Cite as: Keith M. Lundin, Lundin On Chapter 13, § 88.8, at ¶ ____, LundinOnChapter13.com (last visited __________).
Prior to 1990, claims arising from the debtor’s operation of a motor vehicle while under the influence of alcohol or drugs were nondischargeable in a Chapter 7 (Chapter 12 or individual Chapter 11) case but dischargeable upon completion of payments in a Chapter 13 case.1 Prior to 1990, a Chapter 13 plan that favorably classified drunken driving claims raised a species of the question whether a debtor could separately classify claims that were nondischargeable under other chapters but dischargeable in a Chapter 13 case.2
In 1990, Congress twice amended § 1328(a)(2) to except from discharge upon completion of payments debts described in § 523(a)(9).3 In Chapter 13 cases filed after November 15, 1990, claims “for death or personal injury caused by the debtor’s operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance” are nondischargeable.4 The House Report accompanying the 1990 legislation makes this comment on the effect of adding a cross-reference to § 523(a)(9) in § 1328(a)(2):
During the Chapter 13 payment plan, the drunk driving victim will participate fully with other creditors; following completion of the payment plan, any remaining portion of the drunk driving related debt will not be discharged but will remain owed to the victim until fully paid.5
As discussed above with respect to restitution,6 this legislative history is not conclusive that Congress intended to require or to prohibit full payment of drunken driving claims through a Chapter 13 plan. Any separate classification of drunken driving claims is subject to the unfair-discrimination test in § 1322(b)(1).7
Debts for driving while intoxicated described in § 523(a)(9) will often be civil damages claims that do not include the threat of imprisonment that accompanies, for example, a restitution claim.8 Chapter 13 debtors with drunken driving claims typically cannot argue that separate classification is necessary to the confirmation or consummation of any plan. General creditors holding dischargeable claims have persuasive arguments that, at least during the first 36 months of the plan,9 their fair share of the debtor’s disposable income is at least equal treatment under the Chapter 13 plan. If the victim stands ready to object to confirmation on good-faith grounds,10 the debtor’s best starting position may be a plan that favorably classifies the drunken driving claim. If that plan is rejected for unfair discrimination, the debtor is then best positioned to argue the good faith of a level payment plan.
1 See § 347.1 [ Driving While Intoxicated ] § 158.3 Driving while Intoxicated.
2 See § 156.1 [ Claims That Are or Might Be Nondischargeable Only in a Chapter 7 (Chapter 12, or Individual Chapter 11) Case ] § 88.10 Claims That Are or Might Be Nondischargeable Only in a Chapter 7 (Chapter 12, or Individual Chapter 11) Case.
3 See Pub. L. No. 101-581, 104 Stat. 2865 (Nov. 15, 1990); Pub. L. No. 101-647, 104 Stat. 4916 (Nov. 29, 1990).
4 11 U.S.C. § 1328(a)(2), incorporating 11 U.S.C. § 523(a)(9). See § 347.1 [ Driving While Intoxicated ] § 158.3 Driving while Intoxicated.
5 H.R. Rep. No. 101-681, at 164 (1990).
6 See § 154.1 [ Restitution, Fines and Other Criminal Problems ] § 88.7 Restitution, Fines and Other Criminal Problems.
7 See § 149.1 [ Power to Classify Unsecured Claims: Tests for Unfair Discrimination ] § 87.1 Power to Classify Unsecured Claims: Tests for Unfair Discrimination.
8 Restitution that is nondischargeable in a Chapter 13 case must be “included in the sentence on the debtor’s conviction of a crime.” 11 U.S.C. § 1328(a)(3). See §§ 154.1 [ Restitution, Fines and Other Criminal Problems ] § 88.7 Restitution, Fines and Other Criminal Problems and 348.1 [ Criminal Restitution and Criminal Fines ] § 158.4 Criminal Restitution and Criminal Fines.
9 See § 159.1 [ A Proposal: Simpler Rules for Classification of Unsecured Claims ] § 89.10 A Proposal: Simpler Rules for Classification of Unsecured Claims.
10 See § 187.1 [ Separate Classification of Nondischargeable Claims and Good Faith ] § 106.5 Separate Classification of Nondischargeable Claims and Good Faith.