Ana Flores, et al v. Rod Danielson

Filing

FILED OPINION (ALEX KOZINSKI, HARRY PREGERSON, DIARMUID F. O'SCANNLAIN, SIDNEY R. THOMAS, BARRY G. SILVERMAN, SUSAN P. GRABER, KIM MCLANE WARDLAW, RICHARD A. PAEZ, MARY H. MURGUIA, MORGAN B. CHRISTEN and JACQUELINE H. NGUYEN) AFFIRMED, The mandate shall issue forthwith. Judge: HP Dissenting, Judge: SPG Authoring,. FILED AND ENTERED JUDGMENT. [8761323]

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FILED
AUG 29 2013

FOR PUBLICATION
UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT
In the Matter of: CESAR IVAN FLORES;
ANA MARIA FLORES,

No. 11-55452
D.C. No. 6:10-29956-MJ

Debtors.
ROD DANIELSON,

OPINION

Trustee - Appellant,
v.
CESAR IVAN FLORES; ANA MARIA
FLORES,
Debtors - Appellees.

Appeal from the United States Bankruptcy Court
for the Central District of California
Meredith A. Jury, Bankruptcy Judge, Presiding
Argued and Submitted En Banc March 19, 2013
San Francisco, California
Before: KOZINSKI, Chief Judge, and PREGERSON, O’SCANNLAIN,
THOMAS, SILVERMAN, GRABER, WARDLAW, PAEZ, MURGUIA,
CHRISTEN, and NGUYEN, Circuit Judges.
Opinion by Judge Graber
GRABER, Circuit Judge:

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In Maney v. Kagenveama (In re Kagenveama), 541 F.3d 868, 875 (9th Cir.
2008), we held that 11 U.S.C. § 1325(b)(1)(B) does not impose a minimum
duration for a Chapter 13 bankruptcy plan if the debtor has no "projected
disposable income," as defined in the statute. Today, sitting en banc, we overrule
that aspect of Kagenveama and hold that the statute permits confirmation only if
the length of the proposed plan is at least equal to the applicable commitment
period under § 1325(b)(4). Accordingly, we affirm the judgment of the bankruptcy
court.
I. Background
Debtors Cesar and Ana Flores filed a petition for relief under Chapter 13 of
the Bankruptcy Code. They have unsecured debts. They proposed a plan of
reorganization under which they would pay $122 per month (1%) of allowed,
unsecured, nonpriority claims for three years. Chapter 13 Trustee Rod Danielson
objected to the plan, arguing, as now relevant, that § 1325(b) requires a minimum
duration of five years for persons in Debtors’ circumstances.1
The bankruptcy court sustained the Trustee’s objection, holding that Debtors
were not entitled to a shorter plan duration because the Supreme Court’s decision
1

The Trustee has never questioned Debtors’ good faith in proposing the
plan. See 11 U.S.C. § 1325(a)(3) (setting forth requirement of the debtors’ good
faith).
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in Hamilton v. Lanning, 130 S. Ct. 2464 (2010), is clearly irreconcilable with
Kagenveama.2 The bankruptcy court confirmed a plan of five years’ duration,
which provided for monthly payments of $148 to unsecured creditors.3
Debtors timely appealed to the Bankruptcy Appellate Panel. The bankruptcy
court then certified the plan-duration issue for direct appeal to this court pursuant
to 28 U.S.C. § 158(d)(2). A divided panel of this court reversed, reasoning that
Lanning is not clearly irreconcilable with Kagenveama and that, under
Kagenveama, § 1325(b) allows a shorter plan duration for Debtors. Danielson v.
Flores (In re Flores), 692 F.3d 1021, 1038 (9th Cir. 2012). We then voted to rehear
the case en banc. Danielson v. Flores (In re Flores), 704 F.3d 1067 (9th Cir.
2012).4
II. Analysis

2

See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
(holding that a three-judge panel is not bound by prior circuit precedent if an
intervening decision of a higher authority "undercut[s] the theory or reasoning
underlying the prior circuit precedent in such a way that the cases are clearly
irreconcilable").
3

Debtors do not dispute the increase from $122 to $148 per month.

4

We review de novo issues of statutory construction, including a bankruptcy
court’s interpretation of the Bankruptcy Code. Samson v. W. Capital Partners,
LLC (In re Blixseth), 684 F.3d 865, 869 (9th Cir. 2012) (per curiam).
3

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Chapter 13 is a mechanism available to "individual[s] with regular income"
whose debts are within statutory limits. 11 U.S.C. §§ 101(30), 109(e). Unlike
Chapter 7, which requires debtors to liquidate nonexempt assets to pay creditors,
Chapter 13 permits debtors to keep those assets if they "agree to a court-approved
plan under which they pay creditors out of their future income." Lanning, 130 S.
Ct. at 2468–69 (citing 11 U.S.C. §§ 1306(b), 1321, 1322(a)(1), 1328(a)). A
bankruptcy trustee oversees the filing and execution of the plan. 11 U.S.C.
§ 1322(a)(1); see also 28 U.S.C. § 586(a)(3).
Section 1325 of the Bankruptcy Code sets forth the circumstances in which
the bankruptcy court "shall" confirm a debtor’s proposed repayment plan and those
in which it "may not" do so. Under subsection 1325(b)(1), if the trustee or an
unsecured creditor objects to a debtor’s proposed plan, the court may not approve
the plan unless at least one of two conditions is met. As relevant here, the second
of those conditions is that "the plan provides that all of the debtor’s projected
disposable income to be received in the applicable commitment period beginning
on the date that the first payment is due under the plan will be applied to make
payments to unsecured creditors under the plan." 11 U.S.C. § 1325(b)(1)(B)
(emphasis added). The statute further provides that the "applicable commitment
period" of a plan "shall be" either
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(A) subject to subparagraph (B), . . .
(i) 3 years; or
(ii) not less than 5 years, if the [debtor’s] current
monthly income . . ., when multiplied by 12, is not less
than [the median annual family income in the applicable
state]; and
(B) may be less than 3 or 5 years, whichever is applicable under
subparagraph (A), but only if the plan provides for payment in full of
all allowed unsecured claims over a shorter period.
Id. § 1325(b)(4). The debtor’s "current monthly income" and "disposable income"
are calculated according to statutorily defined formulae. See id. § 101(10A)
(defining "current monthly income"); id. § 1325(b)(2) (defining "disposable
income"); see also Lanning, 130 S. Ct. at 2469, 2471–74, 2478 (holding that courts
must calculate "projected disposable income," which is not statutorily defined,
using a "forward-looking" approach (emphasis added)).
It is undisputed that Debtors’ current monthly income is above-median and
that subsection 1325(b)(4)(B)’s exception to the five-year applicable commitment
period set forth in § 1325(b)(4)(A)(ii) does not apply. Debtors nonetheless
contend that their proposed three-year plan was permissible because
§ 1325(b)(1)(B) does not set forth a minimum plan duration for debtors who, like
them, have no projected disposable income.

5

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Courts have interpreted § 1325(b)(1)(B)’s condition for plan confirmation in
three distinct ways. See Baud v. Carroll, 634 F.3d 327, 336–38 (6th Cir. 2011)
(describing split of decisions and collecting cases), cert. denied, 132 S. Ct. 997
(2012). First, a minority of bankruptcy courts view the "applicable commitment
period" solely as a monetary "multiplier"; under that "monetary" approach, the
number of months in the applicable commitment period is multiplied by the
debtor’s projected disposable monthly income to determine the total payments that
a debtor must make, but the period has no temporal significance. Id. at 336–38 &
n.7. Second, other bankruptcy courts, as well as this court in Kagenveama, have
held that, although the statute does set forth a temporal requirement, that temporal
requirement does not apply to debtors whose projected disposable income is less
than or equal to $0. Baud, 634 F.3d at 337. Third and finally, a majority of courts
have held that a plan cannot be confirmed unless its length is at least as long as the
applicable commitment period, without regard to "whether the debtor has positive,
zero[,] or negative projected disposable income." Id. at 336–37. We therefore
must consider two issues: (1) whether, under § 1325(b)(1)(B), the applicable
commitment period acts as a temporal requirement that defines a plan’s minimum
duration; and (2) if it does, whether that requirement applies to debtors who have
no projected disposable income.
6

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With respect to the first issue, we hold that the statute defines a temporal, as
distinct from a monetary, requirement for confirmation under § 1325(b)(1)(B).
Most importantly, the statute defines the applicable commitment period as having a
duration: "3 years," "not less than 5 years," or "less than 3 or 5 years," depending
on the debtor’s current monthly income and the plan’s provisions for payments to
unsecured creditors. 11 U.S.C. § 1325(b)(4). Furthermore, the requirement of
§ 1325(b)(1)(B) that the plan provide for payment of the debtor’s disposable
income "to be received in the applicable commitment period" suggests an ongoing
series of payments for the future duration of that period. A plan cannot provide for
the payment of income to be received during a defined period unless it remains in
effect during that period.5
Three of our sister courts—the Sixth, Eighth, and Eleventh Circuits—are
among the courts that have rejected the view that the applicable commitment
5

Our interpretation of § 1325(b)(1)(B) does not render that provision
redundant with § 1322(d), which sets forth the maximum periods of time for a
Chapter 13 bankruptcy, because § 1325(b)(1)(B) concerns the plan’s minimum
duration. Although both the maximum and the minimum will be five years for
many debtors whose income, like that of the debtors in this case, is above-median,
11 U.S.C. §§ 1322(d)(1), 1325(b)(4)(A)(ii), a range of permissible plan durations
remain possible if a proposed plan to repay all allowed unsecured creditors’ claims
in full warrants a shorter applicable commitment period under § 1325(b)(4)(B).
Furthermore, § 1325(b) is triggered only if the trustee or a creditor objects,
whereas § 1322(d) applies in all cases, a distinction that suggests that Congress
intended the two sections to serve different functions.
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period is merely a monetary multiplier for determining the amount that the debtor
must pay to unsecured creditors. Baud, 634 F.3d at 344; Whaley v. Tennyson (In
re Tennyson), 611 F.3d 873, 880 (11th Cir. 2010); Coop v. Frederickson (In re
Frederickson), 545 F.3d 652, 660 (8th Cir. 2008). We join those courts and hold
that the applicable commitment period determines the minimum duration that a
plan must have to be confirmable under § 1325(b)(1)(B). In doing so, we reaffirm
one aspect of the decision in Kagenveama, in which the panel reasoned that, in
general, the applicable commitment period imposes a temporal requirement
because the "plain meaning of the word ‘period’ indicates a period of time." 541
F.3d at 876.
With respect to the second issue, we must decide whether a court may
confirm a plan that is shorter than the applicable commitment period defined by
§ 1325(b)(4) if the debtor has no projected disposable income. In light of the
statute’s text, purpose, and legislative history, we now hold that the temporal
requirement of § 1325(b) applies regardless of the debtor’s projected disposable
income.
In Kagenveama, we held that the § 1325(b)(1)(B) temporal requirement
contains an implicit exception because the "‘applicable commitment period’ is
exclusively linked to § 1325(b)(1)(B) and the ‘projected disposable income’
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calculation." 541 F.3d at 876. Noting that "[n]othing in the Bankruptcy Code
states that the ‘applicable commitment period’ applies to all Chapter 13 plans," the
panel concluded that "[w]hen there is no ‘projected disposable income,’ there is no
‘applicable commitment period.’" Id. at 876, 877. The Sixth and Eleventh Circuits
have disagreed and have held that § 1325(b) contains no such exception for debtors
with no projected disposable income. See Baud, 634 F.3d at 351 ("[T]he temporal
requirement of the applicable commitment period applies to debtors facing a
confirmation objection even if they have zero or negative projected disposable
income."); Tennyson, 611 F.3d at 880 ("[T]he ‘applicable commitment period’ is a
temporal term that prescribes the minimum [plan] duration . . . . The only
exception to this minimum period, if unsecured claims are fully repaid, is provided
in § 1325(b)(4)(B).").6 We now agree with the other circuits’ interpretation.
Our analysis begins with the statute’s text. Miranda v. Anchondo, 684 F.3d
844, 849 (9th Cir.), cert. denied, 133 S. Ct. 256 (2012). Although § 1325(b) is
somewhat ambiguous, see Baud, 634 F.3d at 351 (noting that "the plain-language
arguments" for and against an exception to § 1325(b)’s temporal requirement "are
nearly in equipoise"), that subsection is best read to impose its temporal
6

In Frederickson, the Eighth Circuit expressly declined to decide whether
such an exception to § 1325(b)’s temporal requirement exists when a debtor’s
projected disposable income is either zero or negative. 545 F.3d at 660 n.6.
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requirement regardless of the debtor’s projected disposable income. Most
significantly, the statute makes neither § 1325(b)(4)’s calculation of the applicable
commitment period nor § 1325(b)(1)(B)’s requirement that a plan provide for
payments over that period explicitly contingent on a particular level of projected
disposable income. Thus, even though a debtor’s payments to unsecured creditors
will, at least initially, amount to $0 if the debtor has no projected disposable
income, the statute requires the debtor to commit to the plan for the duration of the
applicable commitment period.
Furthermore, "the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme." Gale v. First Franklin Loan
Servs., 701 F.3d 1240, 1244 (9th Cir. 2012) (internal quotation marks omitted).
The structure of Chapter 13 confirms that § 1325(b)(1)(B) establishes a minimum
plan duration even if the debtor has no projected disposable income. A debtor’s
applicable commitment period is not, as the panel reasoned in Kagenveama,
"exclusively linked to § 1325(b)(1)(B) and the ‘projected disposable income’
calculation." 541 F.3d at 876. Rather, the applicable commitment period is
expressly incorporated as a temporal limit for purposes of plan modification under
§ 1329.

10

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Under § 1329(a), a bankruptcy court may modify a plan at any time after
plan confirmation, so long as the modification occurs before the completion of
payments under the plan. But a modified plan "may not provide for payments over
a period that expires after the applicable commitment period under section
1325(b)(1)(B) after the time that the first payment under the original confirmed
plan was due." 11 U.S.C. § 1329(c) (emphasis added). Thus, the statute defines
the temporal window within which modified payments under § 1329 may be made
by reference to the applicable commitment period. Indeed, the quoted text would
make no sense unless the applicable commitment period describes a length of time
that can expire or be altered. With respect to plan modification, then, the
applicable commitment period serves as a measure of plan duration that is wholly
unrelated to the amount of the debtor’s disposable income.
A minimum duration for Chapter 13 plans is crucial to an important purpose
of § 1329’s modification process: to ensure that unsecured creditors have a
mechanism for seeking increased (that is, non-zero) payments if a debtor’s
financial circumstances improve unexpectedly. See Fridley v. Forsythe (In re
Fridley), 380 B.R. 538, 543 (B.A.P. 9th Cir. 2007) ("Subsequent increases in [a
debtor’s] actual income can be captured for creditors by way of a § 1329 plan
modification . . . ."). The bankruptcy court may modify a plan to "increase . . . the
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amount of payments on claims of a particular class." 11 U.S.C. § 1329(a)(1). In
other words, even if a debtor has no projected disposable income at the time of
plan confirmation, and his or her statutorily required payments under
§ 1325(b)(1)(B) are therefore $0, unsecured creditors may request a later
modification of the plan to increase the debtor’s payments if the debtor acquires
disposable income during the pendency of the applicable commitment period.
Creditors’ opportunity to seek increased payments that correspond to changed
circumstances would be undermined by an interpretation of § 1325(b)(1)(B) that
relieves debtors from a minimum plan duration merely because they have no
projected disposable income at the time of plan confirmation.7
Interpreting § 1325(b)(1)(B) to impose a minimum plan duration is also
consistent with the prevailing interpretation in our circuit of §§ 1328(a) and
1329(a). Much as § 1329(a) permits modification until "completion of payments
under [the] plan," § 1328(a) entitles the debtor to discharge "after completion by

7

This conclusion is bolstered by the sections of the Code that allow creditors
to monitor a debtor’s financial situation during the bankruptcy. For instance,
Chapter 13 debtors, upon request, must provide post-petition reports of the amount
and sources of their income, see 11 U.S.C. § 521(f)–(g), and the "obvious purpose
of this self-reporting obligation is to provide information needed by a [creditor] to
decide whether to propose hostile § 1329 plan modifications," Fridley, 380 B.R. at
544. The purpose of these monitoring provisions would be undermined if each
plan did not have a minimum duration.
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the debtor of all payments under the plan." In Fridley, the Ninth Circuit
Bankruptcy Appellate Panel ("BAP") considered when a plan is "completed" for
purposes of § 1329(a) and § 1328(a). The debtors in that case had not paid all
allowed unsecured claims in full, but sought discharge after prepaying the
payments that they were required to make under their confirmed plan. Fridley, 380
B.R. at 540. The BAP ruled that the debtors were not entitled to discharge because
"prepayment does not ‘complete’ [a] plan for purposes of §§ 1328(a) or 1329." Id.
at 545. Rather, it held, "[t]he ‘applicable commitment period’ in § 1325(b) is a
temporal requirement . . . [and] the statutory concept of ‘completion’ of payments
includes the completion of the requisite period of time." Id. at 546. The BAP
reached that conclusion even though that case, like this one, involved debtors who
had no projected disposable income and for whom § 1325(b)(1)(B) accordingly
would permit monthly payments of $0 to unsecured creditors. Id. at 540.
Because the text of § 1325(b) is ambiguous, we also look to legislative
history in construing its temporal requirement. See Wilson v. Comm’r, 705 F.3d
980, 987–88 (9th Cir. 2013) (holding that we may consult legislative history as an
aid to the interpretation of ambiguous text). Congress amended § 1325(b), adding
the statutory text concerning the "applicable commitment period" that is at issue
here, in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
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("BAPCPA"), Pub. L. No. 109-8, § 318, 119 Stat. 23. The legislative history of
BAPCPA supports our interpretation of § 1325(b)(1)(B) as requiring a minimum
plan duration:
Chapter 13 Plans To Have a 5–Year Duration in Certain
Cases. Paragraph (1) of section 318 of the Act amends Bankruptcy
Code sections 1322(d) and 1325(b) to specify that a chapter 13 plan
may not provide for payments over a period that is not less than five
years if the current monthly income of the debtor and the debtor’s
spouse combined exceeds certain monetary thresholds. If the current
monthly income of the debtor and the debtor’s spouse fall below these
thresholds, then the duration of the plan may not be longer than three
years, unless the court, for cause, approves a longer period up to five
years. The applicable commitment period may be less if the plan
provides for payment in full of all allowed unsecured claims over a
shorter period. Section 318(2), (3), and (4) make conforming
amendments to sections 1325(b) and 1329(c) of the Bankruptcy Code.
H.R. Rep. No. 109–31(I), § 318, at 79 (2005), reprinted in 2005 U.S.C.C.A.N. 88,
146 (boldface type added). Although the quoted section of the House Report is
confusingly worded, its title suggests that above-median debtors are to be held to a
five-year minimum plan duration without regard to their expenses or disposable
income, unless they pay unsecured claims in full over a shorter period.
Finally, our interpretation of § 1325(b)(1)(B) is consistent with the policies
that underlie the Bankruptcy Code and the BAPCPA amendments. "The principal
purpose of the Bankruptcy Code is to grant a ‘fresh start’ to the ‘honest but
unfortunate debtor.’" Marrama v. Citizens Bank, 549 U.S. 365, 367 (2007)
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(quoting Grogan v. Garner, 498 U.S. 279, 286, 287 (1991)). But that generality is
not the end of the story. We have recognized that bankruptcy also serves the
"often conflicting" policy of promoting creditors’ interest in repayment. Dumont
v. Ford Motor Credit Co. (In re Dumont), 581 F.3d 1104, 1111 (9th Cir. 2009); see
also Ransom v. FIA Card Servs., N.A., 131 S. Ct. 716, 729 (2011) (describing
"BAPCPA’s core purpose [as] ensuring that debtors devote their full disposable
income to repaying creditors"). The imposition of a minimum duration is
consistent with both of those policies: By ensuring the availability of plan
modification over the applicable commitment period, even when the debtor cannot
make any payments at the outset, our reading permits Chapter 13 to operate as a
mechanism for repayment over time by wage earners, in accordance with their
actual ability to pay. See generally 8 Collier on Bankruptcy ¶ 1300.02 (Alan N.
Resnick & Henry J. Sommer eds., 16th ed. 2012).
In Lanning, the Supreme Court relied in part on similar considerations in
rejecting an interpretation of § 1325(b) that would require courts to calculate
projected disposable income using a "mechanical approach" that depends only on a
debtor’s current monthly income during the six-month period preceding the
bankruptcy filing date. 130 S. Ct. at 2469–70. The Court favored a "forwardlooking" approach that takes into account known or nearly certain information
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about changes in a debtor’s earning power during the plan period. Id. at 2475. The
policy justification for looking to future earnings is that a failure to do so "would
deny creditors payments that the debtor could easily make." Id. at 2476. In other
words, the statute is meant to allow creditors to receive increased payments from
debtors whose earnings happen to increase. Lanning involved pre-confirmation
adjustments to plan payments, "to account for known or virtually certain changes"
in a debtor’s income. Id. at 2475. But the same logic persuades us that Congress
intended § 1325(b)(1)(B) to ensure a plan duration that gives meaning to § 1329’s
modification procedure as a mechanism for post-confirmation adjustments for
unforeseen increases in a debtor’s income. That mechanism will achieve its
purpose most effectively if the Chapter 13 plan has a minimum duration within
which modification is possible. Accordingly, the policy that underlies Lanning
also supports our reading of § 1325(b)(1)(B).
III. Conclusion
In summary, we hold that a bankruptcy court may confirm a Chapter 13 plan
under 11 U.S.C. § 1325(b)(1)(B) only if the plan’s duration is at least as long as the
applicable commitment period provided by § 1325(b)(4). Accordingly, we
overrule Kagenveama’s holding regarding the meaning of "applicable commitment
period" and affirm the bankruptcy court’s ruling.
The mandate shall issue forthwith.
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AFFIRMED.

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COUNSEL
Elizabeth A. Schneider, Office of Rod Danielson, Chapter 13 Trustee, for
Trustee-Appellant.
Robert J. Pfister (argued), Klee, Tuchin, Bogdanoff & Stern LLP, Los
Angeles, California, and Nancy B. Clark, Borowitz & Clark, LLP, West Covina,
California, for Debtors-Appellees.
William Andrew McNeal (argued) and Gilbert B. Weisman, Becket & Lee
LLP, Malvern, Pennsylvania, for Amici Curiae American Express Travel Related
Services Co., Inc., American Express Bank, FSB, and American Express Centurion
Bank; and Tara Twomey, National Consumer Bankruptcy Rights Center, San Jose,
California, for Amicus Curiae National Association of Consumer Bankruptcy
Attorneys.

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