§ 72.5 — Form of Plan

Revised: May 10, 2010

[1]

There is no official form for the Chapter 13 plan.1 Reported decisions demonstrate that there are as many different forms for the plan as there are bankruptcy courts, judges and Chapter 13 trustees. Practitioners typically use plans generated by their computer software.2

[2]

By local rule or local practice there are required or preferred forms for the plan in many jurisdictions.3 If a district, or division within a district,4 has adopted a required plan form, deviation from that form may require a motion stating a compelling justification.5 If in doubt, consult the local Chapter 13 trustee’s office for suggested or required forms for the plan. In some jurisdictions, a preferred or required form for the Chapter 13 plan can be found through a Web page maintained by the bankruptcy court or by the Chapter 13 trustee.6 The minimum content of a Chapter 13 plan is discussed elsewhere.7

[3]

A standard form for the Chapter 13 plan makes a great deal of sense. Almost all Chapter 13 cases require approximately the same categories of information in the plan. Within a district and even across districts, no obvious purpose is served by nonstandard forms for the plan. A myriad of forms simply confuses the processing of Chapter 13 cases. The trustee and creditors are forced by nonstandard plans to search for the basic information necessary for noticing and confirmation. A standard form for the plan guides all Chapter 13 players to the information that is important and reveals at a glance when there is a problem. Nonstandard forms multiply the opportunities for mistakes, confusion and deception.

[4]

There is nothing in the Code or Rules to require or prohibit a bankruptcy court from establishing a standard form for the district.8 An Official Form for the Chapter 13 plan would be a great contribution to Chapter 13 practice. A national form would reduce mistakes with respect to noticing, would smooth out some of the local variations in Chapter 13 practice and would be warmly embraced by the credit community that currently struggles within districts and across the country with dozens or hundreds of different forms for the plan.

[5]

The drafting of a model national form for the Chapter 13 plan was undertaken at a series of Institutes sponsored by the National Association of Chapter 13 Trustees beginning in 2002. The model form that emerged from that effort has been revised from time to time and the Revised Model Plan is found in Appendix SSS. The Revised Model Plan is short, it standardizes the location of various optional plan provisions and the plan itself can be used as the notice of the content of the plan for purposes of Bankruptcy Rule 2002. The history of the Revised Model Plan and arguments in favor of its use are also found in Appendix SSS.


 

1  See §§ 36.2 [ Plan ] § 36.24  Plan and 439.1 [ Model Plan (BAPCPA) ] § 72.6  Model Plan (BAPCPA).

 

2  Electronic case filing (ECF) is the norm for filing petitions, plans and other case documents in bankruptcy courts. See Fed. R. Bankr. P. 5005(a)(2), discussed in § 34.1 [ Commercial Forms ] § 36.1  Commercial Forms.

 

3  See, e.g., In re Lasica, 294 B.R. 718 (Bankr. N.D. Ill. 2003) (Bankruptcy judges in the Northern District of Illinois adopted a Model Plan to meet concerns of Seventh Circuit in Adair v. Sherman, 230 F.3d 890 (7th Cir. 2000); confirmation of plan that provided zero payment for priority claim of debtor’s attorney precluded fees altogether.); In re Sounakhene, 249 B.R. 801, 803–06 (Bankr. S.D. Cal. 2000) (“The Debtors utilized the ‘Chapter 13 (Mandated Form)’; although the form is not, in fact, mandated by the judges of this District. . . . The Court is sympathetic to the need of chapter 13 trustees to develop standardized forms to assist in expediting their case load. However, these standardized forms cannot grant rights not authorized by the Bankruptcy Code; nor can they abrogate the ability of debtors to propose their own plans within the permissible limits of the Code. Use of the term ‘mandated’ leads debtors to believe they cannot propose their own plans.”); In re Barton, 249 B.R. 561 (Bankr. E.D. Wash. 2000) (Language of “court-required form Chapter 13 plan” contained special provision that the allowed amount of a secured claim was the amount stated in a proof of claim unless a separate motion was filed to value collateral or to object to the claim.); In re McNichols, 249 B.R. 160, 177 (Bankr. N.D. Ill. 2000) (“One alternative for the Debtor when drafting a coherent and easily understandable plan is to utilize the clear and concise Model Form Chapter 13 Plan.”); In re Pedersen, 229 B.R. 445, 451–52 (Bankr. E.D. Cal. 1999) (Plan not confirmable because debtor used required form, but failed to fill in the blanks. “To promote uniformity and administrative convenience, the general order requires use of a form chapter 13 plan. . . . This form plan requires the debtor or the debtor’s attorney to fill in information such as the plan’s term, the monthly plan payment, and the dividend to be paid to holders of general unsecured claims. . . . In this case, the debtor used the form plan. He inserted ‘$100.00’ as the monthly plan payment but failed to insert a plan term. Further, he did not insert a percentage . . . in the blank specifying the dividend payable to general unsecured creditors. . . . In the absence of basic plan provisions, such as the length of the plan and the amount to be paid on account of general unsecured claim, confirmation is impossible.”).

 

4  See, e.g., the website for the Northern District of Ohio, at www.ohnb.uscourts.gov. Plan forms vary by division within that district.

 

5  See, e.g., In re Solitro, 382 B.R. 150, 153 (Bankr. D. Mass. Feb. 7, 2008) (Rosenthal) (Sustaining objection to various plan provisions that do not conform to local form, court rejects terms that invalidate contractual arbitration clauses, that require lienholders to release liens within 10 days from demand and that preserve standing to bring avoidance actions after confirmation. Any modifications of form plan must be accompanied by a statement of “special circumstances justif[ying] their inclusion.”).

 

6  See, e.g., In re Wilson, 321 B.R. 222, 226–28 (Bankr. N.D. Ill. Feb. 25, 2005) (Hollis) (Model Chapter 13 plan for the Northern District of Illinois www.ilnb.uscourts.gov mandatory since August 16, 2004, fixes procedures for determining the pre- and postpetition defaults with respect to home mortgages and does not impermissibly modify claims protected by § 1322(b)(2).); In re McNichols, 249 B.R. 160, 177 (Bankr. N.D. Ill. 2000) (“Model Form Chapter 13 Plan . . . is available from the Court’s Web Site located on the Internet at www.ilnb.uscourts.gov.”).

 

7  See §§ 36.2 [ Plan ] § 36.24  Plan and 55.1 [ Debtor Must File a Plan ] § 51.2  Debtor Must File a Plan.

 

8  Of course, if a local plan form conflicts with a Code or Rule provision, the court may be required to correct the conflict. See, e.g., Sunahara v. Burchard (In re Sunahara), 326 B.R. 768 (B.A.P. 9th Cir. June 27, 2005) (Smith, Hollowell, Brandt) (Mandatory local plan language requiring at least 36 months of payments unless claims are paid in full is inconsistent with § 1329, which allows postconfirmation modification to pay off plan earlier than 36 months without paying all claims in full.); In re Seal, No. 05-17262, 2007 WL 710135 (Bankr. D. Kan. Mar. 6, 2007) (unpublished) (Somers) (Wichita Chapter 13 trustee’s model plan is slightly modified to provide for curing of mortgage defaults and provision is suggested to determine that home mortgages are current at completion of payments under plan.).