As Judge Fox indicates in Fries, supra, 68 B.R. at 684, the burdens of production and persuasion may vary depending on the type of objection to confirmation asserted. See also In re Flick, 14 B.R. 912, 914-15 n. 7 (Bankr.E.D.Pa. 1981). In Flick, Chief Judge Twardowski held that the creditor has the burden of producing evidence and the burden of persuasion in regard to the creditor's claim that the debtor was ineligible to file a Chapter 13 case under 11 U.S.C. ยง 109(e) and that he did not file his case "in good faith."
E.D. Pa. 1983); In re Willey, 24 B.R. 369 (Bankr. E.D. Mich. 1982); In re Flick, 14 B.R. 912 (Bankr. E.D. Pa. 1981); In re Moore, 13 B.R. 914 (Bankr.D.Or. 1981); In re Lewis, 8 B.R. 132 (Bankr. D. Id. 1981). These initial cases share common characteristics that distinguish them from the case at hand.
E.D. Pa. 1983) ; In re Willey , 24 B.R. 369 (Bankr. E.D. Mich. 1982) ; In re Flick , 14 B.R. 912 (Bankr. E.D. Pa. 1981) ; In re Moore , 13 B.R. 914 (Bankr.D.Or. 1981) ; In re Lewis , 8 B.R. 132 (Bankr. D. Id. 1981). These initial cases share common characteristics that distinguish them from the case at hand.
In re Guilbeau, 74 B.R. 13, 14 (Bankr.W.D.La. 1987). Accord, United States v. Norton, 717 F.2d 767, 774 (3d Cir. 1983); In re Hebert, 61 B.R. 44, 47 (Bankr.W.D.La. 1986); In re Spadel, 28 B.R. 537, 539-40 (Bankr.E.D.Pa. 1983); In re Sapienza, 27 B.R. 526, 528-29 (Bankr.W.D.N.Y. 1983); In re Blair, 21 B.R. 316, 317 (Bankr.S.D.Cal. 1982); and In re Flick, 14 B.R. 912, 918 (Bankr.E.D.Pa. 1981). However, it frequently occurs that, after a Plan is confirmed, the Debtor fails to perform according to the Plan, and the creditor seeks to obtain relief from the automatic stay to pursue the state-court remedies which were halted by the combined impact of 11 U.S.C. ยง 362(a) and 11 U.S.C. ยง 1327(a).
The burden of persuasion might then be placed on the objector as the party "seeking to alter the status quo, because without objection, the plan would be confirmed." In re Mendenhall, 54 B.R. at 46; In re Flick, 14 B.R. 912 (Bankr.E.D.Pa. 1981). See also McCormick ยง 337, at 786.
Following the general rule in civil litigation, other courts have determined that the burden of proof rests on the moving party, the creditor objecting to confirmation of the debtor's Chapter 13 plan. In re Tomeo, 1 B.R. 673 (Bkrtcy.E.D.Pa. 1979); In re Flick, 14 B.R. 912 (Bkrtcy.E.D.Pa. 1981); In re DeSimone, 17 B.R. 862 (Bkrtcy.E.D.Pa. 1982). The term "burden of proof" refers to two distinct concepts.
5 Collier on Bankruptcy ยถ 1327.01, at 1327-2 (citing In re Flick, 14 B.R. 912 (Bankr.E.D.Pa. 1981)). The court in In re Flick held, inter alia, that confirmation of a plan providing for payment of a claim precluded the creditor from seeking relief from the stay to enforce the claim outside the plan absent some subsequent aggravating circumstances.
District courts in this jurisdiction are split as to whether an implicit good faith filing requirement exists in Chapter 13, 11, or 7 cases. Compare In re Ford, 78 B.R. 729, 733 (Bankr.E.D.Pa. 1987 and In re Flick, 14 B.R. 912, 916 (Bankr.E.D.Pa. 1981) (finding no good faith filing requirement in Chapter 13 cases), with In re Dami, 172 B.R. 6, 10 (Bankr.E.D.Pa. 1994) (finding a good faith filing requirement in Chapter 13 case; See also In re 1606 New Hampshire Ave. Assoc., 85 B.R. 298, 308 (Bankr.E.D.Pa. 1988) (doubting good faith filing requirement in Chapter 11 proceeding); Cf. In re Latimer, 82 B.R. 354, 363, 364 (Bankr.E.D.Pa. 1988) (similar doubt as to Chapter 7 cases); But see In re Marks, 174 B.R. 37, 40-41 (Bankr.E.D.Pa. 1994) and In re Bingham, 68 B.R. 933, 935 (Bankr.M.D.Pa. 1987) (finding good faith filing requirement in Chapter 7 cases). The circuits which have addressed the issue likewise are not uniform in their decisions on the matter.
Furthermore, the Court added that "once the plan is confirmed a ยง 362 complaint is not, in most cases, the proper procedural vehicle for attacking the plan."Id. (footnote omitted). See also In re Evans, 30 B.R. 530, 531 (Bankr. 9th Cir. 1983); In re Landers, 28 B.R. 101, 106 (Bankr.N.D.Ala. 1983); In re Flick, 14 B.R. 912, 918 (Bankr.D.Pa.Ct. 1981). In In re Brooks, 26 B.R. 210 (Bankr.W.D.Ky. 1982), a creditor who had filed a proof of claim but had failed to file a timely objection to the confirmation of the chapter 13 plan sought to modify the stay on the grounds of inadequate protection.
The general rule in civil litigation is that the moving party has the ultimate burden of proving the allegations upon which he bases his action. In re Flick, 14 B.R. 912 (Bankr.Pa.1981). The Debtor, however, bears the burden of proof by the preponderance of the evidence on its eligibility for bankruptcy relief.