§ 117.3     Revocation of Confirmation
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 117.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Revocation of an order of confirmation is purely statutory under 11 U.S.C. § 1330(a): “On request of a party in interest at any time within 180 days after the date of the entry of an order of confirmation under section 1325 of this title, and after notice and a hearing, the court may revoke such order if such order was procured by fraud.”

[2]

A few principles have emerged from the sparse case law on revocation of confirmation. Section 1330 is not an alternate route for raising an objection to confirmation. Revocation “cannot be based upon alleged violations of § 1325(a) which were known or should have been known to a creditor prior to the confirmation hearing.”1 A creditor’s failure to object to confirmation and acceptance of payments after confirmation has been held to preclude an action under § 1330.2 Mistakes in the statement or schedules, errors of valuation, failure to provide interest or other matters that were known and could have been addressed at the confirmation hearing cannot form the basis for revocation of confirmation absent evidence of intentional fraud by the debtor.3 Revocation of confirmation is not the appropriate remedy for misconduct with respect to confirmation by parties other than the debtor.4

[3]

Prior knowledge of the facts alleged to constitute fraud can be a problem for the party seeking revocation of confirmation under § 1330(a). The facts that support an ordinary objection to confirmation will often be the same facts that would support a claim of fraud. As indicated in the cases cited above, § 1330(a) is not a substitute for an objection to confirmation. When facts constituting an objection to confirmation were known by the creditor and the creditor slept on its rights, the lost objection is not revived by redressing those same facts as a cause of action under § 1330(a).

[4]

There is a fine line here that has produced some inconsistent case law. In Bright v. Ritacco (In re Ritacco),5 the plaintiffs filed an adversary proceeding after confirmation, alleging that the debtor scheduled numerous creditors as “contingent, unliquidated and disputed, having a value of zero” as part of a fraud to hide ineligibility. The bankruptcy court concluded that the facts constituting the alleged fraud were known by the plaintiffs before confirmation, thus res judicata and the effect of confirmation under § 1327(a)6 barred the complaint to revoke confirmation:

[Section] 1330(a) does not specifically require a lack of prior knowledge on the part of a party seeking revocation . . . . [Section] 1328(e) concerning the revocation of a Chapter 13 discharge . . . provides . . . “the requesting party did not know of such fraud until after such discharge was granted.” . . . [T]he predecessor of § 1330(a) contained a knowledge requirement [citing 11 U.S.C. § 671 (repealed)] . . . . Although the plaintiffs’ arguments have some merit . . . [t]his court finds the rationale set forth in [In re Jarvis, 78 B.R. 288 (Bankr. D. Or. 1987),] and [Midlantic National Bank v. Kouterick (In re Kouterick), 161 B.R. 755 (Bankr. D.N.J. 1993),] to be persuasive. Clearly, the Congressional purpose behind the enactment of § 1330(a) was to allow a party in interest to seek revocation of an order confirming a Chapter 13 plan where the debtor had procured such confirmation through fraud and the fraud is discovered or becomes apparent, to the parties seeking revocation, after confirmation but within the grace period allowed by the statute. Adopting the plaintiffs’ arguments would lead to the illogical conclusion that Congress intended that creditors could lay in the weeds and wait to see if a debtor’s Chapter 13 plan could gain confirmation. . . . If a party in interest has reason to believe that a debtor is seeking confirmation of a Chapter 13 plan through fraud prior to confirmation, the creditor should bring its objection prior to the confirmation of the plan. Any other result does harm to the finality normally accorded confirmation orders and specifically provided for by Congress in § 1327(a). . . . [T]he plaintiffs’ action under § 1330(a) is barred by res judicata.7
[5]

In contrast, in Nikoloutsos v. Nikoloutsos (In re Nikoloutsos),8 the U.S. Court of Appeals for the Fifth Circuit found fraud sufficient to revoke confirmation notwithstanding plaintiff’s knowledge of the true facts in time to have objected to confirmation. In Nikoloutsos, a state court entered judgment against the debtor for $600,000 for malicious assault of his former spouse. Three days later, the debtor filed a Chapter 7 petition. The debtor listed the judgment as a contingent, unliquidated and disputed debt in the amount of “$0.00.” The bankruptcy court lifted the automatic stay in the Chapter 7 case to allow the state court to complete the punitive damages phase of its trial. The state court entered an amended judgment for $863,440. A few weeks later, the debtor converted the Chapter 7 case to Chapter 13. The state court plaintiff filed a completely misdirected complaint to determine dischargeability of debt in the Chapter 13 case but failed to file an objection to confirmation. A plan was confirmed in the Chapter 13 case. The state court plaintiff then filed a complaint to revoke confirmation, alleging that the debtor fraudulently misrepresented the state court judgment in order to be eligible for Chapter 13.

[6]

The bankruptcy court found that the debtor did not fraudulently misrepresent the amount of the state court judgment. The district court affirmed, finding that “any misrepresentation that may have been made by [the debtor] was made unknowingly on the advice of counsel.”9

[7]

The Fifth Circuit reversed, holding that the debtor committed fraud under § 1330(a) by listing the state court plaintiff with a claim of $0.00. That the plaintiff was fully aware the state court judgment exceeded the Chapter 13 debt limitations but fumbled the eligibility challenge did not stop the Fifth Circuit from revoking confirmation.

[8]

Nikoloutsos is a glaring example of clumsy representation of a creditor in a Chapter 13 case; Nikoloutsos is less clearly an example of how § 1330(a) should police fraud at confirmation in Chapter 13 cases. That the debtor was ineligible for Chapter 13 relief—a fact known to the state court plaintiff in time to object to confirmation or move to dismiss—is not a basis for revocation of confirmation. The state court plaintiff in Nikoloutsos floundered around and failed to object to confirmation in a form recognized by the Code or Rules. The Fifth Circuit saved the plaintiff from this bumbling. In the process, the Fifth Circuit finds in § 1330(a) a broader remedy than has been recognized by any other reported appellate decision.

[9]

Although not without controversy,10 it has been held that § 1330(a) is the exclusive remedy to upset an order of confirmation in a Chapter 13 case—Bankruptcy Rule 9024 (Rule 60 of the Federal Rules of Civil Procedure) is not an alternative basis for relief.11 If the statutory remedy under § 1330(a) is exclusive, then the longer time periods and broader grounds stated in Bankruptcy Rule 9024 are not available to challenge a confirmation order.

[10]

The procedural requirements of § 1330(a) and Bankruptcy Rule 7001(5) are strictly enforced. The action is an adversary proceeding that must start with a complaint filed within the 180-day limitation in § 1330(a).12 The 180-day period in § 1330(a) runs from entry of the confirmation order with respect to which the creditor claims fraud. When the debtor filed five amended plans and the creditor alleges fraud in connection with the fifth amendment, the 180-day period runs from confirmation of the fifth amended plan.13

[11]

It has been held that the plaintiff bears the burden of proving fraud by the elevated standard of clear and convincing evidence.14 Postpetition claim holders under § 1305 are not parties in interest and lack standing to seek revocation of an order of confirmation under § 1330.15

[12]

Fraud for purposes of § 1330 is the common-law variety; the creditor must prove five elements:

 

 1.
The debtor made a materially false representation relating to the confirmation standards.
 

 

 

 

 2.
The representation was either known by the debtor to be false or made without belief in its truth or made with reckless disregard for the truth.
 

 

 

 

 3.
The representation was made to induce the court to rely upon it.
 

 

 

 

 4.
The court did rely upon it.
 

 

 

 

 5.
As a consequence, the court entered a confirmation order.16
 

 

 

[13]

Other than Nikoloutsos, there are few reported decisions sustaining complaints to revoke confirmation under § 1330. In In re Scott,17 confirmation was revoked for fraud when the debtor knowingly used different social security numbers in different bankruptcy cases, used aliases in some bankruptcy filings but not in others, revealed some addresses and not others and failed to list creditors to avoid the filing of claims. In Laurel Federal Credit Union v. Hoppel (In re Hoppel),18 in response to a creditor’s motion for relief from the stay, the debtor wrote a letter stating that he had automobile parts worth at least $11,000 that were collateral for the creditor’s claim. Shortly after writing the letter, the debtor filed an amended plan that surrendered the collateral to the creditor. The creditor did not object to confirmation of the amended plan. The collateral did not exist, and the debtor knew so at the time of the letter. The bankruptcy court concluded that the lies in the letter misled the creditor to not object and constituted fraud sufficient to revoke confirmation.

[14]

Without discussion of § 1330, one court revoked confirmation of a Chapter 13 plan on the motion of a creditor to dismiss. In Ekeke v. United States,19 the confirmed plan paid 10 percent of the priority claim of the IRS. The IRS filed a preconfirmation proof of claim in excess of $100,000 but failed to object to confirmation. On the motion of the IRS to dismiss after confirmation, the court revoked confirmation on the basis that “the bankruptcy court has the inherent equitable power under § 105(a) . . . to revoke the confirmation based on its finding that the plan was not made in good faith and constituted subterfuge.”20 The court cited the debtor’s ineligibility for Chapter 13 relief as one basis for revocation of confirmation.

[15]

Ekeke is an inappropriate use of revocation of confirmation. The conditions for revocation of confirmation are clearly defined in § 1330(a). The facts related by the court in Ekeke fall short of the “procured by fraud” standard. Ineligibility may be a ground to deny confirmation,21 but § 1330(a) contemplates actual fraud as the predicate for revocation of confirmation.

[16]

In a decision brimming with doubtful propositions,22 the U.S. Court of Appeals for the Seventh Circuit has suggested that debtors may use § 1330 to revoke their own confirmation orders. In Adair v. Sherman,23 after dismissal of a Chapter 13 case, the debtor brought an action under the Fair Debt Collection Practices Act against a creditor’s attorneys, alleging overvaluing of cars on proofs of claim. The Seventh Circuit held that the FDCPA action was precluded by confirmation of a plan in the dismissed Chapter 13 case.24 On the way to this conclusion, the Seventh Circuit observed:

We point out that failure to object prior to confirmation does not foreclose a debtor from challenging fraudulent proofs of claim in the bankruptcy court. A bankruptcy confirmation may be revoked by the bankruptcy court if it was procured by fraud. See 11 U.S.C. § 1330(a).25
[17]

That nearly a quarter-century of practice under the Code has produced no reported cases in which a debtor has sought to revoke confirmation under § 1330 attests to the unlikely scenario envisioned by the Seventh Circuit. Debtors confronted by a “fraudulent proof of claim” are better advised to consider modification of the confirmed plan under § 132926 or reconsideration of the (fraudulent) claim under § 502(j).27

[18]

Revocation of confirmation under § 1330 is a very poor substitute for effective creditor action before confirmation. Fraud is hard to prove; the elevated burden of proof is hard to satisfy. Section 1330 works only in the truly egregious case when the debtor is a bad actor.


 

1  In re Szostek, 93 B.R. 399 (Bankr. E.D. Pa. 1988), aff’d, 886 F.2d 1405 (3d Cir. 1989).

 

2  In re Thomas, 87 B.R. 654 (Bankr. D. Colo. 1988).

 

3  See In re Pence, 905 F.2d 1107 (7th Cir. 1990) (Creditor failed to carry its burden to prove fraudulent intent when the debtor’s plan proposed to surrender one piece of collateral in full satisfaction of the creditor’s claim and the plan required the creditor to then release its security interest in other collateral. The appraiser’s valuation of the surrendered collateral turned out to be wrong, but the creditor failed to offer any evidence of intent to deceive in the debtor’s reliance on the appraiser’s opinion.); United States v. Edmonston (In re Edmonston), 99 B.R. 995 (E.D. Cal. 1989) (It is not grounds for revocation of confirmation that the debtor scheduled “secured debt” of $143,000 secured by collateral worth $25,000.); Educational Credit Mgmt. Corp. v. Robinson (In re Robinson), 293 B.R. 59 (Bankr. D. Or. 2002) (When no fraud is alleged and due process was respected, student loan creditor that failed to object to confirmation is not entitled to revocation of confirmation order that would discharge student loans at the completion of payments.); In re Slack, 280 B.R. 604, 608 (Bankr. D.N.J. 2002) (Failure to schedule landlord does not constitute fraud for purposes of revocation of confirmation under § 1330(a). “The Third Circuit Court of Appeals has found that [§ 1330(a),] by its plain language, establishes fraud as the only permitted ground for obtaining relief from an order of confirmation. . . . [T]he debtors’ bad faith in filing their petition and/or plan is not germane to whether a chapter 13 plan, once confirmed, should be revoked. . . . Olick has not proven, nor even alleged, that the debtor’s failure to include him on the original bankruptcy schedules constituted fraud.”); In re Abrams, No. 01-11493-MAM-13, 2002 WL 1404761, at *2 (Bankr. S.D. Ala. Mar. 8, 2002) (unpublished) (Revocation of confirmation under § 1330 is not an available avenue for secured claim holder to challenge the order of payments under the confirmed plan and the failure of the plan to provide interest. “Nuvell did not allege fraud.”); Florida Dep’t of Revenue v. Randolph (In re Randolph), 273 B.R. 914 (Bankr. M.D. Fla. 2002) (That the debtor misrepresented agreement with Department of Revenue to accept payments “outside of the plan” was not a ground for revocation of confirmation when Department of Revenue failed to prove that the debtors intended to fraudulently obtain confirmation.); In re Merlo, 265 B.R. 502, 503–05 (Bankr. S.D. Fla. 2001) (Trustee’s motion to revoke confirmation because the debtor failed to list a social security number is denied when the debtor is not a United States citizen, does not have resident alien status and is not able to obtain a social security number. “The Bankruptcy Code does not exclude debtors from bankruptcy protection simply because they have no social security number. . . . Neither the Code nor the Rules require a debtor to obtain a social security number where one does not exist and especially where it is impossible to obtain the number.”); In re Puckett, 193 B.R. 842 (Bankr. N.D. Ill. 1996) (IRS cannot collaterally attack confirmation order by a motion to reopen and to set aside the discharge. IRS received notice that its claim was scheduled as zero. Confirmed plan provided no payment to claim holders that failed to timely file proofs of claim. IRS did not object to confirmation and failed to timely file a proof of claim. Debtor completed payments under the plan. Seven months after entry of discharge and closing of the case, IRS moved to reopen and to vacate discharge order. IRS demonstrated no grounds for relief from the confirmation order under Federal Rule of Civil Procedure 60(b). Revocation of confirmation under § 1330 was not available because the IRS’s motion was brought more than 180 days after confirmation and the IRS did not allege fraud by the debtor.); In re Siciliano, 167 B.R. 999 (Bankr. E.D. Pa. 1994) (Mortgage holder cannot challenge confirmation of plan in the guise of a motion under § 1330(a). Mortgage holder produced no evidence of fraud by the debtor.); In re Battle, 164 B.R. 394 (Bankr. M.D. Ga. 1994) (Because fraud is the only ground for revocation of an order of confirmation and mortgage holder does not claim that confirmation was secured by fraud, mortgage holder is bound by confirmation of a plan that pays its arrearages in full without interest notwithstanding that it would have been entitled to pre- and postconfirmation interest under Rake v. Wade, 508 U.S. 464, 113 S. Ct. 2187, 124 L. Ed. 2d 424 (1993). The plan clearly provided for no interest on arrearages, notice to the oversecured mortgage holder was adequate, and the mortgage holder failed to object to confirmation or to appeal the confirmation order. In the absence of fraud, the mortgage holder is bound by confirmation of the plan.); Lee Servicing Co. v. Wolf (In re Wolf), 162 B.R. 98, 103 (Bankr. D.N.J. 1993) (Section 1330 permits revocation of an order of confirmation only if the order was procured by fraud. Second mortgage holder cannot challenge confirmed plan five months after confirmation by complaint to determine the validity and extent of its lien. Confirmed plan crammed down the unsecured second mortgage to zero and canceled the lien. Second mortgage holder was fully informed of the plan, had an opportunity to object to confirmation, and did so on other grounds. “Once a plan is confirmed it is final under code section 1327 and the order of confirmation may only be challenged as procured by fraud under § 1330(a).”); Midlantic Nat’l Bank v. Kouterick (In re Kouterick), 161 B.R. 755, 760 (Bankr. D.N.J. 1993) (“Where a creditor knows of a basis for challenging confirmation and fails to object, the creditor cannot be permitted to use that basis to claim fraud under Code section 1330 after confirmation.” “Midlantic could have raised its objection to valuation and its claims of bad faith and fraud at or before the confirmation hearing, but failed to do so. Under these circumstances, Midlantic’s claims are barred by the doctrine of res judicata.” Midlantic was scheduled and received notice that its second and third mortgages “shall be crammed down to zero & cancelled on the record.” The notice warned Midlantic that objections to confirmation had to be filed within 30 days and informed Midlantic of the date of the confirmation hearing. Midlantic neither objected to confirmation nor appeared at the confirmation hearing. Three months after confirmation, Midlantic filed a complaint to revoke the order of confirmation under § 1330(a), claiming that the debtors obtained confirmation by fraudulently understating the value of their property. Debtors valued the property at $105,000 in a Chapter 7 petition filed in February of 1991 and revalued the property at $70,000 in a Chapter 13 petition filed in May of 1992. Noting that under § 506(a) the valuation in the earlier Chapter 7 case was not binding on the debtors in the later Chapter 13 case, the court cited Szostek and § 1327 for the proposition that Midlantic could have litigated valuation at the confirmation hearing and thus could not use § 1330 to challenge the debtors’ valuation for the first time.). But see In re Escobedo, 28 F.3d 34 (7th Cir. 1994) (Without discussion of § 1330, court declares confirmation “nugatory” because plan failed to provide for payment of priority claim holders in full as required by § 1322(a)(2). Court dismisses case five years after confirmation and holds that confirmation had no res judicata effect with respect to the priority claims that were not provided for through the plan.); Ekeke v. United States, 133 B.R. 450, 452 (S.D. Ill. 1991) (Without discussion of § 1330, and on the motion of a creditor to dismiss, “the bankruptcy court has the inherent equitable power under § 105(a) . . . to revoke the confirmation based on its finding that the plan was not made in good faith and constituted subterfuge.” Plan confirmed without objection paid only 10% of the IRS’s priority claim. IRS filed a preconfirmation proof of claim in excess of $100,000. That the debtor was ineligible for Chapter 13 relief was one basis for revocation of confirmation.).

 

4  See In re Endicott, 157 B.R. 255 (W.D. Va. 1993) (It is not appropriate to vacate order of confirmation when creditor claims that trustee inappropriately submitted confirmation order without sending copies to creditor’s counsel. “Ex parte” submission of confirmation order by trustee was not a prohibited communication between the trustee and the court.). But see, discussed below, Adair v. Sherman (In re Adair), 230 F.3d 890, 895 n.8 (7th Cir. 2000) (In a footnote, revocation of confirmation under § 1330(a) is a way for a Chapter 13 debtor to challenge a “fraudulent” proof of claim after confirmation.).

 

5  210 B.R. 595 (Bankr. D. Or. 1997).

 

6  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.

 

7  210 B.R. at 596–99.

 

8  199 F.3d 233 (5th Cir. 2000).

 

9  Nikoloutsos v. Nikoloutsos, 222 B.R. 297, 304 (E.D. Tex. 1998).

 

10  See § 223.1 [ Relief from Confirmation Order: Bankruptcy Rules 9023 and 9024 ] § 117.2  Relief from Confirmation Order: Bankruptcy Rules 9023 and 9024.

 

11  See, e.g., Branchburg Plaza Assocs. v. Fesq (In re Fesq), 153 F.3d 113, 116–20 (3d Cir. 1998) (Creditor that failed to timely object to confirmation because of human error and a computer glitch cannot use Bankruptcy Rule 9024 to circumvent the fraud requirement in § 1330. “Rule 9024 cannot validly provide [the creditor] with a substantive remedy that would be foreclosed by Section 1330(a). . . . Section 1330(a) establishes fraud as the only permitted ground for obtaining relief from an order of confirmation. . . . Congress intended that reading of Section 1330(a) because it protects the finality of Chapter 13 confirmation orders. . . . Revoking a confirmation order is a measure that upsets the legitimate expectations of both debtors and creditors. Interpreting Section 1330(a) as a limiting provision permits such disruption in only a very narrow category of egregious cases.” Dissenting judge cites Cisneros v. United States (In re Cisneros), 994 F.2d 1462 (9th Cir. 1993), for a contrary reading of the interaction of § 1330 and Bankruptcy Rule 9024.), cert. denied, 526 U.S. 1018, 119 S. Ct. 1253, 143 L. Ed. 2d 350 (1999); Mason v. Young (In re Young), 237 B.R. 791, 801–03 (B.A.P. 10th Cir. 1999) (Branchburg Plaza Assocs., L.P. v. Fesq (In re Fesq), 153 F.3d 113 (3d Cir. 1998), cert. denied, 526 U.S. 1018, 119 S. Ct. 1253, 143 L. Ed. 2d 350 (1999), correctly concluded that a creditor cannot use Bankruptcy Rule 9024 to attack confirmation after expiration of the 180-day period in 11 U.S.C. § 1330. “The Third Circuit held that § 1330 provides the complete substantive basis for revocation of Chapter 13 confirmation orders. Fesq, 153 F.3d at 120. Fesq found that the language of the statute, the context and the background of the Bankruptcy Amendments and Federal Judgeship Act of 1984 as it relates to § 1144, the parallel statutory limitations in Chapter 11 and 12, the case law, and the policy of finality behind the Bankruptcy Code indicated that Congress intended § 1330 to limit all motions for revocation of a confirmation order to those based on fraud. Accordingly, they held that all such motions must be made within 180 days. . . . Rule 9024 cannot grant a substantive right foreclosed by § 1330(a). . . . [Section] 1329 . . . effectively addresses reconsidering confirmation due to new evidence. Importing 60(b) motions for relief based on new evidence via Rule 9024 would be redundant. . . . We hold that § 1330 provides the complete substantive basis for all motions for revocation of confirmed Chapter 13 plans.”); Educational Credit Mgmt.Corp. v. Robinson (In re Robinson), 293 B.R. 59, 62 (Bankr. D. Or. 2002) (Citing Branchburg Plaza Associates, L.P. v. Fesq (In re Fesq), 153 F.3d 113 (3d Cir. 1998), § 1330 provides “the complete substantive basis for revocation of confirmation orders”; when no fraud is alleged and due process was respected, student loan creditor is not entitled to revocation of confirmation order that would discharge student loans at the completion of payments.).

 

12  See In re Pence, 905 F.2d 1107 (7th Cir. 1990) (Revocation of confirmation is an adversary proceeding under Bankruptcy Rule 7001. The debtor waived objection to proceeding by motion by failing to object.); Mason v. Young (In re Young), 237 B.R. 791 (B.A.P. 10th Cir. 1999) (Any action for revocation of a confirmation order must be filed before expiration of the 180-day period in § 1330(a). Creditor cannot use Bankruptcy Rule 9024 to attack confirmation after expiration of the 180-day period.); In re Abrams, No. 01-11493-MAM-13, 2002 WL 1404761 (Bankr. S.D. Ala. Mar. 8, 2002) (unpublished) (Creditors’challenge to confirmation under § 1330 was untimely filed by motion outside the 180-day window allowed by § 1330,and creditor did not allege fraud.); Rakestraw v. Hood (In re Hood), 211 B.R. 334 (Bankr. W.D. Ark. 1997) (“Motion to Have Debt Declared Nondischargeable” filed more than a month after deadline for objections to modified plan fails to allege that modification was procured by fraud and thus cannot support revocation of confirmation of modified plan under § 1330.); Laurel Fed. Credit Union v. Hoppel (In re Hoppel), 203 B.R. 730 (Bankr. D. Mont. 1997) (Creditor’s first effort to revoke confirmation filed as a motion was denied because revocation of confirmation requires an adversary proceeding under Bankruptcy Rule 7001(5).); In re Puckett, 193 B.R. 842 (Bankr. N.D. Ill. 1996) (IRS cannot collaterally attack confirmation order by a motion to reopen and to set aside the discharge. Revocation of confirmation under § 1330 was not available because the IRS’s motion was brought more than 180 days after confirmation and the IRS did not allege fraud by the debtor.); In re Siciliano, 167 B.R. 999, 1014 (Bankr. E.D. Pa. 1994) (Revocation of confirmation under § 1330(a) “is properly sought only by the filing of an adversary complaint and not by motion.” The complaint must “meet the 180-day deadline of §  1330(a).”); In re Mosley, 74 B.R. 791 (Bankr. C.D. Cal. 1987) (IRS effort to revoke debtor’s confirmation is time barred by 180-day limitation in § 1330 and is procedurally defective because IRS has not brought an adversary proceeding. 180-day bar is subject to tolling for lack of discovery, but IRS knew or should have known of any alleged deception by the debtor within the original 180-day period.).

 

13  Laurel Fed. Credit Union v. Hoppel (In re Hoppel), 203 B.R. 730 (Bankr. D. Mont. 1997).

 

14  In re Szostek, 93 B.R. 399 (Bankr. E.D. Pa. 1988), aff’d, 886 F.2d 1405 (3d Cir. 1989). Accord In re Siciliano, 167 B.R. 999, 1014 (Bankr. E.D. Pa. 1994) (“The standard of proof for § 1330 fraud also appears to be the classic, demanding standard of establishing fraud by clear and convincing evidence.”).

 

15  In re Hicks, 79 B.R. 45 (Bankr. N.D. Ala. 1987).

 

16  Nikoloutsos v. Nikoloutsos, 222 B.R. 297, 301, 304 (E.D. Tex. 1998), rev’d on other grounds, 199 F.3d 233 (5th Cir. 2000). Accord Florida Dep’t of Revenue v. Randolph (In re Randolph), 273 B.R. 914, 919 (Bankr. M.D. Fla. 2002) (Applying common law fraud analysis, amendment to pay Department of Revenue’s priority claim outside the plan “implied that there was an agreement regarding the treatment of Plaintiff’s claim. However, Plaintiff never made an express affirmation of consent . . . . As a result, Debtors made a materially false representation by proffering § 1325(a)(1) compliance when the plan failed to comply with § 1322(a)(2).” However, “[t]he Plaintiff has failed to meet the burden of proving that Debtors’ intended to fraudulently obtain confirmation of their plan.”); Laurel Fed. Credit Union v. Hoppel (In re Hoppel), 203 B.R. 730, 734–35 (Bankr. D. Mont. 1997) (“Procured by fraud” in § 1330 requires plaintiff to prove “the traditional common law elements of fraud: ‘that the debtor made a representation that was materially false; that the misrepresentation was either known by the debtor to be false, or was made without belief in its truth, or was made with reckless disregard for the truth; that the representation was made to induce the court’s reliance; that the court relied on the representation; and that as a consequence of such reliance the confirmation order was entered.’”); Stamford Mun. Employees’ Credit Union v. Edwards (In re Edwards), 67 B.R. 1008 (Bankr. D. Conn. 1986).

 

17  77 B.R. 636 (Bankr. N.D. Ohio 1987).

 

18  203 B.R. 730 (Bankr. D. Mont. 1997).

 

19  133 B.R. 450 (S.D. Ill. 1991).

 

20  133 B.R. at 452.

 

21  See also §§ 5.3 [ How to Challenge Eligibility ] § 9.3  How to Challenge Eligibility, 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse? and 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.

 

22  See § 233.1 [ Notice and Due Process Considerations, Including Claims Allowance and Valuation ] § 121.2  Notice and Due Process Considerations, Including Claims Allowance and Valuation.

 

23  230 F.3d 890 (7th Cir. 2000).

 

24  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 and 233.1 [ Notice and Due Process Considerations, Including Claims Allowance and Valuation ] § 121.2  Notice and Due Process Considerations, Including Claims Allowance and Valuation.

 

25  230 F.3d at 895 n.8.

 

26  See discussion of modification after confirmation beginning at § 126.1  Standing, Timing and Procedure.

 

27  See § 287.1 [ Timing, Procedure and Evidence Presumption ] § 135.1  Timing, Procedure and Evidence Presumption.