Cite as: Keith M. Lundin, Lundin On Chapter 13, § 116.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
Bankruptcy Rule 3015(f) provides: “an objection to confirmation of a plan shall be filed and served . . . before confirmation of the plan.”1 It has been held that a local rule or court order that defines “timely” to be days or weeks before the moment of confirmation is not inconsistent with Bankruptcy Rule 3015(f).2
Bankruptcy Rule 2002(b) requires not less than 25 days’ notice by mail of the time fixed for filing objections to confirmation of a Chapter 13 plan. In many jurisdictions, the notice of the § 341 meeting contains a fixed date by which written objections to confirmation must be filed.3 In jurisdictions that reach confirmation at or near the § 341 meeting,4 the 25 days’ notice for filing objections to confirmation may be included in the notice of the filing and the deadline may coincide with the § 341 meeting. Creditors must quickly determine whether to object to confirmation.
It is the practice in some jurisdictions that objections to confirmation are timely if stated orally at the meeting of creditors. The objecting party should always immediately follow up with a written objection and request for a hearing.5
In many jurisdictions, by local rule or notice, objections to confirmation must be filed a certain number of days in advance of the hearing on confirmation, or a specified number of days after the meeting of creditors. Creditor’s counsel must determine the relevant dates and do the required counting. When the notice of the hearing on confirmation provided that objections must be filed in writing at least five days prior to confirmation, a creditor’s objection filed on the date set for the confirmation hearing was untimely.6 When a local bankruptcy rule required objections to confirmation to be filed before the 10th day after the meeting of creditors, untimely filed objections are fatally defective and do not trigger a hearing on confirmation.7 A disposable-income-test objection to confirmation contained in a postconfirmation hearing brief was untimely when a local rule required that objections to confirmation be filed in writing in advance of the hearing on confirmation.8
Creditors cannot avoid the deadline for filing objections to confirmation by collaterally attacking confirmation after the fact.9 For example, a motion for relief from the stay filed after the deadline for objections to confirmation is not a timely objection to confirmation of the plan.10 When the failure to timely file an objection to confirmation was caused by an attorney’s misreading of the court order fixing the deadline, Bankruptcy Rule 9006(b)(1) does not excuse the late filing.11
A few reported opinions suggest that deadlines for objecting to confirmation are more easily avoided. In In re Johnson,12 the notice of the § 341 meeting advised that objections to confirmation must be filed “at least three days before the meeting of creditors.” A creditor with notice filed an untimely objection that the plan impermissibly modified lien rights. The bankruptcy court denied confirmation on that ground. The debtor appealed.
On appeal, the district court held that “[b]ecause the Bankruptcy Court clearly had the authority to decline sua sponte to confirm Debtors’ plan . . . the Bankruptcy Court did not commit reversible error by failing to dismiss [the lienholder’s] objection or by considering the plan’s treatment of the [lienholder’s] secured claim, despite the technical lateness of [the lienholder’s] filing.”13
Similarly, in In re Stevens,14 the confirmed plan contained a provision that discharged a student loan. A modified plan was proposed that contained the same provision, and the student loan creditor filed an untimely objection to the modified plan. The debtor objected to consideration of the objection as untimely. The bankruptcy court considered the objection anyway:
[The student loan creditor’s] objection was filed after the 30-day time limit for objecting to confirmation. However, it is this court’s practice to consider the confirmability of a chapter 13 plan on the merits of the plan whether or not an objection is timely, and the court therefore considers the objection. . . . [I]t does not matter that debtor’s earlier plan, which sought to discharge the educational loan as an undue hardship, has been confirmed. The provision cannot have the effect sought for it.15
The logic of Johnson, Stevens and similar decisions16 is that deadlines for filing objections to confirmation in Chapter 13 cases do not mean very much because bankruptcy judges are not constrained by the same rules as other players. Debtors can never safely rely on a deadline for objections to confirmation if the bankruptcy judge can randomly pick up the fallen mantle.17
Johnson and Stevens promote anarchy in the Chapter 13 confirmation process for no obvious good purpose. The deadlines for objecting to confirmation have to mean something, else it is impossible for debtors and trustees to prepare for hearings on confirmation. The creditor that misses a deadline to object has only itself to blame and has no reasonable expectation that the court or any other party will save it from its neglect. That some courts only entertain untimely objections to confirmation when the objections are “not tangential or trivial”18 suggests (incongruously) that missing an important deadline to raise a facially valid objection to confirmation is more likely excused than failing to timely assert an objection less likely to succeed. The certainty of the confirmation process is then inversely related to the level of creditor incompetence.
Chapter 13 debtors have been unsuccessful at controlling the deadline for objections to confirmation with a provision in the proposed plan. For example, in In re Fiorilli,19 the proposed plan provided that creditors had 25 days to object to valuation of collateral contained in the plan. At confirmation, the debtor argued a creditor that received the proposed plan was precluded from objecting to confirmation after the 25 days. The bankruptcy court permitted the objection, explaining that an unconfirmed plan does not bind creditors and only a court order (or notice?) can fix a preclusive period for the filing of objections to confirmation.20
In some jurisdictions that accelerate confirmation of Chapter 13 cases,21 the finality of confirmation orders is delayed a specified period of days to permit objections to confirmation after entry of the order. In such jurisdictions, an objection to confirmation can be timely filed after entry of the confirmation order and is set for a hearing as if it were timely filed before entry of the order of confirmation. This is a practical accommodation of the need to move Chapter 13 cases quickly and a recognition of the problems of representing creditors in a jurisdiction where Chapter 13 cases reach confirmation within the 50-day period for convening the meeting of creditors.
Other jurisdictions accomplish essentially the same thing with an “if objections” notice and order that recites the provisions of the confirmed plan and gives creditors a fixed period, typically 25 days, in which to object. In the absence of timely objection, the plan is confirmed as stated in the notice. If a timely objection is filed, a hearing on confirmation is scheduled.
This is an efficient way to handle the confirmation of plans that are modified after the original notice to creditors.22 It is quite common for a Chapter 13 debtor to respond to an objection to confirmation with a modification of the plan. Bankruptcy Rule 2002(a) requires 20 days’ notice of a plan modification.23 Combining notice of a proposed modification with the 25-day period for objecting to confirmation speeds up final resolution of plan modifications that often affect only a few (objecting) creditors. The notice must describe the modified plan, must inform creditors of the deadline for objecting to confirmation of the plan as modified and should specify the date for hearing if a timely objection is filed.
1 Fed. R. Bankr. P. 3015(f).
2 In re Dorn, 295 B.R. 872, 875 (Bankr. E.D. Ark. 2003) (Local bankruptcy rule that requires objections to confirmation to be filed before the 10th day after conclusion of the § 341 meeting of creditors is not inconsistent with Bankruptcy Rule 3015. “[C]onsistent with Rule 9006(a), there is the recognition that there will be ‘specified time[s set out] by these rules . . . or by order of court . . . .’ General Order Number 20 does exactly that regarding when an objection must be ‘timely’ filed. Once that time deadline is established, and recognizing the antecedent language contained in (c)(1), (c)(2) does not permit its reduction. . . . The very language of Rule 3015(f) supports this conclusion. . . . Surely the word ‘timely’ contemplates that the court, consistent with Rule 9006(a) and (c)(1), can and will set some type of deadline for objections, the filing of which will result in a hearing . . . . That period, once established, may not be reduced pursuant to Rule 9006(c)(2).”); In re Gaona, 290 B.R. 381, 385–86 (Bankr. S.D. Cal. 2003) (Local bankruptcy rule fixing early deadline for objections to confirmation is not inconsistent with Bankruptcy Rule 3015(f). Local bankruptcy rule provided: “The objecting party must obtain a hearing date from the chapter 13 trustee no later than the date the § 341(a) meeting is concluded. The objecting party must file the . . . objection to confirmation . . . on the next court date following the date the § 341(a) meeting is concluded.” Applying Marshall v. Gates, 44 F.3d 722 (9th Cir. 1995), “the bankruptcy court may condition the right to object to confirmation by adopting procedures for plan objection prior to the hearing date. The local rule by no means takes away Erickson’s opportunity to object to plan confirmation, but simply conditions that right by setting time limits. . . . [T]he third sentence of FRBP 3015(f) contemplates that a deadline for objections will be set prior to the hearing date. . . . Local bankruptcy rule 3015-5 facilitates an efficient chapter 13 confirmation process by channeling all objections through the chapter 13 trustee who coordinates a hearing date.”); In re Duncan, 245 B.R. 538, 539–41 (Bankr. E.D. Tenn. 2000) (Local rule requiring objections to confirmation to be filed prior to the conclusion of the meeting of creditors is not inconsistent with Bankruptcy Rule 3015(f); creditor’s objection after the meeting of creditors but before entry of the confirmation order was untimely. “The notice advised that the meeting of creditors would be held on October 26, 1999, and stated that ‘[i]f a timely objection to confirmation is filed pursuant to E.D. Tenn. LBR 3015-3, a hearing on confirmation will be held on 11/16/99 . . . .’ Rule 3015-3 of the Local Rules . . . provides in part . . . ‘objections to confirmation of chapter 13 plans shall be filed prior to the conclusion of the meeting of creditors . . . . However, the chapter 13 trustee and any creditor attending and participating in the meeting of creditors will be allowed until the close of business on the third business day following the conclusion of the meeting within which to file an objection. . . . Fed. R. Bankr. P. 3015(f) . . . provides that ‘[a]n objection to confirmation of a plan shall be filed . . . before confirmation of the plan.’ . . . [T]his court disagrees with [In re Ryan, 160 B.R. 494 (Bankr. N.D.N.Y. 1993),] and believes that the Ryan court’s first impression, that the promulgation of Fed. R. Bankr. P. 3015(f) was a clarification rather than a change in procedure, was the correct one. Granted, the first sentence of Fed. R. Bankr. P. 3015(f) does provide that objections shall be filed prior to confirmation. . . . The third sentence of Fed. R. Bankr. P. 3015(f) states that ‘[i]f no objection is timely filed, 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’ . . . . This sentence clearly contemplates that at the confirmation hearing, the court will determine if an objection has been ‘timely’ filed. Such a determination can only be made if a deadline to file objections has been set prior to the hearing. Thus, the Ryan court’s assertion that ‘Fed. R. Bankr. P. 3015(f) makes no reference to the need to file objections prior to the original hearing date or any hearing date thereafter’ is incorrect when Fed. R. Bankr. P. 3015(f) is read in its entirety. A literal interpretation of the first sentence of Fed. R. Bankr. P. 3015(f), that any objection to confirmation may be considered so long as it is filed prior to confirmation of the plan, would, in this court’s view, lead to an absurd result. . . . [T]he confirmation process could go on ad infinitum.”).
3 See In re Botteri, 108 B.R. 164 (Bankr. S.D. Ohio 1989) (To avoid being bound by the confirmation order, it was necessary for the creditor to file an objection to confirmation before the deadline stated in the order and notice for the meeting of creditors.).
4 See § 216.1 [ Timing of Hearing on Confirmation ] § 115.1 Timing of Hearing on Confirmation before BAPCPA.
5 See Fed. R. Bankr. P. 3015(f), discussed in § 221.1 [ Form of Objection ] § 116.4 Form of Objection.
6 In re Lewis, 93 B.R. 462 (Bankr. S.D. Miss. 1987). Accord Green Tree Fin. Servicing, Corp. v. Karbel (In re Karbel), 220 B.R. 108 (B.A.P. 10th Cir. 1998) (Notice of plan that included a motion to value collateral and set 25-day deadline for objections to confirmation sent to the address provided by the creditor precluded untimely objection to confirmation. Address for Green Tree was supplied to the clerk’s office by Green Tree in accordance with local procedure. Notice and plan stated a deadline for filing objections to confirmations and a deadline for objections to debtor’s motion to value collateral. Green Tree timely filed a proof of claim before confirmation. Green Tree’s objection to confirmation was untimely filed on the same day as the confirmation order. BAP rejected Green Tree’s argument that address it supplied was not proper under Bankruptcy Rule 7004(b)(3).); In re Carbone, 254 B.R. 1, 2–5 (Bankr. D. Mass. 2000) (Creditor’s objection to confirmation was untimely because it was filed more than 30 days after the date first set for the meeting of creditors, notwithstanding that meeting of creditors was continued; although plan was modified at the meeting of creditors, objection filed 32 days after the modified plan is still untimely. The debtor scheduled CFA as a creditor, and the court gave notice that the meeting of creditors was set for March 31, 2000. On March 23, the debtor notified all parties that the § 341 meeting was rescheduled to April 14. At the § 341 meeting on April 14, the debtor modified the plan to change the treatment of the IRS and the Massachusetts Department of Revenue. The trustee and the debtor “signed a statement indicating neither notice to other creditors or a hearing on the modification were necessary because the modification did not adversely affect creditors.” On May 15, counsel for CFA mailed an objection to confirmation. The objection was received and filed on May 16. Citing local bankruptcy rules, “an objecting party must file the objection with the clerk of court . . . before the later of thirty (30) days after the first date set for the meeting of creditors, regardless of subsequent rescheduling of the meeting, or thirty (30) days after the debtor serves a modified plan on the Chapter 13 [trustee] and the creditors. . . . CFA filed its objection to confirmation . . . forty-six (46) days after March 31, 2000, ‘the date first set for the section 341 meeting.’ . . . CFA’s objection was untimely when measured from the date first set for the § 341 Meeting. . . . The mere mailing of pleadings, while sufficient to complete service of pleadings . . . is insufficient to affect filing. Thus, the filing of CFA’s objection was not complete until the clerk of the Court received it on May 16 . . . thirty-two (32) days after the § 341 Meeting was held, and was therefore untimely, even under CFA’s erroneous interpretation of [the local rule].”); In re Duncan, 245 B.R. 538 (Bankr. E.D. Tenn. 2000) (Objection to confirmation filed after meeting of creditors but before entry of confirmation order was untimely when local rule required objections to confirmation to be filed prior to the conclusion of the meeting of creditors. That the debtor modified the plan before confirmation does not resurrect the creditor’s right to object when the treatment of the secured portion of the objecting creditor’s claim was not modified and the creditor’s objection relates only to provisions of the plan that were not changed.). See also In re Smith, 179 B.R. 437, 447 (Bankr. E.D. Pa. 1995) (Although creditor filed a timely objection to confirmation, the grounds asserted in the creditor’s brief were different from the grounds asserted in the objection, and the brief was filed after the deadline for objections. The objections thus “were arguably waived by her failure to raise same through filings within the time deadlines set forth in [Local Bankruptcy Rules].”).
7 See In re Ramey, 301 B.R. 534, 537 (Bankr. E.D. Ark. 2003) (“[L]ocal practice requires an objection to confirmation to be filed on or before ten days after completion of the 341(a) first meeting of creditors. . . . If no objection to confirmation is filed, an order confirming the plan is entered without a hearing.”); In re Hager, No. 4:03-BK-14025 E, 2003 WL 22658194, at *4–*5 (Bankr. E.D. Ark. Oct. 3, 2003) (unpublished) (Distinguishing In re Cook, 253 B.R. 249 (Bankr. E.D. Ark. 2000), mortgage holder’s failure to object to confirmation before the 10th day after the meeting of creditors as required by local rule is fatal. “There is no allegation that Debtors engaged in any malfeasance, concealment, or any other such conduct which either impeded EMC’s notice of the plan or prevented EMC from objecting to the plan. . . . Although this Court is sensitive to the demands of the modern law practice and is cognizant of the number of deadlines imposed on attorneys and their clients, for the Court to disregard the time limitation established by General Order 20 in this situation would be an invitation to disorder.” EMC’s only explanation was “an office procedural error.”); In re Dorn, 295 B.R. 872 (Bankr. E.D. Ark. 2003) (Local bankruptcy rule that requires objections to confirmation to be filed before the 10th day after conclusion of the § 341 meeting of creditors is not inconsistent with Bankruptcy Rule 3015 and precludes an untimely filed objection to confirmation.); In re Gaona, 290 B.R. 381, 385 (Bankr. S.D. Cal. 2003) (Local bankruptcy rule conditions the right to object to confirmation by setting a time limit: objecting party must obtain from the chapter 13 trustee, no later than the conclusion of the § 341 meeting, a date for hearing and objection to confirmation, and the objecting party must file the objection “on the next court date following the date the § 341(a) meeting is concluded.”).
8 In re MacDonald, 222 B.R. 69 (Bankr. E.D. Pa. 1998). Accord In re Harris, 275 B.R. 850, 852 (Bankr. S.D. Ohio 2002) (Disposable-income-test objection to confirmation filed 30 days after the deadline established in a notice is not timely and “must be overruled on that basis.”).
9 See § 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors.
10 In re Botteri, 108 B.R. 164 (Bankr. S.D. Ohio 1989). But see In re Cook, 253 B.R. 249, 250–51 (Bankr. E.D. Ark. 2000) (Objection to confirmation that was untimely under local rules is appropriately considered because motion for relief from the stay raises the same issues and creditor that completed nonjudicial foreclosure sale before the petition is entitled to prevail on the merits. “The notice of the commencement of the case, sent to all creditors, stated a deadline for filing objections to confirmation. . . . [T]o be timely, an objection to confirmation was required to be filed and served on or before the tenth day following the section 341(a) meeting. . . . [T]he objection was not filed until . . . some 14 days after the deadline . . . . The time requirement stated in the notice is one imposed by General Order No. 14 . . . . Although strict times are imposed for the filing of the plan under Rule 3015(a), there are no express time requirements for an objection to confirmation, other than it be filed prior to confirmation of the plan. Fed. R. Bankr. P. 3015(f). . . . General Order No. 14 does not conflict with Rule 3015 but, rather, supplements it, and accords the parties deadlines and notice of when actions must be taken. . . . As a general rule, the Court believes that these deadlines should be followed . . . . [T]here is pending a motion for relief from stay which not only raises the identical issues as the objection to confirmation, it has merit. . . . [T]he debtor’s request is akin to a motion for default, which, in this instance, is not warranted. . . . [I]nasmuch as the objection was timely under Rule 3015, although untimely under General Order No. 14, the better course is for the Court to hear and determine the Objection to Confirmation.”).
11 In re Lewis, 93 B.R. 462 (Bankr. S.D. Miss. 1987).
12 160 B.R. 800 (S.D. Ohio 1993), overruled by Lane v. Western Interstate Bank Corp. (In re Lane), 280 F.3d 663 (6th Cir. 2002).
13 160 B.R. at 802–03.
14 236 B.R. 350 (Bankr. E.D. Va. 1999).
15 236 B.R. at 351–52.
16 See In re Ives, 289 B.R. 726, 728–29 (Bankr. D. Ariz. 2003) (Untimeliness of objection to confirmation does not prevent bankruptcy court from denying confirmation when plan modifies a partially secured home mortgage in violation of Nobelman v. American Savings Bank, 508 U.S. 324, 113 S. Ct. 2106, 124 L. Ed. 2d 228 (1993); “absolute” requirements for confirmation in §§ 1322(b)(2) and 1325(a)(1) are not conditioned on timely objection. Plan bifurcated a lien partially secured by the debtor’s principal residence. The deadline for objections to confirmation was in April; creditor did not file objection until September—before confirmation of the plan. Plan did not have res judicata effect because no order of confirmation had been entered when the untimely objection was filed. “[T]he effect of the missed deadline depends on whether the issue is one the Court may address even in the absence of an objection. . . . The Plan violates § 1322(b) and hence is not entitled to confirmation per § 1325(a), regardless of objection. . . . Chapter 13 debtors may not set such traps for the unwary. This is not true for all confirmation requirements, because some are expressly conditioned upon objection. . . . But the requirements of §§ 1322(b)(2) and 1325(a)(1) are not of this type, because their application is not conditioned upon objection by a creditor, but are absolute in their terms.”); Kahn v. Dastejerdi (In re Dastejerdi), Nos. 01-11725-SSM, 01-1134, 2001 WL 1168178, at *5 (Bankr. E.D. Va. Sept. 21, 2001) (Complaint objecting to discharge and dischargeability filed after local rule deadline for objections to confirmation is treated as an objection to confirmation. Misconceived complaint under §§ 523 and 1328 was filed after the deadline under the local rules for objections to confirmation but before entry of confirmation order. “Since the objections raised by the complaint were in some sense before the court, even if not in the proper procedural form, prior to confirmation of the plan, the court concludes that it has the discretion to entertain them, even though they were not asserted until after the time had passed under the local rules for objecting to confirmation. This is particularly true where the issues raised by the objection are not tangential or trivial but rather go to the very integrity of the chapter 13 filing.”); In re Bayless, 264 B.R. 719, 720 (Bankr. W.D. Okla. 1999) (Court considers untimely filed objection to confirmation, noting that “[t]he bankruptcy court has discretion to waive its own local court rules in the interests of justice. . . . [T]his Court chooses to review Creditor’s objection, but admonishes Creditor’s counsel to review and conform to the Guidelines of this Court in the future.”); In re Amos, 259 B.R. 317, 319 (Bankr. C.D. Ill. 2001) (Notwithstanding notice that required objections to confirmation no fewer than three days before the confirmation hearing, court considers objection filed after the hearing but before entry of the confirmation order. “[I]n spite of the [three-day] notice language, the Court’s practice has been to consider objections to confirmation which are filed before a Chapter 13 case has been confirmed. Said objections are not automatically entitled to be heard; the notice language ensures that. However, in cases such as this one, where the objector raises an argument that the Debtors’ plan essentially undermines a provision of the Bankruptcy Code, the Court may and will consider the merits of such an objection.”).
17 See also § 219.1 [ Standing to Object ] § 116.1 Standing to Object.
18 Kahn v. Dastejerdi (In re Dastejerdi), Nos. 01-11725-SSM, 01-1134, 2001 WL 1168178, at *5 (Bankr. E.D. Va. Sept. 21, 2001) (unpublished).
19 196 B.R. 83 (Bankr. N.D. Ohio 1996).
20 See In re Britt, 199 B.R. 1000, 1004 (Bankr. N.D. Ala. 1996) (Provision in plan that “[i]If a timely objections [sic] or motion for valuation is not filed fifteen (15) days prior to the date fixed for the confirmation hearing, the Court will determine that the secured claims are secured to the extent of the amount listed in the collateral value fields in the plan and plan summary and will determine the remaining portion of the claims to be unsecured,” adequately notified secured claim holders that a valuation hearing might occur in connection with confirmation; however, this notice did not bind the court to accept the valuations contained in the plan. Rather, timely filed proofs of secured claims in amounts different than stated in the plans were prima facie valid.).
21 See § 216.1 [ Timing of Hearing on Confirmation ] § 115.1 Timing of Hearing on Confirmation before BAPCPA.
22 See discussion of modification before confirmation beginning at § 114.1 Timing, Procedure and Form.
23 See § 209.1 [ Timing, Procedure and Form ] § 114.1 Timing, Procedure and Form.