§ 73.6 — Treatment of Priority Claims Changed by BAPCPA

Revised: July 3, 2007

[1]

BAPCPA did not change the basic requirement in § 1322(a)(2) that a Chapter 13 plan shall “provide for the full payment, in deferred cash payments, of all claims entitled to priority in section 507 . . . unless the holder . . . agrees to a different treatment.”1 Discussed above,2 BAPCPA created one completely new priority and modified several preexisting priorities with the upshot that Chapter 13 debtors face more and larger debts entitled to priority and full payment through the plan.

[2]

BAPCPA expanded the definition of domestic support obligations (DSOs) and moved the DSO priority to first position in § 507(a).3 This placed DSOs ahead of administrative expenses and other priority debt in the § 507(a) listing. This change in position was not accompanied by any change in the confirmation requirement in § 1322(a)(2) that a Chapter 13 plan must pay in full all claims entitled to priority under § 507.

[3]

But the change in the order of the priorities in § 507(a) has inspired some DSO claim holders to argue that BAPCPA intended DSO claims to be paid first in time—ahead of other priority debts. This issue first presented in In re Sanders.4 The Chapter 13 plan proposed to pay attorney fees before full payment of a DSO. As explained by the Bankruptcy Court for the Northern District of Alabama, although BAPCPA elevated DSOs to first priority, BAPCPA did not change the full-payment requirement in § 1322(a)(2) or the provision in § 1326 that permits Chapter 13 debtors to pay administrative expenses before or at the same time as other claims:

To accomplish confirmation over the objection of a priority creditor, § 1322(a)(2) continues to require the Chapter 13 plan to provide for full payment, in deferred cash payments, of priority claims under § 507, but nothing in § 1322 requires higher priority claims to be paid in full before lower priority claims. . . . In Chapter 13 cases § 1326 supplements the priorities provisions in § 507 requiring only that the trustee pay § 507(a)(2) administrative expenses before or contemporaneously with payments to other claimholders under the plan. . . . Section 1326(b)(1) gave the debtor the choice of paying § 507(a)(1) administrative expenses before or concurrently with other claims, so long as the administrative payments began no later than the first payment to other creditors. . . . By striking the reference to § 507(a)(1) in § 1326(b)(1) and adding § 507(a)(2), Congress clearly intended to require the continued payment of administrative expenses before or contemporaneously with payments to other claimholders, even § 507(a)(1) claimholders.5
[4]

The inclusion of interest that accrues under nonbankruptcy law6 in the definition of DSO in § 101(14A) can be interpreted to mean that accruing postpetition interest on a DSO is part of the priority DSO claim that must be paid in full to confirm a plan under § 1322(a)(2). As explained by the bankruptcy court in In re Reid:7

The definition of a “domestic support obligation,” as set forth in § 101(14A), states that a domestic support obligation is a “debt that accrues before, on, or after the date of the order for relief in a case under this title, including interest that accrues on that debt as provided under applicable nonbankruptcy law notwithstanding any other provision of this title.” . . . [T]he Debtor’s Plan must provide for the payment of any interest accruing pursuant to nonbankruptcy law on any claims for domestic support obligations.8
[5]

There is likely to be some controversy about paying postpetition interest to DSO claimants. BAPCPA included postpetition interest in the definition of DSO in § 101(14A) but did not amend § 502(b)(2), which disallows an unsecured claim for unmatured interest. Most DSOs are nondischargeable claims9 that may be eligible for postpetition interest under the conditions in new § 1322(b)(10),10 but if Reid reads §§ 101(14A) and 1322(a)(2) correctly, the plan must pay postpetition interest to a DSO claimant whenever required by nonbankruptcy law and without regard to other bankruptcy considerations. Chapter 13 debtors will want to pay postpetition interest to DSO claimants to minimize surviving nondischargeable debt, but that interest may come right out of the pockets of dischargeable unsecured claimholders as a reduction of projected disposable income.11 This is a tension-filled environment.

[6]

Separate from shuffling and redefining the priority claims in § 507(a), BAPCPA made several changes that will affect the treatment of priority claims in Chapter 13 plans. Most of these other changes deal with domestic support obligations, but not all.

[7]

BAPCPA added a new confirmation requirement in § 1325(a)(8) that the debtor “has paid all amounts that are required to be paid under a domestic support obligation, and that first became payable after the date of the filing of the petition if the debtor is required by a judicial or administrative order, or by statute, to pay such domestic support obligation.”12 The definition of DSO in § 101(14A) includes support obligations that accrue before or after the petition.13 New § 1325(a)(8) requires that the debtor be current at confirmation only with respect to a DSO that first becomes payable after the petition.

[8]

There is a minor terminology collision between the new confirmation requirement in § 1325(a)(8) and the definition of DSO in § 101(14A). A debt for alimony, maintenance or support becomes a DSO under § 101(14A) whether it “accrues” before or after the petition. “Accrues” means something different from “first becomes payable.” A dictionary definition of accrue is “to come into existence as an enforceable claim.”14 There will be obligations that accrue within the definition of DSO that first become payable at a later time. Only a DSO that becomes payable after the petition must be already paid as a condition for confirmation under § 1325(a)(8).

[9]

Curiously, § 1325(a)(8) includes within the DSOs that must be paid to accomplish confirmation a DSO that first becomes payable after the petition “by statute.” The definition of DSO in § 101(14A) includes obligations established or subject to establishment by almost any judicial or administrative action—including, by reason of a separation agreement, divorce decree, property settlement agreement, order of a court of record or determination made in accordance with nonbankruptcy law by a governmental unit.15 But there is no mention in § 101(14A) of a debt created “by statute.” Are there support obligations that become payable by statute that are not also established or subject to establishment by a judicial or administrative order? How would anybody know whether a Chapter 13 debtor has satisfied every domestic support statute? Because § 101(14A) does not embrace obligations that are only established or subject to establishment by statute, the condition for confirmation in new § 1325(a)(8) would be limited by the narrower definition of DSO.

[10]

The “first becomes payable” limitation in § 1325(a)(8) means that DSOs accruing before (or after) the petition that are not first payable after the petition need not be current at confirmation and can be dealt with through the confirmed plan. With exceptions discussed elsewhere,16 DSOs are priority claims entitled to full payment under § 1322(a)(2) absent consent. Under new § 101(14A), a DSO includes interest that “accrues on that debt” under applicable nonbankruptcy law. When does interest on a DSO “first become payable” for purposes of new § 1325(a)(8)? Perhaps the answer to that question will be found in nonbankruptcy law.

[11]

There is a statutory exception to the rule that a DSO entitled to priority must be paid in full in new § 1322(a)(4):

[N]otwithstanding any other provision of this section, a plan may provide for less than full payment of all amounts owed for a claim entitled to priority under section 507(a)(1)(B) only if the plan provides that all of the debtor's projected disposable income for a 5-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.17
[12]

Section 507(a)(1)(B) creates a sort of one and one-half priority for DSOs that are assigned to a governmental unit, are owed directly to a governmental unit or are recoverable by a governmental unit.18 After BAPCPA, Chapter 13 plans for debtors with current monthly income (CMI) less than applicable median family income can be three years in length and plans for debtors with CMI over median family income must be five years in length.19 Under new § 1322(a)(4), if the plan provides that all of the debtor’s projected disposable income for five years will be applied to payments, then the plan can also provide for less than full payment of priority DSO claims assigned to a governmental unit as described in § 507(a)(1)(B)—notwithstanding that such claims would otherwise be entitled to full payment under § 1322(a)(2).

[13]

Notice that there is no exception to § 1325(a)(8) for a DSO assigned to a governmental unit as described in § 507(a)(1)(B). In other words, a DSO assigned to a governmental unit under § 507(a)(1)(B) that first becomes payable after the petition must be already paid as a condition for confirmation under § 1325(a)(8) notwithstanding that the assigned DSO need not be paid in full under § 1322(a)(4). New § 1322(a)(4) begins, “notwithstanding any other provision of this section.”20 “This section” is § 1322, not § 1325. Reading together §§ 507(a)(1)(B), 1322(a)(4) and 1325(a)(8) paints the confusing picture that to accomplish confirmation, a Chapter 13 debtor must be current with respect to all portions of a DSO assigned to a governmental unit that become payable after the petition, but under the circumstances described in § 1322(a)(4), the plan need not provide for payment in full of a DSO assigned to a governmental unit.

[14]

Given that all DSOs are nondischargeable and that (nondischargeable) interest typically accrues on domestic obligations under nonbankruptcy law,21 it will rarely be in the best interests of a Chapter 13 debtor to pay less than all of a claim entitled to priority under § 507(a)(1)(B) during the life of the Chapter 13 plan. When the debtor is financially unable to confirm a plan any other way, new § 1322(a)(4) provides a statutory basis for separate classification of the DSO claim assigned to a governmental unit for less than full payment. Otherwise, the debtor should take advantage of the mandate in § 1322(a)(2) and of the new definition of DSO in § 101(14A) to pay the postpetition interest accruing on a nondischargeable DSO in full through the plan.

[15]

New § 1322(a)(4) was added to the mandatory content of a Chapter 13 plan in § 1322(a). However, the section permissively states that a plan “may” provide for less than full payment under the conditions discussed above. New § 1322(a)(4) functions like a permissive exception to the full payment of priority claims requirement in § 1322(a)(2) with respect to the narrow class of domestic support obligations assigned to a governmental unit in a five-year plan with the caveat that DSOs assigned to the government that first become payable after the petition must be current to accomplish confirmation under § 1325(a)(8).

[16]

Will new § 1322(a)(4) be read as an exception to the unfair discrimination test for separate classification in § 1322(b)(1)? A Chapter 13 debtor can designate classes of unsecured claims but is forbidden to “discriminate unfairly” against any class.22 The first sentence of § 1322(b) conditions all of subsection (b), including the “subject to subsections (a) and (c) of this section.” Subsection (a) of § 1322 contains both the full payment mandate for priority claims in § 1322(a)(2) and the new (permissive) § 1322(a)(4) that allows less than full payment of DSO claims assigned to governmental units in five-year plans. There are good statutory construction arguments that Chapter 13 debtors can separately classify a DSO assigned to a governmental unit in a five-year plan for less than full payment under § 1322(a)(4) without running afoul of the unfair discrimination standard in § 1322(b)(1).23

[17]

There is another twist to the exception to the full-payment requirement for DSOs assigned to governmental units in five-year plans under § 1322(a)(4). For purposes of the disposable income test at confirmation under § 1325(b), a Chapter 13 debtor with CMI greater than applicable median family income can deduct in full all debts entitled to priority under § 507(a).24 New § 1322(a)(4) permits that same over-median-income debtor to confirm a plan that provides less than full payment of a DSO assigned to the government. In other words, an over-median-income debtor can withhold from the general unsecureds the full amount of CMI that would be necessary to pay a DSO claim assigned to a governmental entity, but then pay less than all of that money to the government through the plan. This perverse outcome is a by-product of the logical disconnect between the disposable income test, as reconfigured by BAPCPA, and the financial reality of Chapter 13 cases.25 That disconnect is exacerbated by the special treatment of a DSO claim assigned to the government in new § 1322(a)(4).

[18]

Interest to the holder of a DSO was mentioned above, and is worth further attention. New § 1322(b)(10) permits a Chapter 13 plan to pay interest “accruing” after the petition on “unsecured claims that are nondischargeable under section 1328(a)” except that interest may be paid “only to the extent that the debtor has disposable income available to pay such interest after making provision for full payment of all allowed claims.”26 Although not worded in terms of DSOs, this amendment was added to § 1322(b) by a section of BAPCPA that dealt with DSOs—suggesting that the new permissive power to pay postpetition interest was targeted at nondischargeable DSOs. However, the permission granted in § 1322(b)(10) is not limited to DSOs, and there is no legislative history to suggest any limitation other than that the debt must be nondischargeable under § 1328(a).

[19]

There is potential conflict between the mandate in § 1322(a)(2) that all claims entitled to priority must be paid in full to accomplish confirmation and the permissive power in § 1322(b)(10) that a Chapter 13 plan can pay postpetition interest on a nondischargeable debt only when there is disposable income available after providing for full payment of all allowed claims. If postpetition interest is by definition part of a DSO debt under § 101(14A)—and it certainly seems to be—and if all unsecured DSO debts are priority claims that must be paid in full to confirm a plan under § 1322(a)(2), does § 1322(b)(10) apply at all to a nondischargeable DSO? And if so, are the conditions in permissive § 1322(b)(10) inconsistent with the full-payment mandate in § 1322(a)(2)? Best guess is that § 1322(b)(10) should not be read as a limitation on the full payment of DSOs with postpetition interest, but other interpretations are possible.

[20]

New § 1322(b)(10) is a permissive power. Because only the debtor can propose a plan in a Chapter 13 case,27 no creditor, trustee or other party in interest can force the debtor to pay postpetition interest on an unsecured debt unless postpetition interest would be required by the best-interests-of-creditors test in § 1325(a)(4).28 But upon objection, a plan that does not pay postpetition interest to a priority DSO is likely to fail of confirmation because of § 1322(a)(2) and the new DSO definition in § 101(14A).

[21]

The condition in § 1322(b)(10) that the debtor must have “disposable income available . . . after making provision for full payment of all allowed claims” is oddly worded. The new section doesn’t say that allowed claims must actually be paid in full before postpetition interest can be paid on account of a nondischargeable claim. The full-payment predicate in new § 1322(b)(10) contains no present value language—full payment does not include postpetition interest to all allowed claim holders. Because disposable income after BAPCPA is based on CMI which is mired in the prepetition history of the debtor’s financial troubles,29 having disposable income available after provision for full payment of allowed claims may under- or overestimate the debtor’s actual ability to pay postpetition interest from postconfirmation income.

[22]

New § 1322(b)(10) does not address whether a Chapter 13 plan can pay postpetition interest to a dischargeable unsecured claim—for example, a co-signed debt. The courts have wrestled with plans that separately classify co-signed debts for payment in full with postpetition interest—most concluding that it is unfair discrimination to do so when other unsecured claim holders are not being paid in full.30 The specific but limited authority in new § 1322(b)(10) for payment of postpetition interest only with respect to unsecured claims that are nondischargeable under § 1328(a) may be interpreted to support the conclusion that postpetition interest cannot be paid to any other kind of unsecured claim holder or under other circumstances. New § 1322(b)(10) may be another nail in the coffin for Chapter 13 plans that would favor a dischargeable co-signed debt with postpetition interest when other unsecured creditors are not paid in full through the plan.

[23]

The “full payment of all allowed claims” requirement in § 1322(b)(10) may not be inclusive of other treatments allowed by the Code. For example, Chapter 13 debtors can cure default and maintain payments with respect to long-term secured and unsecured debts under § 1322(b)(5).31 Is the payment of interest to the holder of a nondischargeable unsecured claim authorized by new § 1322(b)(10) when the plan maintains payments on long-term debt under § 1322(b)(5) but does not pay that debt in full?

[24]

New § 1322(b)(10) does not require that accruing postpetition interest be allowable under § 502. Cases struggling with pre-BAPCPA attempts by debtors to pay postpetition interest to the holders of nondischargeable and co-signed debts often cite § 502(b)(2) for the proposition that postpetition interest on an unsecured claim is not allowable and cannot be paid through a Chapter 13 plan.32 New § 1322(b)(10), without cross-reference to § 502, simply permits a Chapter 13 plan to provide for the payment of postpetition interest. This may be interpreted to overcome the reservations of courts that have held otherwise.

[25]

There is no statement in new § 1322(b)(10) that the permissive payment of postpetition interest to unsecured claims that are nondischargeable is an exception to the unfair discrimination test in § 1322(b)(1). In other contexts, courts have concluded that separate classification for long-term treatment—permitted by § 1322(b)(5)—still must pass the “unfair discrimination” test in § 1322(b)(1).33 It is not clear that the payment of interest to the holder of a nondischargeable unsecured claim under the circumstances in new § 1322(b)(10) would always be fair discrimination with respect to a dischargeable unsecured claim that is paid in full but without interest. Courts have been more receptive to separate classifications of priority debts for more favorable treatment because § 1322(b)(1) is “subject to” the full-payment mandate in § 1322(a)(2).34

[26]

Unsecured claims that are nondischargeable under § 1328(a) include, after BAPCPA, all of the new nondischargeable debts such as fraud claims under § 523(a)(2)35 and expanded DSO claims defined in new § 101(14A).36 Because only unsecured claims nondischargeable under § 1328(a) are eligible for postpetition interest under new § 1322(b)(10), other unsecured claims that become nondischargeable at a hardship discharge under § 1328(b) do not fit within this new section. Not unlike DSOs, a claim for death or personal injury caused by driving while intoxicated that meets the conditions for nondischargeability in § 523(a)(9) and the conditions for priority under § 507(a)(10) is entitled to full payment as a condition for confirmation under § 1322(a)(2) and is eligible for payment of postpetition interest under § 1322(b)(10) in any Chapter 13 case in which the debtor has sufficient disposable income to provide for all allowed claims.37

[27]

New § 1322(b)(10) could be useful with respect to priority claims that are also nondischargeable. Included in this category are DSOs described in § 507(a)(1),38 taxes under § 507(a)(8) to the extent nondischargeable under § 1328(a)(2)39 and claims for death or personal injury caused by/resulting from operation of a motor vehicle or vessel while intoxicated (but not aircraft) as described in § 507(a)(10) and § 523(a)(9).40 But don’t forget that this class of debts—priority claims that are also nondischargeable—is the very class that raises the possibility of conflict between the full-payment requirement in § 1322(a)(2) and the permissive payment of postpetition interest in § 1322(b)(10). With respect to DSOs, new § 101(14A) defines the DSO debt itself to include accruing postpetition interest and § 1322(a)(2) seems to require full payment of postpetition interest on a DSO as a condition for confirmation—without regard to whether the conditions in § 1322(b)(10) are satisfied. Different analysis would apply, for example, with respect to a nondischargeable tax or personal injury claim which might accrue postpetition interest under nonbankruptcy law but which is not defined by the Bankruptcy Code to include that postpetition interest within the priority claim itself. This could become a meaningful distinction when the debtor is financially unable to pay postpetition interest to all priority claim holders but must do so with respect to a DSO.

[28]

The requirement that the plan make provision for full payment of all allowed claims will dramatically reduce the impact of new § 1322(b)(10) in Chapter 13 practice. Debtors with enough disposable income to pay all allowed claims in full and pay accruing postpetition interest are uncommon.

[29]

BAPCPA also changed the treatment of secured priority claims in Chapter 13 cases. Prior to BAPCPA, there was a narrow class of secured debts for alimony, maintenance or support that was also eligible for priority under (former) § 507(a)(7).41 BAPCPA amended § 507(a) to elevate claims for alimony, maintenance or support to first priority, renaming them as DSOs.42 In this metamorphosis, BAPCPA limited the new first priority in § 507(a)(1) to “unsecured claims” for DSOs.

[30]

The definition of DSO in new § 101(14A) is not limited to unsecured claims. As a result, there will be secured DSO claims that are not entitled to priority in a Chapter 13 case. An example would be support awarded to a former spouse that is secured by a lien on real property—not an unfamiliar item in Chapter 13 practice.

[31]

After BAPCPA, a secured DSO is not entitled to priority under § 507(a)(1) and is not mandated full payment by § 1322(a)(2). A secured DSO would still be nondischargeable in a Chapter 13 case under § 1328(a) or (b).43

[32]

A secured DSO would, of course, be entitled to the treatment afforded secured claims at confirmation under § 1325(a)(5).44 Typically, this means full payment of the allowed secured claim with present value interest over the life of the plan.45 Other treatments are possible, such as curing default and maintaining payments under § 1322(b)(5).46 After BAPCPA, a Chapter 13 plan need not provide full payment of a secured DSO, but the claim will be nondischargeable and may accrue nondischargeable postpetition interest. Typically the debtor will be best off by paying the claim in full even though not required for confirmation. The interest rate necessary to provide present value at confirmation may or may not be the same as the rate at which the secured DSO accumulates postpetition interest as part of the nondischargeable debt under § 101(14A). That a secured DSO is not entitled to priority does not relieve the debtor of the obligation to be current as a condition for confirmation under new § 1325(a)(8) with respect to that portion of the secured DSO that first becomes payable after the petition.47

[33]

A new front has been opened in the case law with respect to the payment of priority claims and adequate protection requirements added by BAPCPA to §§ 1326(a)(1)(C) and 1325(a)(5)(B)(iii)(II). Detailed elsewhere,48 both before49 and after50 confirmation, BAPCPA requires Chapter 13 debtors to provide “adequate protection” to some personal property and purchase money lenders.

[34]

Although not obvious from the statute, at least one bankruptcy court has concluded that adequate protection payments to car lenders—whether required before or after confirmation—are administrative expenses under § 503(b) that would be entitled to superpriority under § 507(b) if not paid at a rate adequate to protect the lender.51 If this controversial conclusion is correct, it is implicit that adequate protection under § 1326(a)(1)(C) or under § 1325(a)(5)(B)(iii)(II) would also be priority debt that must be provided for in full to confirm a plan under § 1322(a)(2).


 

1  11 U.S.C. § 1322(a)(2), discussed in § 98.1 [ Plan Must Provide Full Payment ] § 73.1  Plan Must Provide Full Payment.

 

2  See § 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA.

 

3  11 U.S.C. §§ 101(14A) and 507(a)(1), discussed in § 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA.

 

4  341 B.R. 47 (Bankr. N.D. Ala.), aff’d, 347 B.R. 776 (N.D. Ala. 2006).

 

5  341 B.R. at 50–51. Accord In re Reid, No. 06-50147, 2006 WL 2077572, at *2–*3 (Bankr. M.D.N.C. July 19, 2006) (“BAPCPA amended § 1326(b)(1) by striking out the reference to § 507(a)(1) and replacing it with a reference to § 507(a)(2), the subsection that now governs administrative claims, including attorney’s fees. . . . Congress made the affirmative decision to maintain the pre-BAPCPA treatment of administrative claims in Chapter 13 plans. Accordingly, . . . the Plan does not violate § 507(a)(1) by providing for payment of attorney’s fees before the Debtor’s domestic support obligations are paid in full.”); In re Vinnie, 345 B.R. 386, 388–89 (Bankr. M.D. Ala. 2006) (Citing In re Sanders, 341 B.R. 47 (Bankr. N.D. Ala. 2006), DSO is entitled to first priority and to payment in full concurrently with other claims but is not entitled to payment in full before other claims. “[A]ll of the subsections in Section 507 are treated alike. . . . There is nothing in the text of § 1322(a) which suggests that § 507(a)(1) claims must be paid in full before § 507(a)(2) claims are paid anything. . . . [Section] 1322 contemplates that payments on priority claims will be made over the life of the plan. . . . [Section] 1322(b) . . . demonstrates that Congress contemplated that claims could be paid concurrently, rather than in sequence . . . . [Section] 1326(b)(1) requires that the debtor’s attorney be paid contemporaneously with other creditors. Indeed, one may reasonably argue that § 1326(b)(1) would allow the attorney to be paid ahead of [the DSO], notwithstanding the fact that it would have a higher priority in distribution in a case under Chapter 7.”). See § 442.1 [ Attorney Fees after BAPCPA ] § 73.9  Attorney Fees after BAPCPA for further discussion of payment of attorneys’ fees after BAPCPA.

 

6  See  § 58.6  Domestic Support Obligation Exception after BAPCPA§ 73.3  Priority Claims Added or Changed by BAPCPA and § 136.21  Domestic Support Obligations after BAPCPA.

 

7  No. 06-50147, 2006 WL 2077572 (Bankr. M.D.N.C. July 19, 2006).

 

8  2006 WL 2077572, at *2.

 

9  See 11 U.S.C. § 1328(a)(2), discussed in § 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

10  See below in this section, and see § 459.1 [ Postpetition Interest on Nondischargeable Claims: § 1322(b)(10) ] § 88.3  Postpetition Interest on Nondischargeable Claims after BAPCPA: § 1322(b)(10).

 

11  See §§ 486.1 [ Total Priority Debts and Divide by 60 ] § 97.1  Total Priority Debts and Divide by 60 and 494.1 [ Projected Disposable Income ] § 101.1  What Do Unsecured Creditors Get?.

 

12  11 U.S.C. § 1325(a)(8).

 

13  See 11 U.S.C. § 101(14A), discussed in §§ 498.1 [ Domestic Support Obligations Must Be Current ] § 113.3  Domestic Support Obligations Must Be Current, 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA and 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

14  The American Heritage Dictionary of the English Language (4th ed. 2000), available at http://dictionary.reference.com/search?q=accrue.

 

15  11 U.S.C. § 101(14A)(C).

 

16  See §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA and 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA.

 

17  11 U.S.C. § 1322(a)(4).

 

18  See 11 U.S.C. § 507(a)(1)(B), discussed in §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA and 458.1 [ Domestic Support Obligations Assigned or Payable to Government: § 1322(a)(4) ] § 88.5  Domestic Support Obligations Assigned or Payable to Government: § 1322(a)(4) after BAPCPA. There is another odd condition in § 507(a)(1)(B) that funds received by a governmental unit holding an assigned DSO must be “applied and distributed in accordance with applicable nonbankruptcy law.” See § 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA.

 

19  See § 500.1 [ Length of Plan ] § 112.2  Length of Plan after BAPCPA.

 

20  11 U.S.C. § 1322(a)(4) (emphasis added).

 

21  See §§ 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA and 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

22  11 U.S.C. § 1322(b)(1), discussed in § 149.1 [ Power to Classify Unsecured Claims: Tests for Unfair Discrimination ] § 87.1  Power to Classify Unsecured Claims: Tests for Unfair Discrimination.

 

23  This issue is discussed further in § 458.1 [ Domestic Support Obligations Assigned or Payable to Government: § 1322(a)(4) ] § 88.5  Domestic Support Obligations Assigned or Payable to Government: § 1322(a)(4) after BAPCPA.

 

24  See 11 U.S.C. §§ 1325(b)(3) and 707(b)(2)(A)(iv), discussed in § 486.1 [ Total Priority Debts and Divide by 60 ] § 97.1  Total Priority Debts and Divide by 60.

 

25  See § 494.1 [ Projected Disposable Income ] § 101.1  What Do Unsecured Creditors Get?.

 

26  11 U.S.C. § 1322(b)(10).

 

27  See 11 U.S.C. § 1321, discussed in § 97.3 [ Who Can File Plan? ] § 72.4  Who Can File Plan?..

 

28  See discussion of best-interests-of-creditors test beginning at § 90.1  In General: Plan Payments vs. Hypothetical Liquidation.

 

29  See 11 U.S.C. § 101(10A), discussed in § 468.1 [ Current Monthly Income: The Baseline ] § 92.3  Current Monthly Income: The Baseline.

 

30  See § 150.1 [ Co-signed Debts ] § 87.3  Co-signed Debts.

 

31  See 11 U.S.C. § 1322(b)(5), discussed in §§ 115.1 [ Curing Default, Waiving Default, Maintaining Payments and Combinations ] § 78.4  Curing Default, Waiving Default, Maintaining Payments and Combinations and 171.1 [ Curing Default and Maintaining Payments on Unsecured Debt ] § 101.4  Curing Default and Maintaining Payments on Unsecured Debt.

 

32  See discussion of separate classification of nondischargeable claims beginning at § 88.1  In General.

 

33  See cases separately classifying student loans for long-term treatment under 11 U.S.C. § 1322(b)(5), discussed in §§ 153.1 [ Student Loans ] § 88.6  Student Loans and 155.2 [ Long-Term Debts ] § 88.9  Long-Term Debts.

 

34  See § 151.1 [ Priority Claims ] § 87.4  Priority Claims.

 

35  See 11 U.S.C. § 1328(a)(2), discussed in § 549.1 [ False Representations and Fraud: § 523(a)(2) ] § 159.2  False Representations and Fraud: § 523(a)(2).

 

36  See § 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5).

 

37  See §§ 522.1 [ The New DWI Priority ] § 136.22  The Driving or Boating while Intoxicated Priority after BAPCPA and 551.1 [ Unscheduled Creditors: § 523(a)(3) ] § 159.4  Unscheduled Creditors: § 523(a)(3) for further discussion of DWI claims nondischargeable under 11 U.S.C. § 1328(a)(2) and entitled to priority under new 11 U.S.C. § 507(a)(10).

 

38  See 11 U.S.C. § 507(a)(1), discussed in §§ 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA and 519.1 [ Domestic Support Obligations ] § 136.21  Domestic Support Obligations after BAPCPA.

 

39  See 11 U.S.C. § 1328(a)(2), discussed in § 513.1 [ Taxes ] § 136.3  Taxes after BAPCPA.

 

40  See 11 U.S.C. § 507(a)(10), discussed in § 522.1 [ The New DWI Priority ] § 136.22  The Driving or Boating while Intoxicated Priority after BAPCPA, and see 11 U.S.C. § 1328(a)(2), incorporating 11 U.S.C. § 523(a)(9), discussed in § 555.1 [ Boating or Flying while Intoxicated: § 523(a)(9) ] § 159.8  Boating or Flying while Intoxicated: § 523(a)(9).

 

41  See § 100.3 [ Secured Priority Claims? ] § 73.7  Secured Priority Claims?.

 

42  See 11 U.S.C. § 507(a)(1), discussed in § 440.1 [ New and Changed Priority Claims ] § 73.3  Priority Claims Added or Changed by BAPCPA.

 

43  See 11 U.S.C. § 1328(a), discussed in § 552.1 [ Domestic Support Obligations: § 523(a)(5) ] § 159.5  Domestic Support Obligations: § 523(a)(5), and 11 U.S.C. § 1328(b), discussed in § 558.1 [ New and Changed Exceptions to Hardship Discharge ] § 160.7  Exceptions to Hardship Discharge Added or Changed by BAPCPA.

 

44  See 11 U.S.C. § 1325(a)(5), discussed beginning at § 74.1  General Rules before BAPCPA.

 

45  This assumes that the DSO is fully secured.

 

46  See § 115.1 [ Curing Default, Waiving Default, Maintaining Payments and Combinations ] § 78.4  Curing Default, Waiving Default, Maintaining Payments and Combinations.

 

47  See 11 U.S.C. § 1325(a)(8), discussed above in this section.

 

48  See §§ 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA, 404.1 [ Adequate Protection before Confirmation ] § 47.2  Preconfirmation Adequate Protection after BAPCPA, 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA and 449.1 [ “Adequate Protection” after Confirmation ] § 74.15  “Adequate Protection” after Confirmation after BAPCPA.

 

49  See 11 U.S.C. § 1326(a)(1)(C), discussed in §§ 401.1 [ Preconfirmation Payments ] § 44.6  Preconfirmation Payments after BAPCPA, 404.1 [ Adequate Protection before Confirmation ] § 47.2  Preconfirmation Adequate Protection after BAPCPA and 426.1 [ Adequate Protection Rights before Confirmation ] § 57.3  Preconfirmation Adequate Protection Rights after BAPCPA.

 

50  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.

 

51  See §§ 404.1 [ Adequate Protection before Confirmation ] § 47.2  Preconfirmation Adequate Protection after BAPCPA and 449.1 [ “Adequate Protection” after Confirmation ] § 74.15  “Adequate Protection” after Confirmation after BAPCPA. See, e.g., In re DeSardi, 340 B.R. 790 (Bankr. S.D. Tex. 2006) (Adequate protection payments to car lenders, both before and after confirmation, are administrative expenses under § 503(b) eligible for superpriority under § 507(b).).