KLEIN, Bankruptcy Judge, concurring in part and dissenting in part:

I join the majority in the conclusions that a chapter 13 debtor is liable for postpetition interest on a nondischargeable student loan, that the debt was not "paid in full" as a matter of fact or law regardless of what the chapter 13 plan says, that the omission of reference to unmatured interest in the proof of claim was not a waiver, and that the bankruptcy court erred when it confirmed a chapter 13 plan that purported to discharge a nondischargeable debt.

I respectfully dissent from the affirmance of the bankruptcy court's injunction that prohibits appellant ("Great Lakes") from collecting the illegally discharged nondischargeable debt, including offsets from income tax refunds, and that orders Great Lakes to inform governmental agencies and credit bureaus that the loan was "paid in full" even though we are unanimous that it was not paid in full.

I believe that: (1) the chapter 13 plan provision purporting to discharge a nondischargeable debt is unenforceable; and (2) the bankruptcy court exceeded its § 105 jurisdiction to issue orders "necessary or appropriate" to carry out the Bankruptcy Code when it issued an injunction to enforce a chapter 13 plan provision that plainly violates the Bankruptcy Code.

An affirmance in this appeal would license ambushes and would function as judicial legislation substituting our judgment for that of Congress by enacting a new exception to the student loan nondischargeability provision at § 523(a)(8) and by repealing part of § 1328(a)(2). The debtors still have available the remedy of discharging the balance of the student loan by way of an adversary proceeding to establish that paying the loan balance would be an "undue hardship" under § 523(a)(8). We should not relieve them of the statutory burden to demonstrate undue hardship in order to be excused from paying the debt.

I.

While I join with the majority in concluding that interest continues to accrue postpetition on nondischargeable debt, I think it appropriate to set forth a straightforward explanation of how the seamless web of the Bankruptcy Code mandates that result.

The nub of the matter is that interest at contractual rates under nonbankruptcy law continues to accrue postpetition on all unsecured debt because, even though unmatured interest is not "allowed" by virtue of § 502(b)(9) and cannot be paid by a bankruptcy trustee, the statutory disallowance does not erase the nonbankruptcy obligation to pay interest. Rather, it is the bankruptcy discharge that eliminates the obligation. If the debt is not discharged (which can occur for a host of reasons ranging from denial of discharge to dismissal of case), then the obligation remains.

A

Under the Bankruptcy Act of 1898, it was settled that interest on a nondischargeable debt was itself nondischargeable because such interest was "an integral part of a continuing debt" that, as it matures, becomes part of the debt itself. Bruning v. United States, 376 U.S. 358, 360, 84 S.Ct. 906, 907-08, 11 L.Ed.2d 772 (1964) (9-0 decision).

Bruning involved postpetition interest on nondischargeable tax debt in a bankruptcy liquidation. The taxpayer-debtor argued that the judicially-imposed bar on payment of postpetition interest by the estate established by Sexton v. Dreyfus, 219 U.S. 339, 31 S.Ct. 256, 55 L.Ed. 244 (1911), applied to preclude postpetition interest on an underlying tax debt that was not discharged. As the majority explains, the dispositive distinction was the difference between the bankruptcy estate and the debtor individually. The debtor is liable, the estate is not.

I agree with the majority that Bruning survived the enactment of the Bankruptcy Code in 1978. Congress codified Sexton when it provided that a debt for unmatured interest is a "claim" but not an "allowed claim" and, hence, is ineligible for distribution from a chapter 7 estate. 11 U.S.C. § 101(5), 502(b)(2), 726(a). An individual's discharge encompasses all debts, regardless of whether the claim is "allowed" or not, except those that are explicitly excepted from discharge. Id. §§ 727(b), 1141(d), 1228(a), 1328(a). Nothing in this statutory construct is inconsistent with continued application of the Bruning rule to all nondischargeable debts.

B.

One argument raised by the debtors warrants more detailed analysis than appears in the majority opinion.

The debtor, noting correctly that postpetition interest is not paid on priority tax claims in chapter 13, incorrectly concludes that Bruning must have been statutorily overruled by the Bankruptcy Code.

The reason that chapter 13 debtors can ignore postpetition interest on priority taxes is that the underlying tax debts are discharged in chapter 13. The overall statutory scheme in which that result was accomplished preserved the vitality of Bruning.

The manner in which the post-1978 statutory scheme incorporates the Bruning rule is best understood by using the prism of 11 U.S.C. § 1322 to examine the spectrum of chapter 13's treatment of postpetition interest on: (1) priority debts that can be discharged in chapter 13 but not in chapter 7; (2) priority debts that cannot be discharged in chapter 13; and (3) nonpriority debts that cannot be discharged in chapter 13.

1

Priority debts that can be discharged in chapter 13 but not in chapter 7 represent one end of the spectrum. These debts, which include priority tax debts, are paid in full under the chapter 13 plan. Although interest permitted by nonbankruptcy law accrues postpetition, such interest is not an allowed claim that is required to be paid through a plan and is discharged if (and only if) the debtor completes all payments under the plan.

A chapter 13 plan must provide for full payment in deferred cash payments of all priority claims as defined by § 507 unless a particular claimant agrees to different treatment. 11 U.S.C. § 1322(a)(2).

The deferred cash payments need only total the face amount of the claim because § 1322 does not require that the priority creditor receive the "value" of the claim. In other words, under § 1322 the sufficiency of the payments is measured by the sum of the stream of payments rather than by the net present value of the stream of payments. Compare 11 U.S.C. § 1129(a)(9)(C) (chapter 11), with 11 U.S.C. § 1322(a)(2) (chapter 13); see 15 LAWRENCE P. KING ET AL., COLLIER ON BANKRUPTCY ¶ TX4.05[3] (15th ed. rev. 1997).

After the debtor makes all the payments required by the chapter 13 plan, the debtor receives a so-called "superdischarge" that eliminates all chapter 7 nondischargeable debt except alimony and support, student loans, drunk driving liabilities, and criminal fines and restitution. 11 U.S.C. § 1328(a).

A conundrum arises at this juncture. If, as must be the case, the § 507 priority debt has already been paid in full under the plan, then what is left for the superdischarge to accomplish? The answer is that the superdischarge eliminates any residual liability with respect to the debt, including postpetition interest that accrued under nonbankruptcy law.

All of these consequences, however, are conditional upon actual completion of payments under the plan. If all payments required by the chapter 13 plan are not made, then the best the debtor can do is to obtain a § 1328(c) so-called "hardship discharge" that does not discharge any chapter 7 nondischargeable debt. 11 U.S.C. § 1328(c).

If the debtor receives only the § 1328(c) hardship discharge (or if the case is dismissed or converted to chapter 7), then the priority debt that is nondischargeable in chapter 7 has the same status as it would have had under chapter 7. Any portion of the debt as of the date of filing that remains unpaid is not discharged, and, under the Bruning doctrine, interest accruing postpetition is not discharged.

Thus, whether a debtor is discharged of any residual liability for postpetition interest on a § 507 priority debt that is nondischargeable in chapter 7 but that can be discharged in chapter 13 depends upon whether the plan payments are actually completed. Since the discharge status of accruing postpetition interest depends upon subsequent events, whether the debtor will actually turn out to be liable for postpetition interest cannot be known in advance.

This category of debts includes priority tax debt because the definition of priority tax debt under § 507(a)(8) mirrors the tax nondischargeability provision at § 523(a)(1). And tax debts that are nondischargeable in chapter 7 under § 523(a)(1) are discharged by the § 1328(a) superdischarge but not by the § 1328(c) hardship discharge.

This leads to the conclusion that the debtors' assertion that postpetition interest is not paid on priority tax debts is based on a flawed view of the law. Rather, interest prescribed by nonbankruptcy law does accrue postpetition on priority tax debts, but such interest need not be paid under a chapter 13 plan, and it is discharged if, and only if, payments under the plan are completed so that a § 1328(a) superdischarge issues. If plan payments are not completed, then postpetition interest is not discharged by the § 1328(c) hardship discharge because the tax debt is nondischargeable under § 523(a)(1).

2

Priority debts that cannot be discharged in chapter 13, including alimony and support debts, occupy the middle of the spectrum.

As § 507 priority debts, they must be paid the full amount of the claims as of the time of bankruptcy in deferred cash payments. 11 U.S.C. § 1322(a). And they are nondischargeable in chapter 13 to the same extent as in chapter 7 because they are explicit exceptions to the chapter 13 superdischarge. 11 U.S.C. § 1328(a).

Interest provided by nonbankruptcy law continues to accrue postpetition on these priority debts (as it does on all debts). Since this category of priority debts cannot be discharged in chapter 13, any interest mandated by nonbankruptcy law is similarly nondischargeable.

The debts that qualify for such treatment are alimony and support debts that are owed under nonbankruptcy law directly to a spouse, former spouse, or child for alimony, maintenance, or support and that have not been assigned to another entity. Such debts became priority claims under § 507(a)(7) pursuant to a 1994 amendment to the Bankruptcy Code.

3

The third category consists of debts that are not § 507 priority debts but that are nondischargeable in chapter 13.

Student loans are in this category, as are alimony and support debts that have been assigned to governmental entities, drunk driving tort debts, and criminal restitution and fines. 11 U.S.C. § 523(a)(5), (8)-(9) § 1328(a).

The absence of priority status means that such debts need not be paid in full in deferred cash payments under the plan. Nevertheless, they are nondischargeable under all forms of chapter 13 discharges.

It follows from the preceding analysis that, to the extent that any interest is permitted by nonbankruptcy law, interest accrues postpetition on nondischargeable debts and is similarly nondischargeable under the Bruning doctrine.

Thus, the fact that postpetition interest on priority tax debt is discharged if the debtor completes all payments under the chapter 13 plan is fully consistent with the continuing vitality of Bruning within the chapter 13 scheme.

C

When the bankruptcy court found that the statutory disallowance of claims for unmatured interest that is mandated by § 502(b)(2) exonerates the debtors from postpetition interest, the trial court confused the concept of claim allowance with the concept of liability for the underlying debt and, further, confused disallowance of a claim with discharge of a debt.

1

The term "claim" is defined in the broadest possible manner to encompass all rights to payment, including rights that are contingent, unmatured, disputed, or derived from rights to an equitable remedy. 11 U.S.C. § 101(5). The term "debt" is defined to mean "liability on a claim." 11 U.S.C. § 101(12). And, by extension, debt means liability both on an allowed claim and on a claim that is not allowed.

a

Whether payment on a claim will be made in a bankruptcy case often depends upon whether the claim is "allowed." In chapter 7 liquidations, disallowance precludes payment from the estate because trustees are not authorized to make distributions on claims that are not allowed. 11 U.S.C. § 726(a)(2)-(5). In chapters 11, 12, and 13, holders of allowed claims have more leverage than mere holders of claims because the respective best interests tests are keyed to allowed claims. 11 U.S.C. § 1129(a)(7)(B), 1225(a)(4)-(5) 1325(a)(4)-(5).

b

The effect of a claim being "disallowed" is ambiguous. Disallowance does not necessarily mean that the claim is invalid under nonbankruptcy law.

To be sure, the form of disallowance that usually is the subject of contested litigation in bankruptcy court is that the claim is unenforceable against the debtor or estate under nonbankruptcy law. 11 U.S.C. § 502(b)(1).

But many claims that are enforceable under nonbankruptcy law are disallowed under § 502, which reflects an amalgam of policy determinations by Congress that are embodied in ten enumerated categories. 11 U.S.C. § 502(b)(2)-(9), (d) (e).

Unmatured interest is disallowed. 11 U.S.C. § 502(b)(2). So are lease termination damages and employment contract termination damages above specified caps. 11 U.S.C. § 502(b)(6)-(7).

Every claim of an entity that is a transferee of an avoidable transfer, such as a preference, or that holds property that should be turned over to the trustee is automatically disallowed until the property is turned over or the liability is paid in full. 11 U.S.C. § 502(d); In re Sierra-Cal, 210 B.R. 168 (Bankr.E.D.Cal. 1997).

Unless it is also unenforceable under nonbankruptcy law, the disallowed claim retains its status as a "claim," even though it cannot be an "allowed claim." The consequence of not being an allowed claim varies from chapter to chapter of the Bankruptcy Code.

Claims that are not allowed are ineligible to participate in distributions from a chapter 7 liquidation estate. In contrast, disallowed claims are not automatically disqualified from payment in chapter 11, 12, or 13 plans that are proposed in good faith. Every such plan must pass all applicable confirmation standards, such as the "best-interests" tests that are keyed to whether holders of "allowed claims" are receiving at least as much as they would receive in a chapter 7 liquidation. 11 U.S.C. § 1129(a)(7)(A)(ii), 1225(a)(4), 1325(a)(4).

Nothing in chapter 13 absolutely forbids payment of a disallowed claim. The term "allowed claim" does not appear in § 1322, which specifies what provisions may be included in plans regarding payment of claims, even though the term "claim" appears twenty times in that section. That this is no mere oversight by Congress is evident from the protection it expressly gave to the holder of an allowed unsecured claim in the form of the power to object to confirmation, thereby forcing either full payment of the objecting allowed unsecured claim or the use of all projected disposable income for plan payments. 11 U.S.C. § 1325(b)(1).

There is at least one circumstance in which unmatured interest is plainly permitted to be paid under a chapter 13 plan. When the last payment on a secured or unsecured obligation is due after the date of the final payment under the chapter 13 plan, the plan may provide for curing any default in that obligation within a reasonable time and maintaining payments while the case is pending. 11 U.S.C. § 1322(b)(5). If the obligation includes interest, then the ability to cure a default and maintain payments necessarily permits payment of interest that was unmatured as of the time of filing.

2

The real reason that creditors are not ordinarily paid unmatured interest is that the discharge eliminates the interest obligation. The disallowance of the claim, when it prevents payment, merely adds insult to the injury. Each chapter has its own discharge provisions, the terms of which must be consulted to determine whether the specific debt is discharged. 11 U.S.C. § 727(b), 1141(d), 1228(a)-(c), 1328(a)-(c).

The debtors in this instance received the chapter 13 "superdischarge" that is available only if all the plan payments are actually made. They were discharged from:

all debts provided for by the plan or disallowed under section 502 of this title, except any debt — (1) provided for under section 1322(b)(5) of this title; (2) of the kind specified in paragraph (5), (8), or (9) of section 523(a) of this title; or (3) for restitution, or a criminal fine, included in a sentence on the debtor's conviction of a crime.

11 U.S.C. § 1328(a) (emphasis supplied).

This discharge under § 1328(a) does not discharge postpetition interest on the student loan debt because, although disallowed under § 502 as unmatured interest, it is part of an obligation of the kind specified in § 523(a)(8) that is excepted from discharge.

Hence, postpetition interest on a nondischargeable student loan debt in chapter 13 is similarly nondischargeable.

D

The trial court's conclusion that the claim was "paid in full" under the plan because Great Lakes received all of the principal and prepetition interest that was owed begs the question of whether postpetition interest is a claim.

The trial court was following the only reported decision that supports the debtors' position, In re Wasson, 152 B.R. 639 (Bankr. D.N.M. 1993), which contains dictum that the Bruning rule does not apply to student loan debts that are fully paid in the chapter 13 plan.

I agree with the majority that it was error to rely on the Wasson dictum, which confuses the disallowance of unmatured interest and the accrual of interest on a nondischargeable debt.

And I see an even more fundamental flaw in Wasson that emerges when one parses § 1328(a). Wasson analogizes student loans to priority taxes and reasons that because postpetition interest on priority tax debts is discharged in chapter 13 "it logically follows that Bruning should not apply to student loan debts which are fully paid out of the estate." Wasson, 152 B.R. at 642. The fallacy in this lies in the false premise that both types of debts are dischargeable. Priority tax debts are discharged under § 1328(a) but student loan debts are not.

In 1978, the proponents of discharging student loans fought and lost the battle to block what became § 523(a)(8). In short, Congress has settled the issue in a manner that does not leave room for judicial legislation.

II

I respectfully dissent from the majority's conclusion that the injunction issued by the bankruptcy court, even though predicated upon a substantive error about which we are unanimous, should stand. I would reverse on several theories.

In my view, the majority's analysis about the binding effect of the plan under § 1327(a) confuses the concept of a binding plan provision with the concept of a discharge and proves too much. I do not think that § 1327(a) can be used to discharge a debt that is expressly nondischargeable under § 1328(a)(2). Nor do I agree that Great Lakes waived any rights in the circumstances of the case in which the procedural posture (both below and here) requires the presumption that repaying the $6,096 would merely be inconvenient and not an "undue hardship" under § 523(a)(8).

Moreover, the majority incorrectly applies the doctrine of res judicata to preclude a direct attack on the offending order and, in any event, does not recognize that the order confirming the chapter 13 plan is in all pertinent respects either void or too defective to support the issuance of a § 105 injunction.

A

The majority's res judicata analysis is premised on the mistaken assumption that Great Lakes was making a collateral attack on the order confirming the chapter 13 plan when it defended against the debtors' motion for an injunction. Great Lakes was making a direct attack.

The distinction between collateral attack and direct attack matters because res judicata bars a collateral attack on a final judgment but does not bar a direct attack on a final judgment. Watts v. Pinckney, 752 F.2d 406, 410 (9th Cir. 1985). I construe Great Lakes' defense to have been a direct attack premised on lack of jurisdiction as to which res judicata is not a bar.

1

Great Lakes filed an opposition to the debtors' motion for an injunction enforcing the discharge in which it took the position that the only possible way for the debt to be discharged would be to prosecute an adversary proceeding for a determination that paying the debt would constitute an "undue hardship" as prescribed by § 523(a)(8)(B).

In a nutshell, Great Lakes was contending that the order confirming the chapter 13 plan could not possibly have functioned to discharge the debt for the interest that matured postpetition because the Bankruptcy Code prohibits such a result and mandates that the sole method of discharging a student loan be under the narrow conditions prescribed at § 523(a)(8).

In a functional sense, Great Lakes' position was that the order confirming the chapter 13 plan was void to the extent it ordered something that the court did not have the jurisdiction to do. If Great Lakes' opposition had been elegant, it would have included a countermotion for relief from judgment or order pursuant to Federal Rule of Civil Procedure 60(b)(4), as incorporated by Federal Rule of Bankruptcy Procedure 9024. Nevertheless, I believe that the court should have construed the opposition as a Rule 60(b)(4) motion. See Fed.R.Bankr.P. 1001.

In short, Great Lakes was contending that the order ought to be either adjusted to expunge the offending provision or declared to be void in that respect and unworthy of enforcement.

This was a direct attack on the judgment, not a collateral attack:

A direct attack on a judicial proceeding is an attempt to correct it, or to void it, in some manner provided by law to accomplish that object. It is an attack . . . by appropriate proceedings between the parties to it seeking, for sufficient cause alleged, to have it annulled, reversed, vacated, or declared void.

Watts, 752 F.2d at 410, quoting 1B J. MOORE, MOORE'S FEDERAL PRACTICE ¶ 0.407, at 282 n. 1 (1984) (ellipsis in original).

2

The primary cases relied upon by the majority in the res judicata analysis confirm that we are here confronted with a direct attack and not a collateral attack.

Stoll was plainly a collateral attack. In that case under the former Bankruptcy Act, the federal district court sitting in bankruptcy confirmed a plan in a reorganization under Bankruptcy Act § 77B that purported to cancel bond guarantees that had been made to one Gottlieb by third parties. Stoll v. Gottlieb, 305 U.S. 165, 59 S.Ct. 134, 83 L.Ed. 104 (1938).

Gottlieb, who had not participated in the confirmation process, filed a motion in the district court to vacate or modify the order of confirmation on the ground of lack of jurisdiction, which motion was denied and not appealed. This was a direct attack that entailed actual litigation that Gottlieb thereafter allowed to become final by not taking an appeal.

Instead of pursuing his direct attack by way of appeal, Gottlieb launched a collateral attack by filing a state-court action on the bond guarantees. The collateral attack wended its way through the state courts and ultimately reached the U.S. Supreme Court on certiorari to the state supreme court. The U.S. Supreme Court held that the district court's adverse ruling in the direct attack had become final when it was not appealed and that the state-court action was an impermissible collateral attack.

The teaching of Stoll is that when a jurisdictional question is actually litigated and decided, the determination is binding and functions as res judicata to prevent collateral attack in litigation in other forums. The decision says nothing about what would have happened if Gottlieb had pursued his direct attack. See RESTATEMENT (SECOND) OF JUDGMENTS § 12 cmt. c (1982) (discussing Stoll); 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE PROCEDURE: CIVIL 2D § 2862 (1995).

The key corollary of Stoll is that the res judicata effect of a tribunal's determination of its own competency does not preclude all forms of review of that determination, i.e. direct attack. As explained in the Restatement's discussion of Stoll, "there is virtually always available a procedure by which to obtain review of the original tribunal's determination of the issue, either by appeal or by injunction or extraordinary writ." RESTATEMENT (SECOND) OF JUDGMENTS § 12 cmt. c.

In contrast, Great Lakes did not contest confirmation, did not litigate the question of jurisdiction in a motion for subsequent relief and then decline to appeal from the adverse ruling, and did not initiate collateral attack in any other court. When the dispute did make its way to court, it was in the very same bankruptcy court that had confirmed the offending plan. And the proceeding was very different — an action by the debtors to obtain an injunction under § 105, a necessary feature of which was the obligation by the court to assure that there was jurisdiction to have entered the original order in the first place. We are now dealing with a timely appeal from that injunction. Thus, Great Lakes is effectively in the same posture as Gottlieb would have been if Gottlieb had timely appealed from the adverse ruling on his motion. Celotex v. Edwards, 514 U.S. 300, 313, 115 S.Ct. 1493, 1501, 131 L.Ed.2d 403 (1995), has essentially the same message as Stoll about the necessity of orderly federal review by way of direct attack beginning with the court that issued the initial judgment. In that case, a bankruptcy court in the Eleventh Circuit issued a § 105 injunction forbidding efforts to collect on appeal bonds obtained by the debtor before bankruptcy. A district court in the Fifth Circuit ruled that the injunction did not preclude the particular action before it. The Supreme Court held that the § 105 injunction was binding unless and until it was reversed or modified by orderly processes within the Eleventh Circuit and that a collateral attack in the Fifth Circuit would not be permitted. Although the Supreme Court discusses the need to have appealed the bankruptcy court's injunction, a key point is that there remained available a perfectly good avenue of direct attack by way of asking the bankruptcy court that issued the injunction to modify it.

In contrast, Great Lakes litigated the § 105 injunction in the same bankruptcy court that had confirmed the offending chapter 13 plan and is now, before us, prosecuting a timely appeal from the injunction. The bankruptcy court had an obligation to own up to its original error and decline to compound its error by issuing an injunction.

The majority also relies on the Fifth Circuit's decision in Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1049-50 (5th Cir. 1987), which invoked res judicata to bar a nonobjecting creditor from suing a third-party guarantor who was to be released pursuant to the terms of a confirmed plan. Not only does Shoaf involve a collateral attack on the same model as Stoll and Celotex instead of a direct attack, but the Fifth Circuit has a line of cases that significantly circumscribe Shoaf. Internal Revenue Serv. v. Taylor (In re Taylor), 132 F.3d 256 (5th Cir. 1998); Boyle Mortgage Co. v. Cook (In re Cook), No. 93-7459 (5th Cir. June 2, 1994) (unpublished); Sun Finance Co. v. Howard (In re Howard), 972 F.2d 639, 641 (5th Cir. 1992) (chapter 13 plan confirmation cannot compromise secured debt, notwithstanding res judicata); Simmons v. Savell (In re Simmons), 765 F.2d 547 (5th Cir. 1985).

It is also significant that Stoll, Celotex, and Shoaf all involved orders that were not plainly in violation of the applicable bankruptcy statute. In other words, none of them presented the question of a void judgment.

3

The law in the Ninth Circuit and elsewhere is that res judicata is inapplicable to direct attacks on judgments. Notwithstanding that an order is final and was not appealed, a litigant may make a direct attack under Rule 60(b) upon the judgment before that court that rendered the judgment. Watts, 752 F.2d at 410; Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975).

Great Lakes was making a direct attack on the order confirming the chapter 13 plan before the very court that rendered the order.

The nature of the direct attack was that there was a total want of jurisdiction due to the strict requirements of § 523(a)(8) and § 1328(a)(2).

Congress has prescribed strict requirements for discharging a student loan under § 523(a)(8) which require that it either be of a certain age (§ 523(a)(8)(A)) or be an "undue hardship" to repay (§ 523(a)(8)(B)) and has forbidden discharge under § 1328 (and §§ 1141(d)(2) and 1228(a)). Any disagreement about the discharge status must be resolved by way of adversary proceeding. Hence, there is a total want of jurisdiction to discharge a student loan debt by other means. See Watts, 752 F.2d at 409.

Since there is no other way to discharge a student loan debt, the order confirming the chapter 13 plan was void insofar as it purported to require the discharge of a student loan without compliance with the statutory requirements.

The analysis is identical to what would occur in other situations to which the majority's logic would prevent review. If the confirmed chapter 13 plan purported to discharge a fully-secured claim after a partial payment or if it purported to require the imprisonment of a creditor, nobody would think that the order was anything but void regardless of whether there was a timely appeal. Any such provision is too far removed from what Congress has permitted to be accomplished by way of the Bankruptcy Code. Watts, 752 F.2d at 409; 11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2862 (1995). So it is in this instance.

While it may be difficult to draw the line between a merely erroneous judgment and a void judgment, in my view, the bankruptcy court crossed the line from mere jurisdictional error to total lack of jurisdiction.

The Seventh Circuit recently reached the same result in a similar situation that we should follow. In re Escobedo, 28 F.3d 34 (7th Cir. 1994). The bankruptcy court confirmed an unopposed chapter 13 plan that did not provide for full payment of priority claims as required by § 1322(a)(5). Five years after confirmation and two years after the debtor's final plan payment, the trustee moved (in a direct attack that the majority misconstrues as a collateral attack) to require the debtor to modify the plan so as to comply with § 1322(a)(5) or to have the confirmation order vacated and the plan dismissed. When the debtor did not modify the plan, the bankruptcy court ordered dismissal.

In affirming the Escobedo dismissal, the Seventh Circuit held that the failure of the plan to comply with a mandatory statutory requirement for chapter 13 plans rendered "any supposed confirmation nugatory [i.e. void] and properly dismissed." Escobedo, 28 F.3d at 35. The res judicata doctrine was not applicable to the omitted priority claims. Although the analysis in Escobedo is somewhat sparse, its conclusion is squarely on target.

When Great Lakes defended on the basis that § 1328(a)(2) prohibited the discharge of a student loan debt without compliance with the "undue hardship" provision of § 523(a)(8), the bankruptcy court was obliged to exercise its authority under Rule 60(b)(4) to vacate the order confirming the chapter 13 plan to the extent it purports to discharge a nondischargeable debt. "A void judgment is a legal nullity and a court considering a motion to vacate has no discretion in determining whether it should be set aside." Watts, 752 F.2d at 410, quoting Jordon, 500 F.2d at 704; cf. Graziadei v. Graziadei (In re Graziadei), 32 F.3d 1408, 1410 (9th Cir. 1994); Escobedo, 28 F.3d at 35.

This warrants reversal.

B

Even if one discounts the distinction between direct and collateral attacks and does not view the offending portion of the order confirming the plan as void, we should reverse on the basis that the injunction in question exceeded the court's jurisdiction.

The narrow question before us in this appeal is whether we should affirm an injunction. Specifically, this is a timely appeal from an injunction that forces Great Lakes to refrain from collection activity, including attempts to offset income tax refunds, that requires it to inform governmental agencies and credit bureaus that the debt has been "paid in full" (falsely it turns out, because we are unanimous that the debt was not paid in full), and that requires it to pay the debtors' attorney's fees. In this context, the order confirming the chapter 13 plan is mere background.

1

We must be clear that the injunction that we are reviewing is not the discharge injunction provided by § 524(a)(2).

The discharge injunction follows only from the statutory discharges provided by the Bankruptcy Code — the § 1328(a) discharge in this instance. The § 1328(a) discharge unambiguously excludes student loans that are nondischargeable under § 523(a)(8). No plan provision ever discharges anything. And no plan provision, enforceable or not, can change the terms of the § 1328(a) discharge. The § 524 discharge injunction only applies to discharges that are authorized by the Bankruptcy Code.

Thus, the injunction must have been issued under the court's general equitable powers recognized at § 105.

2

The injunction was issued under § 105, which permits a bankruptcy court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions" of the Bankruptcy Code. 11 U.S.C. § 105(a). This reflects the understanding that bankruptcy courts are courts of equity that "have broad authority to modify creditor-debtor relationships." United States v. Energy Resources Co., 495 U.S. 545, 549, 110 S.Ct. 2139, 2142, 109 L.Ed.2d 580 (1990).

But § 105 has bounds. As a leading treatise notes, "it should be universally recognized that the power granted to the bankruptcy courts under section 105 is not boundless and should not be employed as a panacea for all ills confronted in the bankruptcy case." 1 Lawrence P. King et al., Collier on Bankruptcy ¶ 105.01[2], at 105-6-105-7 (15th ed. rev. 1997). These equitable powers can only be exercised within the confines of the Bankruptcy Code. Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206, 108 S.Ct. 963, 968, 99 L.Ed.2d 169 (1988). Bankruptcy courts cannot "create substantive rights that are otherwise unavailable," such as creating additional exceptions to student loan nondischargeability provisions, and they do not have a "roving commission to do equity." United States v. Sutton, 786 F.2d 1305, 1308 (5th Cir. 1986).

Applying the § 105 "necessary or appropriate" standard to the injunction directed against Great Lakes, it is plain that it is based on an impermissible plan provision. Enforcing a provision that is prohibited by the Bankruptcy Code is neither necessary nor appropriate to carry out the provisions of the Bankruptcy Code.

In consequence, the offending plan provision (if not outright void) remains on the books but, being ineligible for a § 105 injunction, has no way of being enforced. It should be regarded as merely sitting there, to be ignored as unenforceable, pathetic in its pretension.

The § 105 injunction should be reversed as beyond the authority of the bankruptcy court.

C

The majority holds that the "binding" clause § 1327(a) authorizes chapter 13 plans to include provisions that violate the Bankruptcy Code, which provisions become enforceable if a creditor does not object to the plan or appeal the confirmation order. It reasons, first, that res judicata requires that failure to object or appeal is a waiver of the right to collaterally attack the confirmed plan after confirmation and, second, that failure to object constitutes implied acceptance of the plan.

I do not agree, as a matter of statutory construction, that § 1327(a) trumps the more specific command of § 1328(a)(2).

Moreover, although I have already explained why this appeal involves a direct attack to which res judicata does not apply, there are also exceptions to res judicata that apply in the event it is regarded as a collateral attack. Similarly, implied acceptance is a troublesome and largely-discredited doctrine that does not apply to this case.

1

The analysis requires a brief review of some facts from the record and some observations about the standard of review.

a

Great Lakes was the main target and the primary creditor in this chapter 13 case. The plan, which purported to pay 100 percent of allowed unsecured claims, called for payment of $515 per month. The payments were completed and the discharge issued when $28,840 had been paid, of which $26,015 went to Great Lakes, with a substantial portion of the $2,825 balance being attributable to fees. And there was a student loan owed by Mrs. Pardee to First Interstate Bank, with respect to which the plan provision was: "This obligation shall be paid outside of the plan and directly to First Interstate Bank."

The offending plan provision reads: "[Great Lakes] shall receive the total amount of $25,235.00 for its claim and any remaining unpaid amounts, if any, including any claims for interest, shall be discharged by the plan."

There has been no explanation of why Great Lakes was paid the higher amount of its proof of claim rather than the sum certain specified in the plan. (If the last six words of the sentence are "binding," then why is not the sum certain stated in the same sentence also binding?)

The debtors do not contend that it would be a undue hardship to pay Great Lakes the $6,097 in interest that had accrued on unpaid principal after the filing of the chapter 13 case. Hence, the student loan debt does not qualify for the statutory undue hardship exception to nondischargeability under § 523(a)(8)(B). Accordingly, we must presume that it is merely inconvenient for the debtors to repay the student loan.

The record does not unambiguously establish that Great Lakes had actual notice that the plan would terminate the right of Great Lakes to postpetition interest on the nondischargeable debt.

b

The majority is applying the wrong standard of review. In this appeal, the correct standard of review of the findings by the bankruptcy court is one of "special scrutiny" rather than the more deferential clearly erroneous standard that ordinarily applies.

Specifically, the findings of fact and conclusions of law that appear in the order (in violation of the separate order doctrine of Rule 9021) were prepared by debtor's counsel as prevailing party and signed by the court without making any changes. Order, entered on January 30, 1997, at 2-5.

In the Ninth Circuit, a bankruptcy court's findings, if merely adopted in full from the findings of fact by the prevailing party, are subject to "special scrutiny." Alvernaz Farms, Inc. v. Bank of California (In re T.H. Richards Processing Co.), 910 F.2d 639, 643 n. 2 (9th Cir. 1990); Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 n. 3 (9th Cir. 1984).

This matters because the majority gives deference to the bankruptcy court's conclusion that Great Lakes had actual notice of the offending exotic provision in the chapter 13 plan, observing in a footnote that the "bankruptcy court found that Appellant received notice of its treatment under the Plan." This is a reference to conclusion of law no. 2. Order, entered on January 30, 1997, at 3. The only finding of fact that arguably supports this conclusion of law is the inference to be drawn from finding of fact no. 3 that Great Lakes filed a proof of claim. But this does not establish that the debtor sent Great Lakes a copy of the plan or merely, as permitted by Rule 3015(d), a summary that did not necessarily include the exotic provision.

Since we must review the facts under a "special scrutiny" standard, we should be skeptical.

2

The correct construction of § 1327(a) "binding" clause with the § 1328(a)(2) restriction on discharge presents the question that was addressed by the concurrence in Fireman's Fund Mortgage Corp. v. Hobdy (In re Hobdy), 130 B.R. 318, 321 (9th Cir. BAP 1991) (Perris, J. concurring). I agree with, and adopt, that analysis.

a

Familiar principles of statutory construction require that a general rule give way to a more specific rule that is inconsistent with the general rule. E.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524, 109 S.Ct. 1981, 1992, 104 L.Ed.2d 557 (1989) ("A general statutory rule usually does not govern unless there is no more specific rule"); Hobdy, 130 B.R. at 321-22.

Here, the general rule is § 1327(a) that "binds" the debtors and all creditors to the plan "whether or not the claim of such creditor is provided for by the plan, and whether or not such creditor has objected to, has accepted, or has rejected the plan." 11 U.S.C. § 1327(a). The first more specific rule is § 1328(a)(2), which excludes from discharge those debts that are nondischargeable under § 523(a)(8). The second more specific rule is § 523(a)(8)(B) requiring the demonstration of "undue hardship" in order to have a student loan discharged, which demonstration must be made by way of adversary proceeding. Compare 11 U.S.C. § 523(a)(8)(B), with Fed.R.Bankr.P. 7001(6).

Another familiar principle requires that statutes be construed to be harmonious, giving effect to the language of each section. E.g., Hobdy, 130 B.R. at 321-22; In re Parker, 148 B.R. 604, 605-06 (Bankr.D.Idaho 1992) (Hagan, J.).

Both of these principles compel the conclusion that the majority is not correct when it applies the "binding" provision of § 1327(a) to expunge § 523(a)(8)(B) and § 1328(a)(2) from the Bankruptcy Code.

b

Moreover, the majority's sweeping deference to § 1327(a) does not admit of a limiting principle. If § 1327(a) can be used to eliminate § 1328(a)(2) from the Bankruptcy Code and can be used to add an additional exception to § 523(a)(8), then any other Bankruptcy Code provision could be similarly amended.

Under the majority's logic, fully secured claims could be deemed "fully paid" upon payment of less than the full amount of the claims. Logically extended, creditors could be ordered imprisoned or even executed.

The correct limiting principle is suggested by § 1322, which specifies the terms that may permissibly be in chapter 13 plans. The only potential authority in § 1322 for a provision that specifically varies the terms of § 1328(a)(2) or § 523(a)(8) is § 1322(b)(10), which permits a plan to include any "appropriate provision not inconsistent with this title." 11 U.S.C. § 1322(b)(10). Thus, the limiting principle is that the plan may not contain a provision that is inconsistent with the Bankruptcy Code. Cf. Simmons, 765 F.2d at 557-59.

The conspicuous absence from § 1328(a) of the phrase "except as otherwise provided in the plan" connotes inability to vary the terms of the discharge. In contrast, this preamubular phrase, which is a standard phrase in the Bankruptcy Code denoting latitude to vary the statute, is used in § 1141(d)(1) to give the plan proponent some limited control over discharge matters in chapter 11 cases. 11 U.S.C. § 1141(d)(1). And it is also significant that such latitude is not conferred in chapter 11 for nondischargeable debts of individual debtors. 11 U.S.C. § 1141(d)(2).

The chapter 13 plan provision purporting to discharge a debt that is nondischargeable under § 1328(a)(2) is plainly inconsistent with § 1328(a)(2) and, hence, is not permitted to be included in the plan.

3

Even if this were to be regarded as a collateral attack to which principles of res judicata apply, the majority leaves unexamined a number of exceptions to rigid finality that are suggested by the record.

a

There are numerous exceptions that permit relief from judgments in various circumstances. See RESTATEMENT (SECOND) OF JUDGMENTS §§ 64-82 (1982) ("Restatement").

A judgment does not preclude subsequent litigation if the subject matter "was so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority." RESTATEMENT (SECOND) OF JUDGMENTS § 12(1) (1982). I regard this as such a case. To the extent that Escobedo could be construed as a collateral attack, it is this exception that justifies the Seventh Circuit's result. Escobedo, 28 F.3d at 34-35.

Inadequate notice to the affected party can defeat finality. RESTATEMENT § 1. Applying the "special scrutiny" standard of review, it is not apparent that Great Lakes had adequate notice that the student loan debt would be discharged without payment of postpetition interest and without a demonstration of "undue hardship" in an adversary proceeding. Indeed, similar defects necessitated a reversal by the BAP in Hobdy, 130 B.R. 318.

A person who knows about an action but perceives a lack of jurisdiction "is given a right to ignore the proceeding at his own risk but to suffer no detriment if his assessment proves correct." RESTATEMENT § 65 cmt. b. The rationale for vacating the judgment is that:

no public purpose is served by protecting the judgment. By hypothesis the proceeding was infected by fundamental error, usually attributable to the plaintiff's own acts or omissions. Since the judgment was by default no significant investment of judicial effort was made. Thus, the judgment is supported by none of the considerations supporting preclusion and properly may be treated as wholly abortive.

Id.

Relief from the confirmation order would be permitted if confirmation resulted from a substantial mistake by the court. RESTATEMENT § 68(3) cmt. c ("If the mistake is induced by the plaintiff, the case for relief is stronger, and so also if the mistake is by the court itself"). Confirming a plan that contains a provision that is prohibited by the Bankruptcy Code is a substantial mistake by the court, induced by the debtors.

b

The main limitation on affording relief from orders confirming plans is the same equitable analysis that generally governs — lack of diligence, untimeliness, and inequitable disturbance of reliance interest of others. RESTATEMENT § 74.

The key issue to overcome in the context of a confirmed plan is the reliance interest of others. A new equilibrium and new legal relations are established in reliance on confirmation. Disturbing them adversely often will be inequitable and, hence, impermissible.

The court can, however, fashion limited or conditional relief so long as legitimate reliance interests are protected. RESTATEMENT § 74(3).

In this instance, Great Lakes is essentially the only creditor. Any reliance interest of others is remote. What is at stake is whether the debtors still owe Great Lakes $6,096. Other creditors subject to the plan (if any) are unaffected because they have already been paid in full. Thus, no inequitable violence would be done to reliance interests of others by reversing the § 105 injunction.

Moreover, Great Lakes satisfies the requirement of diligence. It has never manifested an intention to treat the offending provision as valid. Assuming that it had notice of the provision, it had every reason to expect that such a provision would never be given effect. In addition to violating the Bankruptcy Code, it was contrary to all judicial decisions except Wasson. The chapter 13 trustee had a statutory duty to participate in the confirmation, opining on suitability for confirmation. 11 U.S.C. § 1302(b)(2)(B). And, regardless of whether a creditor or the trustee objects, the bankruptcy court had an independent duty to confirm only those plans that meet confirmation standards. Cf. Everett v. Perez (In re Perez), 30 F.3d 1209, 1213 (9th Cir. 1994) (ch. 11 — "trustees have a responsibility to raise certain issues, and the court itself must pass on those issues, whether or not they're specifically put in dispute."). Great Lakes was entitled to expect the chapter 13 trustee and the court to do their jobs.

Moreover, none of the considerations supporting preclusion support the order confirming this chapter 13 plan. No public purpose is served by protecting the portion of the order that purports to discharge nondischargeable debt. The order itself was infected by fundamental error because, as a matter of law, it could not be confirmed, regardless of whether Great Lakes objected. And it is evident from the manner in which the court let counsel prepare the findings on the present matter that there was no significant investment of judicial effort.

4

Finally, the majority incorrectly finds that Great Lakes "impliedly accepted" the plan when it did not object to confirmation.

a

The record, reviewed under the "special scrutiny" standard, does not adequately establish that Great Lakes even knew about the offending exotic term. If it did not know, it could not be found to have accepted on any theory.

b

Acceptance can hardly be implied from the behavior of Great Lakes, which never took a position contrary to its entitlement to receive postpetition interest after the plan payments were completed. Great Lakes understood, with good reason based on a host of decisions, that to be the law. It acted accordingly.

c

Moreover, implied acceptance is a troublesome theory that has been largely discredited in all but one application: the formality of acceptance of a chapter 13 plan by a secured creditor whose claim is not being treated in accord with statutory standards may be implied from silence. As I will explain, acceptance in that context is a formality because the secured creditor can nevertheless opt out of the plan and disregard the plan's treatment of the secured claim.

Judicial authority for the implied acceptance theory outside the limited context of the confirmation formality involving chapter 13 secured claims is tenuous.

One begins with the leading chapter 11 implied acceptance case, In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266 (10th Cir. 1988), which has never achieved any following and which has been squarely rejected by the Ninth Circuit Bankruptcy Appellate Panel in a frequently-cited decision. In re M. Long Arabians, 103 B.R. 211 (9th Cir. BAP 1989). The Collier treatise sums it up: "The case of In re Ruti-Sweetwater, Inc., holding that inaction by a non-voting single class creditor constituted acceptance by the class, was not correctly decided and has been specifically rejected in recent decisions." 7 LAWRENCE P. KING ET AL. EDS., COLLIER ON BANKRUPTCY ¶ 1126.04 (1997); see 4 WM. L. NORTON, JR., ED., NORTON BANKR.LAW PRACTICE 2D § 91:21 (1997) ("NORTON") ("While courts in several cases have held that the class is deemed to accept the plan by its failure to vote, courts in a growing number of more recent cases have held to the contrary."). We should be faithful to our own precedent in M. Long Arabians.

The majority's reliance on the Third Circuit decision, In re Szostek, 886 F.2d 1405 (3d Cir. 1989), amounts to reliance on Ruti-Sweetwater, because Szostek was premised upon Ruti-Sweetwater. Moreover, the Ninth Circuit has squarely rejected Szostek's other holding ( Szostek, 886 F.2d at 1411-14) that the present value requirements of § 1325(a)(ii) are not mandatory and, in holding that the present value requirements are mandatory, has cast doubt on the viability of implied acceptance. Barnes v. Barnes (In re Barnes), 32 F.3d 405, 407 (9th Cir. 1994) ("It is possible to distinguish In re Szostek on the ground that the creditor in that case did not timely object to [i.e. impliedly accepted] the plan, whereas the Creditors here did. But this distinction does not account for the broad [statutory] language quoted above.").

Neither of the Ninth Circuit decisions invoked by the majority support application of the implied acceptance theory to an unsecured creditor.

The implied acceptance theory played no role in In re Gregory, 705 F.2d 1118 (9th Cir. 1983), in which a creditor holding an unsecured claim for an embezzlement debt that is dischargeable in chapter 13 (but not in chapter 7) did not object to a zero payment chapter 13 plan, let the order of confirmation become final, and then filed an adversary proceeding for a declaration that the embezzlement debt had not been discharged because it was not "provided for" by a zero payment plan and questioned notice and good faith. The Ninth Circuit rejected the creditor's appeal on straightforward finality grounds with which there can be little quarrel. To the extent it was a belated direct attack on confirmation, the creditor had received adequate notice of the plan and the confirmation hearing and plainly flunked the requirement of diligence.

As a matter of law, unsecured creditors have no right to "accept" a chapter 13 plan. 11 U.S.C. § 1325(a)(4); 5 NORTON § 122:2 ("Acceptance or rejection of a Chapter 13 plan is relevant to confirmation only with respect to the holder of an allowed secured claim and only for purposes of satisfying the confirmation standard set forth in Code § 1325(a)(5)(A)."). Hence, acceptance is irrelevant and judicial comments about acceptance by unsecured creditors are mere dicta.

The more recent decision of Andrews v. Loheit, 49 F.3d 1404 (9th Cir. 1995), posed the question whether a chapter 13 trustee has standing to object to confirmation of a plan. The trustee blocked confirmation by objecting under §§ 1325(a)(1) and (a)(5). The Ninth Circuit, rejecting the debtors' appeal, held that the trustee does have standing to object because the trustee has the § 1302(b) statutory duty to "appear and be heard" at the confirmation hearing on the question whether, as required by § 1325(a)(1), the "plan complies with the provisions of this chapter [13] and with the other applicable provisions of this title [11]". 11 U.S.C. § 1302(b) 1325(a)(1). The court of appeals noted that the Bankruptcy Appellate Panel had found trustee standing under § 1325(a)(5), about which ruling it expressed doubt in light of the implied acceptance theory as to secured creditors and said: "[b]ecause we find it problematic to confer standing in this instance under § 1325(a)(5), we affirm on the basis that the Chapter 13 trustee has standing to object under § 1325(a)(1)." Andrews, 49 F.3d at 1409. Its comments about implied acceptance are pure dicta.

The difference between secured and unsecured status makes all the difference. A chapter 13 plan that does not provide for surrendering the secured property or paying the full value of the secured claim through the plan can be confirmed only if the claimant "has accepted" the plan. 11 U.S.C. § 1325(a)(5). Courts have been willing to imply acceptance and confirm such chapter 13 plans when impaired secured creditors remain silent. Implied acceptance by secured creditors in chapter 13, however, is largely a formality because such plans are not really enforceable against the secured creditors — they have the option to retain their security and not file a claim. Bisch v. United States (In re Bisch), 159 B.R. 546 (9th Cir. BAP 1993). In other words, the confirmation of such a plan, from the standpoint of secured creditors, does not deprive them of the value of their security.

The majority cites no case in which a secured creditor whose acceptance was essential to confirmation has been involuntarily deprived of its security on an implied acceptance theory. Indeed, ascribing too much muscle to an implied acceptance strays into the frontier of unconstitutionality because the payment requirements of § 1325(a)(5)(B) are "a constitutionally-imposed limitation of the power of a chapter 13 plan to modify the rights of a secured claim holder." 5 NORTON, § 122:8.

To the extent that the implied acceptance theory has any vitality, it is an unwarranted extension for the majority to apply it to nondischargeable claims of unsecured creditors.

D

The ultimate irony is that none of this controversy would have arisen if Great Lakes had anticipated the debtors' ambush and elected to stay out of the line of fire by not filing a proof of claim.

Without a proof of claim, Great Lakes would not have been entitled to receive payments under the plan. For most unsecured creditors, that situation would be a disaster because the claims are nevertheless discharged. But Great Lakes' student loan claim cannot be discharged in chapter 13. Hence, the student loan would still be owed, with interest accrued through the ultimate date of final payment.

Great Lakes would have had to content itself with no payments during the payment life of the plan, but that would have been only one or two months in light of the fact that more than 95 percent of the total debt was owed to Great Lakes.

* * * * * *

I respectfully dissent from the affirmance of the bankruptcy court's § 105 injunction.