Local Rule RULE 3015-1: CHAPTER 13 – PLAN

RULE 3015-1 CHAPTER 13 – PLAN

(a) Format of Plan. A debtor shall file a chapter 13 plan using the Local Form Plan, a copy of which is annexed at Appendix VI.

(b) Notice of Plan and the Time Fixed for Filing Objections to and the Hearing to Consider Confirmation of Chapter 13 Plan.

(1) Plan Filed with Petition. If the plan is filed with the petition, the Bankruptcy Noticing Center shall furnish copies of the plan to all parties in interest and notice the time fixed for filing objections to and the hearing to consider confirmation of the plan.

(2) Plan Filed after Petition. If the plan is filed after the petition, the debtor shall serve a copy of the plan and Notice of Time Fixed for Filing Objections to and the Hearing to Consider Confirmation of Chapter 13 Plan upon all parties in interest not later than twenty-eight (28) days prior to the confirmation hearing and, if necessary, adjourn the hearing date to provide the requisite twenty-eight (28) days' notice. Not later than seven (7) days prior to the confirmation hearing, the debtor shall file a certificate of service evidencing compliance with this Rule.

(c) Inclusion in Plan of Relief Governed by Fed. R. Bankr. P. 7001 (Adversary Proceeding) or Fed. R. Bankr. P. 9014 (Contested Matter).

(1) Allowed Contested Matters. If a plan includes a provision for relief that is governed by Fed. R. Bankr. P. 7001 or Fed. R. Bankr. P. 9014, such relief shall be obtained by separate adversary proceeding or motion except to the extent the plan proposes to do any of the following:

(A) Value collateral to establish the amount of a secured claim including voiding a wholly unsecured junior mortgage lien against the debtor's principal residence,

(B) Set the interest rate for a secured claim,

(C) Assume and/or reject an unexpired lease or executory contract, or

(D) Avoid a judicial lien or non-possessory purchase money security interest, each of which shall be deemed an "Allowed Contested Matter."

(2) Notice Required If Plan Includes Allowed Contested Matter. If the plan includes an Allowed Contested Matter as set forth in subparagraph (c)(1), a copy of the plan and Notice of Time Fixed for Filing Objections to and the Hearing to Consider Confirmation of Chapter 13 Plan must be served on all affected creditors by the debtor pursuant to Fed. R. Bankr. P. 7004. The Debtor shall promptly file a certificate of service evidencing compliance with the Rule but in no event later than seven (7) days prior to the confirmation hearing.

(A) Affidavits in Support of Allowed Contested Matters.

(i) If the plan proposes to void a wholly unsecured junior mortgage lien against the debtor's principal residence, the debtor shall file and serve with the plan and Notice referenced in subparagraph (c)(2) an affidavit providing evidence of value of the property and the amount of each senior lien against the property.

(ii) If the plan proposes to avoid a judicial lien or non-possessory purchase money security interest, the debtor shall file and serve with the plan and Notice referenced in subparagraph (c)(2) an affidavit providing evidence of value of the property and the amount of each additional lien against the property.

(d) Certification of Compliance with this Rule. The debtor shall certify in all cases proper notice and service in compliance with this Rule by filing, not later than fourteen (14) days prior to the confirmation hearing, a Certification Pursuant to Local Bankruptcy Rule 3015-1.

(e) Tax Returns and Refunds.

(1) Tax Returns. The debtor shall: (A) timely, including with any extension period allowed by such taxing authorities, file federal and state tax returns with such taxing authorities; and (B) within 14 days of filing, provide copies of the returns to the trustee.

(2) Application to Retain Refund in Excess of $3,000. If the debtor asserts that more than $3,000 of an annual tax refund is needed for reasonable and necessary expenses of the debtor and/or debtor's dependents, the debtor shall make written application to the trustee for approval to retain the excess amount and itemize the anticipated expenses for which the excess refund money is needed. The debtor shall not file the application with the Court.

(A) Trustee Approval. The trustee may allow the debtor to retain tax refunds in excess of $3,000 based upon demonstrated reasonable and necessary expenses of the debtor or the debtor's dependents on an annual basis, without notice beyond that included in the debtor's chapter 13 plan or further hearing. If a request is approved by the trustee, the trustee shall file the debtor's application and notice of approval.

(B) Trustee Denial. If the application is denied by the trustee, the debtor may file a motion to retain the refund. The motion shall be on notice to the trustee, the United States trustee, and all creditors.

(f) Section 1326 Plan Payments by Debtor and Disbursements by Trustee.

(1) The debtor shall commence making plan payments to the trustee within thirty (30) days after the order for relief or the order converting the case to chapter 13. Said payment shall include the amounts necessary to pay pre-confirmation adequate protection payments plus the statutory trustee's fees. The debtor shall not reduce plan payments to the trustee under § 1326(a)(1)(C) as a result of these adequate protection payments, without an order of the Court.

(2) A creditor may file a motion requesting a change in the amount of § 1326(a)(1) pre-confirmation payments pursuant to § 1326(a)(3). Until the creditor's motion is resolved, the trustee shall continue to make pre-confirmation adequate protection payments to such creditor as set forth herein.

(3) The trustee is authorized to disburse pre-confirmation adequate protection payments to a secured creditor whose claim is secured by personal property pursuant to § 1326(a)(1) in an amount as set forth in the proposed plan. If the plan does not propose any such payment, then the trustee shall remit on a monthly basis to such creditor an amount equal to 1.5% of the value of the claim proposed to be paid by the debtor through the plan up until confirmation. However, no such payments shall be made to a creditor until a proof of claim is filed. These pre-confirmation adequate protection payments will commence within thirty (30) days after the filing of the proof of claim provided the trustee has sufficient funds.

(4) The trustee is authorized to disburse pre-confirmation monthly payments to a secured creditor whose claim is secured by real property in an amount as set forth in the proposed plan. However, no such payments shall be made to a creditor until a proof of claim is filed. These pre-confirmation monthly payments will commence within thirty (30) days after the fling of the proof of claim and continue until confirmation of the plan provided the trustee has sufficient funds.

(5) If the case is dismissed prior to confirmation, secured creditors entitled to payments from the trustee pursuant to subparagraphs (e)(3) or (4) shall receive from the trustee any § 1326 pre-confirmation adequate protection payment or monthly payment due and owing from funds collected by the trustee, unless such creditor has previously received relief under 11 U.S.C. § 362 (see LBR 3007-1(e)) or as otherwise ordered by the Court.

Comment The debtor is responsible for ensuring that notice of the plan, the time fixed for filing objections, and the hearing to consider confirmation of the plan be given in accordance with § 342(c)(2), as applicable, regardless of whether the plan is filed with or after the petition.

Paragraph (c) recognizes that it is inappropriate and may be considered bad faith to include as a plan provision relief that should be the subject of a separate adversary proceeding or motion. See United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1382 (2010) (referring to a plan provision that discharged a student loan).