Dale L. Somers, United States Chief Bankruptcy Judge.
Debtor Taukita Lauryce Sharp filed her Chapter 13 bankruptcy petition only twenty-one days after she purchased a vehicle from Creditor PayDay Motors, Inc. d/b/a AutoStart, and the Creditor now opposes confirmation of Debtor's proposed Chapter 13 plan on two bases: 1) that the plan was not proposed in good faith under 11 U.S.C. § 1325(a)(3)
Debtor has been a part of the bankruptcy system before, as she has one prior bankruptcy case. That case, also a Chapter 13, was filed in March 2013 due to a garnishment
Despite these changes, Debtor made her Chapter 13 plan payments for five years via an employer pay order and completed payments on her case in August 2018. Debtor received her discharge on September 27, 2018, and the case was closed shortly thereafter.
Debtor's oldest child has a Ford Focus, and after Debtor's Suburban stopped working, Debtor began using the Ford Focus when she needed transportation. But the car was too small for Debtor's large family and Debtor's daughter needed her own vehicle for school and work, so Debtor began shopping for a new vehicle once she received her 2018 tax refunds.
Creditor has operated as an auto dealer in Topeka for a little over a year, although the general manager, Nelson Tucker, has also operated a dealership in Wichita for thirty years. Between the dealerships, Creditor completes about 1200 retail sales a year, specializing in credit-challenged customers. Ultimately, Debtor purchased from Creditor a 2007 GMC Yukon XL with 213,000 miles on February 26, 2019. Debtor picked the Yukon because it was similar to her prior Suburban and she liked the large size and how the vehicle drove. Debtor had the Yukon inspected by her regular mechanic before she purchased it, and the mechanic thought it was a good vehicle with a good engine and transmission. Debtor's mechanic was not worried about the high mileage on the Yukon, because he thought that type of vehicle would run a long time.
Debtor signed a Retail Installment Contract and Security Agreement with Creditor, although she admits she did not spend long reviewing it before signing. Debtor paid $1000 as a down payment at the time she signed the contract; funds she had because of her state tax refund. Debtor agreed to finance $16,676.75 at 21.5% interest, with one payment of $1000 due on March 4, 2019, and seventy-eight bi-weekly payments of $275 (although Debtor may not have understood at the time she signed the contract that the 78 payments were bi-weekly, not monthly).
Debtor has only a ninth-grade education, is a single mother to her four children, and works as a certified nursing assistant. Debtor has been with her employer on and off since 2007. Debtor has not had much experience purchasing vehicles. With the Chevy Suburban she owned most recently before the Yukon, she paid $3500 cash. This experience with Creditor is only the second time Debtor has financed a vehicle.
About five days after Debtor purchased the Yukon, she drove the vehicle to Kansas City (about an hour away) to go shopping and the Yukon broke down in Kansas City. Debtor had to have the vehicle towed back from Kansas City to her home. Creditor then towed the Yukon to its approved repair shop and paid for the Yukon to have a
Debtor has also spent about an additional $500 on other repairs and improvements for the Yukon. Debtor paid to get some rust painted and the brakes tuned up. Debtor has paid for two oil changes, and gets the oil changed on a regular schedule with a local vendor. Debtor also paid to have the front windows tinted. Debtor says the Yukon does have a gas flow issue and she plans to take the Yukon to her local mechanic to get that fixed. Debtor testified that she wants to keep the maintenance up on the Yukon so that it runs well into the future. Debtor has full coverage insurance.
At about this same time, Debtor was talking to a coworker about her money trouble and a coworker recommended that she file a new bankruptcy case. Debtor was concerned about her finances because she thought a garnishment was coming due to her outstanding utility bills and other bills/loans coming due. Debtor was also concerned about the shut off of her utilities because the cold weather was about to end. Debtor was also experiencing changes to her income because of her employer's patient census being down, which caused her hours to be reduced. Debtor thought that she had to wait three to five years after a previous discharge before she could file bankruptcy again, but she made an appointment with her bankruptcy attorney for March 8, 2019, to discuss her options.
On March 12, 2019, Debtor attended a hearing on a lawsuit filed against her by Topeka Public Schools concerning outstanding fees due. The return of service shows that the petition and summons for that suit were left at Debtor's door on February 13, 2019, and Debtor remembers that she found out about the suit because of papers placed on her front door, but she has no memory of the date when she actually learned about the suit. Regardless, at that March 12, 2019 hearing, Debtor told counsel for Topeka Public Schools that she was planning to file bankruptcy.
On March 19, 2019, Debtor filed her current Chapter 13 bankruptcy petition. Debtor listed all her debts and assets to the best of her knowledge. Regarding her income at filing, Debtor reports net income from her employer of $1782.82 per month, food assistance of $440 per month, and SSI payments for one of her children at $405 per month that she has been receiving since January 2019. Debtor very rarely receives child support payments—in her words, only "once in a blue moon." Debtor reports monthly expenses of $2210. Debtor budgets only $90 per month for transportation expenses, despite the fact that she indicated she fills up her gas tank every bi-weekly paycheck, and it usually costs $50 to $60 each time. Obviously, that does not leave funds for maintenance. Debtor does have a budget of $70 for entertainment and a healthy food budget, however, that she indicated gets used for other things as needs arise. Debtor also indicated that sometimes her daughter helps with fuel expense.
Debtor's proposed plan is for a monthly plan payment of $415 to be paid via an employer pay order. Debtor testified that she has been able to afford that payment, and that she chose to have the payment taken out of her paycheck because it is easier for her to budget that way. Debtor's
Nelson Tucker testified at length about the valuation and depreciation of vehicles. The entities that loan funds to Creditor charge about 15% interest, and so to maximize the return on the vehicles sold by Creditor, Mr. Tucker limits the length of time he is willing to finance a vehicle purchase from about eighteen months to four years, depending on the age and mileage of a vehicle. Mr. Tucker stated that the maximum length of time he was willing to finance the 2007 GMC Yukon was thirty-six months, due to the ability of the vehicle to last and to ensure the vehicle is functional at the end of the loan. Mr. Tucker acknowledged that a vehicle like a Yukon was not as concerning to have more than 200,000 miles, and that the body would hold up better than, e.g., passenger cars.
Mr. Tucker believes the Yukon was probably valued at about $40,000 when it was new in 2007. The sales price of the Yukon on February 26, 2019—twelve years later—was $17,475.75. From that, however, to determine value, Mr. Tucker believes the sales tax of $1481.75 and the warranty value of $1000 should be deducted, and that the value of the Yukon at purchase was probably between $14,000 and $15,000. The NADA value confirms this, as it gives a $14,000 NADA average for value. Given the age and condition of the Yukon, and Debtor's financial condition, Mr. Tucker believes the value of the Yukon would be between $2500 and $3500 in thirty-six months and that the Yukon would be worth only salvage value of about $500 at the end of a five-year plan. Mr. Tucker claims that vehicles typically depreciate more rapidly for his customers, because they are lower income and may not have money for maintenance. Mr. Tucker believes he needs to receive between $450 and $500 per month to be adequately protected. Counsel for Creditor placed the requested adequate protection much lower at about $350 per month, with interest at the Till rate
Plan confirmation is a contested matter, and a core proceeding over which this Court may exercise subject matter jurisdiction.
Creditor objects to Debtor's proposed plan on two bases: (1) Debtor's plan, filed only twenty-one days after purchase of the GMC Yukon, significantly lowers the interest rate from the parties' contract and proposes a longer repayment term than the parties' contract, and Creditor argues that the totality of the circumstances show that the plan was not proposed in good faith as required by § 1325(a)(3); and (2)
Debtor, as proponent of her Chapter 13 plan, bears the burden of proof to show that her plan meets the requirements for confirmation found in § 1325(a).
In Flygare v. Boulden,
The weight given to each of these factors must vary, depending on the facts and circumstances of each case.
The continued viability of the Flygare factors, although not overruled, has been questioned by subsequent Tenth Circuit cases. In Anderson v. Cranmer (In re Cranmer),
In Debtor's case, the Court does not doubt that Debtor has stated her income and expenses correctly. She has recently been through the Chapter 13 bankruptcy process, and little has changed from her reporting in that case. Her income and expenses are fairly consistent, adjusting for time. The Court also sees no fraudulent misrepresentations or efforts to mislead the bankruptcy court. Debtor was thorough and accurate in her testimony and the Court did not doubt any of her reporting. Despite all that, the crux of the good faith inquiry in this case is whether Debtor has unfairly manipulated the Bankruptcy Code. In other words, was Debtor contemplating bankruptcy at the time she purchased the Yukon and entered into the financing agreement with Creditor? Did Debtor intend to purchase the vehicle— promising to repay at the rate and terms in the contract—and then quickly turn around and file bankruptcy so as to stick Creditor with a (more affordable to her) lower rate over a longer term?
Creditor contends the short time between Debtor's purchase of the Yukon and the filing of her Chapter 13 petition indicate the answer to those questions is "yes." Only twenty-one days passed between the two events, and only ten days passed between the purchase of the Yukon on February 26 and Debtor's first meeting with counsel on March 8. And really, the time is even shorter than that—Debtor surely called for an appointment with counsel at some even earlier point.
That said, what else was happening the first week of March 2019? Debtor had just purchased a vehicle, that she was now having to have towed back home because it was not working. We know that half of the tow expense was paid by Creditor after the fact, but Debtor would have been out the upfront tow cost of approximately $370.
Section 1325(a)(5)(B) is multifaceted. The section permits Chapter 13 debtors to retain secured collateral, as long as the secured creditor is provided a stream of payments equal to the amount of their secured claim, and as long as certain conditions are met concerning retention of the lien. In addition, "[t]his section mandates that the secured creditor receive the present value of its claim as of the petition date."
A secured creditor is entitled to have its interest in the collateral protected from diminution by reason of a debtor's bankruptcy estate having ongoing possession and use of the creditor's collateral.
To extrapolate a monthly depreciation amount for purposes of calculating monthly adequate protection payments, the Court must assess the value of the 2007 Yukon. Debtor provided no evidence of value at trial, other than to elicit testimony from Mr. Tucker that the 2007 Yukon would have been purchased new for approximately $40,000. Based on the cumulative testimony from Mr. Tucker, the Court concludes that at the time Debtor filed her Chapter 13 bankruptcy petition in March 2019, the Yukon was valued between $14,000 to $15,000.
Debtor contends that her proposed equal monthly payment of $278 to the creditor is sufficient to cover any depreciation the creditor incurs for its collateral. Creditor disagrees. Based on the above numbers, Creditor believes the Yukon depreciated at a rate of $173.61 to $180.56 per month between 2007 (when it was new) and 2019 (when Debtor purchased the vehicle).
Creditor justifies an increased rate of depreciation because, in Mr. Tucker's view, a debtor in bankruptcy is less likely to have the funds to pay for adequate maintenance on a vehicle, and the vehicle will, therefore, depreciate at a higher speed than normal. Maybe that is true of some debtors, but there is no evidence that is likely in this case. Debtor testified that she is committed to maintaining the Yukon. Debtor has a long-standing relationship with a local mechanic, that she used on both her prior Suburban and to give an opinion on the Yukon prior to purchase. Debtor has regularly paid for oil changes when they come due. Yes, Debtor budgets only $90 a month for transportation expenses, which include gas and vehicle maintenance, but her daughter sometimes helps pay for gas and Debtor has other areas of her budget that she can shift when maintenance on the Yukon is needed. Debtor has very stable income and expenses. She has also spent about an additional $500 on other repairs and improvements for the Yukon since she purchased it about seven months ago: painting of rust, brake tune up, oil changes, and window tinting. Debtor obviously has an incentive to keep the Yukon in good working order. And the Yukon is covered by Creditor's 18-month, 18,000-mile warranty if any major issues arise. Portions of future tax refunds can also be used for vehicle maintenance, as it is Debtor's practice to use those tax refunds to get caught up on life's expenses.
Debtor is the plan proponent, and she bears the burden of proving her plan is confirmable under § 1325.
For the reasons stated herein, Creditor's objection to confirmation of Debtor's plan
The $450 to $500 a month figure is suspiciously close to the parties' contract amount of $595.83/mo ($275 bi-weekly). But as Creditor must realize, the contract rate would have included Creditor's profit and costs, and there is no evidence at all that the rate of depreciation is similar to the regular monthly payment under the contract.
