§ 74.4     Acceptance of Plan after BAPCPA
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 74.4, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)1 did not change the provision in § 1325(a)(5)(A) that a Chapter 13 plan shall be confirmed if “with respect to each allowed secured claim provided for by the plan— (A) the holder of such claim has accepted the plan.”2 Acceptance of a Chapter 13 plan has been recognized in two circumstances: (1) when an affected creditor affirmatively “accepts” the plan by statement or action;3 (2) when notice of the plan is adequate and the creditor takes no action—acceptance by silence or inaction.4 It is sometimes said that the binding effect of confirmation under § 1327(a) is tantamount to acceptance by a creditor that fails to timely object to confirmation after adequate notice.5

[2]

There is a long line of cases acknowledging that affirmative acceptance and acceptance by silence bind lienholders to confirmed Chapter 13 plans that provide for payment of the allowed secured claim.6 When a creditor fails to timely object to an unfavorable plan, the fundamental issue is notice: did the creditor have adequate information about the proposed treatment under the plan in time to object to confirmation? If so, failure to object is fatal to collateral attack on confirmation of the plan, even when a timely objection would have defeated confirmation.7

[3]

Prior to BAPCPA, cramdown of secured claims at confirmation in Chapter 13 cases was uniform and well understood.8 Oversimplified, under § 506(a) an allowed claim was a secured claim to the extent of the value of the collateral. Undersecured claims were split into secured and unsecured components based on the value of the collateral.9 With or without consent of the lienholder, a Chapter 13 debtor could confirm a plan that proposed to pay the allowed secured claim in full with present value interest and to treat the balance of the debt as an unsecured claim. Confirmation battles between debtors and secured claim holders typically involved valuation10 and/or the interest rate that would provide present value during repayment under the plan.11 Failure to timely object to a plan with an inaccurate or inappropriate valuation or interest rate left the lienholder bound by confirmation to accept that valuation and interest rate in satisfaction of its allowable secured claim.12

[4]

BAPCPA changed this well-understood treatment of lienholders in ways that make acceptance (or rejection) of Chapter 13 plans more meaningful. After BAPCPA, allowed secured claim holders have four new entitlements at confirmation:

 

 1.
All allowed secured claim holders retain liens until the earlier of payment in full of the underlying debt determined under nonbankruptcy law or discharge under § 1328—without regard to when the allowed portion of the secured claim is paid.13
 

 

 

 

 2.
For personal property, the valuation standard to determine the extent of a secured claim is replacement value without deduction for costs of sale or marketing and is retail for most household goods.14
 

 

 

 

 3.
If the plan proposes periodic payments to retire a lien after confirmation, the payments must be in equal monthly amounts.15
 

 

 

 

 4.
Payments to a lienholder secured by personal property must provide “adequate protection” during the life of the plan.16
 

 

 

[5]

These four changes apply to all allowed claims secured by personal property that are candidates for cramdown at confirmation in a Chapter 13 case. Taken together, these four new requirements substantially increase the amount of money that Chapter 13 debtors may have to pay lienholders to keep personal property subject to liens.

[6]

And then there is the additional complication that BAPCPA created a new kind of “secured” debt in the sentence dangling at the end of § 1325(a): a purchase money debt incurred within 910 days of the petition secured by a motor vehicle acquired by the debtor for personal use, or any other purchase money debt incurred within a year that is secured by any other thing of value.17 The hanging sentence at the end of § 1325(a) says that § 506 “shall not apply” to the claims just described. This hanging sentence has been interpreted to prohibit traditional cramdown of 910-day PMSI car claims and other secured debts incurred within a year.18 Chapter 13 debtors who want to keep a car purchased within 910 days of the petition when the car was acquired for personal use are forced to pay a purchase money lender the entire debt secured by the car without regard to how much the car is worth.

[7]

The four changes listed above and the hanging sentence at the end of § 1325(a) frame an economic dilemma for Chapter 13 debtors after BAPCPA. To confirm a plan over the objection of a lienholder, the debtor will have to pay more for many items of collateral than those items are worth. A car that can be replaced for $4,000 that secures a $6,000 purchase money debt incurred within 910 days of the petition probably cannot be crammed down to its $4,000 value after BAPCPA. If the debtor wants to keep the car, the debtor has to pay more than the car is worth.

[8]

Well-advised debtors will choose not to pay significantly more than the car is worth but instead will propose Chapter 13 plans that invite lienholders to accept some value less than the balance of the debt in exchange for regular installment payments and a fair interest rate. Options of this kind are common in Chapter 11 plans but not as common in Chapter 13 practice. In the example, the plan might propose in the alternative that the lienholder accept $4,500 with 8 percent interest or the debtor will surrender19 the car to the lienholder. If the creditor does not object to confirmation, the $4,500 option with 8 percent interest will be deemed “accepted.” A plan drafted in the alternative puts the lienholder to a choice: do nothing and receive $4,500 with interest through the plan; timely object to confirmation and either negotiate some other treatment or pick up the car.

[9]

BAPCPA increases the likelihood of this sort of alternative plan and elevates the acceptance or rejection of plans to greater importance in Chapter 13 practice. Chapter 13 attorneys will need to develop new forms for the Chapter 13 plan20 that clearly present the treatment alternatives and clearly prescribe the action the lienholder must take to avoid the default outcome. Creditors will have to establish new internal protocols to triage incoming Chapter 13 plans with options that require timely objection to avoid acceptance.

[10]

Prior to BAPCPA, there was economic reality in what the Bankruptcy Code required Chapter 13 debtors to pay lienholders to accomplish confirmation. BAPCPA explodes that relationship, especially with respect to 910-day PMSI car claims. To manage the disconnect between the economic reality of family finances and what BAPCPA did for personal property lenders, debtors will propose alternative treatments of lienholders and the acceptance (or not) of plans will become a significantly more robust aspect of Chapter 13 practice.

[11]

Consistent with the strong majority of pre-BAPCPA decisions, most courts have concluded that the general rules for acceptance by silence apply to the new statutory rights of lienholders after BAPCPA. For example, in In re Schultz,21 the Bankruptcy Court for the Eastern District of Wisconsin held that a mortgage holder’s failure to object to a plan that provided unequal installment payments was acceptance of the plan. As explained by the court: “[E]ven though the court has held that the debtor’s plan runs afoul of 11 U.S.C. § 1325(a)(5)(B), it nevertheless meets the requirement of 11 U.S.C. § 1325(a)(5)(A) . . . . The creditor has not objected, and therefore it is deemed to have accepted the plan.”22 Schultz is a mainstream application of acceptance of a plan under § 1325(a)(5)(A) applied to the new entitlement of an allowed secured claim holder to equal monthly installments in § 1325(a)(5)(B)(iii)(I).23

[12]

The hanging sentence at the end of § 1325(a)24 has been fertile ground for debtors to test whether lienholders are awake. This testing has produced several appellate decisions acknowledging that acceptance by silence is alive and well in Chapter 13 cases after BAPCPA.

[13]

Shaw v. Aurgroup Financial Credit Union25 and Wachovia Dealer Services v. Jones (In re Jones)26 both involved Chapter 13 plans that contained controversial provisions with respect to some aspect of the hanging sentence. In Shaw, the plan proposed to cram down the 910-day PMSI car that was protected from valuation by the hanging sentence.27 In Jones, the consolidated plans proposed to pay 910-day PMSI car claims in full but without postconfirmation interest.28 In both cases, the lienholders objected to confirmation and the circuit courts of appeals sustained the objections.

[14]

More importantly for current purposes, the Sixth Circuit in Shaw and the Tenth Circuit in Jones took the opportunity in the context of hanging-sentence litigation to make these strong statements about acceptance by silence had the lienholders failed to object to confirmation:

[I]f a secured creditor fails to object to confirmation, the creditor will be bound by the confirmed plan’s treatment of its secured claim under § 1325(a)(5). This is because the failure to object constitutes acceptance of the plan. And a creditor’s acceptance of a Chapter 13 plan is one way to satisfy the requirements of § 1325(a)(5) with respect to that creditor’s allowed secured claim. . . . [W]hen the holder of an allowed secured claim does not object, the court may interpret this silence as acceptance under § 1325(a)(5)(A); under these circumstances, the plan need not meet the requirements set forth in § 1325(a)(5)(B), including the present-value requirement.29
[T]he conditions set forth in § 1325(a) are requirements the debtor must satisfy to qualify a Chapter 13 plan for confirmation. . . . [H]owever, if a secured creditor fails to object to confirmation, the creditor will be bound by the confirmed plan’s treatment of its secured claim under § 1325(a)(5). In re Talbot, 124 F.3d 1201, 1209 n.10 (10th Cir. 1997). This is because the failure to object constitutes acceptance of the plan. See In re Ruti-Sweetwater, Inc., 836 F.2d 1263, 1266-67 (10th Cir. 1988) . . . . And a creditor’s acceptance of a Chapter 13 plan is one way to satisfy the requirements of § 1325(a)(5) with respect to that creditor’s allowed secured claim.30
[15]

Similarly, treating acceptance by silence as an issue of adequacy of notice, the court in Regional Acceptance Corp. v. Williams (In re Williams)31 found Fourth Circuit authority that “special notice” was necessary when a Chapter 13 plan treated a 910-day PMSI car claim in a manner that was inconsistent with the hanging sentence at the end of § 1325(a).32 The Williams court explained BAPCPA did not change the general rule that silence can constitute acceptance of a Chapter 13 plan when notice satisfies due process:

The determination of whether RAC’s silence constitutes acceptance is intertwined with issues of res judicata and due process. A finding that RAC’s failure to object was equivalent to acceptance of the Plan is meaningless if the Plan is not res judicata and entitled to preclusive effect. The court cannot find that the Plan is entitled to preclusive effect if such a finding would result in the denial of due process to RAC. . . . [T]he Debtor’s Plan did not afford RAC with notice adequate to entitle it to preclusive effect. RAC was entitled to expect that its claim would be treated pursuant to the provisions of BAPCPA. Here, the plan did not state that RAC’s claim was, in fact, a 910 claim or set forth the date that the debt was incurred. As a result, RAC had no notice that it held a 910 claim which was being treated in a manner contrary to the provisions of BAPCPA. It is not unduly burdensome to require a debtor to clearly convey information sufficient to provide a creditor with meaningful notice.33
[16]

Shaw, Jones, Schultz and Williams fit into the mix of pre-BAPCPA cases that often found acceptance by silence when lienholders failed to object to unfavorable Chapter 13 plans so long as notice was loud and unambiguous. The same cannot be said of In re Montoya.34

[17]

The plan in Montoya bifurcated a claim secured by a car that fell within the protection of the hanging sentence at the end of § 1325(a).35 The lienholder in Montoya neglected to object to confirmation notwithstanding proper notice of the unfavorable plan. On “independent review,” the bankruptcy court held that the car lender was not deemed to have accepted the plan based on this difficult logic:

It is correct that, if a plan is properly noticed and otherwise meets the requirements of § 1325(a), the Court may deem a secured creditor’s silence to constitute acceptance of a plan and the plan may be confirmed. . . . The concept of implied acceptance of an otherwise compliant plan, . . . however, is quite different from proposing a plan intentionally inconsistent with the Code and then waiting for the trap to spring on a somnolent creditor. Creditors are entitled to rely on the few unambiguous provisions of the BAPCPA for their treatment. They should not be required to scour every Chapter 13 plan to ensure that provisions of the BAPCPA specifically inapplicable to them will not be inserted in a proposed plan in the debtor’s hope that the improper secured creditor treatment will become res judicata. . . . A plan should not be used as a sword to change the explicit provisions of the Code to what the parties wish Congress had drafted. . . . The Court has an affirmative duty to review and ensure that the Plan complies with the Code even if creditors fail to object to confirmation.36
[18]

The distinction attempted in Montoya—between “otherwise compliant” provisions of a Chapter 13 plan and provisions that are “intentionally inconsistent with the Code”—is difficult of application and sharply ironic in this context. Demonstrated elsewhere,37 the 910-day PMSI car claim provision in the hanging sentence at the end of § 1325(a) is impenetrable in several respects and has quickly become one of the most heavily litigated provisions of BAPCPA. It is hard to fault a debtor’s counsel for taking the widely litigated position that a 910-day PMSI car claim can be bifurcated. It is hard to distinguish a 910-day PMSI car claim holder’s failure to object to bifurcation from the failure of a lienholder to object to a plan that undervalues collateral or that proposes a less than adequate interest rate. Failure to object leaves the silent lienholder bound by confirmation so long as notice is adequate—a fact not disputed in Montoya.

[19]

As if to prove the point, in In re Tonioli,38 a different judge of the same bankruptcy court that decided Montoya faced an equal payment violation to which no objection was raised. The court blinked. In Tonioli, the debtor moved to modify a confirmed plan to “abate” a postconfirmation default in payments. The bankruptcy court noted that abating a failure to make payments after confirmation would violate the new requirement in § 1325(a)(5)(B)(iii)(I) that periodic payments must be in equal monthly amounts.39 GMAC—the car lender with the statutory right to equal monthly installments—did not object to the proposed modified plan. The Utah bankruptcy court attempted to distinguish Montoya to find consent in the lender’s silence:

[W]here a creditor’s consent is sufficient to satisfy a requirement under § 1325(a), the court may find consent where a creditor fails to object to confirmation of the proposed chapter 13 plan. Silence does not always infer consent. For example, a creditor’s silence does not condone the cram down of a claim secured by so-called “910 property” in violation of the hanging paragraph at the end of § 1325(a). Nor does a creditor’s silence condone the modification of a claim secured by a debtor’s principal residence in violation of § 1322(b)(2). These provisions are general restrictions on chapter 13 plans which cannot be overcome by silence. But where a debtor proposes a plan which otherwise complies with the code’s restrictions under § 1322 and the hanging paragraph, the Court determines that a creditor may consent to proposed treatment through silence. . . . [T]he Debtors seek to modify their plan to abate delinquent payments. . . . The effect of the abatement will be that GMAC, a secured creditor receiving payments under the plan, will not receive equal monthly payments . . . as required by the Court’s confirmation order. If GMAC objected to the proposed modification, the Court would be required under §§ 1329(b)(1) and 1325(a)(1)(B)(iii) to deny the Debtor’s Motion to Abate. But GMAC’s silence with regards to the proposed modification is significant, as it constitutes acceptance of the modification under § 1325(a)(5)(A).40
[20]

The Bankruptcy Code does not prescribe different rules for acceptance depending on which part of § 1325(a) is at issue. The distinction attempted in Tonioli is not convincing. The outcome in Tonioli is consistent with the majority of pre-BAPCPA decisions finding acceptance by silence of a properly noticed plan.

[21]

Without regard to its questionable logic, Montoya is an important reminder about Chapter 13 practice after BAPCPA. There are many places where BAPCPA has convoluted the statutory rights of creditors in Chapter 13 cases. There will years of litigation in and around those ambiguities. No purchase is gained by hiding an aggressive plan provision or statutory interpretation. Inadequate notice is a substantial obstacle to clear statutory interpretation in the difficult world of BAPCPA. Debtors are always best positioned to argue that silence means acceptance when notice is robust and unambiguous.


 

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

 

2  11 U.S.C. § 1325(a)(5)(A), discussed in § 101.2 [ Acceptance of Plan ] § 74.3  Acceptance of Plan before BAPCPA.

 

3  See § 101.2 [ Acceptance of Plan ] § 74.3  Acceptance of Plan before BAPCPA.

 

4  See §§ 101.2 [ Acceptance of Plan ] § 74.3  Acceptance of Plan before BAPCPA 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.

 

5  11 U.S.C. § 1327(a) is discussed in § 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.

 

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  See 11 U.S.C. § 1327(a), discussed in § 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.

 

8  See § 104.1 [ The Power to Modify ] § 74.11  The Power to Modify.

 

9  See § 105.1 [ Valuation, Claim Splitting and Dewsnup ] § 76.1  Valuation, Claim Splitting and Dewsnup.

 

10  See discussion of valuation beginning at § 76.1  Valuation, Claim Splitting and Dewsnup.

 

11  See § 77.1  “Value, As of the Effective Date of the Plan” Means Interest§ 77.2  Interest Rate Anarchy: Present Value before Till and § 77.3  Present Value after Till.

 

12  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.

 

13  See 11 U.S.C. § 1325(a)(5)(B)(i), discussed in § 447.1 [ Lien Retention, Including in No-Discharge Cases ] § 74.13  Lien Retention after BAPCPA, Including in No-Discharge Cases.

 

14  See 11 U.S.C. § 506(a)(2), discussed in § 450.1 [ New Valuation Standards ] § 76.7  Valuation after BAPCPA.

 

15  See 11 U.S.C. § 1325(a)(5)(B)(iii)(I), discussed in § 448.1 [ Equal Monthly Installments ] § 74.14  Equal Monthly Installments after BAPCPA.

 

16  See 11 U.S.C. § 1325(a)(5)(B)(iii)(II), discussed in § 449.1 [ “Adequate Protection” after Confirmation ] § 74.15  “Adequate Protection” after Confirmation after BAPCPA.

 

17  Hanging sentence at the end of 11 U.S.C. § 1325(a), discussed beginning at § 75.1  In General: Modification Without § 506.

 

18  See § 451.1 [ In General: Modification Without § 506 ] § 75.1  In General: Modification Without § 506.

 

19  See §§ 102.1 [ Surrender or Sale of Collateral ] § 74.5  Surrender or Sale of Collateral before BAPCPA and 446.1 [ Surrender of Collateral ] § 74.6  Surrender, Sale, Vesting in Lienholder and Payment with Property after BAPCPA.

 

20  See § 439.1 [ Model Plan (BAPCPA) ] § 72.6  Model Plan (BAPCPA).

 

21  363 B.R. 902 (Bankr. E.D. Wis. Jan. 12, 2007) (McGarity).

 

22  363 B.R. at 907. Accord Flynn v. Bankowski (In re Flynn), 402 B.R. 437 (B.A.P. 1st Cir. Mar. 6, 2009) (Carlo, Deasy, Kornreich) (Citing In re Szostek, 886 F.2d 1405 (3d Cir. Oct. 12, 1989) (Mansmann, Nygaard, Aldisert), failure of lienholder to object to balloon payment could be acceptance of plan under § 1325(a)(5)(A) notwithstanding equal-payment requirement in § 1325(a)(5)(B)(iii)(I); remand is necessary because appellate record was not sufficient to determine whether notice was adequate to support acceptance by silence. “The Bankruptcy Code, the Bankruptcy Rules, and the Local Rules . . . are silent as to what constitutes a secured claim holder’s acceptance of a chapter 13 plan for purposes of § 1325(a)(5)(A). However, the courts that have considered the question have overwhelmingly concluded that a secured creditor’s lack of objection may constitute acceptance of the plan for purposes of § 1325(a)(5)(A). . . . We adopt the Third Circuit’s view that acceptance may occur upon a secured creditor’s failure to file a timely objection to a chapter 13 plan. . . . Implied consent requires, however, that the secured claim holder has received both proper and adequate notice and proper and adequate service. . . . At a minimum, due process requires that a proper and adequate notice contain a clear, open, and explicit statement of a secured creditor’s treatment in a chapter 13 plan before the creditor’s failure to object will be deemed implied acceptance. . . . If the Mortgagee failed to timely object to confirmation after receiving adequate and proper notice and adequate and proper service, then it is deemed to have impliedly accepted the chapter 13 plan for purposes of § 1325(a)(5)(A), and the failure to comply with the provisions of § 1325(a)(5)(B) would not be grounds to deny confirmation.”).

 

23  See 11 U.S.C. § 1325(a)(5)(B)(iii)(I), discussed in § 448.1 [ Equal Monthly Installments ] § 74.14  Equal Monthly Installments after BAPCPA.

 

24  See hanging sentence at the end of 11 U.S.C. § 1325(a), discussed beginning at § 75.1  In General: Modification Without § 506.

 

25  552 F.3d 447 (6th Cir. Jan. 9, 2009) (Boggs, Merritt, Griffin).

 

26  530 F.3d 1284 (10th Cir. July 7, 2008) (Henry, Tacha, Lucero).

 

27  See § 451.1 [ In General: Modification Without § 506 ] § 75.1  In General: Modification Without § 506.

 

28  See § 451.1 [ In General: Modification Without § 506 ] § 75.1  In General: Modification Without § 506.

 

29  Shaw, 552 F.3d at 457.

 

30  Jones, 530 F.3d at 1290–91.

 

31  Nos. 06-80695 13, 06-09024, 2007 WL 128891 (Bankr. M.D.N.C. Jan. 12, 2007) (unpublished) (Carruthers).

 

32  The hanging sentence at the end of 11 U.S.C. § 1325(a) is discussed beginning at § 75.1  In General: Modification Without § 506.

 

33  2007 WL 128891, at *1–*5. Accord In re Griffiths, No. 06-50256-A, 2007 WL 1309049 (Bankr. E.D. Va. May 3, 2007) (unpublished) (Adams) (Car lender’s failure to object to plan that surrendered 910-day PMSI car in full satisfaction of debt is res judicata; surrender fully satisfies claim and lien.).

 

34  341 B.R. 41 (Bankr. D. Utah Apr. 10, 2006) (Boulden).

 

35  The hanging sentence at the end of 11 U.S.C. § 1325(a) is discussed beginning at § 75.1  In General: Modification Without § 506.

 

36  341 B.R. at 45–46. Accord In re Melillo, 385 B.R. 476, 481–82 (Bankr. D. Mass. Apr. 8, 2008) (Hillman) (Failure to object to balloon payment of arrearages is not consent to treatment that is inconsistent with § 1325(a)(5)(B)(iii)(I). “I cannot infer a secured creditor’s consent to treatment which is expressly prohibited by the Bankruptcy Code from a lack of an objection because ‘it has a reasonable expectation that I will not approve treatment which violates the Bankruptcy Code.’ Here, graduated payments and backloaded balloon payments in plans are exactly the proposed treatment Congress sought to prohibit.”); In re Bethoney, 384 B.R. 24, 34 (Bankr. D. Mass. Jan. 17, 2008) (Hillman) (Failure to object to plan that bifurcates a 910-day PMSI car claim is not inferred acceptance of plan; court denies confirmation notwithstanding adequate notice and lack of objection from lienholder. Citing In re Montoya, 341 B.R. 41 (Bankr. D. Utah Apr. 10, 2006) (Boulden), “I cannot infer Capital One’s consent to this treatment from the lack of objection because it has a reasonable expectation that I will not approve treatment which violates the Bankruptcy Code.”); In re Montgomery, 341 B.R. 843 (Bankr. E.D. Ky. May 17, 2006) (Howard) (Citing In re Montoya, 341 B.R. 41 (Bankr. D. Utah Apr. 10, 2006) (Boulden), untimely objection is sustained to plan that bifurcated a 910-day PMSI car claim. By local rule, an objection to confirmation had to be filed at least 10 days prior to hearing. Plan proposed to bifurcate RAC’s claim that fell within the hanging sentence at the end of § 1325(a). RAC’s objection was untimely filed three days before hearing on confirmation. Citing Montoya, 910-day PMSI car claim cannot be bifurcated even when the lender fails to timely object to the plan.).

 

37  See § 451.1 [ In General: Modification Without § 506 ] § 75.1  In General: Modification Without § 506.

 

38  359 B.R. 814 (Bankr. D. Utah Feb. 5, 2007) (Thurman).

 

39  See 11 U.S.C. § 1325(a)(5)(B)(iii)(I), discussed in § 448.1 [ Equal Monthly Installments ] § 74.14  Equal Monthly Installments after BAPCPA.

 

40  359 B.R. at 817–18. But see In re Garner, 399 B.R. 267, 273 (Bankr. D. Utah Jan. 6, 2009) (Thurman) (Citing In re Montoya, 341 B.R. 41 (Bankr. D. Utah Apr. 10, 2006) (Boulden), and distinguishing Wachovia Dealer Services v. Jones (In re Jones), 530 F.3d 1284 (10th Cir. July 7, 2008) (Henry, Tacha, Lucero), car lender’s silence with respect to cramdown of 910-day PMSI car claim does not constitute acceptance of plan. “[T]he Court has an independent duty to review the Plan to ensure that it complies with the requirements of § 1325(a), including the anti-bifurcation provision of the hanging paragraph. . . . There may be instances where a creditor’s silence constitutes acceptance of some matters under the Bankruptcy Code. The Court, however, is of the opinion that bifurcation of 910-day vehicle claims, as the Debtors propose here, is not one of those instances.”).