§ 115.3     Burden of Proof
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 115.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The reported decisions are unnecessarily divided on the burdens of proof at confirmation of a Chapter 13 plan. A strong majority of courts appropriately allocate to the debtor the burden of proving the conditions for confirmation in §§ 1322 and 1325(a).1 A few reported decisions conclude that a creditor objecting to confirmation has the burden to prove the failure of a condition for confirmation.2

[2]

The most common formulation of the burden of proof with respect to the disposable income test for confirmation in § 1325(b)3 is that the objecting party bears the initial burden of going forward with evidence in support of the objection, but the ultimate burden of persuasion rests with the debtor to prove all the conditions for confirmation.4 Even in districts that assign the objecting creditor the burden of proof at confirmation, when the objection to confirmation challenges eligibility under § 109(g),5 the burden is on the debtor to prove eligibility.6

[3]

Several courts have prescribed an elevated standard of proof in confirmation litigation, especially when there is evidence of serial filing or when the plan will discharge a claim that would be nondischargeable in a Chapter 7 case.7 There is no obvious statutory or policy reason for requiring an elevated standard of proof from the debtor or from an objecting creditor at confirmation of a Chapter 13 plan.8

[4]

The debtor gets some help with the burden of proof from Bankruptcy Rule 3015(f). If no timely objection to confirmation is filed, Bankruptcy Rule 3015(f) provides that the court “may determine that the plan has been proposed in good faith and not by any means forbidden by law without receiving evidence on such issues.” It is not obvious why the rules drafters chose to deal only with the good-faith requirement in § 1325(a)(3) in this way. In the absence of an objection to confirmation, why should the debtor have a burden to go forward with evidence of some of the § 1325(a) criteria but not others? The use of the word “may” in Bankruptcy Rule 3015(f) renders the rule of ambiguous evidentiary value. The rule is not worded to create a presumption.9

[5]

If Bankruptcy Rule 3015(f) has an evidentiary effect less than a full-blown presumption, it probably relieves the debtor of the burden of going forward with evidence of good faith without relieving the debtor of the ultimate burden of persuading the court that the plan is filed in good faith. This effect is too uncertain to be useful, especially in a jurisdiction in which the bankruptcy court is inclined to independently examine the good faith of Chapter 13 plans.10 The courts have struggled to give the rule meaning in the allocation of burdens of proof with respect to good faith at confirmation of Chapter 13 plans.11

[6]

Bankruptcy Rule 3015(f) could be read that courts and debtors should engage in meaningless evidentiary exercises in which the debtor proves the requirements other than good faith even in the absence of an objection. Most courts more sensibly find good faith and confirm plans without a full-blown hearing when no timely objection to confirmation has been filed.12 In a jurisdiction where the trustee makes a report to the court in every Chapter 13 case, it was held that the report establishes good faith, and the debtor has no affirmative burden to present other evidence.13 When there is a good-faith objection to confirmation, the debtor must come forward with “more than bare presentation of the plan and provision for payment.”14

[7]

The appellate courts have sent some confusing messages with respect to burden of proof and evidence at a hearing on a good-faith objection to confirmation under § 1325(a)(3). In Tillman v. Lombard (In re Lombard),15 the bankruptcy court heard the evidence offered by a creditor in support of its good-faith objection to confirmation, rejected the creditor’s position, and confirmed the plan without requiring the debtor to put on evidence. On appeal, the district court reversed, holding that the bankruptcy court erred in hearing only the creditor’s evidence. The case was remanded to the bankruptcy court, presumably to hear the debtor’s evidence in favor of confirmation. This is an odd outcome. Could it be on remand that the debtor will prove the debtor’s lack of good faith?

[8]

Twisting the other way, in Noreen v. Slattengren,16 the U.S. Court of Appeals for the Eighth Circuit held that the bankruptcy court did not abuse its discretion in refusing to hear the debtor’s evidence in support of good faith. Without taking evidence, the bankruptcy court made “findings” that the plan was filed in bad faith, based on the proximity of the Chapter 13 filing to the trial of a state court civil action.17 There is no clue in the Eighth Circuit’s decision how the bankruptcy court made these findings without holding an evidentiary hearing. But the Eighth Circuit found no error in this procedure, holding that a bankruptcy court can analyze the totality of the circumstances necessary to determine a Chapter 13 debtor’s good faith without holding an evidentiary hearing because “[n]othing in the statutes or case law requires a hearing every time the issue of good faith is raised in a Chapter 13 proceeding.”18

[9]

It seems to be the rule in the Eighth Circuit that a bankruptcy court can refuse a Chapter 13 debtor’s offer of evidence and determine good faith against the debtor, but in the Eastern District of Virginia, it is reversible error for a bankruptcy court to find good faith in favor of the debtor without hearing the debtor’s evidence in support of good faith. This is every bit as strange as it sounds. Both courts have abandoned without explanation the ordinary application of the Rules of Evidence in contested matters. In Noreen, the Eighth Circuit did not hold as a matter of law that filing Chapter 13 in proximity to the trial of a state court action is bad faith. Good faith under § 1325(a)(3) is a question of fact.19 The Eighth Circuit should have acknowledged that the debtor gets a day in court to at least attempt to carry the burden of proving good faith.

[10]

Confirmation of a Chapter 13 plan is not an alien process. If there are objections, then the confirmation hearing is a contested matter under Bankruptcy Rule 9014 and courts apply the Federal Rules of Evidence and Procedure accordingly. It makes no sense to fashion special rules of procedure or evidence that apply only at confirmation hearings in Chapter 13 cases. Unless confirmation is precluded as a matter of law, contested questions of fact cannot be decided without allowing the debtor to present evidence. If Bankruptcy Rule 3015(f) is a valid exercise of rulemaking authority, then it is permissible for a bankruptcy court to find that a plan is filed in good faith after hearing the contrary evidence from a creditor. It has to be that some appellate courts do not consider a contested Chapter 13 confirmation hearing to be the ordinary litigated matter that it is. For bankruptcy lawyers, appellate decisions like Lombard and Noreen unnecessarily complicate an otherwise straightforward process.

[11]

In a jurisdiction in which the burden of proof is assigned to the objecting creditor, counsel’s task is to prove the negative—that a condition for confirmation is not present.20 Even if the debtor has the burden of proof with respect to an element of confirmation, once the debtor meets that burden, the objecting creditor can prevail only by presenting evidence that a condition for confirmation is absent.21 Given that much of the evidence relevant to confirmation will be in the debtor’s possession, the creditor’s burden will involve the use of hostile witnesses and evidence that can only be collected through prompt discovery.


 

1  Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir. 1987) (Debtor has burden of proving the requirements for confirmation in § 1325(a) and objecting party has the burden to prove that the debtor fails to comply with § 1325(b).); Smyrnos v. Padilla (In re Padilla), 213 B.R. 349, 352 (B.A.P. 9th Cir. 1997) (“The burden of establishing good faith is on the debtor.”); First Nat’l Bank of Boston v. Fantasia (In re Fantasia), 211 B.R. 420 (B.A.P. 1st Cir. 1997) (Debtor has burden to prove feasibility of plan.); United States v. Rader, No. TH01-217-C-T/H, 2002 WL 1354714, at *1 (S.D. Ind. Apr. 17, 2002) (unpublished) (“The Debtor has the burden of proof and persuasion to show that the Chapter 13 Plan satisfies the statutory requirements of 11 U.S.C. §§ 1325 and 1326.”); Cash in a Flash v. Brown (In re Brown), 229 B.R. 739, 746 (W.D. Tenn. 1999), aff’g In re Brigance, 219 B.R. 486 (Bankr. W.D. Tenn. 1999) (“The debtor has the burden to prove that any proposed classification is not unfairly discriminatory.”); National Sch. Bus, Inc. v. Carignan (In re Carignan), 190 B.R. 739, 741 (N.D.N.Y. 1996) (“It is well-settled that the debtor has . . . the burden of proving that the requirements of 11 U.S.C. § 1325 have been met. . . . [T]he debtor presented no evidence at the confirmation hearing. Thus, the bankruptcy judge erred as a matter of law when he confirmed the Plan. Accordingly, this court remands this matter for findings as to the issues contested herein.”); Spokane Ry. Credit Union v. Gonzales (In re Gonzales), 172 B.R. 320 (E.D. Wash. 1994) (The debtor has the burden of proof to establish good faith and to prove that a plan does not unfairly discriminate.); Tillman v. Lombard (In re Lombard), 156 B.R. 156 (E.D. Va. 1993); In re Soost, 290 B.R. 116 (Bankr. D. Minn. 2003) (Debtor has heightened burden of production to prove good faith when Chapter 13 petition follows rapidly after a prior Chapter 7 case.); In re Reese, 281 B.R. 735 (Bankr. M.D. Fla. 2002) (Debtor has the burden to prove that plan is filed in good faith.); In re Scotten, 281 B.R. 147 (Bankr. D. Mass. 2002) (Debtor has especially heavy burden to overcome an objection to confirmation based on good faith when plan will discharge a debt that would be nondischargeable under Chapter 7.); In re Williams, 253 B.R. 220, 225 (Bankr. W.D. Tenn. 2000) (On the bankruptcy court’s objection to separate classification of student loans for payment in full, “[t]he debtors, as proponents of the plans, bear the burden of proving that the proposed classification does not discriminate unfairly.”); In re Hendricks, 250 B.R. 415, 420 (Bankr. M.D. Fla. 2000) (“The Chapter 13 debtor bears the burden of proving good faith if a creditor objects.”); In re Brown, 244 B.R. 603, 607–10 (Bankr. W.D. Va. 2000) (The debtor has the burden to prove the value of collateral by a preponderance of the evidence when a secured creditor objects to confirmation. “As a general matter the debtor has the burden ‘to prove that a proposed plan complies with Chapter 13.’ . . . The burden is by a preponderance of the evidence, not by a ‘clear and convincing’ evidentiary standard. . . . Neither the Bankruptcy Code nor the Bankruptcy Rules specify which party has the burden of proof on collateral valuation in the context of Chapter 13 Plan confirmation. . . . The Court believes . . . that the debtor has the burden of proof on the issue of collateral valuation. If no creditor objects, the debtor has the equivalent to a default judgment on this issue and the case may proceed to confirmation. . . . If the creditor does object, however, the debtor is in effect ‘put to its proof’ and is obligated to produce satisfactory evidence. If the debtor has the burden of proof on this issue, it cannot be shifted to the creditor upon the proposition that a party objecting must establish its objection.”); In re Keach, 225 B.R. 264, 267 (Bankr. D.R.I. 1998) (“Debtor has the burden of proving that all elements of 11 U.S.C. § 1325 exist, including good faith.”), rev’d on other grounds, 243 B.R. 851 (B.A.P. 1st Cir. 2000); In re Smith, 222 B.R. 846, 854 (Bankr. N.D. Ind. 1998) (“The debtors have the burden to prove that the proposed classification of a claim does not discriminate unfairly.”); In re Craig, 222 B.R. 266, 270 (Bankr. E.D. Va. 1998) (“The debtor bears the burden of proof as to confirmation of the plan.”); In re Applegarth, 221 B.R. 914, 916 (Bankr. M.D. Fla. 1998) (“[T]he debtor has the burden of proof to show that there is no unfair discrimination against other unsecured creditors.”); In re Janssen, 220 B.R. 639, 643 (Bankr. N.D. Iowa 1998) (“Debtor bears the burden of ‘establishing the rationale and fairness of a discriminatory treatment of unsecured claims.’”); In re Brigance, 219 B.R. 486, 494 (Bankr. W.D. Tenn. 1998) (“It is the burden of the debtor, as proponent of the Chapter 13 plan, to prove that the proposed classification does not discriminate unfairly.”), aff’d, 234 B.R. 401 (W.D. Tenn. 1999); In re Cushman, 217 B.R. 470, 476 (Bankr. E.D. Va. 1998) (Debtor has the burden of proof to establish good faith at confirmation; Johnson indicates that Chapter 20s are not per se prohibited, but “such cases are not favored and must be closely scrutinized.”); In re Weisser, 190 B.R. 453, 454 (Bankr. M.D. Fla. 1995) (“The burden of proof is on the debtor to prove that the requirements of § 1325 are met.”); In re Norwood, 178 B.R. 683, 687 (Bankr. E.D. Pa. 1995) (“The debtor, as with each of the other confirmation criteria specified in Code § 1325(a), bears the burden of establishing that [his] plan is proposed in good faith.”); In re Anderson, 173 B.R. 226 (Bankr. D. Colo. 1993) (Debtor has burden of proof on the question whether the classification of claims unfairly discriminates.); In re Elisade, 172 B.R. 996, 1000 (Bankr. M.D. Fla. 1994) (“The burden of proof to demonstrate ‘good faith’ lies with the debtor.”); In re Norman, 162 B.R. 581, 583 (Bankr. M.D. Fla. 1993) (“The burden of proof to establish that a plan is proposed in good faith is squarely on the Debtor.”); In re Standfield, 152 B.R. 528, 535 (Bankr. N.D. Ill. 1993) (“The Debtors bear the burden of proof on the issuance [sic] of compliance with the criteria of section 1325, including the good faith requirement of their plan.”); In re Huerta, 137 B.R. 356 (Bankr. C.D. Cal. 1992); In re Lindsey, 122 B.R. 157 (Bankr. M.D. Fla. 1991); In re Girdaukas, 92 B.R. 373 (Bankr. E.D. Wis. 1988); In re Hieb, 88 B.R. 1019 (Bankr. D.S.D. 1988); In re Hogue, 78 B.R. 867 (Bankr. S.D. Ohio 1987); In re Crompton, 73 B.R. 800 (Bankr. E.D. Pa. 1987); In re Fries, 68 B.R. 676 (Bankr. E.D. Pa. 1986); In re Gathright, 67 B.R. 384 (Bankr. E.D. Pa. 1986).

 

2  Shortridge v. Ruskin (In re Shortridge), No. 93-2558, 1995 WL 518870, at *2 (6th Cir. Aug. 31, 1995) (Table decision at 65 F.3d 169) (“[I]t is generally accepted that a party objecting to confirmation bears the burden of proof. . . . Because the burden lies with the objecting party, vague and unsupported allegations cannot impede confirmation of the plan.” Denial of confirmation and dismissal based on allegations by Chapter 13 trustee and arguments of counsel were reversed and remanded for “augmentation of the record.”); In re Smith, 286 B.R. 104 (Bankr. W.D. Ark. 2002) (Ordinarily the burden of proof at confirmation is on the objecting creditor; but when the objection to confirmation challenges eligibility under § 109(g), the burden is on the debtor to prove eligibility.); In re Petrella, 230 B.R. 829, 832 (Bankr. N.D. Ohio 1999) (“A Debtor seeking reorganization under Chapters 11, 12 or 13 has the burden of establishing that the plan complies with the statutory requirements for confirmation. . . . However, a party objecting to confirmation bears the burden of proof as to the objection. . . . Applying this burden herein, it is incumbent upon Greentree to show that the provisions of § 1322(c)(2) are not applicable.” Because Greentree failed to show that § 1322(c)(2) is not applicable, debtor can cram down second mortgage.); In re Britt, 211 B.R. 74, 77 n.8 (Bankr. M.D. Fla. 1997) (“Where the Chapter 13 Trustee does not object to confirmation of the plan it is the burden of the party objecting to prove existence of the lack of good faith.”); In re Everhart, 87 B.R. 35 (Bankr. N.D. Ohio 1988) (The burden of proof is on the objector who must meet that burden by clear and convincing evidence.).

 

3  See discussion of projected disposable income test beginning at § 91.1  In General.

 

4  See Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir. 1987) (At a minimum, party objecting to confirmation under § 1325(b) has the initial burden of going forward with evidence.); Itule v. Heath (In re Heath), 182 B.R. 557, 560–61 (B.A.P. 9th Cir. 1995) (The objecting creditor under § 1325(b) has the burden of going forward with evidence that the debtor has not committed all projected disposable income; the debtor then has the ultimate burden of persuasion. “[T]he requirements of Section 1325(b) come into play only upon the objection of a party in interest. Those courts examining the burden of proof issue as it relates to Section 1325(b) have concluded that the creditor has at a minimum, ‘the initial burden of producing satisfactory evidence to support the contention that the debtor is not applying all of his disposable income’ to the plan payments. . . . We concur with this standard.” With respect to a tax refund during the years of the plan, the trustee might show that the debtor has consistently received a tax refund in prior years. “The debtor would then have the ultimate burden to show that despite the receipt of refunds in prior years, circumstances during the plan make it unlikely that a refund will be received.”); In re McGilberry, 298 B.R. 258, 260 (Bankr. M.D. Pa. 2003) (“A creditor who files objections to the confirmation . . . bears the initial burden of producing evidence that the Plan does not pay unsecured claims in full and that it does not require the debtor to devote all of his disposable income to the Plan over its term. . . . After the creditor satisfies this initial burden, the ultimate burden of proof shifts to the debtor.”); In re Gleason, 267 B.R. 630, 633 (Bankr. N.D. Iowa 2001) (“The party objecting to confirmation has the initial burden to produce satisfactory evidence that the debtor is not applying all disposable income to the plan. . . . The burden then shifts to the debtor to justify listed expenditures. . . . The debtor has the ultimate burden of persuasion when a disposable income objection to confirmation is asserted.”); In re James, 260 B.R. 498, 513 (Bankr. D. Idaho 2001) (“The objecting party bears ‘the initial burden of producing satisfactory evidence to support the contention that the debtor is not applying all his disposable income’ to the plan. . . . The burden then shifts to the debtor to show that all disposable income is being committed to the plan.”); In re McNichols, 249 B.R. 160, 168 (Bankr. N.D. Ill. 2000) (“The party objecting to confirmation bears the initial burden of presenting evidence that the proposed plan does not include all disposable income, but the ultimate burden shifts to the debtor to show compliance with the requirements of § 1325(b)(1)(B).”); In re Ehret, 238 B.R. 85, 87 (Bankr. D.N.J. 1999) (“The party objecting to confirmation bears the initial burden of presenting evidence that the proposed plan does not include all disposable income, but the ‘ultimate burden’ then shifts to the debtor to show compliance with the requirements of section 1325(b)(1)(B).”); In re MacDonald, 222 B.R. 69, 74 (Bankr. E.D. Pa. 1998) (“Although the objecting party has the initial burden of filing objections which reasonably assert that the debtor is not applying all disposable income to plan payments, the burden of proving compliance of the plan of the provisions with § 1325(b)(1)(B) lies upon the debtor, as the party who is attempting to assert a right to a legal position and is the party with the most access to evidence of the debtor’s own budget.”); In re Rothman, 206 B.R. 99, 104 (Bankr. E.D. Pa. 1997) (“[A] creditor who files objections to the confirmation of a debtor’s plan of reorganization must bear the initial burden of producing evidence that the debtor’s plan of reorganization does not contemplate the application of all of his or her disposable income to the plan over the life of the plan. . . . [A]fter the creditor satisfies this initial burden, the ultimate burden of proof shifts to the debtor.”); In re Rothman, 204 B.R. 143, 157 (Bankr. E.D. Pa. 1996) (“[I]n consideration of a § 1325(b)(1)(B) objection, the creditor or trustee bears the initial burden of proving that the debtor’s plan of reorganization does not contemplate the application of all of his or her disposable income to the plan over the life of the plan. . . . However, after the creditor satisfies the initial burden, the ultimate burden of proof shifts to the debtor.”); In re Jobe, 197 B.R. 823, 826 (Bankr. W.D. Tex. 1996) (With respect to § 1325(b), “[t]he objecting party has the initial burden of establishing that the plan proposes less than full payment of the creditor’s claim. . . . Once that is established the debtor must show that all his projected disposable income has been dedicated to the plan.”); In re Schnabel, 153 B.R. 809, 819 (Bankr. N.D. Ill. 1993) (“‘[T]he creditor has the initial burden of production on an objection to confirmation pursuant to section 1325(b). Once that burden is met, the ultimate burden of persuasion rests with the debtor.’”); In re Sitarz, 150 B.R. 710, 718 (Bankr. D. Minn. 1993) (“The Eighth Circuit has held that the creditor objecting under § 1325(b)(1) has the initial burden of producing evidence to support its contention that the debtor is not applying all of his disposable income to his plan. Education Assistance Corp. v. Zellner, 827 F.2d 1222, 1226 (8th Cir. 1987).”); In re Packham, 126 B.R. 603 (Bankr. D. Utah 1991) (Objecting parties “have, at a minimum, ‘the initial burden of producing satisfactory evidence to support the contention that debtor is not applying all of his disposable income’ to the plan payments. . . . The proponent of a Chapter 13 plan, however, has the ultimate burden of proof as to the requirements of its confirmation.”); In re Fricker, 116 B.R. 431 (Bankr. E.D. Pa. 1990) (“[W]hen objections to confirmation . . . are raised under 11 U.S.C. §§ 1325(a)(3), (a)(5), and (a)(6) . . . the objector bears the burden of clearly articulating the nature of any objection. . . . [T]he ultimate burden of proof is on debtors to establish an entitlement to confirmation, rather than upon objectors to establish the validity of their objections.”); In re Carver, 110 B.R. 305 (Bankr. S.D. Ohio 1990) (Objecting party has the initial burden of producing evidence in support of objection; debtor then bears the ultimate burden of persuasion on the issue of compliance with the confirmation criteria in § 1325(a).); In re Stein, 91 B.R. 796 (Bankr. S.D. Ohio 1988) (Objecting party must meet the initial burden of producing evidence in support of objection.); In re Ziegler, 88 B.R. 67 (Bankr. E.D. Pa. 1988) (Initial burden of going forward with the evidence falls on the objecting creditor, with the ultimate burden of persuasion resting on the debtor, when the objection to confirmation concerns compliance with § 1322(b).); In re Keffer, 87 B.R. 509, 514 (Bankr. S.D. Ohio 1988) (“[T]he burden of going forward with evidence in support of an objection to confirmation is properly allocated to the objecting party.”). Accord In re Colon Vazquez, 111 B.R. 19 (Bankr. D.P.R. 1990); In re Rose, 101 B.R. 934 (Bankr. S.D. Ohio 1989); In re Hieb, 88 B.R. 1019 (Bankr. D.S.D. 1988); In re Hogue, 78 B.R. 867 (Bankr. S.D. Ohio 1987); In re Crompton, 73 B.R. 800 (Bankr. E.D. Pa. 1987); In re Fries, 68 B.R. 676 (Bankr. E.D. Pa. 1986).

 

5  See discussion of 11 U.S.C. § 109(g) beginning at § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General.

 

6  In re Smith, 286 B.R. 104, 106 (Bankr. W.D. Ark. 2002) (Citing Montgomery v. Ryan (In re Montgomery), 37 F.3d 413 (8th Cir. 1994), “the debtor has the burden of proof to explain that the dismissal of the previous case was not the result of a willful violation of the court’s order. . . . [T]he Debtor has failed to offer any evidence to establish his eligibility once the issue was raised. Therefore, the objection to confirmation is sustained, and this case is dismissed because the Debtor failed to establish that he is eligible for relief under the provisions of chapter 13.”).

 

7  Ed Schory & Sons, Inc. v. Francis (In re Francis), 273 B.R. 87, 91 (B.A.P. 6th Cir. 2002) (On good-faith objection to confirmation of plan that would pay 2% or 3% of a $229,000 judgment declared nondischargeable in prior Chapter 7 case, “[t]he rule in the Sixth Circuit is that plans proposing to pay such low percentages of nondischargeable debts deserve ‘particular scrutiny.’”), aff’d, No. 02-3288, 2003 WL 21782600 (6th Cir. July 31, 2003) (unpublished); Smyrnos v. Padilla (In re Padilla), 213 B.R. 349, 352 (B.A.P. 9th Cir. 1997) (“The burden of establishing good faith is on the debtor. This burden is particularly heavy when a ‘superdischarge’ is sought—i.e., the discharge of debts that would not be dischargeable in a chapter 7 case. In re Warren, 89 B.R. 87 (9th Cir. BAP 1988).”); Fidelity & Cas. Co. of N.Y. v. Warren (In re Warren), 89 B.R. 87, 91 (B.A.P. 9th Cir. 1988) (Upon objection to confirmation on good-faith grounds, the debtor bears the burden to prove “more than bare presentation of the plan and provision for payment.”); In re Soost, 290 B.R. 116, 130 (Bankr. D. Minn. 2003) (In a “cumulated bankruptcy filing”—a Chapter 7 case that does not meet the debtor’s expectations, followed rapidly by a Chapter 13 petition—“[t]he debtor . . . would bear a heightened burden of production, to more exhaustively demonstrate that he is acting in good faith in proposing his plan.”); In re Reese, 281 B.R. 735, 740 (Bankr. M.D. Fla. 2002) (Debtor has the burden to prove that plan is filed in good faith; “[a] debtor’s burden further increases if he seeks a Chapter 13 ‘superdischarge.’”); In re Scotten, 281 B.R. 147, 149 (Bankr. D. Mass. 2002) (“In this case, the Debtor is attempting to use the Chapter 13’s ‘superdischarge’ to discharge a debt that would be nondischargeable under Chapter 7. ‘[W]hen the debtor seeks the Chapter 13 superdischarge to discharge debt that would remain undischarged in a Chapter 7, [the debtor’s] burden is especially heavy’ in overcoming an objection to confirmation based on ‘good faith.’”); In re James, 260 B.R. 498, 504 (Bankr. D. Idaho 2001) (“A Chapter 13 debtor’s burden of proof to show his plan was proposed in good faith is particularly heavy when the debtor seeks to discharge debts otherwise excepted from discharge under Chapter 7.”); In re Haskell, 252 B.R. 236, 242 (Bankr. M.D. Fla. 2000) (“The burden of proof to establish that a plan is proposed in good faith is on the debtor. . . . A debtor’s burden further increases if a Chapter 13 ‘superdischarge’ is sought.”); In re Baird, 234 B.R. 546, 550 (Bankr. M.D. Fla. 1999) (“Debtor’s burden further increases if a Chapter 13 ‘superdischarge’ is sought.”); In re Petersen, 228 B.R. 19, 24 (Bankr. M.D. Fla. 1998) (“A debtor’s burden further increases if a Chapter 13 ‘superdischarge’ is sought.”); In re Keach, 225 B.R. 264, 267 (Bankr. D.R.I. 1998) (“Debtor has the burden of proving that all elements of 11 U.S.C. § 1325 exist, including good faith . . . that burden is increased where the Debtor is seeking a Chapter 13 ‘super discharge.’ . . . In ‘Chapter 20’ cases, the superdischarge takes on added significance when the debtor gets rid of his/her dischargeable debts in Chapter 7, then turns around and files a Chapter 13 case, proposing little or no payment to creditors who survived the Chapter 7 filing. In the absence of close scrutiny, this procedure invites abuse of the system.”), rev’d, 243 B.R. 851 (B.A.P. 1st Cir. 2000); In re Cushman, 217 B.R. 470, 476 (Bankr. E.D. Va. 1998) (Debtor has the burden of proof to establish good faith at confirmation; Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), indicates that Chapter 20s are not per se prohibited, but “such cases are not favored and must be closely scrutinized.”); In re Pickering, 195 B.R. 759, 764 (Bankr. D. Mont. 1996) (“[A] debtor’s burden is ‘“especially heavy” when a debtor seeks a “super discharge”’ of debts not dischargeable under Chapter 7. [In re Warren, 89 B.R. 87, 93 (B.A.P. 9th Cir. 1988)].”); In re Elisade, 172 B.R. 996, 1000 (Bankr. M.D. Fla. 1994) (“The burden of proof to demonstrate ‘good faith’ lies with the debtor. . . . That burden further increases if a Chapter 13 ‘superdischarge’ petition is sought.”); In re Norman, 162 B.R. 581, 583 (Bankr. M.D. Fla. 1993) (“The burden of proof to establish that a plan is proposed in good faith is squarely on the Debtor. This burden is especially heavy if a debtor seeks to obtain the benefits of a ‘superdischarge’ available in Chapter 13. . . . Obviously, the liberal provisions of Chapter 13 are subject to abuse, and the courts must look closely to the debtor’s conduct before confirming a plan.”); In re Everhart, 87 B.R. 35 (Bankr. N.D. Ohio 1988) (The burden of proof is on the objector who must meet that burden by clear and convincing evidence.); In re Haas, 76 B.R. 114 (Bankr. S.D. Ohio 1987).

 

8  See In re Brown, 244 B.R. 603, 607 (Bankr. W.D. Va. 2000) (“As a general matter the debtor has the burden ‘to prove that a proposed plan complies with Chapter 13.’ . . . The burden is by a preponderance of the evidence, not by a ‘clear and convincing’ evidentiary standard.”); In re Selden, 116 B.R. 232, 234 (Bankr. D. Or. 1990) (Although the burden of proving good faith if challenged, rests upon the debtor, the formulation of this burden of proof as “especially heavy” in Fidelity Casualty Co. of New York v. Warren (In re Warren), 89 B.R. 87 (B.A.P. 9th Cir. 1988), is in error. “If Congress intended debtors to have an ‘especially heavy’ burden in establishing good faith in Chapter 13 cases, then a finding of good faith would not be pro forma in the absence of evidence indicating bad faith.”), aff’d, 121 B.R. 59 (D. Or. 1990).

 

9  Compare 11 U.S.C. § 707(b) (“There shall be a presumption.”).

 

10  See § 219.1 [ Standing to Object ] § 116.1  Standing to Object.

 

11  See, e.g., Fidelity & Cas. Co. v. Warren (In re Warren), 89 B.R. 87, 91 (B.A.P. 9th Cir. 1988) (Although (former) Bankruptcy Rule 3020(b)(2) states that the court “may” find that a Chapter 13 plan was filed in good faith without receiving evidence, when there is an objection to confirmation on good-faith grounds, debtor bears the burden of proof to present “more than bare presentation of the plan and provision for payment.”); In re Waldman, 88 B.R. 59, 61 (E.D. Pa. 1988) (“As the Third Circuit held in In re Hines, 723 F.2d 333, 334–35 (3d Cir. 1983), Chapter 13 debtors do not have an affirmative burden, beyond the showing made in the report of the standing trustee, to show that their reorganization plan, which provides for only nominal payments to unsecured creditors, was filed in good faith.”); In re Henricksen, 131 B.R. 467 (Bankr. N.D. Okla. 1991) (Bankruptcy court has an independent duty to determine whether a Chapter 13 plan has been proposed in good faith, notwithstanding the absence of an objection to confirmation. Absent objection, “‘the court may determine that the plan has been proposed in good faith . . . without receiving evidence on such issue.’ . . . This discretionary procedural option does not relieve the debtors from their duty of proposing a plan in good faith or the court from its responsibility of enforcing the requirement of 11 U.S.C. § 1325(a)(3).”); In re Castello, 127 B.R. 257 (Bankr. D. Or. 1991) (On remand, “[a] debtor in a Chapter 13 has the burden of showing that the plan is in ‘good faith.’ . . . It is not the burden of a creditor to show ‘bad faith.’ But this does not mean that the court must consider evidence not presented by the parties or that the debtor must present evidence to disprove a negative by anticipating arguments which might be, but have not been made, by the creditor. . . . In the absence of any suggestion, let alone any evidence, that a plan is in bad faith, the debtor’s burden to show good faith is fulfilled by the filing of a Chapter 13 statement under oath and the filing of a plan which, on its face, . . . appears to comply with the provisions of §§ 1322 and 1325. There is no need for the debtor to present other evidence of good faith. . . . If objections are timely filed, the court need only consider evidence relevant to the grounds asserted in the objections.”); In re Selden, 116 B.R. 232, 234 (Bankr. D. Or.), aff’d, 121 B.R. 59 (D. Or. 1990) (Although the burden of proving good faith, if challenged, rests upon debtor, the formulation of this burden of proof as “especially heavy” in Fidelity & Casualty Co. v. Warren (In re Warren), 89 B.R. 87, 91 (B.A.P. 9th Cir. 1988), is in error. “If Congress intended debtors to have an ‘especially heavy’ burden in establishing good faith in Chapter 13 cases, then a finding of good faith would not be pro forma in the absence of evidence indicating bad faith.”); In re Belt, 106 B.R. 553 (Bankr. N.D. Ind. 1989) (Once debtor’s good faith has been questioned, debtor has the burden to establish good faith. However, when the standing trustee reports to the court that the debtor has proposed the plan in good faith, the debtor need not introduce affirmative evidence, and instead, the burden of going forward shifts to the objector to show evidence that the plan was not proposed in good faith.).

 

12  See also § 216.1 [ Timing of Hearing on Confirmation ] § 115.1  Timing of Hearing on Confirmation before BAPCPA.

 

13  In re Waldman, 88 B.R. 59, 61 (E.D. Pa. 1988) (“As the Third Circuit held in In re Hines, 723 F.2d 333, 334–35 (3d Cir. 1983), Chapter 13 debtors do not have an affirmative burden, beyond the showing made in the report of the standing trustee, to show that their reorganization plan, which provides for only nominal payments to unsecured creditors, was filed in good faith.”); In re Belt, 106 B.R. 553, 564 (Bankr. N.D. Ind. 1989) (“[W]here the standing trustee reports to the court that the debtor has proposed the plan in good faith, the debtor need not introduce affirmative evidence, and instead, the burden of going forward shifts to the objector to show evidence that the plan was not proposed in good faith.”).

 

14  Fidelity & Cas. Co. v. Warren (In re Warren), 89 B.R. 87, 91 (B.A.P. 9th Cir. 1988); In re Huerta, 137 B.R. 356, 365 (Bankr. C.D. Cal. 1992) (Upon an objection to confirmation on the ground that the plan is not filed in good faith under § 1325(a)(3), the debtor has the burden of proof and must present more than the bare plan. “The ‘more’ requirement . . . means that where an objection is filed, debtors must bear their burden of proof by presenting admissible evidence to the Court by way of timely filed declarations and documentation.”).

 

15  156 B.R. 156 (E.D. Va. 1993).

 

16  974 F.2d 75 (8th Cir. 1992).

 

17  974 F.2d at 77.

 

18  974 F.2d at 76.

 

19  See § 225.1 [ Appeal of Grant or Denial of Confirmation ] § 117.4  Appeal of Grant or Denial of Confirmation.

 

20  See In re Petrella, 230 B.R. 829, 832 (Bankr. N.D. Ohio 1999) (“[A] party objecting to confirmation bears the burden of proof as to the objection. . . . Applying this burden herein, it is incumbent upon Greentree to show that the provisions of § 1322(c)(2) are not applicable.”); In re Britt, 211 B.R. 74, 77 n.8 (Bankr. M.D. Fla. 1997) (“Where the Chapter 13 Trustee does not object to confirmation of the plan it is the burden of the party objecting to prove existence of the lack of good faith.”); In re Rothman, 206 B.R. 99, 104 (Bankr. E.D. Pa. 1997) (“[A] creditor who files objections to the confirmation of a debtor’s plan of reorganization must bear the initial burden of producing evidence that the debtor’s plan of reorganization does not contemplate the application of all of his or her disposable income to the plan over the life of the plan.”). See also Shortridge v. Ruskin (In re Shortridge), No. 93-2558, 1995 WL 518870, at *2 (6th Cir. Aug. 31, 1995) (Table decision at 65 F.3d 169) (“[I]t is generally accepted that a party objecting to confirmation bears the burden of proof. . . . Because the burden lies with the objecting party, vague and unsupported allegations cannot impede confirmation of the plan.” Denial of confirmation and dismissal based on allegations by Chapter 13 trustee and arguments of counsel were reversed and remanded for “augmentation of the record.”).

 

21  In re Castello, 98 B.R. 523 (Bankr. D. Or. 1989), vacated, 123 B.R. 466 (B.A.P. 9th Cir.), aff’d on remand, 127 B.R. 257 (Bankr. D. Or. 1991) (On remand, debtor carried burden of proof on issue of good faith when objecting creditor mustered no evidence in support of bad faith.).