§ 73.10     Filing Fees
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 73.10, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

A Chapter 13 debtor is permitted to pay filing fees in installments consistent with Bankruptcy Rule 1006.1 Bankruptcy Rule 1006(b) requires that the number of installments not exceed four and that the final installment must be payable not later than 120 days after the petition, but for cause shown, the court may extend the time of any installment provided the last installment is paid not later than 180 days after filing. The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)2 did not change the rules for payment of filing fees in installments, but the Judicial Conference did change the Bankruptcy Rules with respect to payment of attorney fees when the filing fee is paid in installments after the petition.3

[2]

Section 507(a)(2) includes a priority for “any fees and charges assessed against the estate under Chapter 123 of Title 28.”4 Filing fees in Chapter 13 cases are fixed by Chapter 123 of Title 28. Many Chapter 13 plans treat filing fees as expenses of administration to be paid in full in deferred cash payments (without interest) as permitted by § 1322(a)(2). Technically, filing fees are administrative expenses and not priority claims,5 but this distinction produces no difference in treatment of filing fees in Chapter 13 practice. 11 U.S.C. § 1326(b)(1) provides that “any unpaid claim of the kind specified in § 507(a)(2)” shall be paid “[b]efore or at the time of each payment to creditors under the plan.” In this context, “claim” in § 1326(b)(1) is reasonably interpreted to include filing fees listed in § 507(a)(2).

[3]

Sections 1322(a)(2) and 1326(b)(1) permit greater discretion with respect to paying filing fees than Bankruptcy Rule 1006 allows. Chapter 13 debtors are permitted by the Code to pay filing fees through the plan in installments exceeding the limits set by Bankruptcy Rule 1006. As a practical matter, filing fees are usually paid with the first distribution after confirmation, in advance of other creditors or priority claims.6 If the debtor needs to pay a filing fee in installments, the plan should include a provision for deferred payment under § 1322(a)(2), and the debtor should file the application required by Bankruptcy Rule 1006.7 The Rule 1006 application may be superfluous if the plan provides for installment payment of the filing fee, but many bankruptcy court clerks are reluctant to accept the petition absent tendering of the filing fee or a separate application to pay the filing fee in installments.8 To avoid inconsistency, the application and order to pay the filing fee in installments should recite something like “payment through the plan.”

[4]

Section 1325(a)(2) imposes a condition for confirmation that any filing fee “required . . . to be paid before confirmation, has been paid.” This section does not require that the filing fee be actually paid in full before confirmation if the plan or an order permitting installment payment allows some other time. It has been held that failure to pay a filing fee consistent with an order for payments in installments is a ground for denial of confirmation.9

[5]

Bankruptcy Rule 1006(b)(3) provides that the filing fee must be paid in full before the debtor or the Chapter 13 trustee may make “further payments” to an attorney for services in connection with the case.10


 

1  See §§ 36.6 [ Application to Pay Filing Fee in Installments ] § 36.29  Application to Pay Filing Fee in Installments, 38.3 [ Filing Fee and Option to Pay in Installments ] § 37.5  Filing Fee and Option to Pay in Installments, 385.1 [ Filing Fees, Installments and Waiver ] § 37.6  Filing Fees, Installments and Waiver after BAPCPA and 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA.

 

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

 

3  See below in this section, and see §§ 385.1 [ Filing Fees, Installments and Waiver ] § 37.6  Filing Fees, Installments and Waiver after BAPCPA and 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA.

 

4  11 U.S.C. § 507(a)(2), as amended by Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

5  See §§ 99.1 [ What Claims Are Priority Claims? ] § 73.2  What Claims Are Priority Claims? and 291.1 [ Treatment of Priority Claims ] § 136.1  Treatment of Priority Claims.

 

6  Ongoing child support primes the filing fee in the distribution schemes in some districts. See also §§ 151.1 [ Priority Claims ] § 87.4  Priority Claims, 152.2 [ Alimony, Maintenance and Support ] § 88.4  Alimony, Maintenance and Support, 204.2 [ Order of Payments to Creditors ] § 113.7  Order of Payments to Creditors before BAPCPA, 301.1 [ Alimony, Maintenance and Support in Cases Filed after October 22, 1994 ] § 136.20  Alimony, Maintenance and Support in Cases Filed after October 22, 1994, 441.1 [ New and Changed Treatment of Priority Claims ] § 73.6  Treatment of Priority Claims Changed by BAPCPA, 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA and 501.1 [ Order of Payments to Creditors ] § 113.8  Order of Payments to Creditors after BAPCPA.

 

7  See §§ 36.6 [ Application to Pay Filing Fee in Installments ] § 36.29  Application to Pay Filing Fee in Installments, 38.3 [ Filing Fee and Option to Pay in Installments ] § 37.5  Filing Fee and Option to Pay in Installments, 203.2 [ Filing Fee Payment Requirement ] § 113.2  Filing Fee Payment Requirement and 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA.

 

8  But see Fed. R. Bankr. P. 5005(a) (“The clerk shall not refuse to accept for filing any petition or other paper presented for the purpose of filing solely because it is not presented in proper form as required by these Rules or any local rules or practices.”).

 

9  See In re Ennis, 178 B.R. 189, 190 (Bankr. W.D. Mo. Jan. 27, 1995) (See) (Confirmation was denied because the debtor failed to pay the filing fee in installments before confirmation. “The plan cannot be confirmed because it violates 28 U.S.C. § 1930, which requires the fee, 11 U.S.C. § 1325(a)(2), which requires the filing fee to be paid before confirmation, and Bankruptcy Rule 1006, which requires the filing fee to accompany the petition at the commencement of the case unless payment in installments is permitted, in which case all installments must be paid within 120 days after filing of the petition. Debtors must pay the filing fee or the case must be dismissed. . . . Debtors have refused to pay the required fee. Thus, the plan also violates § 1325(a)(3) because the refusal to pay indicates the plan has not been proposed in good faith and not by any means forbidden by law.”).

 

10  Fed. R. Bankr. P. 1006(b)(3), as amended (Dec. 1, 2008). 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, 385.1 [ Filing Fees, Installments and Waiver ] § 37.6  Filing Fees, Installments and Waiver after BAPCPA, 443.1 [ Filing Fees ] § 73.11  Filing Fees after BAPCPA and 515.1 [ Debtors’ Attorneys’ Fees ] § 136.7  Debtors’ Attorneys’ Fees after BAPCPA.