Bankruptcy Wizard
This is a lot of information below and I provide this from my old research on this topic... Reader beware!
Readily ascertainable was the key in this 9th Circuit case. Scovis incorporated Slack, but also made this very telling statement.
Even moreso, if you look carefully at Scovis, you'll see this nugget...
The Nicholes case was also 9th circuit and was also referenced in Scovis and Slack. This goes to HHMs keen observation that a "disputed" claim alone, does not remove it from the computation for purposes of eligibility under 109(e). (Nice catch HHM!)
I do agree that Scovis cuts both ways. It both defines that the Schedules should be the only source for determining eligibility under 109(e), but also allows room for making seemingly secured claims become unsecured for the purposes of eligibility.
See what I underlined. In these cases, the Court concluded that plan confirmation was res judicata as to the issue. So if no one raises it before confirmation... you are golden.
Emphasis added is mine. Morton was a case that I was going to rely heavily on. It made sense to me, but I'm no Judge and this does seem to change depending on which District you are in.
This was going to be my fallback should the Trustee/UST go after me post-confirmation on a 109(e) eligibility objection.
The case below, Robertson, really wasn't in my favor, but I wanted to see the other side of the 109(e) debacle. I personally feel that a secured claim is a secured claim is a secured claim, unless and until adjudicated as unsecured. Otherwise, you'd have automatic lien strips and cram downs in Chapter 13s!
At least, that's my argument.
In re Slack, 187 F.3d 1070, 1073-75 (9th Cir. 1999)
“. . .[A] debt is liquidated if the amount is readily ascertainable, notwithstanding the fact that the question of liability has not been finally decided.”
“. . .[A] debt is liquidated if the amount is readily ascertainable, notwithstanding the fact that the question of liability has not been finally decided.”
There [in Slack], we held that a final judgment entered in state court in an insurer's civil action against debtor, after the debtor's Chapter 13 petition was filed, could not be considered in deciding the amount of debt owed to the insurer for purposes of determining eligibility for relief.
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I do agree that Scovis cuts both ways. It both defines that the Schedules should be the only source for determining eligibility under 109(e), but also allows room for making seemingly secured claims become unsecured for the purposes of eligibility.
. See In re Verdunn, 210 B.R. 621, 623-24 n. 12 (Bankr. M.D. Fla. 1997) (citations omitted). Several courts have addressed the validity of raising the issue of eligibility after confirmation of a chapter 13 plan. In those cases, the courts have concluded that confirmation is res judicata as to that issue. See, e.g., In re Nikoloutsos, 199 B.R. 624 (Bankr. E.D.Tex. 1996), aff’d on other grounds sub nom. Nikoloutsos v. Nikoloutsos, 222 B.R. 297 (E.D. Tex. 1998), rev’d on other grounds, 199F.3d 233 (5th Cir. 2000); In re Jones, 134 B.R. 274 (N.D.Ill. 1991). However, in the matter sub judice no plan proposed by the Debtor has ever been confirmed.
On the other hand, the court in In re Morton, 43 Bankr. 215 (Bankr. E.D.N.Y.1984), held that the whole portion of the debt should be considered secured for the section 109(e) computation. “The focus of section 109(e) is of debts existing at the time of filing while the focus of section 506(a) is of claims existing and allowed well beyond the filing date.” 43 Bankr. at 220. Congress did not intend that a determination of Chapter 13 eligibility be delayed until the case has substantially progressed. Post-petition events should not be considered because they often occur “after the debtor and other parties in interest have expended relatively large amounts of time, money, and effort toward the debtor’s reorganization.”
This was going to be my fallback should the Trustee/UST go after me post-confirmation on a 109(e) eligibility objection.
The case below, Robertson, really wasn't in my favor, but I wanted to see the other side of the 109(e) debacle. I personally feel that a secured claim is a secured claim is a secured claim, unless and until adjudicated as unsecured. Otherwise, you'd have automatic lien strips and cram downs in Chapter 13s!
At least, that's my argument.
http://cases.justia.com/us-court-of-...7/1070/491304/
See In re Robertson, 84 B.R. 109 (Bankr. S.D. Ohio 1988) (holding that debt must be proved to exceed the statutory limit at the time of filing) (citing In the Matter of Pearsons, 773 F.2d 751 (6th Cir. 1988) (holding that court will only look at petition to determine the amount of the debts owed)); In re Morton, 43 B.R. 215, 220 (Bankr. E.D.N.Y. 1984).
See In re Robertson, 84 B.R. 109 (Bankr. S.D. Ohio 1988) (holding that debt must be proved to exceed the statutory limit at the time of filing) (citing In the Matter of Pearsons, 773 F.2d 751 (6th Cir. 1988) (holding that court will only look at petition to determine the amount of the debts owed)); In re Morton, 43 B.R. 215, 220 (Bankr. E.D.N.Y. 1984).
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