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Opinion 317

Case Name: 

In re Whitelock, 122 B.R. 582 (Bankr.D.Utah)

Judge: 
Judge Boulden
Date: 
Dec-26-1990
Case Number(s): 
90B-0844
Status: 

PUBLISHED

Body: 

Chapter 13 trustee objected to debtors' proposed plan on the ground that, by giving specialized classification and treatment to one unsecured debt, the plan was unfairly discriminatory. The specially treated debt had originally been incurred as an unsecured loan that debtors used to pay taxes owed to the IRS, but the initial note was replaced with a new note executed by both debtor husband and his mother. Although the mother provided security for the second note by giving lender a deed of trust on her home, the note was an unsecured claim in the bankruptcy because debtors had no interest in the property that secured it. Under the proposed 60-month plan, all other unsecured creditors would receive payments that totaled 30% of their claims, while the note would be paid in full with interest. The first issue considered by the court was whether the note was a "consumer debt," since 11 U.S.C. § 1322(b)(1) allows consumer debt to be treated differently than other unsecured claims when an individual other than the debtor is also liable. The court rejected the argument that a debt secured by real property is not consumer debt, and determined that the note at issue was in fact consumer debt because it was not business related. However, after applying the four-part fairness test set forth in Amfac Distrib. Corp. v. Wolff (In re Wolff), 22 B.R. 510 (9th Cir. BAP 1982), the court concluded that the proposed discriminatory treatment of the note would be unfair to debtors' other unsecured creditors. The court denied confirmation, finding that the totality of the circumstances before it indicated that the plan had not been proposed in good faith, which is a requirement of 11 U.S.C. § 1325(a)(3).

Internal Ref: 
Opinion 317
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