2010); In re Buck, 443 B.R. 463, 469 (Bankr.N.D.Ga.2010); In re Keller, 329 B.R. 697, 701–02 (Bankr.E.D.Cal.2005); see also 11 U.S.C. § 1325(a) (stating “[e]xcept as provided in subsection (b)”). Not surprisingly, courts disagree over whether Section 1329 incorporates Section 1325(b)'s applicable commitment period.
To be sure, our reliance in Sunahara on the § 1325(a)(3) good faith standard is vulnerable to criticism that it introduces a level of subjectivity that could yield disparate results. See In re Keller, 329 B.R. 697, 702-03 (Bankr. E.D. Cal. 2005). That subjectivity, however, is constrained by settled law of the circuit that good faith is to be assessed through the matrix of whether the plan proponent "acted equitably" taking into account "all militating factors" in a manner that equates with the "totality" of circumstances.
Section 1329(b)(1) specifically references §§ 1322(a), 1322(b) and 1323(c). See In re Keller, 329 B.R. 697 (Bankr.E.D.Cal.2005). In Keller, the court suggests that
Section 1329(b)(1) specifically references §§ 1322(a), 1322(b) and 1323(c).See In re Keller, 329 B.R. 697 (Bankr. E.D. Cal. 2005). InKeller, the court suggests that
See, e.g., In re Keller, 329 B.R. 697, 699-700 (Bankr.E.D.Cal.2005); In re Drew, 325 B.R. 765, 772 (Bankr.N.D.Ill.2005). These courts primarily reason that an early payoff through refinancing: (1) reduces the number and the time for making payments under §§ 1329(a)(1) and (a)(2); (2) preempts the right of the Chapter 13 trustee and the unsecured creditors to propose a modified plan during the remaining term of the confirmed plan should the circumstances warrant such a modification; and (3) amounts to a realization of the value of appreciation which is akin to selling property at a substantial gain.
er of cases in this Circuit to support its holding that Debtors were required to specify the length of their plans and, absent modification, perform for that time period. See Anderson v. Satterlee (In re Anderson), 21 F.3d 355, 358 (9th Cir. 1994) (self-modifying plans are not authorized under the Code); In re Flores, 735 F.3d 855 (bankruptcy court may confirm a chapter 13 plan only if the plan's duration is at least as long as the applicable commitment period, even if the debtor has no projected income); In re Fridley, 380 B.R. at 546 ("[T]he statutory concept of ‘completion’ of payments [under §§ 1328 and 1329] includes completion of the requisite period of time .... "); Sunahara v. Burchard (In re Sunahara), 326 B.R. 768 (9th Cir. BAP 2005) (Bankruptcy Code allows a debtor to modify a confirmed chapter 13 plan to complete the plan in less than 36 months without paying all claims in full, so long as Bankruptcy Code requirements for plan modification are satisfied; i.e., good faith); In re Keller, 329 B.R. 697 (Bankr. E.D. Cal. 2005) (early payoff with lump sum payment preempts the right of the trustee and the unsecured creditors to propose a modified plan during the remaining term of the plan should the circumstances warrant a modification). The court construed these cases collectively as standing for the proposition that a debtor who proposes a plan must perform under that plan over the term of the plan and, if the debtor's circumstances change, the debtor, creditors, or the chapter 13 trustee are entitled to ask that the plan be modified.
This Court finds the majority's logic reasonable, but (as another court has characterized it) “debatable.” In re Keller, 329 B.R. 697, 700 (Bankr.E.D.Cal.2005). Looking solely to the named provisions in § 1329(b)(1), and § 1325(b)'s notable absence therefrom, it is easy to conclude that § 1325(b)'s requirements do not apply to postconfirmation modifications.
E.g., In re Keller, 329 B.R. 697 (Bankr.E.D.Cal.2005); In re Slusher, 359 B.R. 290 (Bankr.D.Nev.2007). To a large degree, these cases turn on a court's decision as to whether § 1325(b)(1)(B)
Under the plain language of this clause, the requirements of § 1325(b) are necessarily incorporated into § 1325(a), and, therefore, are also included in the modification requirements of § 1329(b)(1). As the Court explained in In re Keller, 329 B.R. 697 (Bankr.E.D.Cal.2005): The omission of § 1325(b) from § 1329(b) should not be taken to mean that § 1325(b) is not applicable to modified plans.
Under the plain language of this clause, the requirements of § 1325(b) are necessarily incorporated into § 1325(a), and, therefore, are also included in the modification requirements of § 1329(b)(1). As the Court explained in In re Keller, 329 B.R. 697 (Bankr. E.D. Cal. 2005): The omission of § 1325(b) from § 1329(b) should not be taken to mean that § 1325(b) is not applicable to modified plans.