Matter of Abercrombie, Bankruptcy No. 83-00782A.

• Decision Date: 18 April 1984
• Docket Number: Bankruptcy No. 83-00782A.
• Citation: 39 BR 178
• Parties: In the Matter of James A. ABERCROMBIE, Debtor.
• Court: U.S. Bankruptcy Court — Northern District of Georgia

39 B.R. 178 (1984)

In the Matter of James A. ABERCROMBIE, Debtor.

Bankruptcy No. 83-00782A.

United States Bankruptcy Court, N.D. Georgia, Atlanta Division.

April 18, 1984.

John W. Mrosek, Clark & Smith, Atlanta, Ga., for debtor.

John G. McCullough, Wilkinson & McCullough, Atlanta, Ga., for G.M.A.C.

ORDER

WILLIAM L. NORTON, Jr., Bankruptcy Judge.

The above and foregoing matter came on before this court for hearing on March 1, 1984, on the debtor's objection to the proof of claim of General Motors Acceptance Corporation (GMAC) and the debtor's motion to modify his Chapter 13 plan. Present at the hearing were counsel for the debtor and GMAC.

The facts relative to the matters pending before the court are as follows:

On February 22, 1983, the debtor filed his petition under Chapter 13 of the Bankruptcy Code. A short time before filing the petition, GMAC had repossessed the debtor's 1981 Chevrolet pickup truck on the grounds that the debtor had failed to make the contract payments on time. After filing his petition, the debtor filed a motion seeking a turnover of the vehicle, in response to which GMAC filed a complaint for relief from the stay requesting that it be allowed to dispose of its collateral. GMAC also filed an objection to confirmation of the proposed plan. The Chapter 13 plan as proposed provided for payments to the trustee of $675.00 per month and that all creditors, secured and unsecured, be paid in full.

On May 23, 1984, this court held a short hearing on the debtor's turnover motion and GMAC's complaint for relief from the stay. It deferred ruling on those matters until June 16, 1983, that being the scheduled confirmation hearing, subject to the debtor making a plan payment to the trustee which was in default. At the hearing held on June 16, 1983, this court heard evidence from the debtor and GMAC on confirmation of the plan and the issues involved in other proceedings. After consideration of the issues, the court found that GMAC's secured claim in the full amount of the debt would be adequately protected by the value of the collateral and the proposed plan to be confirmed that day, granted the debtor's request for a turnover and denied relief from the stay, subject to the debtor paying to the trustee the additional sum of $2,000.00, the amount of arrearage. The debtor made the $2,000.00 payment to the trustee, the plan was confirmed, and GMAC's collateral was turned over to the debtor.

Thereafter, the debtor again defaulted in plan payments. GMAC sought a further hearing on its complaint for relief from the stay. A hearing was held on January 24, 1984, at which the court found that the debtor was approximately $3,500.00 in arrears on plan payments. The court expressly found that good cause, including a lack of adequate protection, existed for granting relief from the stay to GMAC. The stay was lifted and GMAC took possession of its collateral and is now in the process of liquidating it.

The issue concerning the debtor's objection to GMAC's proof of claim which was allowed as fully secured and his proposed modification of the confirmed plan centers on whether the debtor can now, post-confirmation, change the status of an allowed secured claim to an unsecured claim. Debtor shows and GMAC agrees that when the vehicle is sold by GMAC as is planned, the sales proceeds will be less than the debt, i.e., the allowed secured claim. GMAC argues that the value of the vehicle will not be known...