Gordon R. and Sharon L. Flygare, Debtors-Appellants v. Judith A. Boulden, 709 F.2d 1344, 10th Cir. (1983)

709 F.
2d 1344
8 Collier Bankr.Cas.2d 1027, 10 Bankr.Ct.Dec. 1044,
Bankr. L. Rep. P 69,298
Gordon R. and Sharon L. FLYGARE, Debtors-Appellants,

v.
Judith A. BOULDEN, Appellee.
No. 81-1683.
United States Court of Appeals,

Tenth Circuit.
June 1, 1983.
Richard Calder, Salt Lake City, Utah, for debtors-appellants.

Duane H. Gillman, Salt Lake City, Utah (Judith A. Boulden, Salt Lake
City, Utah, with him on the briefs) Boulden & Gillman, Salt Lake City,
Utah, for trustee-appellee.
Before HOLLOWAY, McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
Gordon and Sharon Flygare appeal the denial of confirmation of their Chapter
13 bankruptcy plan. They argue that the denial was based on an erroneous
construction of the "good faith" requirement of 11 U.S.C. Sec. 1325(a)(3)
(Supp. IV 1980). We agree and remand for further proceedings.
The Flygares first filed a Chapter 13 petition in April 1980. The bankruptcy
court denied confirmation and dismissed the case in June. The Flygares filed a
second petition in July 1980. The second plan was similar to the first; however,
the length of the plan was increased from thirty-six months to fifty months. At
the confirmation hearing, the second plan was modified to extend for sixty
months. The plan also provided for payment of a larger sum to cure the
Flygares' default on their home mortgage. Under the plan, the unsecured
creditors would be paid approximately three percent of their claims.
The bankruptcy court denied confirmation for two reasons. First, it held that
the plan was "essentially similar to the earlier plan" which had been denied
confirmation.1 Rec., vol. II, at 17. Second, it found that "a payment of 1 percent
or 2 percent to creditors on the facts of the case is not a meaningful payment as
required under the good faith provisions of Chapter 13." Id. at 18. With respect
to the latter holding, the court specifically relied on its prior decision in In re
Iacovoni, 2 B.R. 256 (Bkrtcy.D.Utah 1980). The Flygares appealed to the
district court, which cited Iacovoni and affirmed the bankruptcy court's order.
This appeal followed.
Chapter 13 of the Bankruptcy Code, 11 U.S.C. Secs. 1301-1330 (Supp. IV

1980), contains liberalized provisions that enable certain debtors to repay all or
a percentage of their debts according to a court-approved plan. Rather than
having to surrender all non-exempt assets for distribution to creditors as
required by Chapter 7, 11 U.S.C. Secs. 701-728 (Supp. IV 1980), Chapter 13
debtors make payments to creditors out of future income over a three-to-five
year period, 11 U.S.C. Sec. 1322(c), after which they are entitled to a broad
discharge of their obligations, 11 U.S.C. Sec. 1328(a). The bankruptcy court
must confirm a Chapter 13 plan if it meets the criteria Congress set out in
section 1325(a).2 We are concerned here with the meaning of the section
1325(a)(3) requirement that "the plan has been proposed in good faith and not
by any means forbidden by law."
In In re Iacovoni, the bankruptcy court considered eight Chapter 13 plans that

proposed nominal or in some cases no payments to unsecured creditors. The
court construed the "good faith" requirement of section 1325(a)(3) to mean "a
good faith effort to make meaningful payment to holders of unsecured claims."
2 B.R. at 267 (emphasis added).
6 proposal of meaningful repayment must be made, in light of the debtor's

"A
particular circumstances, even, when, as in these cases, all of the debtor's assets are
exempt. If no meaningful repayment can be proposed, the debtor is not entitled to
Chapter 13 relief."
7
Id. at 268.
The meaning of "good faith" in section 1325(a)(3) has engendered no small

controversy among the bankruptcy courts. Compare, e.g., In re Iacovoni with,
e.g., In re Cloutier, 3 B.R. 584 (Bkrtcy.D.Colo.1980). See 5 L. King, Collier on
Bankruptcy p 1325.01[c] at 1325-8.6 (15th ed. 1982) ("With the possible
exception of the 'adequate protection' test, the controversy concerning good
faith under Chapter 13 has resulted in more litigation than any other issue to
have arisen during the year immediately following the effective date of the
Bankruptcy Code.").
9
The various bankruptcy court interpretations of the "good faith" requirement

fall into three broad categories. See United States v. Estus (In re Estus), 695
F.2d 311, 314-16 (8th Cir.1982). In re Iacovoni is an example of cases holding
that good faith requires substantial or meaningful repayment to unsecured
creditors. Id. at 314. Cases at the other extreme seem to attach little independent
meaning to the "good faith" requirement of section 1325(a)(3). These cases
look only to the requirement of section 1325(a)(4) that Chapter 13 creditors
receive as much as they would receive under Chapter 7. Because many
consumer debtors have no nonexempt assets, their unsecured creditors would
receive nothing in a Chapter 7 liquidation and hence a Chapter 13 plan
providing for no payments to unsecured creditors would meet the subsection (a)
(4) test. Id.
10
Those cases adopting a "middle road" approach do not find the amount of the
payment dispositive of the issue of good faith. Id. at 315-16.
11
"These
courts do not automatically reject a plan which proposes nominal payments
to unsecured creditors, but neither do they automatically confirm a plan as meeting
the subsection (a)(3) good faith requirement if the subsection (a)(4) 'best interests'
test is met. Instead these courts reason that a finding of good faith requires an
inquiry, on a case-by-case basis, into whether the plan abuses the provisions,
purpose or spirit of Chapter 13."
12
Id. at 315.
13
Six circuits have recently considered the divergent views of the bankruptcy
courts, and all of them have adopted some formulation of the "middle road"
approach. Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702
F.2d 885 (11th Cir.1983); In re Estus, 695 F.2d 311; Deans v. O'Donnell (In re
Deans), 692 F.2d 968 (4th Cir.1982); Barnes v. Whelan (In re Barnes), 689
F.2d 193 (D.C.Cir.1982); Goeb v. Heid (In re Goeb), 675 F.2d 1386 (9th
Cir.1982); Ravenot v. Rimgale (In re Rimgale), 669 F.2d 426 (7th Cir.1982).
We also conclude that this analysis is appropriate.
14
"[T]he proper inquiry should follow the analysis adopted by the Fourth Circuit
[In re Deans, 692 F.2d 968]: whether the plan constitutes an abuse of the
provisions, purpose or spirit of Chapter 13. The bankruptcy court must utilize
its fact-finding expertise and judge each case on its own facts after considering
all the circumstances of the case. If, after weighing all the facts and
circumstances, the plan is determined to constitute an abuse of the provisions,
purpose or spirit of Chapter 13, confirmation must be denied.
15
"Certainly an important factor the courts must weigh in their analysis is the
percentage of payment to unsecured creditors which the plan proposes. A low
percentage proposal should cause the courts to look askance at the plan since
repayment is one purpose of a Chapter 13 plan. However, the amount of the
proposed repayment to unsecured creditors is only one of the many factors
which the courts must consider in determining whether the plan meets the
statutory good faith requirement. Other factors or exceptional circumstances
might exist which would preclude a finding of bad faith even though only a
nominal repayment to unsecured creditors is proposed."
16
In re Estus, 695 F.2d at 316-17.
17
We adopt the factors the Eighth Circuit listed as relevant to a determination of

good faith. We reproduce them here for guidance on remand:
18
"(1) the amount of the proposed payments and the amount of the debtor's
surplus;
19
(2) the debtor's employment history, ability to earn and likelihood of future
increases in income;
20
(3) the probable or expected duration of the plan;
21
(4) the accuracy of the plan's statements of the debts, expenses and percentage
repayment of unsecured debt and whether any inaccuracies are an attempt to
mislead the court;
22
(5) the extent of preferential treatment between classes of creditors;
23
(6) the extent to which secured claims are modified;
24
(7) the type of debt sought to be discharged and whether any such debt is nondischargeable in Chapter 7;(8) the existence of special circumstances such as
inordinate medical expenses;
25
(9) the frequency with which the debtor has sought relief under the Bankruptcy
Reform Act;
26
(10) the motivation and sincerity of the debtor in seeking Chapter 13 relief; and
27
(11) the burden which the plan's administration would place upon the trustee."
28
Id. at 317. This list is not exhaustive, and the weight given each factor will
necessarily vary with the facts and circumstances of each case.
29
In its determination that the Flygares' plan was not in good faith, the
bankruptcy court made no findings but only cited its earlier decision in In re
Iacovoni.3 The record contains no evidence that the court considered any factor
other than the small percentage of payment to unsecured creditors. The court's
summary treatment of the Flygares' petition indicates that it was applying a per
se rule. We agree with the Eighth Circuit that "[a] per se minimum payment
requirement to unsecured creditors as an element of good faith would infringe
on the desired flexibility of Chapter 13 and is unwarranted."4 In re Estus, 695
F.2d at 316 (footnotes omitted).
30
Accordingly, we reverse and remand for further proceedings consistent with

this opinion.
The trustee urges us to affirm on this ground. She argues: "Where the issue of
the adequacy of the plan is essentially identical since the plan is not
significantly different, the doctrine of res judicata should be determinative of
the issue." Brief of Respondent at 22. We disagree with this assertion. If
nothing else, the fact that the second plan was for 60 months renders it
sufficiently different from the first, which was for 36 months
Section 1325(a) provides:

"The court shall confirm a plan if-(1) The plan complies with the provisions of this chapter and with other
applicable provisions of this title;
(2) any fee, charge, or amount required under chapter 123 of title 28, or by the
plan, to be paid before confirmation, has been paid;
(3) the plan has been proposed in good faith and not by any means forbidden by
law;
(4) the value, as of the effective date of the plan, of property to be distributed
under the plan on account of each allowed unsecured claim is not less than the
amount that would be paid on such claim if the estate of the debtor were
liquidated under chapter 7 of this title on such date;
(5) with respect to each allowed secured claim provided for by the plan-(A) the holder of such claim has accepted the plan;
(B)(i) the plan provides that the holder of such claim retain the lien securing
such claim; and
(ii) the value, as of the effective date of the plan, of property to be distributed
under the plan on account of such claim is not less than the allowed amount of
such claim; or
(C) the debtor surrenders the property securing such claim to such holder; and
(6) the debtor will be able to make all payments under the plan and to comply
with the plan.
11 U.S.C. Sec. 1325(a) (Supp. IV 1980).
3
The record contains no indication that the Flygares proposed their plan in bad
faith. The plan showed Gordon Flygare's take-home pay as $1,840 per month.
Monthly expenses for the Flygares and their six children totaled $1,720,
leaving a surplus of $110 per month. From that the Flygares proposed to make
payments under the plan of $106 per month for five years. See Goeb v. Heid
(In re Goeb), 675 F.2d 1386, 1391 (9th Cir.1982). Cf. In re Tanke, 4 B.R. 339
(Bkrtcy.D.Colo.1980) (confirmation of plan denied for lack of good faith where
debtors had monthly uncommitted income of $901.65 yet proposed to pay only
$160.00 per month, including only $1.00 to unsecured creditor whom they had
defrauded)
See 5 L. King, Collier on Bankruptcy p 1325.01[c] at 1325-8.5 ("There is

nothing in the statutory language or the legislative history either of the
Bankruptcy Act or of the Bankruptcy Code, nor is there anything in the case
law decided under the Bankruptcy Act, to suggest that 'good faith' was intended
to play any role whatever in determining the quantum of payments or dividends
to be proposed by the plan.")

Gordon R. and Sharon L. Flygare, Debtors-Appellants v. Judith A. Boulden, 709 F.2d 1344, 10th Cir. (1983)

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709 F.

Gordon R. and Sharon L. FLYGARE, Debtors-Appellants,

United States Court of Appeals,

Richard Calder, Salt Lake City, Utah, for debtors-appellants.

Chapter 13 of the Bankruptcy Code, 11 U.S.C. Secs. 1301-1330 (Supp. IV

In In re Iacovoni, the bankruptcy court considered eight Chapter 13 plans that

6 proposal of meaningful repayment must be made, in light of the debtor's

The meaning of "good faith" in section 1325(a)(3) has engendered no small

The various bankruptcy court interpretations of the "good faith" requirement

In re Estus, 695 F.2d at 316-17.

We adopt the factors the Eighth Circuit listed as relevant to a determination of

(3) the probable or expected duration of the plan;

(5) the extent of preferential treatment between classes of creditors;

(6) the extent to which secured claims are modified;

Accordingly, we reverse and remand for further proceedings consistent with

Section 1325(a) provides:

See 5 L. King, Collier on Bankruptcy p 1325.01[c] at 1325-8.5 ("There is

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