§ 117.4 — Appeal of Grant or Denial of Confirmation

Revised: June 8, 2004

[1]

When all else fails, the remedy for debtors and creditors aggrieved by a confirmation order or by an order denying confirmation is to appeal to the district court or to the bankruptcy appellate panel. Under Bankruptcy Rule 8002(a), any appeal must be noticed within 10 days of entry of the confirmation order or of the order denying confirmation.1

[2]

Whether the appeal is commenced by a debtor because confirmation was denied or by a creditor because confirmation was granted, counsel should determine that there are findings of fact and conclusions of law that can be reviewed by the appellate court. An objection to confirmation is a contested matter under Bankruptcy Rule 9014.2 Bankruptcy Rule 7052 applies, and the bankruptcy court is required to make separate findings of fact and conclusions of law in support of an order granting or denying confirmation. Unfortunately, this does not always happen.

[3]

If the record on appeal of an order granting or denying confirmation does not contain the findings of fact and conclusions of law required by Bankruptcy Rule 7052, the appellate court will remand the matter to the bankruptcy court.3 Counsel can avoid much unnecessary effort and expense by ensuring that findings and conclusions are in the record on appeal. Although Bankruptcy Rule 7052 does not require a formal request, it is appropriate for counsel to move the bankruptcy court for findings and conclusions to permit completion of the record on appeal pursuant to Bankruptcy Rules 8006 and 8007.

[4]

There is disagreement in the appellate decisions whether an order denying confirmation is a final order for purposes of appeal under 28 U.S.C. § 158(d). In Simons v. Federal Deposit Insurance Corp. (In re Simons),4 the U.S. Court of Appeals for the Tenth Circuit held that an order denying confirmation that does not also dismiss the Chapter 13 case is not final for purposes of appeal.5 The Bankruptcy Appellate Panel for the Tenth Circuit has struggled to apply this rule, sometimes refusing appellate jurisdiction when the Chapter 13 case has not also been dismissed6 and other times finessing to find finality when confirmation has been denied but the Chapter 13 case was not dismissed.7 The U.S. Court of Appeals for the Second Circuit and the Bankruptcy Appellate Panel for the First Circuit seem to agree with the Tenth Circuit that dismissal is necessary for finality for purposes of appeal of an order denying confirmation.8 The U.S. Court of Appeals for the Fourth Circuit held it was without jurisdiction to consider the appeal of a district court order that affirmed in part, reversed in part, and remanded a bankruptcy court order denying confirmation of a Chapter 13 plan.9

[5]

The U.S. Court of Appeals for the Eighth Circuit held that an order denying confirmation but granting the debtor 10 days in which to amend the plan or face dismissal was not final for purposes of appeal;10 but the Eighth Circuit also held that an order denying confirmation on the ground that the debtor was not eligible for Chapter 13 relief was final notwithstanding that the Chapter 13 case was not dismissed by the bankruptcy court.11 More recently, the Eighth Circuit stated the rule that “a bankruptcy court order denying confirmation of a Chapter 13 plan without dismissing the case is not a final order under § 158(d).”12

[6]

The Bankruptcy Appellate Panel for the Ninth Circuit acknowledged that denial of confirmation without dismissal is ordinarily not appealable but granted leave to file an interlocutory appeal when the bankruptcy court determined that the debtor was ineligible for Chapter 13 and immediate appeal would “materially advance ultimate determination of the litigation.”13 The U.S. Court of Appeals for the Ninth Circuit held that it had jurisdiction to review the BAP’s denial of confirmation and remand when the appeal was “one of those rare instances where . . . debtors have implicated an important legal question that would likely dispose of the case and obviate the need for further factfinding.”14

[7]

In contrast, the U.S. Court of Appeals for the Fifth Circuit has reported decisions entertaining the appeal of confirmation issues in Chapter 13 cases well in advance of even a threat of dismissal. In Williams v. Tower Loan of Mississippi, Inc. (In re Williams),15 the Fifth Circuit reviewed an order denying a motion to modify a Chapter 13 plan before confirmation under § 1323.16 There is no clue in the Williams opinion how the Fifth Circuit found appellate jurisdiction to review a preliminary version of the plan in advance of a hearing on confirmation.

[8]

Then in Bartee v. Tara Colony Homeowners Association (In re Bartee),17 the Fifth Circuit found appellate jurisdiction to review the denial of confirmation of a plan that proposed to cram down a wholly unsecured homeowner’s association. The Fifth Circuit explained that review of the denial of confirmation of a Chapter 13 plan does not necessarily require dismissal of the case:

Recognition that the denial of a Chapter 13 plan can be a final order is all but compelled by considerations of practicality. . . . [T]he debtor is left without any real options in formulating his plan. . . . In the case of a denial of confirmation of a plan, we look to whether or not the order was intended to serve as a final denial of relief sought by the debtor. If the order was not intended to be final—for example, if the order addressed an issue that left the debtor able to file an amended plan (basically to try again)—appellate jurisdiction would be lacking. . . . The character of the bankruptcy court’s order demonstrates that the court was aware that policy and practicality counseled against retaining jurisdiction over the case. The bankruptcy court’s order . . . conclusively determined the substantive rights at issue and ended the dispute. . . . [N]o party to this action argues that any further action was to take place.18
[9]

In some circuits, the debtor may have to risk dismissal of the case and loss of protection of the automatic stay to appeal the denial of confirmation of a plan. This is a bad outcome for the debtor. The prospects typically are not great for a stay pending appeal of an order denying confirmation and dismissing a Chapter 13 case.19 The Fifth Circuit is correct in Bartee that the denial of confirmation often has the practical effect of putting an end to the debtor’s prospects for rehabilitation because no confirmable modification of the plan is possible. Chapter 13 debtors rarely have the financial resources to finance an appeal after suffering dismissal of the case.

[10]

The wording of the plan or of the order denying confirmation may affect whether the order is final for purposes of appeal. For example, in Dewey v. Dewey (In re Dewey),20 the Bankruptcy Appellate Panel for the Tenth Circuit found that an order denying confirmation on the ground that the plan failed to pay in full a support obligation entitled to priority under § 507(a)(7) was final based in part on a provision in the plan that the debtor would pay the contested support obligation “to the extent that such claim is held to be a priority claim on appeal.”21 An order denying confirmation that excludes the possibility of plan modification, for example, by giving the debtor a fixed time within which to convert or dismiss, is more likely to be a final order.22 When the debtor appeals the denial of confirmation, it has been held that the bankruptcy court retains jurisdiction to dismiss the Chapter 13 case.23

[11]

That the Code does not provide an automatic remedy when a Chapter 13 plan fails of confirmation can be a problem for creditors. Absent a motion for conversion, dismissal or relief from the stay, the Chapter 13 case can languish on the court’s docket. The stay remains in effect. The debtor controls whether to modify the plan, but the debtor doesn’t have a final order for purposes of appealing the denial of confirmation. Someone has to take further action to move the case toward confirmation or dismissal.

[12]

In some jurisdictions, the order denying confirmation routinely fixes a time within which the debtor must modify the plan or some other remedy will be imposed—typically conversion or dismissal. Creditors should consider combining a request for conversion, dismissal or relief from the stay with every objection to confirmation. The creditor is then best positioned to argue for further relief if confirmation is denied.

[13]

The U.S. Court of Appeals for the Third Circuit held that a Chapter 13 debtor lacked standing to appeal confirmation when the issue on appeal was the allocation and timing of payments as between the debtor’s lawyer and a creditor.24 The court reasoned that the debtor was not a “person aggrieved” for purposes of appeal because the outcome would not change the amount the debtor would have to pay to satisfy the plan. The broad assignment of responsibilities to the Chapter 13 trustee in § 130225 has been interpreted to include standing to appeal an order confirming a Chapter 13 plan over the trustee’s objection.26

[14]

Creditors should be aware of appellate case law indicating that the failure to timely object to confirmation may be fatal to standing to appeal the confirmation order.27 There is no strategic advantage for a creditor to omit to file an objection to confirmation. Appellate review of confirmation may not be available to any creditor that did not voice its objection before entry of the confirmation order. On the other hand, the Bankruptcy Appellate Panel for the Eighth Circuit held that a bank that timely objected to confirmation had standing to appeal notwithstanding that the bank failed to timely file a proof of claim and did not obtain a stay of the confirmation order.28

[15]

Although there are few reported cases on the issue, the failure to appeal most preconfirmation orders in Chapter 13 cases should not bar appeal of confirmation itself when the plan includes the provision or outcome that was the subject of the preconfirmation order. For example, in Chase Manhattan Mortgage Corp. v. Rodriguez (In re Rodriguez),29 after a preconfirmation valuation hearing under § 506(a),30 an undersecured mortgage was bifurcated into a secured and an unsecured claim. Chase did not appeal the bifurcation order. Bifurcation of the mortgage was included in the plan that was confirmed. Chase did not renew its objection to the valuation at the confirmation hearing but did appeal the confirmation order. The district court held that neither failure to appeal the § 506(a) order before confirmation nor failure to renew the valuation objection at confirmation precluded appeal of the confirmation order:

Requiring immediate appeal of 506(a) orders will result in the introduction of unnecessary bankruptcy appeals . . . . [R]equiring a pre-confirmation appeal from a 506(a) order will potentially cause unnecessary delay and cost. . . . Renewal of previous objection to 506(a) valuation at the confirmation hearing is not required to preserve the right to appeal, provided the objection was clearly made and fully litigated at an earlier point in the proceeding.31
[16]

A bankruptcy court’s finding that a Chapter 13 plan has been proposed in good faith under § 1325(a)(3) is a finding of fact reviewed on appeal under the clearly erroneous standard.32 It has been held that unfair discrimination for purposes of claim classification under § 1322(b)(1) is a question of law reviewed de novo.33


 

1  See In re Lewis, 93 B.R. 462 (Bankr. S.D. Miss. 1987) (Notice of appeal and motion for leave to appeal filed 20 days after entry of confirmation order is untimely. No evidence or explanation was offered for the failure to timely file a notice of appeal. Sanctions were imposed and attorneys’ fees were awarded under Bankruptcy Rule 9011 for the late notice of appeal.).

 

2  See § 221.1 [ Form of Objection ] § 116.4  Form of Objection.

 

3  See, e.g., 550 W. Ina Rd. Trust v. Tucker (In re Tucker), 989 F.2d 328, 330 (9th Cir. 1993) (Preprinted order of confirmation and minute entry confirming plan are insufficient record on which to measure propriety of confirmation. Good-faith objection to confirmation requires findings of fact by the bankruptcy court. “The BAP should have remanded the case to the bankruptcy court for sufficient findings on whether the [debtors] acted in good faith.”). Accord Spokane Ry. Credit Union v. Gonzales (In re Gonzales), 172 B.R. 320, 325 (E.D. Wash. 1994) (Bankruptcy court confirmed plan, thus implicitly finding good faith. “However, the Bankruptcy Court provided no findings of fact, conclusions of law, or analysis in reaching its decision. . . . This court has no basis upon which to review for clear error the Bankruptcy Court’s presumed finding of good-faith.” Case was remanded for fact-finding with respect to good faith.). See also Homeside Lending, Inc. v. Green (In re Green), 252 B.R. 769 (B.A.P. 8th Cir. 2000) (Confirmation affirmed because mortgage holder failed to submit evidence or arguments to bankruptcy court; documents in appendix on appeal that were not introduced to the bankruptcy court are struck from the appellate record.); Greatwood v. United States (In re Greatwood), 194 B.R. 637, 639 (B.A.P. 9th Cir. 1996) (Bankruptcy court made findings of fact on the record pursuant to Bankruptcy Rule 7052; appellant’s failure to furnish a transcript leaves the BAP “unaware of the basis upon which the bankruptcy court granted dismissal of the case.” However, tax protestor’s appeal can be resolved on the bare record because debtor’s failure to file tax returns and proposal to pay nothing to the IRS amply demonstrate bad faith.); National Sch. Bus, Inc. v. Carignan (In re Carignan), 190 B.R. 739, 741 (N.D.N.Y. 1996) (“[T]he debtor presented no evidence at the confirmation hearing. Thus, the bankruptcy judge erred as a matter of law when he confirmed the Plan. Accordingly, this court remands this matter for findings as to the issues contested herein.”).

 

4  908 F.2d 643 (10th Cir. 1990).

 

5  Accord Wade v. Conner (In re Conner), No. 01-7139, 2002 WL 1265631 (10th Cir. June 7, 2002) (unpublished) (Order denying confirmation that sustained objection to appellant’s proof of claim but did not dismiss Chapter 13 case is not final.).

 

6  See Wade v. Hatcher (In re Hatcher), 208 B.R. 959, 967–68 (B.A.P. 10th Cir. 1997) (BAP is without jurisdiction to hear appeal from order denying confirmation that permitted debtors 15 days to amend plan. Order denying confirmation and allowing time for amendment “does not have independent aspects of finality” that could “ripen” upon subsequent entry of order confirming a plan. The order denying confirmation “does not involve a controlling question of law as to which there is a substantial ground for difference of opinion” and thus is not properly treated as an interlocutory appeal.).

 

7  See Kittel v. First Union Nat’l Bank (In re Kittel), Nos. WO-01-094, 01-01264, WO-01-095, 01-1269, 01-16780, 2002 WL 924619, at *4 (B.A.P. 10th Cir. May 8, 2002) (unpublished) (Order denying confirmation and granting debtor 10 days to convert to Chapter 7 or dismiss is final. “While orders denying confirmation of a Chapter 13 plan generally are not final orders under 28 U.S.C. § 158(a) . . . the order denying confirmation of the Chapter 13 plan and allowing a brief period in which Ms. Kittel could convert or dismiss her case essentially terminated the case.”); Dewey v. Dewey (In re Dewey), 223 B.R. 559, 563 (B.A.P. 10th Cir. 1998) (Order denying confirmation on the ground that the plan failed to pay in full a support obligation entitled to priority under § 507(a)(7) is final because debtor amended the plan to provide for payment of the contested claim “to the extent that such claim is held to be a priority claim on appeal,” and bankruptcy court confirmed amended plan while appeal was pending.); McCarn v. WYHY Fed. Credit Union (In re McCarn), 218 B.R. 154 (B.A.P. 10th Cir. 1998) (Although order denying confirmation of Chapter 13 plan is not final in the Tenth Circuit, Simons v. Federal Deposit Insurance Corp. (In re Simons), 908 F.2d 643 (10th Cir. 1990), BAP treats notice of appeal as a motion for leave to appeal and grants the motion to review whether § 1322(c)(1) permits debtor to cure defaults with respect to a mortgage that was foreclosed before the petition.).

 

8  See Maiorino v. Branford Sav. Bank, 691 F.2d 89 (2d Cir. 1982); Bentley v. Boyajian (In re Bentley), 266 B.R. 229 (B.A.P. 1st Cir. 2001) (Although order denying confirmation based on unfair classification of student loans was not a final order, upon dismissal of the Chapter 13 case by the bankruptcy court, the order denying confirmation became reviewable on appeal.).

 

9  Commercial Credit Corp. v. Wright (In re Wright), 77 F.3d 472 (4th Cir. 1996).

 

10  Lewis v. Farmers Home Admin., 992 F.2d 767, 771–72 (8th Cir. 1993) (Order that outlined the elements of an acceptable plan and gave the debtor 10 days in which to submit a conforming plan or face dismissal was not final for purposes of appeal. “The bankruptcy court’s order in this case left much confusion as to the status of the bankruptcy petition. The order denied confirmation . . . and sustained . . . objections. However, it did not dismiss [the debtor’s] bankruptcy petition outright, although it did threaten to dismiss the case if timely payments were not made. Neither did the bankruptcy court’s order confirm a plan, although it stipulated what payments were acceptable. . . . We find this bankruptcy order to be . . . peculiar and problematic. . . . [M]any other courts have held that bankruptcy orders denying confirmation of a proposed plan, but not dismissing the underlying petition are nonfinal decisions not subject to appeal.”). Accord Wade v. Hatcher (In re Hatcher), 208 B.R. 959 (B.A.P. 10th Cir. 1997) (BAP is without jurisdiction to hear appeal from order denying confirmation that permitted debtors 15 days to amend plan.). See also Jefferson Fin. Serv. v. Hance (In re Hance), No. 99-6405, 2000 WL 1478390, at *2 & *3 n.9 (6th Cir. Oct. 4, 2000) (Table decision at 234 F.3d 1268) (Court of appeals is without jurisdiction to consider creditor’s appeal of order denying confirmation when bankruptcy court gave the debtor one week to amend the plan after the denial of confirmation and the creditor appealed but did not object to confirmation of the amended plan. Bankruptcy court denied confirmation on ground that 12% interest rate to car lender was not sufficient. Bankruptcy court gave the debtor one week in which to amend the plan. Debtor amended the plan, increasing the interest rate to 15%. Creditor did not object to the amended plan but instead filed a notice of appeal to the district court from the order denying confirmation of the 12% plan. Creditor took the position that the current market rate was 24% based on evidence at the confirmation hearing. In the absence of objection, the bankruptcy court confirmed the amended plan with a 15% rate of interest. Two years later, the district court reversed the bankruptcy court’s order denying confirmation of the 12% plan and remanded the case “for imposition of a 24% interest rate on creditor’s claim.” The debtor appealed. “We conclude that the district court lacked subject matter jurisdiction to consider creditor’s appeal. As a result, we also lack jurisdiction and must dismiss debtor’s appeal from the district court’s decision.” In a footnote, “[i]n Hardy v. CINCO Fed. Credit Union (In re Hardy), 755 F.2d 75 (6th Cir. 1985), this court considered an appeal from a denial of the confirmation of a debtor’s Chapter 13 plan with no acknowledgment of a jurisdictional problem. We expressed no opinion on Hardy as it relates to jurisdiction. Since jurisdiction was not discussed in Hardy, that decision is not binding upon us here.”).

 

11  Ficken v. Farmers Home Admin. (In re Ficken), 2 F.3d 299 (8th Cir. 1993). See also Nicholes v. Johnny Appleseed of Wash. (In re Nicholes), 184 B.R. 82, 86–87 (B.A.P. 9th Cir. 1995) (Although denial of confirmation without dismissal of the bankruptcy case is ordinarily not appealable, leave to file an interlocutory appeal of the denial of confirmation is appropriate where the bankruptcy court determined that the debtor was ineligible for Chapter 13 relief and immediate appeal may materially advance ultimate determination of the litigation. “[T]he bankruptcy court denied confirmation of the debtor’s plan after it found that the debtor was ineligible for Chapter 13 relief. . . . Without an appellate determination as to the debtor’s eligibility to file such a plan, the debtor would have no alternative but to convert or dismiss. . . . [W]e may treat the notice of appeal as a motion for leave to file an interlocutory appeal, if the standards set forth in 28 U.S.C. § 1292(b) are met. . . . Here, the issue of which claims disqualify a debtor from Chapter 13 relief is a controlling question of law, and the definitions of some types of qualifying and disqualifying claims is [sic] still unsettled. . . . We therefore grant leave to appeal the denial of confirmation.”).

 

12  Groves v. LaBarge (In re Groves), 39 F.3d 212, 214 (8th Cir. 1994). Accord In re Cockings, 172 B.R. 257, 260 (Bankr. E.D. Ark. 1994) (Court denies stay pending appeal of order finding bad faith but allowing debtor to submit a new plan. “An order denying confirmation is not a final order. . . . The plan confirmation process is on-going in this Court such that there is no issue to be appealed.”).

 

13  Nicholes v. Johnny Appleseed of Wash. (In re Nicholes), 184 B.R. 82, 86–87 (B.A.P. 9th Cir. 1995) (“[T]he bankruptcy court denied confirmation of the debtor’s plan after it found that the debtor was ineligible for Chapter 13 relief. . . . Without an appellate determination as to the debtor’s eligibility to file such a plan, the debtor would have no alternative but to convert or dismiss. . . . [W]e may treat the notice of appeal as a motion for leave to file an interlocutory appeal, if the standards set forth in 28 U.S.C. § 1292(b) are met. . . . Here, the issue of which claims disqualify a debtor from Chapter 13 relief is a controlling question of law, and the definitions of some types of qualifying and disqualifying claims is [sic] still unsettled. . . . We therefore grant leave to appeal the denial of confirmation.”). Accord McCarn v. WYHY Fed. Credit Union (In re McCarn), 218 B.R. 154 (B.A.P. 10th Cir. 1998) (Although order denying confirmation of Chapter 13 plan is not final in the Tenth Circuit, Simons v. Federal Deposit Insurance Corp. (In re Simons), 908 F.2d 643 (10th Cir. 1990), BAP treats notice of appeal as a motion for leave to appeal and grants the motion to review whether § 1322(c)(1) permits debtor to cure defaults with respect to a mortgage that was foreclosed before the petition.).

 

14  Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 981 (9th Cir. 2001).

 

15  168 F.3d 845 (5th Cir. 1999).

 

16  See discussion of modification before confirmation beginning at § 114.1  Timing, Procedure and Form.

 

17  212 F.3d 277 (5th Cir. 2000).

 

18  212 F.3d at 283.

 

19  See, e.g., In re Connelly, 195 B.R. 230 (Bankr. W.D.N.Y. 1993) (Denies stay pending appeal of denial of confirmation and dismissal of debtor’s fourth Chapter 13 case filed in violation of 180-day bar in § 109(g)(2). Court found little likelihood that the debtor would succeed on appeal and substantial harm to mortgage holder that had been repeatedly stopped from foreclosing.).

 

20  223 B.R. 559 (B.A.P. 10th Cir. 1998).

 

21  223 B.R. at 563.

 

22  See, e.g., Kittel v. First Union Nat’l Bank (In re Kittel), Nos. WO-01-094, 01-01264, WO-01-095, 01-1269, 01-16780, 2002 WL 924619, at *4 (B.A.P. 10th Cir. May 8, 2002) (unpublished) (Order denying confirmation and granting debtor 10 days to convert to Chapter 7 or dismiss is final. “While orders denying confirmation of a Chapter 13 plan generally are not final orders under 28 U.S.C. § 158(a) . . . the order denying confirmation of the Chapter 13 plan and allowing a brief period in which Ms. Kittel could convert or dismiss her case essentially terminated the case.”). Compare Wade v. Hatcher (In re Hatcher), 208 B.R. 959, 967–68 (B.A.P. 10th Cir. 1997) (BAP is without jurisdiction to hear appeal from order denying confirmation that permitted debtors 15 days to amend the plan. Order denying confirmation and allowing time for amendment “does not have independent aspects of finality.”).

 

23  Hagel v. Drummond (In re Hagel), 184 B.R. 793, 798 (B.A.P. 9th Cir. 1995) (Bankruptcy court did not lack jurisdiction to dismiss Chapter 13 case after denial of confirmation notwithstanding that confirmation was on appeal to the district court. The order dismissing the bankruptcy case was “at most, enforcing” the order denying confirmation.).

 

24  GMAC v. Dykes (In re Dykes), 10 F.3d 184 (3d Cir. 1993) (Debtors are not “persons aggrieved” by the order of confirmation when the number and amount of payments required by the plan as confirmed are identical to the provisions of the plan proposed by the debtors, and only the allocation of those payments was changed by the order of confirmation. The debtors’ plan proposed monthly payments of $120 over 48 months, with the first 10 payments to be distributed to the debtors’ attorney. GMAC objected to confirmation on the ground that its collateral—a 1986 Pontiac—would depreciate if GMAC were required to wait 11 months before receiving its first payment under the plan. The bankruptcy court sustained GMAC’s objection and then confirmed an amended plan in which the debtors’ counsel and GMAC would share each monthly payment until counsel was paid in full, and thereafter GMAC would receive the entire $120 per month. The debtors appealed, seeking reinstatement of the original plan so that debtors’ counsel could be paid in full ahead of GMAC. Court cites Holmes v. Silverwings Aviation, Inc., 881 F.2d 939 (10th Cir. 1989), with approval.).

 

25  See discussion of trustee powers and duties beginning at § 53.1  Know the Trustee’s Operating Procedures.

 

26  Meyer v. Hill (In re Hill), 268 B.R. 548, 555 (B.A.P. 9th Cir. 2001) (“[W]e conclude that the chapter 13 trustee’s § 1302 power would be illusory if it did not also extend to standing to appeal an order confirming a plan over the trustee’s objection.”). See also § 219.1 [ Standing to Object ] § 116.1  Standing to Object.

 

27  See, e.g., Jefferson Fin. Serv. v. Hance (In re Hance), No. 99-6405, 2000 WL 1478390 (6th Cir. Oct. 4, 2000) (Table decision at 234 F.3d 1268) (Creditor’s failure to object to confirmation of amended plan precludes argument that appeal of order denying confirmation of earlier plan was really a “premature” appeal of the later order confirming the amended plan.); In re Waldman, 88 B.R. 59, 61 (E.D. Pa. 1988) (Failure of a creditor to timely object to confirmation after proper notice is fatal to appeal of confirmation order: “the creditor is bound by the terms of the plan and has no right to later challenge the propriety of the plan.”). But see United States v. Easley, 216 B.R. 543, 545 (W.D. Va. 1997) (Creditor did not waive its objection to confirmation or its right to appeal when it failed to appear at the confirmation hearing. “There is no such waiver. The Bankruptcy Court is under an independent duty to verify that a Chapter 13 plan does in fact comply with the law, irrespective of the lack of an objection by creditors or the Chapter 13 trustee.”).

 

28  Maynard Sav. Bank v. Michels (In re Michels), 286 B.R. 684, 690–91 (B.A.P. 8th Cir. 2002) (“MSB timely filed its objection to the plan, and such objection may serve as an informal proof of claim conferring standing on MSB to object to confirmation and standing to appeal the order confirming the plan. . . . MSB is clearly ‘aggrieved’ by the denial of its motion for an informal proof of claim. . . . [T]he plan is not substantially consummated to preclude MSB from seeking relief from the order confirming the plan. Unlike a chapter 11, Debtor must complete the plan to obtain a discharge. . . . Completion of Debtor’s plan is still three years away and not substantially complete. We find that the doctrine of equitable mootness does not apply in this case.”).

 

29  272 B.R. 54 (D. Conn. 2002).

 

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

 

31  272 B.R. at 58.

 

32  Robinson v. Tenantry (In re Robinson), 987 F.2d 665 (10th Cir. 1993); Society Nat’l Bank v. Barrett (In re Barrett), 964 F.2d 588 (6th Cir. 1992); Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346 (8th Cir. 1990) (en banc); Banks v. Vandiver (In re Banks), 248 B.R. 799 (B.A.P. 8th Cir. 2000), aff’d, 267 F.3d 875 (8th Cir. 2001); Spokane Ry. Credit Union v. Gonzales (In re Gonzales), 172 B.R. 320 (E.D. Wash. 1994); Colorado Student Obligation Bond Auth. v. Thompson (In re Thompson), 116 B.R. 794 (D. Colo. 1990).

 

33  Spokane Ry. Credit Union v. Gonzales (In re Gonzales), 172 B.R. 320 (E.D. Wash. 1994).