Trustees Can’t Compel Chapter 13 Debtors To Make Their Mortgage Payments Through The Plan.
By Douglas Jacobs, California Bankruptcy Attorney on Jan 6, 2009 in Bankruptcy Cases & Legislation, Chapter 13 Bankruptcy
Some time ago, I wrote an article on whether or not a debtor had to make on-going mortgage payments through a chapter 13 plan. The article focused on when you might be required to make the house payment through the plan.
In my district, the Eastern District of California, the general requirement is that if you are behind in your mortgage when you file a Chapter 13 bankruptcy, then you have to include the on-going mortgage payment in the plan. In other districts, inclusion has been optional.
The trustees generally like the mortgage to be made through the plan since their office gets a percentage of the amount of the payment. Thus, the larger the monthly payment, the large their piece.
The Ninth Circuit Court of Appeals recently upheld the Bankruptcy Appellate Panel’s decision to allow a debtor to make his mortgage payments outside of the plan even though he wasn’t current. They upheld and literally adopted the decision from In re Lopez.
The trustee involved in that case raised several arguments objecting to not paying the mortgage through the plan, none of which were persuasive. Thus, the rule today, at least in the 9th Circuit (the Western States) is that you can pay your mortgage as part of your plan payment, or not, as you (and a competent bankruptcy attorney) decide.
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