Available at: https://scholarlycommons.law.emory.edu/ebdj/vol41/iss1/3
Abstract:
Standing trustees provide a critical function of fairness in chapter 13 bankruptcy, but a jurisdictional split regarding their fees means that trustees in multiple circuits are not paid for a large percentage of their work. Under Ninth and Tenth Circuit precedents, standing trustees may not collect the percentage fee when the debtor’s case is dismissed before confirmation. This creates a different result for standing trustees as opposed to single-case trustees, hurts debtors and creditors, creates adverse incentives, and even constitutional conundrums.
Permitting some debtors to enjoy the benefits of chapter 13 without paying their fair share creates a system where standing trustees must work on their cases, potentially for extended periods of time. Further, trustees risk going uncompensated if the debtor decides he wants to leave chapter 13 or refuses to propose a viable plan for confirmation. When these debtors do not pay the trustee fee, the trustee must find another source to fund her office operations. Thus, trustees resort to increasing their percentage fee to compensate for these losses, meaning other debtors must pay more to use chapter 13 and unsecured
creditors get a lower payout.
The Ninth and Tenth Circuit approaches further create nonsensical incentives where debtors are motivated to draw out the confirmation process as long as possible with no intention of confirming their plan to avoid paying the trustee fee. It also creates an incentive for trustees to confirm plans regardless of their feasibility, working counter to their role as a keeper of fairness in chapter 13. Additionally, by only awarding trustees their fees in the event of confirmation, a constitutional issue arises due to the trustee’s role as a quasi-judicial officer. This Comment untangles the various approaches courts have taken in awarding trustee fees in the event of pre-confirmation dismissals and delves into the harmful consequences of the Ninth and Tenth Circuit precedents.
This Comment argues that standing trustee compensation in chapter 13 should not be denied merely because a debtor’s proposed plan does not pass confirmation muster. Such an approach creates absurd and undesirable outcomes across the board in the chapter 13 system. Rather, courts should endorse the approach of other bankruptcy and district courts that allow for payment of standing chapter 13 trustee fee awards regardless of plan confirmation status. Even better, Congress should settle the issue by crafting a simple amendment to the Bankruptcy Code that resolves this issue entirely.
Commentary:
While it certainly would be inaccurate or even absurd to assert that that the failure to confirm a Chapter 13 never is the fault of the consumer debtor, it is just as equally flawed to believe that overweening demands, requirements and expectations (occasionally exceeding any statutory requirement) by Chapter 13 Trustees never lead to the dismissal prior to confirmation of cases that would otherwise have been successful.
Perhaps by being mindful of their own pecuniary interests, Chapter 13 Trustees would negotiate with an eye towards confirmation, including the costs and risk of litigation. Chapter 7 Trustees, clearly motivated by their own bottom line together with their statutory obligations, routinely settle matters with debtors, creditors and third-parties for less than the maximum potential recovery (but more than the minimum potential recovery), without an implication that such somehow corrupts or distorts their duties.
Chapter 13 trustees are, as human beings, no better or worse than Chapter 7 trustees (or even debtors) in this regard.
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