Opinion
Civ. No. 05-6323-HO.
March 13, 2006
ORDER
Gerald L. Rogers appeals an order of the bankruptcy court denying confirmation of his chapter 13 reorganization plan and granting the chapter 13 trustee's motion to reconvert the bankruptcy case to chapter 7.
Discussion
The court does not repeat the factual and procedural background aptly set forth in the memorandum opinion (MO). ER-106-09.
The bankruptcy court properly concluded that Rogers was aware by the petition date that he had allegedly suffered an injury from the conduct of Qwest Corporation, and that the claim against Qwest belonged to the estate. ER-111 (MO at 6, n. 2). Under Oregon law, the claim accrued prior to Rogers filing the bankruptcy petition. See Gaston v. Parsons, 864 P.2d 1319, 1324 (Or. 1994). The court need not address Rogers's argument that the bankruptcy court erred by applying In re Swift, 129 F.3d 792, 798 (5th Cir. 1997) to determine when his claim accrued. Whether In re Swift or Gaston applies, the claim accrued prior to the filing of the petition. The date a claim accrues under Oregon law is determined by existing precedent from Oregon's appellate courts. The letter request of Rogers's attorney to certify this question to the Oregon Supreme Court is therefore denied. See Western Helicopter Svcs., Inc. v. Rogerson Aircraft Corp., 811 P.2d 627, 630 (Or. 1991).
The bankruptcy court properly determined that as a result of judicial estoppel or lack of standing from Rogers's failure to schedule the claim against Qwest, the value of all property distributed under the plan on account of unsecured claims is less than the amount that would be paid if the estate were liquidated under Chapter 7, in violation of 11 U.S.C. § 1325 (a) (4). ER-114-15 (MO at 9-10). Authority cited by Rogers for the proposition that a chapter 13 debtor generally has standing to assert a prepetition claim does not address the situation where, as here, the debtor failed to schedule the claim. Based on Rogers's failure to satisfy Section 1325 (a) (4), the court finds that it need not resolve Rogers's challenge to the bankruptcy court's determination that he failed to meet his burden to prove that he proposed the Chapter 13 plan in good faith.
The bankruptcy court did not err by failing to sua sponte provide time for Rogers to file an amended or alternative chapter 13 plan before reconverting the case to Chapter 7. Section 1307 (c) (5) of Title 11, United States Code, may be read literally to preclude dismissal or conversion unless the debtor requests, and the court denies, additional time to file a new or amended plan. The court rejects this reading because it would grant debtors the ability to prevent conversion or dismissal simply by failing to ask for additional time. Rogers did not ask for additional time in response to the chapter 13 trustee's motion to reconvert, and did not file a motion for additional time.
(c) Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including —
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(5) denial of confirmation of a plan under section 1325 of this title and denial of a request made for additional time for filing another plan or a modification of a plan[.]11 U.S.C. § 1307 (c) (5).
The bankruptcy court's factual findings are sufficient to give this court a clear understanding of the bases and grounds for the decision. In re Leavitt, 171 F.3d 1219, 1223 (9th Cir. 1999).
Conclusion
Based on the foregoing, the decision of the bankruptcy court is affirmed.
IT IS SO ORDERED.