[00:00:02] Speaker 03:
Right.

[00:00:02] Speaker 03:
It appears in this case, we have one counsel in person, and then we have two people on remote.

[00:00:13] Speaker 03:
And is that the person on remote is, can you state your name for us?

[00:00:24] Speaker 02:
Yes, Your Honor, Michael Smith.

[00:00:26] Speaker 03:
Okay.

[00:00:26] Speaker 03:
And you're representing the Lees, right?

[00:00:29] Speaker 03:
Or Jason Lee, correct?

[00:00:31] Speaker 02:
The Lees, correct.

[00:00:32] Speaker 02:
Yes.

[00:00:33] Speaker 03:
Okay.

[00:00:34] Speaker 03:
All right.

[00:00:35] Speaker 03:
And so the appellant is here in person and is everyone, can everyone see and hear okay?

[00:00:44] Speaker 03:
Yes, your honor.

[00:00:45] Speaker 03:
Okay.

[00:00:46] Speaker 03:
Can you see okay?

[00:00:47] Speaker 03:
Yes, I can.

[00:00:48] Speaker 03:
Okay.

[00:00:49] Speaker 03:
All right.

[00:00:49] Speaker 03:
Then I think we're ready to start.

[00:00:51] Speaker 03:
And please state your name and your appearance.

[00:00:54] Speaker 03:
And you have a total of 15 minutes for your side.

[00:00:57] Speaker 00:
I would like to reserve five minutes.

[00:00:58] Speaker 00:
All right.

[00:00:59] Speaker 03:
Good luck.

[00:01:00] Speaker 00:
Thank you.

[00:01:00] Speaker 03:
It's aspirational, but we'll hopefully be able to save it for you.

[00:01:03] Speaker 00:
We've got three issues in very limited time.

[00:01:06] Speaker 00:
So good morning, Your Honor.

[00:01:08] Speaker 00:
May it please the court.

[00:01:09] Speaker 00:
My name is Brent Meyer.

[00:01:10] Speaker 00:
I'm counsel for the appellant and creditor in the bankruptcy case, Mission Hen LLC.

[00:01:15] Speaker 00:
In this case, we have three specific issues, each one of which is independent of one another and does not overlap one another.

[00:01:22] Speaker 00:
And so I'm going to take them piece by piece unless the court wants to focus on one issue first before the others.

[00:01:28] Speaker 00:
The first issue that we need to look at before we determine the two other issues is eligibility under 109E.

[00:01:35] Speaker 00:
The eligibility standard

[00:01:37] Speaker 00:
is to determine whether or not an individual wage earner is eligible to be a debtor in Chapter 13.

[00:01:42] Speaker 00:
In this case, at the time that the bankruptcy case was filed, prior to the recent amendments that changed the debt limits, the debtors had to have under $419,275 of unsecured debt.

[00:01:55] Speaker 00:
This court, on multiple occasions, has looked at the issue of eligibility, and they've determined that eligibility

[00:02:02] Speaker 00:
is similar to the pleading standard where you look at the four corners of the document for diversity jurisdiction.

[00:02:08] Speaker 00:
So long as the documents here being the petition, schedules D, E, and F, indicate the secured debt and the unsecured debt amount, if you add up those amounts and take into consideration whether or not a debt is partially secured or can be modified

[00:02:26] Speaker 03:
question though it seems that your client or I don't know if that was you it was not your name okay that they didn't object until the reevaluation on the house was done and they didn't like the number so they went along everything was going along smoothly and then they didn't object to the reevaluation being done and

[00:02:52] Speaker 03:
And then when the numbers didn't come out the way that they wanted, that's when they first objected.

[00:02:57] Speaker 03:
Am I wrong in reading the record that way?

[00:02:59] Speaker 00:
Well, you're correct in terms of timing that the objection was not lodged until the objection of the Fourth Amendment Chapter 13 plan.

[00:03:06] Speaker 00:
But it's not necessarily because of the valuation under the 506A standard.

[00:03:12] Speaker 00:
What it really, and the footnote in my opening brief, cites this is there could have been a strategic reason that that was done.

[00:03:18] Speaker 00:
And if 1322C2 was not applicable, meaning that you could not modify the claim, you could only modify the payment,

[00:03:25] Speaker 00:
then here, the full amount of the secured debt, which would have been approximately $470,000, would have had to have been paid back over the five-year period.

[00:03:34] Speaker 03:
So if they didn't object for strategic reasons, then they can't be punished later for not objecting?

[00:03:39] Speaker 00:
Well, I don't believe they can, Your Honor.

[00:03:41] Speaker 00:
And here, eligibility, as this Court has recognized, is not jurisdictional.

[00:03:46] Speaker 00:
So it's one of those things that the Court... Oh, dear.

[00:03:50] Speaker 00:
It's not... Is that me?

[00:03:54] Speaker 01:
No, it's not your fault.

[00:03:56] Speaker 00:
It is eligibility is not jurisdictional.

[00:03:58] Speaker 00:
So this is a situation where the creditor here mission hand could have reflected to allow potentially a non eligible debtor to proceed.

[00:04:07] Speaker 00:
It's curious why the chapter 13 trustee who is the one that's really in in charge of enforcing some of these procedural

[00:04:13] Speaker 00:
guidelines didn't raise the objection themselves, but that's a separate point that is not before this court right now.

[00:04:19] Speaker 00:
But there are reasons that Mission Hen could not or elected not to raise eligibility initially.

[00:04:25] Speaker 01:
But here's my question, and that is, we know that the later evaluation when we actually do a, it's not just the allegations in the initial filing, but the later evaluation when the bankruptcy court actually looks at the property.

[00:04:39] Speaker 01:
This is now Section 13, Chapter 13, eligible.

[00:04:45] Speaker 01:
Why do we have to disregard that?

[00:04:48] Speaker 01:
Because that's your argument.

[00:04:49] Speaker 01:
We have to disregard that.

[00:04:50] Speaker 01:
We have to go back to the original filing.

[00:04:52] Speaker 00:
Well, because this Court is specifically recognized in both Slack and Scobus that we don't look to post-petition events.

[00:04:59] Speaker 01:
But they use the word normally.

[00:05:01] Speaker 00:
Yeah, but normally is a term of art.

[00:05:05] Speaker 01:
And the BAP in this case says, well, this is not a normal case.

[00:05:10] Speaker 00:
But then the question, what is not normal about this case?

[00:05:12] Speaker 00:
There's only two ways that this could not be normal.

[00:05:14] Speaker 00:
It's the fact situation that gave rise to it.

[00:05:16] Speaker 00:
Well, this is an everyday garden variety chapter 13 case.

[00:05:20] Speaker 00:
Or it's not normal because the objection was raised six months later after evaluation hearing.

[00:05:26] Speaker 03:
since it's not jurisdictional, it doesn't need to be... So, is normally, quote-unquote, a qualifier under 109e, which is the BAP's interpretation?

[00:05:37] Speaker 00:
I think normally is a qualifier on to qualify that only for bad faith, because otherwise, if you read that, that sentence, normally, one, doesn't need to be in there, but normally doesn't add a, it's, we look to schedules in less bad faith and in less other post-prediction events, and if you take

[00:05:54] Speaker 00:
what the BAP looked at and said, let's look at other post-petition events.

[00:05:58] Speaker 00:
Well, we've already found the BAP has said in Fountain and this court has said in Slack and Scope, we don't look at post-petition events.

[00:06:05] Speaker 00:
And if you look at Slack, we knew post-petition there was a judgment entered for $650,000.

[00:06:10] Speaker 00:
And this court specifically said, we disregard that, even though we know it's true at this time.

[00:06:15] Speaker 00:
So why would you normally then look for post-petition events to bring back to a pre-petition?

[00:06:20] Speaker 00:
It just logically doesn't make sense that we have two qualifiers.

[00:06:25] Speaker 01:
It's not so much post-petition events as its post-petition evaluation that's more subtle and sophisticated, unless you call a hearing that gives you an evaluation an event.

[00:06:39] Speaker 00:
And this is where in our opening brief we say that there's a slippery slope here.

[00:06:44] Speaker 00:
There's a lot of, quote, events that happen post-petition, for instance.

[00:06:48] Speaker 00:
What happened?

[00:06:49] Speaker 00:
Well, let's take the inverse to be true.

[00:06:51] Speaker 00:
What if the debtors originally valued the property at the value of the bankruptcy court came, and then the bankruptcy court subsequently said, no, the value of the property is $1,050,000?

[00:06:59] Speaker 00:
Are we going to now make these debtors ineligible six months later?

[00:07:03] Speaker 00:
That plays out where we have post-petition financing.

[00:07:06] Speaker 00:
We have all types of events that eligibility over a five-year period, if it's not jurisdictional,

[00:07:11] Speaker 00:
When are we going to make these debtors eligible?

[00:07:13] Speaker 00:
The idea of eligibility is like subject matter jurisdiction.

[00:07:17] Speaker 01:
Well, I think this would be a very different case if there had been an objection at the time of the initial filing.

[00:07:21] Speaker 00:
Well, I respectfully disagree in the sense that Mission Han

[00:07:28] Speaker 00:
The debtors are trying to eliminate at least $250,000 of the debt of Mission Hen.

[00:07:34] Speaker 00:
That issue had not been decided by the bankruptcy court at the time that they lodged the objection of the Fourth Amendment plan.

[00:07:40] Speaker 00:
And so at some point of time, Mission Hen could have said, I'm OK with this if you pay me the full $470,000 over a five-year period.

[00:07:47] Speaker 00:
But if this court rules that 1322C2 is applicable where they can modify the claim, then Mission Hen says, no, I'm not OK with that.

[00:07:55] Speaker 00:
I'm now going to raise eligibility.

[00:07:56] Speaker 00:
And I don't think there's a waiver.

[00:07:58] Speaker 00:
And I think it's important here that the bankruptcy court never found a waiver, the debtors never objected and asserted a waiver, and the bankruptcy appellate panel for the first time in a footnote said, well, impliedly they could have found a waiver.

[00:08:11] Speaker 00:
And I think that's just a step too far here to get waiver as the argument for which 109E is not applicable for the first time on appeal.

[00:08:18] Speaker 00:
That should not happen for this court right now.

[00:08:21] Speaker 03:
Well, there's, okay, I just kind of want to frame this because

[00:08:25] Speaker 03:
Is it correct that there is no dispute after the reevaluation that appellees meet the eligibility standard for 109E?

[00:08:35] Speaker 03:
That's an easy question.

[00:08:38] Speaker 00:
Yes.

[00:08:38] Speaker 00:
If you take the valuation and plug it into the schedules, then your statement is correct, Your Honor.

[00:08:42] Speaker 00:
OK.

[00:08:43] Speaker 03:
And so then regarding 109E, I do think that it's relevant, that your client never objected.

[00:08:49] Speaker 03:
But if we agree that normally,

[00:08:53] Speaker 03:
is a qualifier, why should we not conclude that specific circumstances here are not normal and affirm on that basis?

[00:09:02] Speaker 00:
Because what is not normal?

[00:09:06] Speaker 00:
When we ask to put a second qualifier...

[00:09:08] Speaker 03:
But then that doesn't make me ineligible to do my job.

[00:09:12] Speaker 00:
I'm not normal either, Your Honor.

[00:09:14] Speaker 00:
But what we're trying to eliminate here is these ad hoc inquiries post-petition, because what we're now going to turn this into is a circus for eligibility purposes.

[00:09:25] Speaker 00:
And we now have a new chapter of chapter 11, sub-chapter 5.

[00:09:28] Speaker 00:
So we have chapter 13, chapter 12, sub-chapter 5 of chapter 11.

[00:09:31] Speaker 00:
each one of which have debt limit obligations, sometimes they're hotly contested because of the rights you have under each chapter.

[00:09:38] Speaker 00:
If we allow for these ad hoc inquiries post-petition on certain events, we're now creating sideshow litigation over an eligibility issue that should be looked at as of the petition date, as of the schedules on the four corners of the document.

[00:09:51] Speaker 01:
It could have been looked at, but your client didn't ask for it to be looked at.

[00:09:54] Speaker 00:
Well, we did ask for it.

[00:09:55] Speaker 00:
We objected on the Fourth Amendment plan, and we look back, and under Scopus... But that was after you had the reevaluation.

[00:10:01] Speaker 01:
The failure to qualify was just evident on the face of it, and your client didn't object at that time.

[00:10:15] Speaker 00:
The waiver arguments usually go once the confirmation is preclusive or res judicata on those issues.

[00:10:22] Speaker 00:
But at the time we objected, the court did not confirm the plan.

[00:10:25] Speaker 00:
So on what part of this continuum is my client required to object on day one?

[00:10:30] Speaker 00:
Maybe that's fine.

[00:10:31] Speaker 00:
Day 30, that might be fine.

[00:10:32] Speaker 00:
But six months is too far.

[00:10:33] Speaker 00:
Now we're adding another scope to this is my client has an obligation to object.

[00:10:38] Speaker 00:
on day one or thirty, but can't do it six months later, and now we're adding normally to a second qualifier.

[00:10:43] Speaker 00:
Okay, but let me ask you this.

[00:10:44] Speaker 00:
That's taking SCOVAS too far.

[00:10:45] Speaker 03:
As to the modification, can you point this panel to any legislative history of Section 1322C2 or circuit precedent from any circuit that supports your position?

[00:10:59] Speaker 03:
It seems to me the other circuits don't support your position.

[00:11:02] Speaker 00:
Well, if we look at the circuit

[00:11:05] Speaker 00:
At this time we sit here now, and let's be very clear, there is no circuit that has adopted the argument we have on 1322C2.

[00:11:14] Speaker 00:
But it's important that we, as we look at this, this is why this was the third argument that we raised, is a very important issue.

[00:11:21] Speaker 00:
But if this court either finds on eligibility or feasibility, I would respectfully request that this court refrains from ruling on that issue now, because it's a very important issue.

[00:11:30] Speaker 00:
But no, the Fourth Circuit in Herbert, it took an en banc panel

[00:11:35] Speaker 00:
of the Fourth Circuit to overturn prior precedent of 22 years in an in-rate wit.

[00:11:40] Speaker 00:
So we know that the Fourth Circuit for 22 years believed that the argument that we're advancing now was the rule of law for 1322C2.

[00:11:47] Speaker 00:
The Eleventh Circuit has also agreed with the analysis of the Fourth Circuit.

[00:11:54] Speaker 03:
But you don't have any circuits in your pocket right now.

[00:11:57] Speaker 00:
There's only two circuits right now, and they're both against me on the 1322C2 issue.

[00:12:01] Speaker 03:
Do you want to save the balance of your time?

[00:12:03] Speaker 00:
Yes, that would be agreed.

[00:12:04] Speaker 00:
Well, unless we haven't addressed the other issue of- Well, I would let you address it on rebuttal if you want.

[00:12:10] Speaker 03:
If you want to save time.

[00:12:11] Speaker 00:
I just have a few comments, but I'll address it on rebuttal.

[00:12:13] Speaker 03:
Thank you.

[00:12:14] Speaker 03:
OK, thanks.

[00:12:18] Speaker 03:
All right, we'll hear from the appellee.

[00:12:23] Speaker 02:
Good morning.

[00:12:25] Speaker 02:
May it please the court, Michael Smith for appellees Jason, Emily, and Janice Chen.

[00:12:35] Speaker 02:
I grew with the court with the BAP.

[00:12:37] Speaker 02:
This case is not normal.

[00:12:40] Speaker 02:
It is unusual and I guess in a sense did cause a circus for the appellants to wait essentially nine months to make an argument about 109E eligibility.

[00:12:59] Speaker 02:
Secondly, if their theory is the correct theory,

[00:13:03] Speaker 02:
It would require the court to disregard its own order, its own findings.

[00:13:09] Speaker 02:
Also an unusual thing.

[00:13:10] Speaker 02:
I don't normally see that.

[00:13:15] Speaker 02:
We should definitely focus on the language used in SCOVIS.

[00:13:20] Speaker 03:
Well, let me ask you about SCOVIS.

[00:13:22] Speaker 03:
As to the 109E issue, would we have to carve out an exception to the rule articulated in SCOVIS, or do you believe you can win based on SCOVIS as it currently exists?

[00:13:35] Speaker 02:
I believe based on SCOVIS as it currently exists, again, they left room there, I believe, with

[00:13:41] Speaker 02:
you know, the word should normally determine the debtor's original, based on the debtor's original schedules.

[00:13:47] Speaker 02:
They could vary up easily if they wanted to, but must always determine, must be determined by the debtor's original schedules or must without exception.

[00:13:58] Speaker 02:
I apologize.

[00:14:02] Speaker 03:
Oh, I was just agreeing with you.

[00:14:04] Speaker 02:
Okay.

[00:14:04] Speaker 02:
Oh, sorry.

[00:14:05] Speaker 02:
Sorry.

[00:14:06] Speaker 02:
And you know, the whole point of SCOBIS I believe is,

[00:14:11] Speaker 02:
things should normally be determined on the file schedules for judicial expediency.

[00:14:16] Speaker 02:
And I don't see how that's achieved by allowing the appellant to wait six months, which I honestly don't believe it was strategic.

[00:14:25] Speaker 02:
I think the original council just forgot or was unaware of it.

[00:14:30] Speaker 02:
I don't see how that would promote judicial expediency to allow months to go by, six, seven, eight months to go by.

[00:14:38] Speaker 02:
and force a bankruptcy court judge to ignore all its orders, to ignore all the time spent on the evidentiary hearing, all the time spent on the case, simply for what might have been a strategic reason.

[00:14:54] Speaker 02:
I think that more would cause a circus than anything else.

[00:14:58] Speaker 03:
Well, I was kind of shocked by the amount of money that your clients had to deal with, how they could ever deal with that debt.

[00:15:06] Speaker 03:
And so as to the feasibility, it seems that when you calculate your client's income, including the contribution from Ms.

[00:15:14] Speaker 03:
Linda Chen, your clients arguably do not appear to have enough funds to cover the monthly payments outlined in the plan.

[00:15:22] Speaker 03:
Why does that not make it, the plan not, why doesn't it make it unfeasible?

[00:15:29] Speaker 02:
Well, Your Honor, per the declaration filed by the mother-in-law, she had sold the property and had sufficient funds from the sale of the property to contribute to the debtors to fund the plan as proposed.

[00:15:45] Speaker 03:
She's not going to contribute the full $4,900, is she?

[00:15:49] Speaker 03:
To the every month, is she?

[00:15:52] Speaker 02:
that that was uh... that was the basis of the declaration she was willing to contribute uh... what was necessary or in the case the declaration of before nine hundred two uh... to fund the plan and there was sufficient uh... funds from the sale of property to pay that and above and beyond uh... and that and by what standard do we review the feasibility determination of the lower court i believe the clear clearly erroneous uh... uh...

[00:16:22] Speaker 02:
I believe the standard is set forth by definite firm conviction that a mistake had been committed on the part of the bankruptcy court judge and determining that there was feasibility when there was proceeds from a sale

[00:16:36] Speaker 02:
uh... uh... above eight hundred thousand dollars and within the declaration the debtors mother-in-law uh... stated that she would uh... contribute uh... that she lived there that they were related so there was a will and the means and uh... i don't believe it's uh... a clear mistake that someone would assume with eight hundred thousand dollars you'd be able to contribute

[00:17:03] Speaker 02:
the funds to make the plan feasible.

[00:17:05] Speaker 03:
So explain to me from your perspective, what was the strategic reason that the appellants did not object to the time that they did?

[00:17:20] Speaker 03:
Obviously they felt that there was a way that they could get their client in a better position.

[00:17:26] Speaker 03:
Was that as a secure debtor or what?

[00:17:30] Speaker 03:
What was their strategic reason for not objecting?

[00:17:34] Speaker 02:
I don't believe there was one.

[00:17:35] Speaker 02:
I honestly think it was a they forgot.

[00:17:39] Speaker 02:
I know Mr. Meyer was not representing at the time because if quite honestly, if they had not contested the value of the property and let it go as as is, then yes, there would be an argument on, you know,

[00:17:55] Speaker 02:
No one's contesting the value of the property.

[00:17:57] Speaker 02:
The schedules as filed would show the debtor is above or not within the debt limits of 109E.

[00:18:05] Speaker 02:
However, here they immediately objected to the valuation.

[00:18:09] Speaker 03:
So there was... Well, they didn't evaluate to the court revaluing.

[00:18:14] Speaker 03:
They objected to the court's revaluation.

[00:18:19] Speaker 03:
Is that right?

[00:18:19] Speaker 03:
Am I getting that wrong?

[00:18:21] Speaker 03:
They said the court could do it, but then when the number came out,

[00:18:25] Speaker 03:
and they claimed that crammed it down or something, then they objected.

[00:18:32] Speaker 02:
Well, no, they objected to our motion of value.

[00:18:34] Speaker 02:
So they didn't agree with our valuation of the property.

[00:18:37] Speaker 02:
So eventually, the court determined what the correct valuation of the property was, and that put us within the debt limits.

[00:18:44] Speaker 01:
And their objection to the valuation was what?

[00:18:47] Speaker 01:
What figure did they propose?

[00:18:51] Speaker 02:
Uh, it, uh, I apologize.

[00:18:53] Speaker 02:
I don't have that in front of me.

[00:18:54] Speaker 02:
It was lesser.

[00:18:55] Speaker 02:
It was less than, than, than our number.

[00:18:57] Speaker 02:
So it, it, it created less of a secure debt, which brought us within the 1 0 90 debt limits.

[00:19:10] Speaker 03:
Okay.

[00:19:10] Speaker 03:
We don't have any additional questions of you.

[00:19:12] Speaker 03:
So it's up to you if you want to use the rest of your time or not.

[00:19:19] Speaker 02:
Uh,

[00:19:23] Speaker 02:
Well, Your Honors, if you don't have any other questions of me, then I submit on what was filed in my answer and what was filed with the amicus brief.

[00:19:33] Speaker 02:
Thank you so much.

[00:19:34] Speaker 02:
Thank you.

[00:19:44] Speaker 00:
Thank you.

[00:19:46] Speaker 00:
Since we're on the issue of feasibility, I think it's very important for this court to take a look at what has been filed in terms of actual amount that can be contributed.

[00:19:53] Speaker 00:
First is, extra bit of the record, 208 is the declaration of Linda Chen.

[00:19:57] Speaker 00:
And in particular, paragraph four says, and I quote, I will contribute $4,900 every month for the full term of the plan.

[00:20:05] Speaker 03:
Or more.

[00:20:05] Speaker 03:
She said, or more.

[00:20:06] Speaker 00:
Does not include the word or more, Your Honor.

[00:20:09] Speaker 00:
Paragraph four is specific.

[00:20:10] Speaker 00:
It says $4,900 for the full term of the plan.

[00:20:13] Speaker 00:
I believe I have the ability to make this contribution and that I will continue to have the ability to make this contribution for up to five years.

[00:20:20] Speaker 00:
This contribution in a specific dollar amount coupled with a schedule INJ filed under penalty and perjury by the debtor indicates that the debtors have

[00:20:31] Speaker 00:
Only $5,897 of disposable income each month.

[00:20:35] Speaker 00:
And starting in month 10, the plan payment had to be $6,293.

[00:20:38] Speaker 00:
The bankruptcy court never had an evidentiary hearing.

[00:20:43] Speaker 00:
Ms.

[00:20:43] Speaker 00:
Chen never testified.

[00:20:45] Speaker 00:
And the debtors never testified regarding income.

[00:20:47] Speaker 03:
So all of the- Trying to find her declaration.

[00:20:50] Speaker 03:
I wrote down that it said, or more.

[00:20:53] Speaker 00:
Your Honor, I will refer you to paragraph four, and it does not say or more.

[00:20:56] Speaker 00:
It says, I will contribute every month this amount.

[00:20:58] Speaker 00:
It's extra of the record 208 and 209, second volume.

[00:21:04] Speaker 00:
More specifically, extra of the record 332 gives the bankruptcy court, it's page 18 of the transcript, gives the bankruptcy court's justification.

[00:21:11] Speaker 00:
Number one, the trustee was fine with eligibility.

[00:21:14] Speaker 00:
Well, that's an out-of-court statement made by a trustee without declaration of evidence inadmissible.

[00:21:19] Speaker 00:
There was no evidentiary objection to the declaration of Ms.

[00:21:22] Speaker 00:
Chen.

[00:21:23] Speaker 00:
We're not contesting the evidentiary objection.

[00:21:26] Speaker 00:
We're stating that the declaration itself said a specific dollar amount.

[00:21:30] Speaker 00:
And third, that the declaration was, quote, enough to satisfy the standard of 1325A6.

[00:21:36] Speaker 00:
It required, as the bankruptcy appellate panel indicated, that the bankruptcy court must have, quote, implicitly found that the debtors were eligible.

[00:21:46] Speaker 00:
The debtor bears the burden of all elements of confirmation under 1325 and having a declaration coupled with schedules filed under penalty of perjury showing that they have less than $400 than what's required to make the plan payment, that can't be enough and that is clearly erroneous without evidentiary testimony that the bankruptcy court took.

[00:22:08] Speaker 00:
Plain evidence in this case submitted to the bankruptcy court did not allow the bankruptcy court to find the plan was feasible under 1325A6.

[00:22:17] Speaker 00:
So the eligibility, I think, is clearly determined.

[00:22:23] Speaker 00:
The last point I will make, I think we've touched on the first two points, is the 1322C2 argument.

[00:22:29] Speaker 00:
As I previously indicated, the Fourth Circuit and Eleventh Circuit have ruled inconsistent with my position.

[00:22:34] Speaker 00:
But I believe that the dissent in Hurlberg, the Fourth Circuit's decision, there's three judges or three justices that join that dissent.

[00:22:42] Speaker 00:
There are very strong arguments that support our position.

[00:22:46] Speaker 00:
and they look to the legislative history, number one, not to support their position, but as a further justification that their position is correct, is that nobleman was decided a year before.

[00:22:59] Speaker 00:
The legislative history is absent of any indication of nobleman indicating that they wanted to overrule a Supreme Court precedent.

[00:23:07] Speaker 00:
They would have clearly

[00:23:08] Speaker 00:
Identified their ability to do so in there the absence of that site to nobleman I think is very very strong that 1322 c2 did not mean to overrule that issue And second is if you look at the the heading and the title of 1322 c2 indicates its quote a period for curing default related to principal residence it says nothing about and this is the title of I believe it's 301 of the

[00:23:38] Speaker 00:
The House Act, which was the act that was finally made into 1322C2, says nothing about cramming down, stripping, or using 506A and D to modify the mortgage.

[00:23:54] Speaker 00:
It talks about curing a default related to the principal mortgage.

[00:23:58] Speaker 00:
And the final point I'll make is everyone talks about this at 1322C2 as being

[00:24:05] Speaker 00:
a device to deal with short-term or predatory lending.

[00:24:10] Speaker 00:
This was your typical HELOC mortgage.

[00:24:12] Speaker 00:
It was a 10-year draw, a 10-year repayment, so a 20-year mortgage with a 5.12% interest rate.

[00:24:18] Speaker 00:
Clearly was not the type of mortgage that was predatory or one that Congress would envision.

[00:24:22] Speaker 00:
would circumvent the anti-modification provisions of 1322b2, which Nobleman said cannot be modified in Chapter 13.

[00:24:30] Speaker 00:
With that, I'll submit if there's anything else.

[00:24:32] Speaker 03:
All right.

[00:24:32] Speaker 03:
Thank you both for your argument in this matter.

[00:24:34] Speaker 03:
It will stand submitted.

[00:24:35] Speaker 00:
Thank you.

[00:24:36] Speaker 03:
Thank you.

[00:24:38] Speaker 00:
Thank you.