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In re McIntosh

United States Bankruptcy Appellate Panel of the Eighth Circuit

June 10, 2013

In re: Felicia Mcintosh Debtor
v.
John
v.
LaBarge, Jr. Trustee - Appellee Felicia Mcintosh Debtor - Appellant Vantage Credit Union, its successors and assigns Creditor - Appellee

Submitted: May 14, 2013

Appeal from United States Bankruptcy Court for the Eastern District of Missouri - St. Louis

Before KRESSEL, SALADINO and SHODEEN, Bankruptcy Judges.

SALADINO, Bankruptcy Judge.

The Debtor, Felicia McIntosh, appeals from a November 30, 2012, order of the bankruptcy court[1] confirming her Chapter 13 plan over her objection. We have jurisdiction over this appeal from a final order of a bankruptcy court confirming a plan. See 28 U.S.C. § 158(b); Zahn v. Fink, 526 F.3d 1140 (8th Cir. 2008). For the reasons set forth below, we affirm.

BACKGROUND

Ms. McIntosh filed a voluntary petition for relief under Chapter 13 of Title 11 of the United States Code on July 12, 2012. By local rule, the bankruptcy court in the Eastern District of Missouri requires the use of a model form Chapter 13 plan (See Local Rule 3015-3(A)). Ms. McIntosh filed her plan using the mandatory model form and inserted certain non-standard language in paragraph 10, which is an otherwise blank paragraph labeled "Other."

On August 13, 2012, the trustee filed an objection to confirmation of Ms. McIntosh's Chapter 13 plan. Much of the trustee's objection was based on the language inserted in paragraph 10, which the trustee asserted was ambiguous, contradictory to the form, and inconsistent with the Bankruptcy Code. The trustee also asserted that the plan was inadequately funded.

Before the court could hear the objection, Ms. McIntosh filed a first amended plan to which the trustee filed essentially the same objection as he had to the first plan. A secured creditor, Vantage Credit Union, also filed an objection on the same grounds as the trustee. On September 19, 2012, a hearing was held on confirmation of the first amended plan and the objections. The only written order from the hearing was a text order dated September 19, 2012, stating that the confirmation hearing on the first amended plan was continued to October 17, 2012. However, the bankruptcy court's November 30, 2012, order that is the subject of this appeal states that at the hearing on September 19, 2012, the court "orally sustained the Trustee's objection to confirmation based on the language the Debtor added to Paragraph 10, and continued the confirmation hearing to October 17, 2012."

On September 25, 2012, apparently following the direction of the bankruptcy court, Ms. McIntosh filed a second amended plan. This time, she left paragraph 10 blank. Ms. McIntosh then promptly filed an objection to confirmation of her second amended plan on the grounds that the bankruptcy court previously sustained the objection of the trustee and refused to allow her to include certain specified language in paragraph 10 of the plan.[2] The confirmation hearing was held on October 17, 2012, and the bankruptcy court subsequently issued its order overruling Ms. McIntosh's objection to confirmation.[3] The court later issued a separate order confirming the second amended Chapter 13 plan. This appeal followed.

STANDARD OF REVIEW

The bankruptcy court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. First Nat'l Bank of Olathe v. Pontow, 111 F.3d 604, 609 (8th Cir. 1997). Issues committed to the bankruptcy court's discretion are reviewed for an abuse of that discretion. Official Comm. of Unsecured Creditors v. Farmland Indus., Inc. (In re Farmland Indus., Inc.), 397 F.3d 647, 650-51 (8th Cir. 2005). "The bankruptcy court abuses its discretion when it fails to apply the proper legal standard or bases its order on findings of fact that are clearly erroneous." Id. at 651 (citation omitted).

DISCUSSION

In her notice of appeal, Ms. McIntosh states that she is appealing from the bankruptcy court's November 30, 2012, order of confirmation and the court's denial of her objection to confirmation. In essence, by appealing the confirmation of her second amended plan, Ms. McIntosh is also appealing the bankruptcy court's earlier denial of confirmation of her first amended plan, as authorized by the ...


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