§ 36.24     Plan
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 36.24, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

11 U.S.C. § 1321 mandates that the debtor file a plan.1 Experienced Chapter 13 practitioners file a plan with the petition. Bankruptcy Rule 3015 permits 15 days to file a plan after the petition.2

[2]

There is no official form for a Chapter 13 plan. The commercial forms vary dramatically in organization and ease of use. Counsel is free to design any form for the plan, but there is sometimes a form prescribed by local rule.3 Because the plan or a summary of the plan must be included in the notice of confirmation that is sent to creditors,4 in most jurisdictions the party responsible for giving notice, typically the Chapter 13 trustee,5 has a preferred form for the plan. Counsel should avoid gumming up the system by inventing unfamiliar forms for the plan. Even the occasional Chapter 13 practitioner should avoid departing from the suggested, preferred or required form for the plan if there is one in the district by asking the trustee’s office for some model forms. A volume practitioner who wishes to develop in-house computer-generated forms for the plan and other required documents should consult with the Chapter 13 trustee to be sure those forms are compatible with the trustee’s system.

[3]

In 2002 and 2003, at Advanced Consumer Bankruptcy Practice Institutes sponsored by the National Association of Chapter 13 Trustees, bankruptcy professionals from across the country participated in exercises aimed at drafting a Model Chapter 13 Plan. Starting with several hundred plans gathered from districts across the country—ranging in length from 1 page to 16 single-spaced pages—and after hours of large and small group debate, a consensus emerged that the Chapter 13 plan could be reduced to one piece of paper that would include the essential aspects of the hundreds of variations reviewed. Reduced to one page, the plan itself could serve as a uniform, national notice of its content in all Chapter 13 cases. The study groups at the 2002 Institute produced four versions of a Model Plan that were then beaten into a single Model Plan. After the 2002 Institute, the Model Plan was exposed for comment in published articles and circulated to judges, practitioners and academics. Further revisions were made, and the Revised Model Plan emerged from the Chicago Institute in July 2003.

[4]

The Revised Model Plan, redrafted to address statutory changes by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),6 can be found in Appendix GG.7 Variations on this Revised Model Plan have been adopted in several districts, and the form is under consideration in many others. A position paper in support of the original Model Plan is included in Appendix SSS.

[5]

The plan should include enough detail to permit adequate noticing of creditors. Particularly important are the value of collateral, proposed monthly payments, and rate of interest for each secured claim holder. The amount of each secured claim provided for by the plan should be consistent with the answers given in Schedule D to Official Bankruptcy Form 6.8 At minimum, the plan should contain the following:

 

 1.
The amount of payment into the plan, the source of that payment, and the frequency of payment, to include the complete name and address of any employer to whom a payroll deduction order must be sent;9
 

 

 

 

 2.
A statement of the secured claims that are to be paid through the plan, the amount of each claim, the value of collateral, the monthly payment to each secured claim holder and the interest rate on each claim;10
 

 

 

 

 3.
The proposed classification of unsecured claims, if any, and the percentage or amount to be paid to each class;11
 

 

 

 

 4.
The estimated amount and terms for full payment of all priority claims;12
 

 

 

 

 5.
Statement of any long-term or continuing debt, the amount and frequency of the ongoing payment and any provision for paying arrearages or curing defaults;13
 

 

 

 

 6.
Statement of any debts that are to be paid directly to a creditor by the debtor;14
 

 

 

 

 7.
The disposition of any leases or rental contracts;15
 

 

 

 

 8.
The surrender of any property or transfers of property contemplated as part of the plan;16
 

 

 

 

 9.
The amount of attorneys’ fees to be paid through the plan;17
 

 

 

 

 10.
The payment of filing fees if through the plan;18 and
 

 

 

 

 11.
Generic language for dealing with lien retention,19 postpetition claims20 and preservation of the estate pending completion of payments to creditors.21
 

 

 


 

1  See § 55.1 [ Debtor Must File a Plan ] § 51.2  Debtor Must File a Plan.

 

2  See § 38.2 [ Time for Filing Schedules, Statement of Financial Affairs, Plan and Other Documents ] § 37.4  Time for Filing Schedules, Statement of Financial Affairs, Plan and Other Documents for timing considerations in the filing of the plan.

 

3  See In re Pedersen, 229 B.R. 445, 451 (Bankr. E.D. Cal. 1999) (General orders in district require the use of a form Chapter 13 plan; debtor’s failure to fill in the blanks in the form renders the plan unconfirmable. “To promote uniformity and administrative convenience, the general order requires use of a form chapter 13 plan. . . . This form plan requires the debtor or the debtor’s attorney to fill in information such as the plan’s term, the monthly plan payment, and the dividend to be paid to holders of general unsecured claims.”); In re Walat, 87 B.R. 408 (Bankr. E.D. Va. 1988) (en banc) (Local bankruptcy rule requiring Chapter 13 plans to conform to an approved form is within the local rule-making authority of the bankruptcy court, and clerk of the court can appropriately refuse for filing a plan that fails to conform to the local rule.).

 

4  Fed. R. Bankr. P. 3015.

 

5  With the advent of electronic noticing, confirmation may be noticed through the Bankruptcy Noticing Center rather than by the trustee. See Fed. R. Bankr. P. 9036.

 

6  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

7  See § 439.1 [ Model Plan (BAPCPA) ] § 72.6  Model Plan (BAPCPA) for discussion of the Model Plan, as revised to reflect changes required by BAPCPA.

 

8  See § 35.5 [ Schedule D—Secured Claims ] § 36.11  Schedule D—Secured Claims.

 

9  See § 248.1 [ Order to Debtor’s Employer ] § 125.1  Order to Debtor’s Employer.

 

10  See §§ 101.1 [ General Rules ] § 74.1  General Rules before BAPCPA147.1 [ Direct Payment of Mortgage or Payment by Trustee ] § 85.6  Direct Payment of Mortgage or Payment by Trustee and 444.1 [ General Rules Have Changed ] § 74.2  General Rules Changed by BAPCPA454.2 [ Direct Payment of Secured Debt after BAPCPA ] § 74.9  Direct Payment of Secured Debt after BAPCPA.

 

11  See §§ 149.1 [ Power to Classify Unsecured Claims: Tests for Unfair Discrimination ] § 87.1  Power to Classify Unsecured Claims: Tests for Unfair Discrimination159.1 [ A Proposal: Simpler Rules for Classification of Unsecured Claims ] § 89.10  A Proposal: Simpler Rules for Classification of Unsecured Claims and 457.1 [ In General ] § 87.2  Classification after BAPCPA463.1 [ Nondischargeable Claims ] § 88.2  Nondischargeable Claims after BAPCPA.

 

12  See §§ 98.1 [ Plan Must Provide Full Payment ] § 73.1  Plan Must Provide Full Payment100.5 [ Filing Fees ] § 73.10  Filing Fees and 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA.

 

13  See §§ 115.1 [ Curing Default, Waiving Default, Maintaining Payments and Combinations ] § 78.4  Curing Default, Waiving Default, Maintaining Payments and Combinations, 129.1 [ Overview: General Rules for Saving Debtor’s Home ] § 81.1  Overview: General Rules for Saving Debtor’s Home141.1 [ Calculating Plan Payments to Cure Default on Mortgages after October 22, 1994 ] § 84.3  Calculating Plan Payments to Cure Default on Mortgages after October 22, 1994 and 171.1 [ Curing Default and Maintaining Payments on Unsecured Debt ] § 101.4  Curing Default and Maintaining Payments on Unsecured Debt.

 

14  See §§ 147.1 [ Direct Payment of Mortgage or Payment by Trustee ] § 85.6  Direct Payment of Mortgage or Payment by Trustee, 157.1 [ Direct Payments by Debtor ] § 89.1  Direct Payments by Debtor and 454.2 [ Direct Payment of Secured Debt after BAPCPA ] § 74.9  Direct Payment of Secured Debt after BAPCPA.

 

15  See §§ 172.1 [ Debtor Can Assume, Assign or Reject Executory Contracts ] § 102.1  Debtor Can Assume, Assign or Reject Executory Contracts176.2 [ When Purpose of Plan Is to Deal with an Unfavorable Contract or Lease ] § 102.10  When Purpose of Plan Is to Deal with an Unfavorable Contract or Lease and 495.1 [ Leases and Executory Contracts after BAPCPA ] § 102.3  Leases and Executory Contracts after BAPCPA.

 

16  See §§ 102.1 [ Surrender or Sale of Collateral ] § 74.5  Surrender or Sale of Collateral before BAPCPA and 451.5 [ Surrender in Full Satisfaction? ] § 75.5  Surrender in Full Satisfaction?.

 

17  See §§ 100.4 [ Special Provisions for Attorneys’ Fees ] § 73.8  Special Provisions for Attorneys’ Fees, 294.1 [ Debtors’ Attorneys’ Fees ] § 136.6  Debtors’ Attorneys’ Fees before BAPCPA and 442.1 [ Attorney Fees after BAPCPA ] § 73.9  Attorney Fees after BAPCPA.

 

18  See §§ 38.3 [ Filing Fee and Option to Pay in Installments ] § 37.5  Filing Fee and Option to Pay in Installments and 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA.

 

19  See §§ 104.2 [ Lien Retention ] § 74.12  Lien Retention before BAPCPA and 447.1 [ Lien Retention, Including in No-Discharge Cases ] § 74.13  Lien Retention after BAPCPA, Including in No-Discharge Cases.

 

20  See §§ 204.1 [ Providing for Postpetition Claims ] § 113.6  Providing for Postpetition Claims and 524.1 [ Postpetition Claims ] § 137.2  Postpetition Claims after BAPCPA.

 

21  See § 207.1 [ Retention of Property of the Estate: Overcoming 11 U.S.C. § 1327(b) ] § 113.11  Retention of Property of the Estate: Overcoming 11 U.S.C. § 1327(b).