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Opinion 38

Case Name: 

In re Adams, 12 B.R. 540 (Bankr.D.Utah)

Judge: 
Judge Mabey
Date: 
Jul-15-1981
Case Number(s): 
80-0970
Status: 

PUBLISHED

Body: 

The court considered a claim for alimony and child support by chapter 13 debtor's ex-wife, which is non-dischargeable under 11 U.S.C. § 523(a)(5), and is excepted from the automatic stay pursuant to 11 U.S.C. § 363(b)(2) to the extent that recovery is sought from non-estate property. After confirmation of debtor's plan, ex-wife obtained a judgment in state court for past alimony and child support, which she sought to collect. Debtor moved for an order to show cause, and the court identified the issue before it as what property was not estate property that could be executed on by ex-wife while the stay was in place. The court concluded that virtually no property remains property of the debtor in a chapter 13 proceeding, prior to confirmation, since even property within debtor's possession and control and exempt property are considered to be estate property in a chapter 13. However, unless the plan or confirmation order provides otherwise, plan confirmation re-vests all of the estate property in the debtor. The court suggested that chapter 13 debtors might want to include full payment of non-dischargeable debts to ex-spouses in their plans, thereby relieving the ex-spouses from pursuing collection outside of the bankruptcy, and providing monitoring of their payments by the trustee.

Internal Ref: 
Opinion 38
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