Form 35-15

The practitioner should use this form to object to confirmation of a Chapter 13 plan on behalf of an unsecured creditor.

Warning:      The local rules of the Bankruptcy Courts for the four districts in Texas have specific requirements for the content of the captions of pleadings and orders, and they are all different. The practitioner should consult the local rules of the bankruptcy court for the district in which he intends to file for the specific requirements as to the content of captions. See section 35.1:2 in this chapter.

[Caption for an adversary proceeding. See form 35-3 in this chapter.]

Objection to Confirmation of Debtor’s Chapter 13 Plan by Unsecured Creditor

[Name of creditor], Creditor, an unsecured creditor in the above-styled case, files its Objection to Confirmation of Debtor’s Chapter 13 Plan and states as follows:

1.[Name of debtor], Debtor, filed for protection under Chapter 13 of the Bankruptcy Code on [date]. The first meeting of creditors was held on [date], and a hearing on confirma­tion is scheduled for [date]. [Include if applicable: The plan before the Court is Debtor’s [describe version of plan], and this is the [number, e.g., third] hearing on confirmation.]

2.Creditor has an allowed unsecured claim in the instant case in the amount of $[amount], arising out of [describe circumstances]. Creditor timely filed a proof of claim on or about [date] in the above-stated amount. [No objection has been filed to Creditor’s proof of claim./An objection to Creditor’s claim was filed by [name] and was resolved with a claim allowed in the stated amount.]

3.Debtor’s proposed Chapter 13 plan proposes to pay $[amount] for [number] months [include if applicable: and $[amount of additional payments] for [number of additional payments]] for a total of $[amount] over [number] months. The distribution to unsecured creditors under this plan, per the Debtor’s estimates in the plan, is [percent] percent.

4.Creditor objects to confirmation of Debtor’s plan because it does not provide for the submission of all or such portion of future earnings or other future income of Debtor to the supervision and control of the trustee as is necessary to meet the payment obligations of the plan as required by 11 U.S.C. § 1322(a)(1). More particularly, [include additional facts in sup­port].

5.Creditor objects to Debtor’s Chapter 13 plan because it does not provide for full payment of claims entitled to priority under 11 U.S.C. § 507 as required by 11 U.S.C. § 1322(a)(2). In particular, [include specific facts in support].

6.Creditor objects to the Chapter 13 plan on the grounds that, while Debtor has clas­sified his claims as permitted by 11 U.S.C. § 1322(b)(2), Debtor has not provided for similar treatment for each claim in a particular class in violation of 11 U.S.C. § 1322(a)(3). More par­ticularly [include specific facts in support]. [Include if applicable: Debtor’s plan discriminates unfairly against one or more of its proposed classes in that [include specific facts in support].]

7.Debtor’s schedules reflect nonexempt assets sufficient to pay unsecured creditors approximately [percent] percent of their allowed claims if the bankruptcy estate were liqui­dated under Chapter 7. Debtor’s plan, which proposed to pay only [percent] percent of allowed unsecured claims, is in violation of 11 U.S.C. § 1325(a)(4), which requires that the value of the Property, as of the effective date of the plan, to be distributed under the plan on account of each allowed unsecured claim is in an amount not less than the amount that would be paid on such claim if the estate of Debtor were to liquidate under Chapter 7.

8.Pursuant to 11 U.S.C. § 1325(b), the Court may not approve a Chapter 13 plan over the objection of a creditor with an allowed unsecured claim unless—

a.the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or

b.the plan provides that all of Debtor’s projected disposable income for three years beginning on the date the first payment is due under the plan will be applied to make payments under the plan.

Creditor is not scheduled to receive the full amount of his allowed claim. Therefore, the pro­posed Chapter 13 plan cannot be approved because Debtor is proposing to pay less than all of his disposable income into the plan for the thirty-six months beginning [date]. In particular:

a.Debtor’s budget does not include all of Debtor’s current or projected dispos­able income. In particular, [include specific facts].

b.Debtor’s budget does not reflect all the sources of income that must be con­sidered for determining disposable income. In particular, [include specific facts].

c.Debtor’s expenses are not reasonably necessary for the support or mainte­nance of Debtor or a dependent of Debtor. In particular, [list specific expenses] are unnecessary.

d.The expenses listed by Debtor as being incurred on a monthly basis for the continuation, preservation, and operation of Debtor’s business are excessive in that [list specific expenses] are [excessive/unnecessary/excessive and unnecessary] because [list specific reasons].

9.Creditor objects to confirmation of Debtor’s Chapter 13 plan in that it is not pro­posed in good faith as specified by 11 U.S.C. § 1325(a)(3). In particular:

a.Debtor has filed [number] bankruptcies in the last [number] years; [include other relevant facts].

b.Debtor’s petition, schedules, and statement of affairs are vague or inaccurate in that [include supporting facts].

c.Debtor’s motivation for filing the instant Chapter 13 case are suspect in that [include supporting facts].

d.Debtor’s [schedules [and]/testimony] at the first meeting of creditors reflect a consistent pattern of overspending and spending on items not reasonably nec­essary for support or maintenance.

e.Notwithstanding a substantial income, Debtor is proposing to pay only [per­cent] percent of unsecured allowed claims.

f.Debtor’s budget reflects a surplus even after the proposed plan payments that could, but is not, being utilized to repay creditors, nor has Debtor provided any explanation of this failure.

g.It is clear from Debtor’s [schedules [and]/testimony] at the first meeting of creditors that the reason for filing Chapter 13 is to discharge debt that would otherwise not be dischargeable in a Chapter 7 case, to wit [include specific debts]. Debtor is seeking to benefit from the “superdischarge” of Chapter 13 without a concomitant benefit to Debtor’s creditors.

h.[Include any special circumstances that indicate that debtor’s bankruptcy fil­ing was made in bad faith.]

10.Creditor objects to Debtor’s proposed Chapter 13 plan because Debtor cannot make all payments under the plan and comply with the plan as required by 11 U.S.C. § 1325(a)(6). This is evidenced by the fact that [Debtor did not commence making the pay­ments proposed by Debtor’s plan within thirty days after the plan was filed as required by 11 U.S.C. § 1326(a)(1)/Debtor has only sporadically made the payments required by Debtor’s plan between the time the first payment was due and the filing of the instant objection/[include other supporting facts as appropriate]].

11.Creditor respectfully requests that the Chapter 13 plan proposed by Debtor be denied and asks for such other relief as may be just.

   
[Name]
Attorney for [name of client]
State Bar No.:
[E-mail address]
[Address]
[Telephone]
[Telecopier]