MEMORANDUM OPINION

STEPHEN C. ST. JOHN, Chief United States Bankruptcy Judge.

This matter came on for hearing on December 11, 2015 ("Second Hearing"), on the Motion to Close Case Without Entry of Discharge ("Motion") filed by R. Clinton Stackhouse, Jr., Chapter 13 Trustee ("Trustee"), on October 15, 2015. ECF No. 64. Counsel for the Debtor, Marlene Denise Evans (the "Debtor"), filed an answer to the Motion on November 2, 2015, in which she denies the case must be closed without a discharge and prays that the Court grant the Debtor her discharge. This matter was originally scheduled to be heard on November 6, 2015 ("Original Hearing"), but was continued to December 11, 2015, because the Debtor did not appear at the Original Hearing.

This Court has jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 157(b) and 1334(b). Venue is proper pursuant to 28 U.S.C. §§ 1408 and 1409(a). Upon consideration of the pleadings and following the conclusion of the presentation of arguments by counsel for the parties, the Court took the matter under advisement. The Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

I. Factual Stipulation

The Trustee and the Debtor entered into a factual stipulation concerning the Motion that provides as follows:

Joint Stipulation of Facts, filed November 4, 2015, Case No. 10-51101-SCS, ECF No. 69 (hereinafter, "Stipulation").

II. Findings of Fact

In addition to the stipulated facts, which the Court hereby adopts as findings of fact, the Court makes the following factual findings based upon the uncontroverted record of the case. Counsel for the Debtor filed a Motion to Approve Loan Modification After Confirmation on May 2, 2014. ECF No. 49. When the Trustee consented to the loan modification agreement, the Court entered an Order Granting the Motion to Approve Loan Modification After Confirmation on August 5, 2015. ECF No. 55. The modified loan reduced the Debtor's monthly mortgage payments from $1,000.00 to $665.16; reduced her interest rate from 8.832% to 5.00%; and provided for a loan term of 420 months. The modified loan brought her account into a current status by reamortizing her arrears, resulting in a new principal balance of $163,996.34. The Plan filed September 26, 2014, and the Amended Schedule J filed in support of the Plan, provided, as set forth in paragraphs 16 and 17 of the Stipulation, that the Debtor would make Direct Payments on the Note to the Lender in the amount of $665.00, and that the Trustee would pay the estimated arrearage of $400.00 to the Lender.3 As set forth in paragraph 18 of the Stipulation, the Court entered the Confirmation Order on November 14, 2014. ECF No. 60.

At the Original Hearing, counsel for the Debtor requested the Court take notice that she filed the Debtor's Certification of Compliance with 11 U.S.C. § 1328 on August 20, 2015. Transcript of November 6, 2015 Hearing, at 12-13 (hereinafter, "Tr."). Counsel for the Debtor confirmed that the Debtor owed postpetition arrears to the Lender totaling $6,344.08. Id. at 2-3. Counsel for the Debtor also represented that the Debtor was behind on her postpetition payments to the homeowners' association wherein the Property is located, in addition to being in arrears on her Direct Payments to the Lender. Id. at 4.

The Debtor appeared at the Second Hearing, where she admitted, in accordance with her counsel's earlier representations, that she remained in arrears on her Direct Payments on her mortgage. The Debtor was unaware of the exact amount of the arrears but estimated she owed at least ten (10) monthly payments. She was unsure as to when she last made a Direct Payment. Upon inquiry by the Court, the Debtor represented she fell behind on her Direct Payments and homeowners' association obligations because she suffered reductions in her income and was also supporting displaced relatives who came to live with her. The Debtor confirmed on the record that she owed postpetition fees to her homeowners' association totaling between $14,000.00 and $15,000.00. Counsel for the Debtor explained that these amounts related to noncompliance fees assessed because the Debtor had been unable, due to her financial circumstances, to make required repairs to the Property.

III. Conclusions of Law

The dispute between the Trustee and the Debtor involves two discrete issues. First, where the Debtor admits she completed her payments to the Trustee as required under the Plan but also admits that she failed to make Direct Payments to the Lender as provided for in the Plan, does the Debtor's failure to make those Direct Payments preclude her from receiving her discharge pursuant to § 1328 of the Bankruptcy Code? Secondly, if the Debtor is not entitled to receipt of a discharge, what remedy should follow from the failure to obtain a discharge? In support of his position on the first issue, the Trustee's argument is succinct: the reference in § 1328(a) to "completion by the debtor of all payments under the plan" (emphasis added) plainly states that a debtor is entitled to a discharge when all payments under the Chapter 13 plan are complete, which includes all payments contemplated to be made by the debtor under the plan, whether to the Chapter 13 trustee or directly to a creditor. Motion ¶¶ 32, 35.

The Debtor asserts she has met all of the requirements under Chapter 13 of the Bankruptcy Code to receive her discharge. First, the Debtor disagrees with the Trustee's interpretation of § 1328(a), arguing that both the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure use the phrase "under the plan" in numerous sections and rules, and reliance must be placed on the use and context of that phrase elsewhere to determine the phrase's meaning under § 1328(a). Debtor's Answer at 4, filed November 2, 2015, Case No. 10-51101-SCS, ECF No. 68 (hereinafter, "Answer"). The Debtor specifically cites the use of the phrase in Federal Rule of Bankruptcy Procedure 3002.1(f), positing that by serving the Notice of Final Cure Payment pursuant to that rule, the Chapter 13 trustee is making a representation that a debtor has made all required payments under the plan. The Debtor also contends that her payments to the Lender "cannot be considered payments under the plan when considering the plain language of [§] 1322(b)(5)"4 because such debt is precluded from discharge under § 1328(a)(1). Id. at 3-4.

Additionally, the Debtor asserts that because the form language of the Chapter 13 plan in this district does not affect the payment terms of the loan but, instead, the plan relies upon and incorporates the terms of the original agreement between the debtor and the secured creditor, such payments to a secured creditor cannot be considered payments "under the plan." Id. at 6; see also id. at 7-9.5 Finally, the Debtor contends that her payments to the Lender should not be considered "payments under the plan" since the debt owed to the Lender will not be paid in full until after the final payment is due to the Trustee. Id. at 4; see also id. at 9. Similarly, relying on § 1322(d), which prohibits a plan term longer than five (5) years, the Debtor also reasons that postpetition mortgage payments cannot be considered "payments under the plan" because, if the contractual term of the mortgage payments exceeds the 5-year limitation, the plan would violate § 1322(d). See id. at 6-7.

A. The Statute

1. The Plain Language of 11 U.S.C. § 1328(a)

The Court's analysis necessarily begins with interpreting the plain language of the statute at issue. U.S. Dep't of Labor v. N.C. Growers Ass'n, 377 F.3d 345, 350 (4th Cir.2004) (citing Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004)). This Court recently discussed the process of statutory interpretation:

S. Bank & Tr. Co. v. Alexander (In re Alexander), AP No. 13-07146-SCS, 2014 WL 3511499, at *9 (Bankr.E.D.Va. July 16, 2014), aff'd, 524 B.R. 82 (E.D.Va.2014). "The plain meaning of legislation should be conclusive, except in the `rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters.'" United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (alteration in original) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982)).

Section 1328(a) provides, in pertinent part, "Subject to subsection (d), as soon as practicable after completion by the debtor of all payments under the plan, ... the court shall grant the debtor a discharge." 11 U.S.C. § 1328(a) (2015). Section 1328 excepts certain debts from the ambit of the discharge, including those "provided for under section 1322(b)(5)." Id. § 1328(a)(1). The specific phrase at the heart of the controversy here is "after completion by the debtor of all payments under the plan."

"After completion by the debtor of all payments under the plan" contemplates completion of all amounts set forth to be paid under the relevant Chapter 13 plan. Had Congress intended to offer a discharge to a debtor for simply completing the payments made directly to the Chapter 13 trustee, the drafters surely could and would have crafted language narrowing the range of required payments. The omission points toward the plain notion that Congress intended the requirement that all payments contemplated by a Chapter 13 plan must be completed in order to obtain a discharge. Congress plainly made completion of all payments the requirement for discharge, not simply a specific subset of payments contemplated by the confirmed plan.

The Debtor argues that the Court should look at the context in which the phrase "under the plan" is used in numerous other locations in both the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure to determine the meaning of the phrase in § 1328(a). Answer at 4. The Court declines the Debtor's suggestion to interpret the language at issue with regard to any statutory section other than § 1328 because the plain language of the statute is clear; thus, the analysis ends there.

2. The Result Is Neither Absurd Nor Contrary to Congressional Intent

Finding that all payments contemplated to be made in the confirmed plan must be completed to obtain a Chapter 13 discharge produces neither an absurd result nor a conclusion demonstrably at odds with Congressional intent. As Judge Gargotta aptly noted:

In re Heinzle, 511 B.R. 69, 83 (Bankr. W.D.Tex.2014). In reaching this conclusion, Judge Gargotta examined In re Foster, an opinion by the Fifth Circuit Court of Appeals finding that Congress permitted a debtor to make mortgage payments directly to the lien holder as part of its desire to provide debtors flexibility in making payments to creditors. Foster v. Heitkamp (In re Foster), 670 F.2d 478, 486 (5th Cir.1982). The Foster Court rejected the notion that the designated payor of a certain debt in a Chapter 13 plan should bear upon how the payment is viewed vis-à-vis the plan. Id. at 490. As such, the Court concluded that payments made by a debtor directly to a creditor representing ongoing mortgage payments pursuant to § 1322(b)(5) were payments "under the plan." Id.; see also In re Kessler, Case No. 09-60247-RLJ-13, 2015 WL 4726794, at *2 (Bankr.N.D.Tex. June 9, 2015) (citing In re Foster, 670 F.2d at 485-89), aff'd sub nom. Kessler v. Wilson (In re Kessler), Civil Action No. 6:15-CV-040-C (N.D.Tex. Nov. 19, 2015).

Counsel for the Debtor argues that courts addressing the issue at bar have inappropriately relied on the Foster decision. No such misreliance has occurred. In a recent decision, Judge Cummings of the United States District Court for the Northern District of Texas affirmed In re Kessler and discussed Foster in detail. Judge Cummings concluded that, although the matter before the bankruptcy court in Foster was whether to confirm a Chapter 13 plan, the holding thereof still applies: "[J]ust because Foster did not deal with the issue of discharge specifically does not mean that its holding is inapplicable to the present case. Foster definitively established that current mortgage payments made on a § 1322(b)(5) debt fall under the Chapter 13 plan when arrears for such a debt are included in the plan." Kessler v. Wilson (In re Kessler), Civil Action No. 6:15-CV-040-C, slip op. at 5 (N.D.Tex. Nov. 19, 2015) (citing In re Foster, 670 F.2d at 489). Judge Cummings' analysis, accordingly, clearly debunks the Debtor's theory of inapplicability. Furthermore, even if the decision in In re Foster was not considered, and notwithstanding the Debtor's criticism thereof, there is ample basis, as discussed below, for the conclusion reached here.

Rather, it is the Debtor's proposed reading that would lead to a result both absurd and contrary to requirements of § 1322(b)(5). This result was recognized by the United States Supreme Court in Rake v. Wade, 508 U.S. 464, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993), in the context of interpreting and applying other Bankruptcy Code sections. In determining that the provisions of § 1325(a)(5)(B)(ii) could not be ignored vis-à-vis a § 1322(b)(5) claim, the Court reasoned, "§ 1328(a) unmistakably contemplates that a plan `provides for' a claim when the plan cures a default and allows for the maintenance of regular payments on that claim, as authorized by § 1322(b)(5)." Rake v. Wade, 508 U.S. 464, 474, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993). The Court concluded that "[i]f claims that are subject to § 1322(b)(5) were not `provided for by the plan,' there would be no reason to make an exception for them in § 1328(a)(1)." Id. at 475, 113 S.Ct. 2187. Judge Cummings also recognized that interpreting § 1328(a)'s requirement that a debtor make not only payments to the Chapter 13 trustee but also other direct payments as promised to creditors within the confirmed plan is neither absurd or inequitable; as Judge Cummings succinctly concluded, "[Q]uite the opposite is true." In re Kessler, Civil Action No. 6:15-CV-040-C, slip op. at 6.6

3. The Application of 11 U.S.C. § 1328(a) Does Not Produce a Harsh Result

The Debtor implies that the denial of a discharge to a debtor who has made all of her required payments to the Chapter 13 trustee leads to an excessively harsh outcome. The Debtor asserts that while denying her discharge would have no effect as to the remedies the Lender would have against her, other creditors would enjoy remedies not otherwise available to them, especially secured creditors, who could refuse to release liens or repossess property. Answer at 9. The Debtor laments that her options going forward would be limited to conversion of her case to one under Chapter 7, leading to the possible liquidation of assets; the filing a new Chapter 13 case; or addressing her creditors' claims outside of the bankruptcy process. Id. at 10. The resulting harms from these possibilities, the Debtor argues, are not "ideal" and fail to provide the Debtor with the fresh start she contemplated when she commenced this case. Id. The Debtor's arguments are unavailing in light of the clear intent of Congress in conditioning the receipt of a Chapter 13 discharge on the fulfillment of all of the obligations set forth in the plan.7 The conditions of receipt of a discharge by a debtor are solely and exclusively the province of Congress. Short of imposing requirements that are constitutionally offensive, the national legislature may forge the conditions of receipt of a discharge as it sees fit. Those conditions here do not provide for issuance of a discharge where the debtor has been only partially successful in abiding by the terms of her confirmed plan.

Given the plain language of 11 U.S.C. § 1328(a), the absence of a demonstrably absurd result by applying this certain construction, and the clear intentions of Congress, the statute here requires that no discharge be forthcoming to the Debtor.

B. The Case Law

1. The Totality of the Decided Cases Supports the Trustee's Position

A review of the decisions that have addressed whether § 1328(a) requires a debtor to complete all payments under a Chapter 13 plan finds universal support for the Trustee's position.8 Thus, when a debtor is delinquent in making direct payments to a creditor pursuant to the terms of a confirmed plan, she is not entitled to receive a Chapter 13 discharge because she has not completed all of her required payments under the plan. In In re Gonzales, 532 B.R. 828 (Bankr.D.Colo.2015), the precise issue presented here was considered. Judge Tallman extensively reviewed the decisions that have considered the question of whether payments made to a mortgage holder are "payments under the plan:"

In re Gonzales, 532 B.R. at 831-32.

The Trustee's position that direct payments to a mortgage holder constitute "payments under the plan" also finds ample support in Supreme Court jurisprudence. In the aforediscussed Rake v. Wade, the Supreme Court construed the term "provided for by the plan" under § 1328(a) regarding a Chapter 13 discharge:

Rake v. Wade, 508 U.S. 464, 474, 113 S.Ct. 2187, 124 L.Ed.2d 424 (1993) (alterations in original) (citing 5 Collier ¶ 1328.01, at 1328-29). While the question addressed in Rake was presented within a different context than the question here, Judge Tallman astutely pointed out that it is impossible to reconcile a narrow construction of "payments under the plan" to include only payments made to a Chapter 13 trustee with the Supreme Court's broad construction as discussed in Rake, which encompasses claims referenced within the plan. In re Gonzales, 532 B.R. at 832.9

Other recent decisions have concluded identically. Accord, Kessler v. Wilson (In re Kessler), Civil Action No. 6:15-CV-040-C, slip op. at 6 (N.D.Tex. Nov. 19, 2015) ("Kessler's failure to pay the current mortgage payments for the duration of the bankruptcy proceeding was a failure to complete all payments under the plan as required. Therefore, Kessler is not entitled to a discharge."); In re Ramos, 540 B.R. 580, 589 (Bankr.N.D.Tex.2015) ("Here... the Debtors have failed to make almost three years' worth of required, direct, postpetition mortgage payments to Ocwen where Ocwen's debt was provided for and treated in the confirmed plan. Thus, under the reasoning articulated in In re Kessler and In re Heinzle, with which this court entirely concurs, the Debtors are not entitled to a discharge."); In re Formaneck, 534 B.R. 29, 34 (Bankr. D.Colo.2015) ("Under § 1328(a), a Chapter 13 discharge in favor of the Debtors is conditioned on `completion by the debtor[s] of all payments under the plan....' This Court adopts the uncontroverted reasoning and conclusions of other courts determining payments required to be made directly to creditors under a confirmed chapter 13 plan are `payments under the plan,' as that term is used in § 1328(a). Applying this reasoning, the Court finds the payments the Debtors promised to make directly to Wells Fargo are `payments under the plan' and the Debtors' failure to make those payments prohibits entry of their discharge in Chapter 13."); In re Doggett, Case No. 09-35061-HRT, 2015 WL 4099806, at *3 (Bankr.D.Colo. July 6, 2015) ("A discharge under § 1328(a) requires completion of all `payments under the plan' and that language plainly embraces payments that a plan provides will be made directly by the debtor to a creditor."); In re Arredondo, Case No. 00-10465-RLJ-13, 2004 Bankr.LEXIS 938, at *2 (Bankr. N.D.Tex. July 15, 2004) (concluding, in determining whether to disallow an unsecured deficiency claim, that "[t]he debtors' receipt of a discharge is conditioned upon the debtors' completion of all plan payments") (citing 11 U.S.C. § 1328(a)); In re McIntosh, Case No. 90-40594, 1996 WL 391560, at *1 (Bankr.N.D.Ind. June 14, 1996) (finding a debtor is not entitled to a discharge "until all the payments required by the plan have been made and the creditors provided for by the plan have received what the plan says they will").10

Following these precedents, this Court finds that a debtor may only receive a Chapter 13 discharge under § 1328(a) upon her completion of all "payments under the plan." Like all other courts that have considered this issue, this Court holds the language "payments under the plan" includes payments made directly to creditors as provided for in a Chapter 13 plan as well as payments made through the Chapter 13 trustee. Thus, the Court considers the Direct Payments that the Debtor was obligated to make to the Lender pursuant to Paragraph 5.A. of the Debtor's confirmed Plan to be "payments under the plan." It is undisputed that the Debtor is behind on her Direct Payments to the Lender and did not make all of the payments that were due to the Lender. See Stipulation ¶ 26; see also supra pp. 218-19. Therefore, because a debtor is only able to receive a Chapter 13 discharge under § 1328(a) after completing all of the payments under the plan, and the Debtor here failed to make her Direct Payments to the Lender, the Court finds that the Debtor is not eligible to receive her Chapter 13 discharge.

2. Federal Rule of Bankruptcy Procedure 3002.1(f) Does Not Estop the Trustee's Position

The Debtor also contends that the language of Federal Rule of Bankruptcy Procedure 3002.1(f) precludes the Trustee's assertion that all "payments under the plan" have not been made. Answer at 5. Rule 3002.1(f) requires the Chapter 13 trustee to file with the Court and serve upon the claim holder a Notice of Final Cure Payment "after the debtor completes all payments under the plan," informing the claim holder and the Court that, according to the trustee's records, all payments to cure the prepetition arrearages have been made.11 Thus, according to the Debtor, under this rule, the phrase "under the plan" refers to the debtor's payments to the Chapter 13 trustee; as such, she reasons that once the trustee has served the Notice of Final Cure Payment, the trustee is adopting the position that a debtor has made all required payments under the plan. Id. Judge Gargotta found this assertion of estoppel to be unavailing:

In re Heinzle, 511 B.R. at 81. The Court agrees with Judge Gargotta's conclusion and adopts the Heinzle Court's reasoning on this point as well.

3. Long Term Debt Payments

The Debtor's argument that a long term debt, such as the Note payable to the Lender, is not encompassed by the Chapter 13 discharge and thus payments set forth in the plan on such a debt cannot be "payments under the plan," Answer at 3-4, also fails. The fact that Congress requires a debtor to make all payments as they come due postpetition to a creditor whose claim is not subject to discharge under the Bankruptcy Code does not produce a result at odds with the rest of the Bankruptcy Code. The Debtor's argument on this point was expressly advanced and rejected in In re Kessler, Case No. 09-60247-RLJ-13, 2015 WL 4726794 (Bankr.N.D.Tex. June 9, 2015), aff'd sub nom. Kessler v. Wilson (In re Kessler), Civil Action No. 6:15-CV-040-C (N.D.Tex. Nov. 19, 2015):

In re Kessler, 2015 WL 4726794, at *2-3 (second and third alterations in original).

The Kessler Court concluded its discussion by highlighting the interplay between the constraints regarding making ongoing mortgage payments found in § 1322(b)(5) and the Court's ability to issue a discharge when the debtor defaults on those postpetition direct payments:

In re Kessler, 2015 WL 4726794, at *3-4. See also In re Heinzle, 511 B.R. at 78 ("Debtors are entitled to receive a discharge only when they meet all the requirements of Chapter 13, including payments under the plan and the `maintain and cure' provisions of § 1322(b)(5). Debtors do not receive a discharge if they are unable to make both plan and post-petition mortgage payments.").

This Court follows the reasoning set forth in the Foster, Kessler, and Heinzle cases and finds that postpetition payments on a mortgage debt made through direct payments by the debtor to the creditor must be treated as "payments under the plan" when the plan also provides for the curing of prepetition arrears. The Debtor has stipulated that the Plan provided for the Trustee to make payments to the Lender to cure her prepetition mortgage arrears. Stipulation ¶ 17. The Stipulation also acknowledges that the Debtor is behind on her Direct Payments to the Lender. Id. ¶ 26. Therefore, the factual situation of the Debtor mirrors those described in Foster, Kessler, and Heinzle. Thus, this Court finds that the Debtor's Direct Payments on her mortgage under § 1322(b)(5) constitute "payments under the plan."

4. In re Russell

The Debtor asserts two additional, related arguments tangential to her assertion that payments on a debt precluded from discharge under § 1328(a)(1) should not be considered "payments under the plan." First, she argues that because the debt will not be paid in full until after the final payment to the Trustee is due, her Direct Payments to the Lender under § 1322(b)(5)12 cannot be considered "payments under the plan." Answer at 4; see also id. at 9. The Debtor relies on § 1322(d) to advance a similar argument, citing specifically that section's prohibition of a plan term longer than five (5) years. 11 U.S.C. §§ 1322(d)(1), 1322(d)(2); see Answer at 6. The Debtor reasons that payments under Paragraph 5.A.13 of the Chapter 13 plan cannot be considered "payments under the plan" because, if the contractual term of those payments exceeds the 5-year limitation found in § 1322(d), the plan would violate § 1325(a)(1), which prohibits a court from confirming a plan that does not comply with the applicable provisions of the Bankruptcy Code. See Answer at 6-7. Other than bold assertions, the Debtor fails to provide any statutory authority or context for such positions. The only case the Debtor cites in support of her theories is a decision by Judge Mitchell of this Court in In re Russell, 458 B.R. 731 (Bankr.E.D.Va. 2010). According to the Debtor, In re Russell stands for the proposition that "a payment [] provided for by a plan [] is `subject to the five-year limit on such payments." Answer at 6 (quoting In re Russell, 458 B.R. at 739). The Debtor also contends that Russell mandates that "the plan must define the payment terms of a loan in order for said payments to be made under the plan and subject to the five-year limitation enumerated in 11 U.S.C. [§] 1322(d)(1)." Id. (citing In re Russell, 458 B.R. at 739).14

The Debtor's interpretation of both the issues before the Court in and the holding of In re Russell are, in short, entirely flawed. Mr. Russell owned two pieces of real property. One property served as his principal residence while the other was held for rental purposes. In re Russell, 458 B.R. at 732-33. Regarding the principal residence, the plan provided that the Chapter 13 trustee would pay arrears while Mr. Russell would make the postpetition mortgage payments directly to the lender. Id. at 733. The plan proposed that the amount of the secured claim on the rental property, valued at approximately $168,000.00 less than the outstanding claim, would be reduced to the property's value and paid with interest at 4.25% over a 360-month term from the time of confirmation, with the remaining balance of the claim being paid as an unsecured claim. Id. at 733-34.

The issues before the Court related to additional obligations and restrictions on the holder of the claim secured by the principal residence (raised by the claim holder, none of which are germane to the issues before the Court in the instant matter) and an issue raised sua sponte regarding whether the secured portion of the claim on the rental property could be re-amortized over a period of time that exceeded the term of the plan. Id. at 732, 734-35. The Court began its discussion by reminding that "[b]ecause the [rental] property is not the debtor's principal residence, the restriction in § 1322(b)(2) on modification of loans secured by real property that is the debtor's principal residence does not apply." Id. at 737. The Court found Mr. Russell's proposed 360-month period for payment of the secured portion of the claim on the rental property contravened the requirement that such modified secured claim be paid in full by the time the plan was completed. Id. at 737-38. Judge Mitchell contrasted the treatment of a secured claim that is outside the ambit of § 1322(b)(2), which can be modified so long as such modified payment schedule is completed by the end of the plan term, with those that cannot be modified under § 1322(b)(5):

Id. at 738-39.15 Judge Mitchell also discussed the difference between debts that may be modified under the plan with long-term, § 1322(b)(5) debts vis-à-vis discharge:

Id. at 739. Finally, Judge Mitchell addressed the debtor's argument that because the payments on the modified loan were being made directly to the lender, such payments were not payments "under the plan" and not subject to the five-year limitation found in § 1322(d). Judge Mitchell easily disposed of this argument:

Id. In so finding, Judge Mitchell reminded that § 1326(c) permits "payments to creditors under the plan" to be made other than by the Chapter 13 trustee if either the plan or confirmation order so provides. Id. n. 11 (citing 11 U.S.C. § 1326(c)).

The debt at issue here relates to the Debtor's principal residence, not a nonresidential property where the claim could be modified. The Debtor did not attempt to modify the terms of her mortgage on her principal residence within the Plan, nor could she pursuant to the statutory scheme. Further, because Mr. Russell sought to modify the non-§ 1322(b)(2) claim, the plan necessarily had to define the proposed, modified terms. None of the terms here between the Debtor and the Lender changed, nor could they have, for the reasons stated. The claim in Russell, being one that the debtor wished to and could modify, was, as Judge Mitchell found, subject to the five-year limitation set forth in § 1322(d). The Debtor's mortgage here is not of the same type or character discussed by Judge Mitchell. The Debtor's attempts to graft Judge Mitchell's conclusions onto the instant situation must certainly fail. Thus, despite the Debtor's assertion that the Trustee has taken the lessons of In re Russell out of context, Answer at 6, it is in fact she who has made this unfortunate error.

5. The Language of the Form Chapter 13 Plan

The Debtor also advances the argument that the particular language used in this jurisdiction's form Chapter 13 plan prevents her Direct Payments to the Lender from being considered "payments under the plan." See Answer at 6-9. The Debtor argues that because the plan does not alter the terms of the original contract but instead simply restates the amount of the contract payment at the time of filing, the terms of this long term debt are not sufficiently defined by the plan so as to make the payments on such debt "payments under the plan." Id. at 6-7, 8. This argument is unpersuasive, as "[c]ourts agree with the interpretation here that a payment is under the plan when the debt is provided for in the plan." In re Kessler, 2015 WL 4726794, at *3 (citing In re Heinzle, 511 B.R. 69, 78 (Bankr.W.D.Tex.2014)). The Debtor's assertion that the plan must detail the particular terms of the direct payment is misguided. Simply because the specific nuances regarding the payment of a long term debt are not detailed in the plan does not mean that payment should be discounted as a payment "under the plan." Instead, existing precedent confirms that a payment is considered to be part of the plan once it is mentioned within the plan as one of the duties the debtor is bound to fulfill upon confirmation:

Id. at *3. See also In re Perez, 339 B.R. 385, 390 n. 4 (Bankr.S.D.Tex.2006) ("[W]hen the plan is confirmed, all payments that are referenced in the plan, regardless of whether they are made by the trustee or directly by the debtor, are payments made `under the plan.'"), aff'd sub nom. Perez v. Peake, 373 B.R. 468 (S.D.Tex.2007). For these reasons, too, the Debtor's argument that a lender is not bound by the terms of the confirmed plan with regard to necessary increases in escrow items must fail. See Answer at 8.

The Kessler decision determined that the Chapter 13 plan at issue there provided for direct payments of the debtors' mortgage debt. Within her answer, the Debtor admits that there are similarities between the form plan of the Kesslers' jurisdiction and this jurisdiction: "In Kessler, the plan ... is more similar to the form plan in this jurisdiction...." Id. The Kesslers' mortgage debt was listed in their plan as follows:

In re Kessler, 2015 WL 4726794, at *3. The Debtor's confirmed Plan states:

Plan at 4. There is little distinction between the language used by the Kesslers' confirmed plan and the Debtor's confirmed Plan. The phrases "regular contract payments" and "pursuant to the contract without modification" from this jurisdiction's form plan connote the same meaning as "with the terms of their agreement" from the Kesslers' plan. Both phrases clearly and unequivocally obligated the Debtor to make Direct Payments to the Lender pursuant to the terms of the existing contract between the parties. Therefore, this Court adopts the position of the Court stated in In re Heinzle:

In re Heinzle, 511 B.R. at 80.16 Thus, the Court finds that the language of the form plan used in this jurisdiction supports the conclusion that the Direct Payments be considered "payments under the plan."17

6. Summary

In conclusion, none of the arguments advanced by the Debtor are persuasive. The Debtor is attempting to use the benefits of a confirmed Chapter 13 plan to receive her bankruptcy discharge without being held accountable for her mortgage payments. As Judge Gargotta states in Heinzle:

In re Heinzle, 511 B.R. at 83. Thus, the Court adopts the findings of other courts that have already addressed this issue and concludes that the Debtor should be denied entry of her Chapter 13 discharge.

In re Gonzales, 532 B.R. 828, at 832 (Bankr.D.Colo.2015).

When Congress speaks plainly and decisively in its statutes, a federal court's fealty to the democratic branch's conclusion must be certain and complete; there may be no reconsideration of the policy as determined in the statutory language, nor may a court substitute its judgment of fairness and wisdom. Under § 1328(a), a debtor's receipt of a Chapter 13 discharge is conditioned upon "completion by the debtor of all payments under the plan." Given the plain language of § 1328(a) that no discharge shall be received until completion of "all payments under the plan," and the unwavering case law supporting the same, the outcome of the controversy here is axiomatic: the Debtor is not entitled to receipt of a discharge. The Court finds no flaws in the reasoning and conclusions of the courts that have determined that direct payments to creditors required under a confirmed Chapter 13 plan are "payments under the plan." Accordingly, the Court concludes that the Direct Payments set forth in the confirmed Plan that the Debtor was bound to make to the Lender during the Plan term constituted "payments under the plan." While the Court acknowledges that the Debtor's financial circumstances are certainly sympathetic, nonetheless, the Debtor's failure to fulfill a critical obligation under her Plan precludes her receipt of a Chapter 13 discharge. Less certain, however, is the remedy to be employed now that the Debtor's receipt of a discharge is obviated.

IV. Remedy Where 11 U.S.C. § 1328(a) Precludes Receipt of a Discharge

In the Motion, the Trustee focuses his remedial request on the denial of the Debtor's discharge pursuant to § 1328(a), proffering the alternatives of closing the case without entry of a discharge or converting the case to a proceeding under Chapter 7 of the Bankruptcy Code. Motion ¶ 41. Few of the decisions considering the underlying predicate — whether failure to make postpetition payments directly to a lender precludes receipt of a discharge — have addressed the appropriateness of conversion or dismissal upon motion of the Chapter 13 trustee as the remedy for such a discharge denial.18 None of these decisions have ordered case closure, without more, as a remedy.

Under the Bankruptcy Code, there are three ways to conclude a Chapter 13 case: "discharge pursuant to § 1328, conversion to a Chapter 7 case pursuant to § 1307(c) or dismissal of a Chapter 13 case `for cause' under § 1307(c)." Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1223 (9th Cir.1999).19 With the first path precluded by the Debtor's failure to complete a major component of her Plan — her failure to make her Direct Payments to the Lender in accordance with the requirements of her confirmed Plan — only two options remain. A review of the Bankruptcy Code strongly suggests that there is no sufficient statutory authorization to simply close the case as proposed by the Trustee, when, as here, a discharge has not been entered because the Debtor failed to comply with the provisions of and complete all of the payments required under the confirmed Plan.

Because the Debtor has failed to successfully complete her Plan according to its terms, the remedies available to the Trustee under the Bankruptcy Code are either conversion or dismissal of the case pursuant to 11 U.S.C. § 1307. The Motion requests only conversion or closure without discharge, with the latter remedy unavailable under the Bankruptcy Code. Dismissal or conversion could have materially different ramifications for the Debtor, her estate, and her creditors. In order to provide due and proper notice to the Debtor and all creditors and parties in interest of the outcome sought by the Trustee, the Court finds that the Trustee should file an amended motion containing an appropriate prayer for conversion or dismissal of the Debtor's case pursuant to 11 U.S.C. § 1307 ("Amended Motion") within fourteen (14) days of the date of the entry of the order that shall be entered simultaneously with this Memorandum Opinion. The Court further finds that the Debtor should thereafter have fourteen (14) days to file an answer to the Amended Motion. The Court will set the matter for hearing following the filing of the Amended Motion and the Debtor's response thereto.

A separate order will be entered pursuant to Federal Rule of Bankruptcy Procedure 9021 consistent with the findings in this Memorandum Opinion.

The Clerk shall transmit a copy of this Memorandum Opinion to the Debtor, Marlene Denise Evans; Jessica R. Casey, counsel for the Debtor; R. Clinton Stackhouse, Jr., Chapter 13 Trustee; Kelly M. Barnhart, counsel for the Chapter 13 Trustee; and Kennet United States Trustee.