Mutual Guaranty cites Matter of Tarnow, 749 F.2d 464 (7th Cir. 1984) as the controlling case law on point in this jurisdiction. However, Tarnow arose solely in the context of proof of claim litigation and extinguishment of a lien for failure to file a timely claim.In re Henderberg, 108 B.R. 407, 413 (Bankr.N.D.N.Y. 1989). In the case at bar we have an active creditor, represented by competent counsel, that filed a written acceptance to a plan that extinguished its lien with the plan being confirmed by the court with no objection or appeal of the court's order.
1987) (section 1141 plan was res judicata even if based on erroneous interpretation of the law); In re Arctic Ents., 68 B.R. 71, 79-80 (Bankr.D.Minn. 1986) (section 1141 plan precludes assertion of lien not recognized in plan); In re Henderberg, 108 B.R. 407, 411-14 (Bankr.N.D.N.Y. 1989) (section 1141 plan precludes later contest of the priority status of claims dealt with in the plan). These cases tend to support CTI's position, since they establish that a plan of reorganization is binding on creditors even if it is legally erroneous.
If the debtor fails to make payments to creditors according to the terms of a confirmed plan, the creditors' remedy "is to enforce the obligations contained in the confirmed plan[,]" rather than revive the original, pre-petition debt. Metex , 510 B.R. at 742 (internal quotation marks omitted); see alsoIn re Conston, Inc., 181 B.R. 769, 772โ73 (D. Del. 1995) (stating that "the creditor can enforce only those pre-confirmation claims found in the confirmed plan and ... only in the manner and amount specified in the confirmed plan."); In re Henderberg, 108 B.R. 407, 412 (Bankr. N.D.N.Y. 1989) ("[A] confirmed [c]hapter 11 plan defines the creditors' claims and any pre-confirmation rights of the creditors exist only to the extent that they are accounted for in the plan.").In this case, Debtor agreed to pay Appellant in conformity with the 2016 Modified Plan which reflected modified mortgage terms for all six mortgage notes but did not purport to discharge Debtor's personal liability.
In re Circle K Corp., 198 B.R. 784 (Bankr.D.Ariz. 1996); In re Poplar Run Five Ltd. Partnership, 192 B.R. 848 (Bankr.E.D.Va. 1995); In re Bowen, 174 B.R. 840 (Bankr.S.D.Ga. 1994); In re Grimm, 168 B.R. 102 (Bankr.E.D.Va. 1994); In re Henderberg, 108 B.R. 407 (Bankr.N.D.N.Y. 1989); 5 Collier on Bankruptcy ยง 1141.01[1] (15th ed. 1996). "Once a plan is confirmed, neither a debtor nor a creditor can assert rights that are inconsistent with its provisions."
See also In re W.F. Monroe Cigar, Co. 166 B.R. 110, 112 (N.D.Ill. 1994) ("Therefore, pursuant to ยง 1141, once a plan under Chapter 11 is confirmed, a creditor can no longer enforce its pre-Chapter 11 lien rights, but is limited to the rights granted in the plan."); In re Henderberg, 108 B.R. 407, 412 (Bankr.N.D.N.Y. 1989) ("[A] confirmed Chapter 11 plan defines the creditors' claims and any pre-confirmation rights of the creditors exist only to the extent that they are accounted for in the plan.") Therefore, the crucial question in this case is what effect the plan had on HDP's security interest.
If a party has any doubt about the treatment of its claim, it is the responsibility of that party to raise its question by timely filing an objection to the plan. In re Henderberg, 108 B.R. 407, 414-15 (Bankr.N.D.N.Y.1989); In re The Sassi Corp., 51 B.R. 534, 542 (Bankr.S.D.Ind.1983). Thus, the allegations of Council's complaint, and its request for a declaration, that it is entitled to treatment as a Class 3 Creditor under the Plan are not deficient. Council is entitled to have the court determine the merits of their allegations and that request.
See Palomar v. First Am. Bank (In re Palomar), 722 F.3d 992, 994 (7th Cir. Ill. 2013) (declining to strip off wholly unsecured mortgage lien in chapter 7 using ยง 506(d) when creditor did not file proof of claim); In re Tarnow, 749 F.2d 464, 467 (7th Cir. 1984) ("[I]n 1984 Congress enacted a new section 506(d)(2) . . . . Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. 93-353, ยง 448(b), 98 Stat. 374. The change was intended "to make clear that the failure of the secured creditor to file a proof of claim is not a basis for avoiding the lien of the secured creditor." S.Rep. No. 65, 98th Cong., 1st Sess. 79 (1983)); In re Henderberg, 108 B.R. 407, 413 (Bankr. N.D.N.Y. 1989) ("[Section] 506(d)(2) . . . clearly mandates that the failure of a creditor to file a proof of claim does not affect its pre-petition lien."). Furthermore, proofs of claims in chapter 7 cases are generally not filed unless or until creditors receive notice that payment of a dividend appears possible.
To permit Debtors to solicit acceptance of their Plan on that representation [to be paid in full], and then argue that because of . . . a provision permitting Debtors to object to all claims within sixty days after confirmation that Rome's claim may now be bifurcated, is violative of basic principles of contract and bankruptcy law favoring fairness, certainty and finality.In re Henderberg, 108 B.R. 407, 415-416 (Bkrtcy.N.D.N.Y. 1989). Moulton more than likely accepted the plan and chose not to appeal the confirmation order because of its treatment as a secured creditor, at least to the amount of $820,000.
Unless no discharge has been granted at confirmation, once a plan under chapter 11 is confirmed, a creditor can no longer enforce its prepetition, pre-conversion, chapter 11 claims, but rather is limited to the rights granted to it under the plan. 11 U.S.C. ยง 1141(a)(1994); see generally In re Benjamin Coal Co., 978 F.2d at 826, 827; Brooks Fashion Stores, Inc. v. Michigan Employment Sec. Comm'n (In re Brooks Fashion Stores, Inc.), 124 B.R. 436, 445 (Bankr.S.D.N.Y. 1991); see also In re WF Monroe Cigar Co., 166 B.R. 110, 112 (N.D.Ill. 1994) (lien rights); In re Henderberg, 108 B.R. 407, 412 (Bankr.N.D.N.Y. 1989). As indicated earlier in this decision, this plan provided for the discharge of debt upon its payment under the plan, which payments were not made. Thus, no discharge was granted in the order of confirmation.
Therefor, pursuant to section 1141, confirmation of the plan operated to extinguish the Claimant's lien.See Minstar, Inc. v. Plastech Research, Inc. (In re Arctic Enters., Inc.), 68 B.R. 71 (D.Minn. 1986) ("claims and interests" includes creditor's lien); In re Henderberg, 108 B.R. 407 (Bankr.N.D.N.Y. 1989); In re Fischer, 91 B.R. 55 (Bankr.D.Minn. 1988); General Elec. Credit Corp. v. Nardulli Sons Co., Inc. (In re Nardulli Sons Co., Inc.), 66 B.R. 871 (Bankr.W.D.Pa. 1986), rev'd on other grounds, 836 F.2d 184 (3d Cir. 1988) (circuit court found plan expressly acknowledged continued existence of creditors' security interest); Pennsylvania Iron Coal Co., Inc. v. Good (In re Pennsylvania Iron Coal Co., Inc.), 56 B.R. 492, 495 (Bankr.S.D.Ohio 1985); Board of County Comm'rs of Saline County, Kansas v. Coleman Am. Properties, Inc. (In re American Properties, Inc.), 30 B.R. 239, 246 (Bankr.D.Kan. 1983) (after confirmation of chapter 11 plan, creditor's only lien rights are those granted in confirmed plan).