. Although Hobdy's attorney allegedly served the proposed plan on all creditors, FFMC contends that it did not receive a copy of the plan.
On January 20, 1988, FFMC filed a timely proof of claim in the amount of $36,787.55 for the pre-petition arrearages. There were no objections to FFMC's claim. FFMC did not appear at the February 2, 1988 confirmation hearing at which Hobdy's proposed plan was confirmed. On February 19, 1988, an order confirming Hobdy's proposed plan was entered. The confirmed plan provided that the unpaid pre-petition arrearages totaled $4,532.
Nearly a year and a half later, on June 22, 1989, FFMC filed a motion for allowance of claim challenging the amount allowed for its claim in the confirmed plan. The trustee responded that the local rules provided that she need only pay FFMC the lesser amount provided in the confirmed plan.2
On December 19, 1989, the trial court denied FFMC's motion on the grounds that FFMC had neglected to object to the plan, or to initiate a timely action to revoke the confirmed plan pursuant to Code § 1330. In response to FFMC's claim that it did not receive notice of the proposed plan, the court held that FFMC was put on inquiry notice when it received notice of the filing of debtor's petition.
Neither of the appellees, i.e., debtor Hobdy and trustee Nancy Curry, has filed a brief in this appeal.
The principal issue raised in this appeal is whether appellant's due process rights were violated when its secured claim was reduced by the confirmed Chapter 13 plan.
This appeal raises a legal issue which is subject to a de novo standard of review. Ragsdale v. Haller, 780 F.2d 794, 795 (9th Cir.1986).
Due process requires that a creditor receive notice of any bankruptcy proceeding which is to be accorded finality. In re Toth, 61 B.R. 160, 165 (Bankr.N.D.Ill.1986). Such notice must be "reasonably calculated" to apprise interested parties of the pendency of an action and to afford them an opportunity to present objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). See also Reliable Electric Co., Inc. v. Olson Construction Co., 726 F.2d 620, 622 (10th Cir.1984).
In this case, the debtor failed to object to the secured claim filed by FFMC and instead challenged the claim indirectly by means of its Chapter 13 plan which proposed to substantially reduce the claim. The Bankruptcy Rules, which set forth the procedural mechanism for implementing the Code, do not permit such indirect attacks on the viability of claims. Bankruptcy Rule 3007 requires that all objections to claims be in writing and filed with the court, and that the claimant be given 30 days notice of a hearing to resolve the dispute. Bankruptcy Rule 9014 provides that in all contested matters, such as objections to claims, "relief shall be requested by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought."
Given the debtor's failure to object to the FFMC claim, it was reasonable for FFMC to assume that any proposed plan would not impair its claim in any manner. This assumption is consistent with In re Simmons, 765 F.2d 547, 551 (5th Cir.1985) which recognized that under Code § 502(a) a claim as filed is presumptively valid unless a party in interest submits an objection. As indicated, the trustee contended in the trial court that FFMC was only entitled to the arrearage amount listed in the confirmed plan. Local Rule 2 () provided that she should pay the lesser of the claim or the amount contained in the confirmed plan. We find that compliance with this local rule cannot justify the improper impairment of a secured claim. See In re Hill, 811 F.2d 484 (9th Cir.1987) (). We also note that the initial notice sent to all creditors did not advise FFMC and other creditors that the confirmation process would be the final word in any conflicts between allowed claims and amounts provided for in the proposed plan.
Moreover, we do not believe that FFMC may be imputed with notice that the debtor intended to lodge, through its proposed plan, an objection to the FFMC claim.3 This is not a situation where a creditor is on inquiry notice of a bankruptcy petition and consequently is obliged to investigate outstanding matters or deadlines of general applicability to all creditors. E.g., In re Coastal Alaska Lines, Inc., 920 F.2d 1428 (9th Cir.1990) (); In re Price, 871 F.2d 97 (9th Cir. 1989) (); Matter of Gregory, 705 F.2d 1118 (9th Cir. 1983) ().
A creditor who is aware that a bankruptcy petition has been filed is not necessarily put on inquiry notice about every matter brought before the court. See In re Coastal Alaska Lines, Inc., 920 F.2d at 1431 (discussing In re Barsky, 85 B.R. 550 (C.D.Cal.1988)). In Barsky, the bankruptcy court held that a creditor listed on the bankruptcy schedules who did not receive actual notice of the claims bar date as required by the Bankruptcy Rules was not put on inquiry notice of the deadline. The court found that such a creditor should be able to assume that he will "receive all of the notices required by statute before his claim is forever barred." Id. at 553, New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 297, 73 S.Ct. 299, 301, 97 L.Ed. 333 (1953). Similarly, FFMC had a right to expect that if the debtor wished to object to its claim for arrearages, the debtor would file, in accordance with the Bankruptcy Rules, a written objection with notice of a hearing on the matter. Because the FFMC claim was compromised without the requisite notice, FFMC was deprived of its constitutionally protected right of due process.
Confirmed plans are normally considered final and binding pursuant to Code § 1327(a).4 However, the plan that was confirmed here was fatally defective in its arbitrary reduction of FFMC's secured arrearage claim. We do not believe the need for finality of confirmed plans extends to circumstances present in this case: where a debtor misuses, whether or not intentionally, the plan confirmation process to reduce a valid claim without the requisite notice and opportunity to be heard. In any event, § 502(a) is the statutory provision which specifically governs questions of claims allowance and, consequently, should control over the more general policy considerations embodied in § 1327(a). See Green v. Bock Laundry Machine Co., 490 U.S. 504, 524, 109 S.Ct. 1981, 1992, 104 L.Ed.2d 557 (1989) ().
The confirmed Chapter 13 plan violated due process by reducing FFMC's secured claim without notice and hearing as required under Bankruptcy Rules 3007 and 9014. Accordingly, we REVERSE the trial court's order refusing to allow FFMC's claim for the full amount of the unpaid arrearages.
The issue, as stated in the majority opinion, is whether appellant's due process rights were violated when its secured claim was reduced by the confirmed Chapter 13 plan. Framing the issue in such a manner assumes that the effect of confirmation was to reduce the secured claim. Since I disagree that the allowed secured claim was reduced as a result of confirmation, I would not reach the constitutional question of whether due process rights were violated. On appeal, courts should avoid passing upon a constitutional question if there is an alternative basis for determining the case. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J. concurring); In re American Bicycle Association, 895 F.2d 1277, 1279 (9th Cir.1990); In re Brown Family Farms, Inc., 872 F.2d 139, 142 (6th Cir.1989).
The issue is whether the court erred in denying the creditor's motion for an order allowing the secured claim....
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