In re Brooks , 4 B.R. 487 ( 1980 )

ORDER DENYING CONFIRMATION

R. J. SIDMAN, Bankruptcy Judge.

This matter is before the Court with respect to a second amended Chapter 13 plan now jointly proposed by Earl E. Brooks and Bernadine L. Brooks, husband and wife. This second amended plan was tendered in response to this Court’s order dated December 14, 1979 denying confirmation of a previously proposed Chapter 13 plan. The terms of this second amended plan call for the payment of $181.00 every week to the Chapter 13 trustee for the first forty (40) weeks of the plan then $150.00 a week for the remaining one hundred and sixteen (116) weeks of the plan, payment of priority claims and costs of administration in full, payment of secured claims in full, and the payment of a 10% dividend to unsecured creditors. Outside the terms of the plan the debtors propose to pay New Albany Federal Savings and Loan Association, Public Finance Company, both mortgagees on real estate owned by these debtors, Huntington National Bank on a 1973 Dodge automobile and a 1975 Vega Camper, and General Motors Acceptance Corporation on a 1977 Chevrolet wagon.

The Court hereby reaffirms its findings of fact contained in its December 14, 1979 order and supplements those findings with the following. Listed unsecured obligations on the schedule of Earl E. Brooks total $115,151.35. By far the largest such claim is that of Borg-Warner Corporation which is listed as being owed in the amount of $97,156.52. Borg-Warner has filed a claim in the actual amount of $96,711.32. GMAC has already been found to be an úndersecured claimant on a 1979 pick-up truck with the value of its secured claim set at $5,000.00 and its unsecured claim set at $2,675.36. Other noncontingent debt listed as owing by Earl E. Brooks are Self-Adhering Products for $800.97 and Dunn and Bradstreet for $758.80. Total unsecured obligations of Earl E. Brooks are over $100,-000. The clear provisions of § 109 of the Bankruptcy Code indicate that an individual with regular income can qualify as a Chapter 13 debtor only if, on the date of the filing of the petition, he owes noncontin-gent unsecured debts of less than $100,000. Earl E. Brooks does not qualify under the express statutory standard set forth in the Bankruptcy Code, and that failure bars confirmation of the jointly proposed plan.

Further, there is the matter of the objections to confirmation filed by Robertson Heating Supply Co. and Borg-Warner Corporation. These objections have not been withdrawn in writing, although the objections were to the originally proposed Chapter 13 plan, and not to the plan in its present form. Both objections speak to the “best interest” test set forth in § 1325(a)(4) of the Bankruptcy Code.

Other aspects of this plan trouble the Court, even if the debtors could be considered as qualified debtors under Chapter 13. The schedules filed in this case list the ownership of ten motor vehicles by these debtors some of which are indicated to have only “junk value” but many of which have substantial value. The plans proposed by these debtors have never indicated anything other than retention of all these vehicles by these debtors. No need has been shown to this Court for the retention of these numerous motor vehicles, especially in light of the rather minimal dividend being offered to creditors in these cases. The debtors also propose to keep both parcels of real estate which they own and which carry a monthly payment obligation exceeding $880.00. While these factors alone may not be violative of the confirmation standards sets forth in § 1325 of the Bankruptcy Code, they do establish a reason for inquiry into the nature of this Chapter 13 plan and its effect upon creditors.

Based upon the foregoing findings, the Court hereby determines that confirmation of the second amended Chapter 13 plan filed herein should be, and the same is hereby, denied.

IT IS SO ORDERED.