§ 53.8 — Appear and Be Heard with Respect to Modification of Plans after Confirmation

Revised: May 24, 2004

[1]

The Chapter 13 trustee must appear and be heard at any hearing on modification of a plan after confirmation.1 Postconfirmation modification requires consideration of most of the conditions for confirmation of the original plan,2 and the trustee’s role at the hearing on modification is typically similar.

[2]

There is no statutory obligation for the trustee to participate in modifications prior to confirmation. But in most jurisdictions, the modification of plans before confirmation under § 1323 is part of the original confirmation process, and the trustee participates accordingly.3 Typically, a plan modification before confirmation does not require a separate hearing, but “the plan as modified becomes the plan”4 and is considered with the trustee present at the hearing on confirmation.5

[3]

The passage of time makes the trustee’s participation at a hearing on modification after confirmation every bit as important as at confirmation of the original plan. It is a fact of Chapter 13 life that creditor participation in Chapter 13 cases diminishes after confirmation. A plan can be modified after confirmation at any time before the completion of payments.6 A proposed modified plan coming months or years after confirmation gets the Chapter 13 trustee’s attention but often rings no bells with creditors that have long since retired the file. The statutory obligation for the trustee to appear and be heard at modification after confirmation probably requires the trustee to have an opinion whether the proposed modification satisfies the requirements in § 1329.7


 

1  11 U.S.C. § 1302(b)(2)(C). See discussion of postconfirmation modification beginning at § 126.1  Standing, Timing and Procedure

 

2  11 U.S.C. § 1329(b). See §§ 254.1 [ Application of Tests for Confirmation ] § 126.2  Application of Tests for Confirmation and 255.1 [ Does Disposable Income Test Apply? ] § 126.3  Does Disposable Income Test Apply?.

 

3  See § 209.1 [ Timing, Procedure and Form ] § 114.1  Timing, Procedure and Form.

 

4  11 U.S.C. § 1323(b).

 

5  Modification of plans before confirmation is discussed beginning at § 114.1  Timing, Procedure and Form.

 

6  See § 253.1 [ Standing, Timing and Procedure ] § 126.1  Standing, Timing and Procedure.

 

7  See § 126.2  Application of Tests for Confirmation.