This case is before this court on plaintiff-appellant's appeal from a decision rendered by the United States Bankruptcy Court for the Northen District of Illinois. In re Henry, 343 B.R. 190 (N.D.Ill. 2006). Therein, the bankruptcy judge denied the motion of the Chapter 13 trustee, Marilyn O. Marshall, to dismiss defendant-appellee's Chapter 13 bankruptcy case. For the following reasons, the decision of the bankruptcy court is affirmed.
18 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed.2015); see also THE CHAPTER 13 PLAN , 3A–34 Debtor–Creditor Law § 34.10, at 16 (Matthew Bender & Co.2010). The courts holding this position include: In re Henry, 343 B.R. 190, 194 (Bankr.N.D.Ill.2006) ("This court will follow the more recent trend that rejects Jackson and Woodall and allows debtors to continue making payments that stretch beyond 60 months if the plan can be completed within a reasonable period of time."), aff'd Marshall v. Henry (In re Henry), 368 B.R. 696 (N.D.Ill.2007) ; In re Baril, 2015 WL 1636442, 2015 Bankr.LEXIS 1357 (Bankr.D.Me.
In re Hill, 374 B.R. 745, 749-50 (Bankr. S.D. Cal. 2007); In re Henry, 343 B.R. 190, 192-93 (Bankr. N.D.Ill. 2006); In re Aubain, 296 B.R. 624, 634 (Bankr. E.D.N.Y. 2003); In re Brown, 296 B.R. 20, 22 (Bankr. N.D. Cal. 2003); In re Harter, 279 B.R. 284, 287-88 (Bankr.
In re Hill , 374 B.R. 745, 749–50 (Bankr. S.D. Cal. 2007) ; In re Henry , 343 B.R. 190, 192–93 (Bankr. N.D. Ill. 2006) ; In re Aubain , 296 B.R. 624, 634 (Bankr. E.D.N.Y. 2003) ; In re Brown , 296 B.R. 20, 22 (Bankr. N.D. Cal. 2003) ; In re Harter , 279 B.R. 284, 287–88 (Bankr.
Accord Black, 76 B.R. at 843; In re Brown, 296 B.R. 20, 22 (N.D. Cal. 2003) ("Nothing in § 1307(c) of the Code, which governs Chapter 13 dismissals, makes taking more than 60 months to complete a confirmed plan a ground for dismissal."); In re Henry, 343 B.R. 190, 193 (N.D. Ill. 2006) (debtor's failure to complete all payments within 60 months not cause for dismissal under § 1307(c)); In re Hill, 374 B.R. 745, 748 (S.D. Cal. 2007) ("Nowhere in § 1307 is it specified that failure to complete a confirmed plan in 60 months is, in itself, a ground for dismissal."). See also 8 Collier on Bankruptcy ¶ 1322.
11 U.S.C. § 1329(a) (emphasis supplied). Consistent with the confirmed plan, the Leaheys would have to make their last payment thereunder in January 2016. Actually, they made their last plan payment in December 2015. Thus neither the Klaas holding, nor any of the cases cited by the Leaheys denying motions to dismiss plans that ran over 60 months, see In re Hill, 374 B.R. 745 (Bankr. S.D. Cal. 20070; In re Henry, 343 B.R. 190 (Bankr. N.D. Ill. 2006); In re Brown, 296 B.R. 20 (Bankr. N.D. Cal. 2003), convinces this court that it made an error of law. The other cases cited by the Leaheys similarly do not convince this court that it came to the wrong conclusion.
In In re Henry, 368 B.R. 696, 700–01 (N.D.Ill.2007) a district court affirmed a bankruptcy court's refusal to dismiss a Chapter 13 case on term of plan grounds where the debtor needed approximately 30 additional months to complete plan payments. SeeIn re Henry, 343 B.R. 190, 193 (Bankr.N.D.Ill.2006). The debtors say that they need only 10 additional months to complete their plan.
Any modification must also comply with Sections 1322(a), 1322(b), 1323(c), and 1325(a). 11 U.S.C. § 1329(b)(1). The court, however, "may not approve a period that expires after five years..." 11 U.S.C. § 1329(c); but see In re Henry, 343 B.R. 190 (Bankr. N.D. Ill. 2006)(citing In re Brown, 296 B.R. 20, 22 (Bankr. N.D. Cal 2003)(denying a motion to dismiss and allowing plan payments to continue past 60 months)). Affirmed, 368 B.R. 696 (N.D. Ill. 2007).
Next, the Court finds that the Debtor is in material default under the confirmed plan because she was not able to complete the plan in five years. The Debtor cites to In re Henry, 343 B.R. 190 (Bankr.N.D.Ill.2006), aff'd, 368 B.R. 696 (N.D.Ill.2007), in support of her position that the Court should allow her to continue to make payments under the confirmed plan until the unsecured creditors are paid in full. According to the Trustee, allowing the Debtor to make these payments would take an additional eighteen months beyond the sixty-month term of the confirmed plan.
Nowhere in § 1307 is it specified that failure to complete a confirmed plan in 60 months is, in itself, a ground for dismissal. See In re Henry, 343 B.R. 190 (Bankr.N.D.Ill.2006); In re Brown, 296 B.R. 20 (Bankr.N.D.Ca.2003); In re Harter, 279 B.R. 284 (Bankr.S.D.Ca.