See, e.g., In re Brady, 86 B.R. 166, 170 at n. 5 (Bankr.D.Minn. 1988) (noting that "in Minnesota it is unusual for plans to provide for cure of defaults [on home mortgage payments] in any period of time that significantly exceeds 12 months" . . .). Contrary to the accusation made by Ms. Johnson's counsel, however, this approach has not been out of any unthinking adherence to the bare conclusion announced in Whitebread; it has been out of a recognition that Congress intended to strictly circumscribe the ability of Chapter 13 debtors to affect the contractual rights of their home lenders.
Moreover, a number of courts have held that § 506(b) is not applicable to a claim for arrearages against a Chapter 13 mortgagor. See, e.g., Appeal of Capps, 836 F.2d 773 (3rd Cir. 1987); In re Terry, 780 F.2d 894 (11th Cir. 1987); In re Laguna, 114 B.R. 214, 20 BCD 891, 892 (9th Cir. BAP 1990) appeal filed, No. 90-15715 (9th Cir. May 29, 1990); In re Brady, 86 B.R. 166 (Bankr.D.Minn. 1988). But see, In re Colegrove, 771 F.2d 119 (6th Cir. 1985).
Thus, as written, § 1325(a) does not contain requirements for confirmation. In re Brady, 86 B.R. 166, 169 (Bkrtcy.D.Minn. 1988).See also In re Zimble, 47 B.R. 639 (Bkrtcy.D.R.I. 1985), where the bankruptcy court denied the creditor's motion to obtain an increased interest rate to equal the prevailing market rate after a plan had been confirmed.
See, e.g., In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn. 1988) ("While it is always risky trying to determine congressional intent, it is even more perilous in the Bankruptcy Code, since there is virtually no legislative history to speak of and that which does exist tends to be unenlightening.").See, e.g.
While several courts have observed that the legislative history of § 1325(a) is not particularly helpful in distilling Congress's intent, see, e.g., In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn. 1988) ("While it is always risky trying to determine congressional intent, it is even more perilous in the Bankruptcy Code, since there are virtually no legislative history to speak of and that which does exist tends to be unenlightening. The committee reports and comments that do exist on § 1322 and § 1325 do nothing more than reiterate the language of the two sections themselves"), and In re Ezell, 338 B.R. 330, 341 (Bankr.E.D.Tenn.
See, e.g., In re Simmons, 288 B.R. 737, 749 n.39 (Bankr. N.D. Tex. 2003) ("Sections 1222(b)(5) and 1322(b)(5) appear to parallel section 1124, which allows a chapter 11 debtor to cure and reinstate (and so leave unimpaired) a class of claims."); In re Brady, 86 B.R. 166, 170 (Bankr. D. Minn. 1988) ("Section 1322(b)(5) is the chapter 13 analogue to nonimpairment. It is very similar to the definition of nonimpairment found in § 1124(2) with the notable exception that the chapter 11 provision seems to require that any cure be done immediately on confirmation, while in chapter 13 the cure can be done within a reasonable time.").
1993); In re Szostek, 886 F.2d 1405 (3d Cir.1989); In re Brady, 86 B.R. 166, 169 (Bankr.D.Minn.1988) with Barnes v. Barnes (In re Barnes), 32 F.3d 405 (9th Cir.1994)). The third argument raised by Debtor is that the Judgment Creditors by their failure to object are deemed to have "accepted" the plan and thus Section 1325(a)(5)(A) is satisfied.
In In re Szostek, the court concluded this type of requirement is not mandatory for plan confirmation. See also In re Westenberg, 2007 WL 962932 (a decision rendered by Chief Bankruptcy Judge McGarity of the Eastern District of Wisconsin); In re Brady, 86 B.R. 166, 169 (Bankr. D. Minn. 1988); and In re Prussia Associates, 322 B.R. 572 (Bankr. E.D. Pa. 2005). However, some authority to the contrary does exist.
A number of courts have held that the only permissible modification of a home mortgage agreement is that expressly provided for in § 1322(b)(5). In re Terry, 780 F.2d 894, 896 (11th Cir. 1985); Appeal of Capps, 836 F.2d 773, 777 (3rd Cir. 1987); In re Brown, 91 B.R. 19, 22 (Bankr.E.D.Va. 1988); In re Brady, 86 B.R. 166, 167 (Bankr.D.Minn. 1988); In re Stamper, 84 B.R. 519, 522 (Bankr.N.D.Ill. 1988). Courts finding no interest allowed on arrearages have variously held that § 1322(b) creates an exception to 1325(a)(5)(B), In re Terry, 780 F.2d at 897, and that home mortgagors are not the intended beneficiaries under § 1325 cramdown provisions, Appeal of Capps, 836 F.2d at 776. To reach that conclusion these courts must conclude that a cure under § 1332(b)(5) is not a modification even though it negates the contract provisions calling for acceleration and stays foreclosure.
Congress did not intend that debtors be required to pay the higher of the market interest rate or the contract rate on claims secured solely by their principal residence. See In re Brady, 86 B.R. 166, 170 (Bankr.D.Minn. 1988). Such payment would be at odds with section 1322(b)(2)'s bar to modifying the rights of certain secured creditors.