In re Lopez

28 Citing cases

  1. In re Giesbrecht

    429 B.R. 682 (B.A.P. 9th Cir. 2010)   Cited 58 times
    Holding debtor had standing to appeal from an order confirming her own plan

    HOLLOWELL, Bankruptcy Judge In this appeal we are asked to determine whether Cohen v. Lopez (In re Lopez), 372 B.R. 40 (9th Cir. BAP 2007), aff'd, and adopted by Cohen v. Lopez (In re Lopez), 550 F.3d 1202 (9th Cir. 2008) (Lopez) allows a debtor the absolute right to pay an unimpaired claim directly to the creditor if the plan is otherwise confirmable. We find that a debtor has no absolute right to make such payments but that, in this case, the bankruptcy court erred when it failed to articulate clear standards regarding when it is permissible to pay a creditor directly.

  2. In re Evans

    584 B.R. 917 (Bankr. D. Or. 2018)   Cited 1 times
    Explaining that impairment has been defined "as any proposed alteration of the rights of a creditor, which the debtor could not insist on but for the protections of the Bankruptcy Code."

    Section 1326(c), thus, contemplates permitting debtors to make payments to creditors directly, but it presumes that payments are disbursed by the trustee. While the Code does not provide guidance for determining when direct payments are appropriate, the Ninth Circuit Bankruptcy Appellate Panel (BAP) and the Ninth Circuit addressed the issue in Cohen v. Lopez (In re Lopez) , 372 B.R. 40 (9th Cir. BAP 2007), aff'd 550 F.3d 1202 (9th Cir. 2008). In Lopez the panel determined that a debtor's ability to directly pay creditors turned on whether the creditor's claim was "impaired."

  3. Gordon v. Bronitsky

    21-cv-00643-WHO (N.D. Cal. Jul. 15, 2021)

    Judge Novack found that the reporting requirements of General Order 34 are a necessary solution given a trustee's difficulty of monitoring the debtor's performance under his or her direct payment obligations, i.e., payments that do not go through the trustee's hands. Id. at 253-54 (citing In re Lopez, 372 B.R. 40, 55 (B.A.P. 9th Cir. 2007), opinion adopted, 550 F.3d 1202 (9th Cir. 2008) (finding this concern “could be alleviated through a requirement by the trustee (either in the plan or by incorporation in the local plan guidelines) that the debtor send proof of direct payment regularly to the trustee, ” which in turn “would allow the trustee to accurately monitor the debtor's performance as well as provide the trustee with data from which to fashion an accurate and complete final account”)). Judge Novack explained that “General Order 34 allows the Chapter 13 trustee and debtor to address plan defaults while the plan can still be modified.”

  4. In re Robert

    599 B.R. 335 (Bankr. D. Ariz. 2019)   Cited 10 times

    The very dilemma raised here (what does "under the plan" mean) was discussed by the Ninth Circuit Bankruptcy Appellate Panel ("BAP") when it determined that the Code does not prohibit direct payments to creditors in Giesbrecht v. Fitzgerald (In re Giesbrecht ), 429 B.R. 682 (9th Cir. BAP 2010). In reaching its ultimate conclusion that the structure of Chapter 13's statutory provisions do not require that all payments to creditors be made through a Chapter 13 trustee, the BAP carefully considered what "under the plan" means in §§ 1322 and 1326, and relied in large part on Cohen v. Lopez (In re Lopez ), 372 B.R. 40 (9th Cir. BAP 2007), aff'd 550 F.3d 1202 (9th Cir. 2008). Section 1326(c) provides that "[e]xcept as otherwise provided in the plan or in the order confirming the plan, the trustee shall make payments to creditors under the plan."

  5. In re Materne

    640 B.R. 781 (Bankr. D. Mass. 2022)   Cited 4 times   1 Legal Analyses
    Discussing Rake v. Wade and collecting cases considering the applicability of the equal payment provision of § 1325(B) to a cure and maintain plan

    Some courts have distinguished Rake in other contexts and others have come to a different conclusion as to whether maintenance payments are "provided for under the plan." See, e.g. , Cohen v. Lopez (In re Lopez), 372 B.R. 40, 49–50 (B.A.P. 9th Cir. 2007), aff'd and opinion adopted, 550 F.3d 1202 (9th Cir. 2008) (holding, in the context of a Chapter 13 trustee's objection to maintenance payments being made directly to a lender outside the plan, that regular, postpetition maintenance payments are in amounts no different from what the debtor would have paid had he or she never defaulted and are not modified by the Chapter 13 bankruptcy and not provided for by the plan); In re Bullard , 475 B.R. 304, 308–309 (Bankr. D. Mass. 2012), aff'd , 494 B.R. 92 (B.A.P. 1st Cir. 2013) (in the context of a hybrid plan appearing to involve multi-unit property in which one of the units is the debtor's principal residence and with respect to which the creditor did not object to bifurcation based on the nature of the property, concluding that under § 1322(b)(5) that "a debtor may pay a prepetition arrearage in full through the plan and, upon plan completion, the default is deemed cured and the relationship between the parties continues ... [;] the secure

  6. In re Stinebaugh

    Case No. 13-20447-TLM (Bankr. D. Idaho Oct. 30, 2013)   Cited 2 times

    To the extent Trustee does or would argue as a threshold issue in the instant case that Debtors' direct payment of Bank of America and the IRS on their secured claims is inappropriate or should not be allowed by the Court in the exercise of its sound discretion, the Court finds he has not sustained that contention, particularly in that he acquiesced in that process and endorsed the motions. Giesbrecht was based in large part on the decision in Cohen v. Lopez (In re Lopez), 372 B.R. 40 (9th Cir. BAP 2007), aff'd 550 F.3d 1202 (9th Cir. 2008). In Lopez, the debtor's plan permitted him to directly make ongoing "maintenance payments" to the creditor secured by a deed of trust on his residence while simultaneously allowing him to pay the prepetition arrears to the same creditor via the trustee.

  7. In re Miles

    415 B.R. 108 (Bankr. E.D. Pa. 2009)   Cited 3 times

    In practice, the extent to which trustees and debtors handle disbursements under a plan varies by district. In re Lopez, 372 B.R. 40, (9th Cir.BAP2007) (discussing different practices). In this district, a practice has developed of allowing a "bifurcation" of disbursing agent roles where a chapter 13 debtor seeks to cure a prepetition default in accordance with § 1322(b)(5), typically seen in plans dealing with arrears in house and car payments.

  8. Hall v. United States

    132 S. Ct. 1882 (2012)

    8 Collier ¶ 1200.01[5], at 1200–10; In re Lopez, 372 B.R. 40, 45, n. 13 (Bkrtcy.App. Panel C.A.9 2007); Justice v. Valley Nat. Bank, 849 F.2d 1078, 1083 (C.A.8 1988). We agree.

  9. Hall v. United States

    566 U.S. 506 (2012)   Cited 47 times   3 Legal Analyses
    Recognizing that section 346 of the Bankruptcy Code applies to federal taxes

    8 Collier ¶ 1200.01[5], at 1200–10; In re Lopez, 372 B.R. 40, 45, n. 13 (Bkrtcy.App. Panel C.A.9 2007) ; Justice v. Valley Nat. Bank, 849 F.2d 1078, 1083 (C.A.8 1988). We agree.

  10. Lopez v. Lopez

    550 F.3d 1202 (9th Cir. 2008)   Cited 3 times
    Ongoing mortgage payments need not be paid through the trustee even when the plan provides for cure of a mortgage default

    Trustee Amrane Cohen appeals the Bankruptcy Appellate Panel's decision affirming the Bankruptcy Court's order confirming Rudy Lopez's Chapter 13 plan. We have jurisdiction pursuant to 28 U.S.C. §§ 158(d) and 1291 and we adopt as our own the well-reasoned published opinion of the Bankruptcy Appellate Panel, In re Lopez, 372 B.R. 40 (9th Cir. BAP 2007). AFFIRMED.