Based on an email from Marcus Herbert:

Dear Members of the Southern Illinois Bankruptcy Bar:

I recently filed a Chapter 13 case in calendar year 2019 (In Re: Morrissey 19-40002).  In this case I asked for leave to file a plan that deviates from the standard plan that the court adopted for new cases filed after January 1, 2019.  The trustee objected.  At the hearing on the objection the court allowed me 60 days to make any revisions to my pleading that I thought appropriate.  As part of the court’s verbal instructions Judge Grandy suggested that I reach out to members of the bar for any insights, suggestions, or constructive comments they may have on this subject matter. 

Attached is the revised proposal that I am considering filing.  I am asking leave to modify paragraphs 14 and 20.  The reason for the changes to paragraph 14, are that I believe paragraph 14 as it is in the standard plan, essentially pre-adjudicates any issue that might arise post-petition as to after acquired assets by stating that they shall vest in the trustee subject to the dollar limits set forth in paragraph 20.  In other words, I believe that an order confirming the standard Chapter 13 plan could be argued to be res judicata on the issue of whether a debtor should be allowed to keep any after acquired asset that exceed the $2,000 limit.  I believe there could be foreseeable situations where debtor’s counsel would want to be allowed to file a motion with the court to allow their client to keep some sort of asset if there was a good reason to do so.  I believe my proposed alternate wording would allow those arguments to be made without any built in presumption that favors one side or the other.

As to paragraph 20, my proposed changes are not intended to change the overall method or results set forth in the standard plan language.  Rather, I am attempting to remove an apparent contradiction in one part of the phrasing.  The first part of the paragraph sets forth a procedure whereby debtors are required to disclose after acquired assets on amended schedules.  The trustee then has a period of time to demand turnover and the debtor thereafter has a period of time in which to object to the trustee’s demand.  Assuming events unfolded with an objection filed by debtor’s counsel, there would be a hearing and the judge would decide the matter.  Presumably, the debtor would have to turn over any assets the court ordered to be turned over within the time frame stated by the court’s order.  The language I seek to delete seems to contradict this procedure by stating that the value of any after acquired property is a payment under the plan due upon the debtor’s interest accruing.  This language really adds nothing to the meaning of the overall paragraph other than causing confusion as to when the asset needs to be turned over.  I believe paragraph 20 would be clearer with that language omitted. 

Attached are my proposals with language I seek to delete being crossed through and any additional language being highlighted.   Please include Trustee Simon’s office on any responses you may have. 

Marcus Herbert - paragraphs 14 and 20.pdf

Sincerely,

Marcus H. Herbert   

Bankruptcy Advocates

308 West Walnut

Carbondale, IL 62901

Phone: 618-549-9800

Fax:     618-549-9805

www.sidebtfree.com