Opinion
NOT FOR PUBLICATION
MEMORANDUM DECISION
PETER W. BOWIE, United States Bankruptcy Chief Judge.
This case involves two issues: 1) whether debtor can claim as an expense on her form B22 the payments she is contractually obligated to make on her junior liens which she intends to strip off pursuant to In re Zimmer, 313 F.3d 1220 (9th Cir. 2002); and 2) whether debtor may properly invoke the strip off mechanism of In re Zimmer, supra, when debtor is not eligible for discharge because of a prior chapter 7 discharge. See 11 U.S.C. § 1328(f).
This Court has subject matter jurisdiction over this proceeding pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. This is a core proceeding under 28 U.S.C. § 157(b)(2)(a)(1).
Consistent with the result reached by the BAP in In re Martinez, 418 B.R. 347 (2009). This Court very recently concluded that a debtor may not claim an expense for payments "contractually due" on junior liens when those junior liens are wholly unsecured because the statute allows such an expense only for secured debts. In re Grant. No. 09-04223-PB13 (Jan. 2010). The premise of debtor's proposed lien strip is that those liens are wholly unsecured - indeed, that is the only way those liens could be stripped off. Debtor cannot have it both ways: Debtor cannot claim the liens as secured debts for B22 expense purposes and, at the same time, claim they are wholly unsecured on Schedule D and propose to strip them off pursuant to Zimmer.
Because the Court has concluded that debtor may not properly claim those expenses on her Form B22, the Court finds and concludes that the Chapter 13 Trustee's objection to confirmation of debtor's plan on that ground should be, and hereby is sustained.
As noted, this case also raises an important issue concerning whether a debtor ineligible for discharge under 11 U.S.C. § 1328(f) may nevertheless invoke the lien strip process of In re Zimmer. Given the Court's resolution of the first issue which, on its own, results in the denial of confirmation of debtor's proposed plan, resolution of the second issue at this time would be advisory because it is not ripe. The Court does not know whether debtor will attempt to amend her proposed plan, or whether such a proposal would be feasible. Until the issue ripens, the Court will reserve its analysis.
Conclusion
For the foregoing reasons, the Chapter 13 Trustee's objection to confirmation of debtor's Chapter 13 plan is sustained on the ground that debtor has failed to commit all disposable income to funding of the plan. Debtor has improperly claimed as an expense on her Form B22 expenses for payments on her junior liens that she elsewhere contends are wholly unsecured obligations. She cannot do both.
Debtor shall have thirty (30) days from the date of entry of this Memorandum Decision to file and serve an amended plan. If no amended plan is filed within that time, the Chapter 13 Trustee is authorized to submit an order of dismissal of this case, without prejudice.
IT IS SO ORDERED.