Case 11-45314

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UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA FOURTH DIVISION ----------------------------------------------------------In re: BKY 11-45314 Benjamin L. Jones-Norman, Chapter 13 Case Debtor. ----------------------------------------------------------NOTICE OF HEARING AND MOTION OBJECTING TO CONFIRMATION OF CHAPTER 13 PLAN AND FOR DISMISSAL OF CASE TO: All parties in interest pursuant to Local Rule 9013-3: 1. Jasmine Z. Keller, chapter 13 trustee, moves the court for the relief requested below and gives notice of hearing. 2. The court will hold a hearing on this motion at 10:30 a.m. on May 24, 2012 in Courtroom 8 West, 8th Floor, United States Courthouse, 300 South 4th Street, Minneapolis, Minnesota. 3. Any response to this motion must be filed and served not later than May 18, 2012 which is five days before the time set for the hearing (including Saturdays, Sundays and legal holidays). UNLESS A RESPONSE OPPOSING THE MOTION IS TIMELY FILED, THE COURT MAY GRANT THE MOTION WITHOUT A HEARING. 4. This court has jurisdiction over this motion pursuant to 28 U.S.C. 157 and 1334, Bankruptcy Rule 5005 and Local Rule 1070-1. This proceeding is a core proceeding. The petition commencing this chapter 13 case was filed on August 10, 2011. The case is now pending in this court. 5. This motion arises under 11 U.S.C. 1322 and 1325 and Bankruptcy Rule 3015. This motion is filed under Bankruptcy Rule 9014 and Local Rules 3015-3, 9006-1, 9013-1 through 9013-5, and such other Local Rules as may apply. The trustee requests relief with respect to denial of confirmation of the debtors modified chapter 13 plan dated January 16, 2012, and dismissal of the case. 6. The plan provides that the debtor will pay the trustee $159 per month beginning February 2012, for 37 months, then $429 per month for 18 months, for a total of $11,6071, in addition to $525 already paid the trustee as of that date. The plan also
This is the first problem with the modified plan: the math does not add up. The subtotal of these payments is actually $13,605, not $11,607. The trustee has no way of knowing if the error is in the total of
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provides that the debtor will assume an auto lease to Acura Financial Services, and it provides for direct payment by the debtor of the U.S. Dept. of Education student loan, and the mortgages in favor of Chase Home Finance, LLC and TCF Home Equity Line of Credit on the rental property located at 5316 206th Street W., Farmington, MN. Finally, the plan provides that the debtors homestead located at 7917 Telegraph Road, Bloomington, MN, will be surrendered in full satisfaction of the two secured debts owing to Wells Fargo Home Mortgage company. 7. The trustee had requested a revised modified plan to correct the math errors in the plan alluded to in the footnote to this objection. However, there have also been several other changes to the debtors circumstances that affect the terms of the proposed modified plan: a) The debtor apparently changed jobs in December 2011, and has since changed jobs a second time. According to information provided by the debtors attorney, the debtor is now employed by Paramount Pictures in Los Angeles, at an annual salary of approximately $110,000, as compared to his Schedule I income of approximately $88,450 per year. He has since filed a change of address, listing a Los Angeles address. Although duly requested by the trustee, the debtor has failed and refused to produce copies of his current pay stubs, from which his income can be determined. b) The debtor has surrendered the vehicle whose lease he proposed to assume in his modified chapter 13 plan. The creditor, Acura Financial Services, has since amended its claim to show an unsecured deficiency balance of $4,204.97. On information and belief, the debtor is now driving a leased Audi. Although duly requested by the trustee, the debtor has failed and refused to provide a copy of the lease agreement (which is believed to be in the name of the debtors father). c) The trustee has been contacted by attorneys representing the debtor regarding a proposed short sale of the debtors former homestead. On information and belief, the short sale is still pending. Although the short sale itself is not inconsistent with the provision in the plan regarding the debtors former homestead, a short sale by definition will not provide full satisfaction of the two mortgages. d) The step-up in the plan payment was made at the trustees request, to incorporate additional disposable income the debtor was projected to have upon final payment of his 401k loan. With the change in jobs, however, it is unclear if the debtors 401k loans have, in fact, been paid off, or whether he continues to pay them. e) With the debtors relocation to Los Angeles, his budget has clearly changed and without current income and expense information it is impossible to know whether his plan meets the best efforts test of 11 U.S.C. 1325(b).
payments, or in the proposed monthly payment amount, and therefore objects to the plan on the grounds that it is impossible to administer and therefore filed in bad faith, contrary to 11 U.S.C. 1325(a)(3).

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9. This case has been continued on the courts calendar since September 29, 2011, a total of eight months. The modified plan was filed four months ago, yet it is unconfirmable as filed and, despite the multiple continuances, the debtor has not been forthcoming with the requested information and has not taken the initiative himself to amend his schedules and modify his plan. The delay has been unreasonable and prejudicial to the debtors creditors, and constitutes grounds for dismissal under 11 U.S.C. 1307(c). 10. The trustee objects to confirmation of the plan on the grounds that it was filed in bad faith, contrary to 11 U.S.C. 1325(a)(3). 11. This motion incorporates by reference the debtors schedules and statements on file herein. 12. If testimony is required, the debtor, representatives of any creditor, or persons with knowledge of the debtors current circumstances, or an employee of the trustee may be called to testify in support of the motion. WHEREFORE, the trustee requests an order as follows: 1. Denying confirmation of the debtors chapter 13 plan. 2. Dismissing this case. 3. For such other, further and different relief as to the Court appears just, equitable and in accordance with statute. Jasmine Z. Keller, Trustee Dated: May 8, 2012 By: /e/ Thomas E. Johnson Thomas E. Johnson, ID # 52000 Margaret H. Culp, ID # 180609 Counsel for Chapter 13 Trustee 310 Plymouth Building 12 South 6th Street Minneapolis, MN 55402-1521 (612) 338-7591

VERIFICATION I, Thomas E. Johnson, employed by Jasmine Z. Keller, Chapter 13 Trustee, the movant named in the foregoing notice of hearing and motion, declare under penalty of perjury that the foregoing is true and correct according to the best of my knowledge, information and belief. Executed: May 8, 2012 /e/ Thomas E. Johnson

Case 11-45314

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UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA FOURTH DIVISION ----------------------------------------------------------In re: BKY 11-45314 Benjamin L. Jones-Norman, Chapter 13 Case Debtor. ----------------------------------------------------------MEMORANDUM IN SUPPORT OF OBJECTION TO CONFIRMATION AND MOTION TO DISMISS FACTS The facts supporting the trustees objection are summarized in the accompanying motion and will not be repeated here. The trustee also relies upon the verified schedules and the proofs of claim on file and of record herein. LEGAL DISCUSSION Section 1325(a)(3) of the Bankruptcy Code states that the court shall confirm a plan if (3) the plan has been proposed in good faith and not by any means forbidden by law. The mathematical errors in the plan make it difficult for the trustee to interpret and administer. While it is difficult to recite a specific section of the Code that addresses the need for clear, consistent, understandable plans, the trustee contends that this objection generally fits under the concept of bad faith. In determining whether a chapter 13 plan has been proposed in good faith, the foregoing inquiry is governed by a totality of the circumstances test. Noreen v. Slattengren, 974 F.2d 75, 76 (8th Cir. 1992); Handeen v. LeMaire, 898 F.2d 1346, 1349 (8th Cir. 1990); In re Estus, 695 F.2d 311, 316 (8th Cir.1982). The trustee had requested a revised modified plan to correct the math errors in the plan. However, there have also been several other changes to the debtors circumstances that affect the terms of the proposed modified plan: a) The debtor apparently changed jobs in December 2011, and has since changed jobs a second time. According to information provided by the debtors attorney, the debtor is now employed by Paramount Pictures in Los Angeles, at an annual salary of approximately $110,000, as compared to his Schedule I income of approximately $88,450 per year. He has since filed a change of address, listing a Los Angeles address. Although duly requested by the trustee, the debtor has failed and refused to produce copies of his current pay stubs, from which his income can be determined.

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b) The debtor has surrendered the vehicle whose lease he proposed to assume in his modified chapter 13 plan. The creditor, Acura Financial Services, has since amended its claim to show an unsecured deficiency balance of $4,204.97. On information and belief, the debtor is now driving a leased Audi. Although duly requested by the trustee, the debtor has failed and refused to provide a copy of the lease agreement (which is believed to be in the name of the debtors father). c) The trustee has been contacted by attorneys representing the debtor regarding a proposed short sale of the debtors former homestead. On information and belief, the short sale is still pending. Although the short sale itself is not inconsistent with the provision in the plan regarding the debtors former homestead, a short sale by definition will not provide full satisfaction of the two mortgages. d) The step-up in the plan payment was made at the trustees request, to incorporate additional disposable income the debtor was projected to have upon final payment of his 401k loan. With the change in jobs, however, it is unclear if the debtors 401k loans have, in fact, been paid off, or whether he continues to pay them. e) With the debtors relocation to Los Angeles, his budget has clearly changed and without current income and expense information it is impossible to know whether his plan meets the best efforts test of 11 U.S.C. 1325(b). This case has been pending since August 2011 without a plan having been confirmed. The modified plan at issue was filed in late January 2012, for hearing on the February 16, 2012 calendar of this court. Because of the numerous changes to the debtors circumstances noted above, the trustee had requested additional information and the hearing on the modified plan has been continued three times to give the debtor the opportunity to respond and to further modify his plan. The debtors failure to cooperate with the trustees reasonable requests for information is a violation of his duties under 11 U.S.C. 521(a)(3) and is grounds for dismissal under 11 U.S.C. 1307(c). Moreover, the debtors delay and apparent inability to propose a confirmable plan constitutes additional grounds for dismissal under that statute. CONCLUSION For the reasons stated herein, the trustee respectfully requests that confirmation of the debtors proposed chapter 13 plan be denied, and that this case be dismissed.

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Respectfully submitted: Dated: May 8, 2012 /e/ Thomas E. Johnson Thomas E. Johnson, ID # 52000 Margaret H. Culp, ID # 180609 Counsel for Chapter 13 Trustee 310 Plymouth Building 12 South 6th Street Minneapolis, MN 55402-1521 (612) 338-7591

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UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA FOURTH DIVISION ----------------------------------------------------------In re: BKY 11-45314 Benjamin L. Jones-Norman, Chapter 13 Case Debtor. ----------------------------------------------------------ORDER DENYING CONFIRMATION OF CHAPTER 13 PLAN AND DISMISSING CASE This case is before the court on the trustees objection to confirmation of the debtors chapter 13 plan and motion to dismiss. Based on the motion and the file: IT IS ORDERED: 1. Confirmation of the debtors chapter 13 plan is denied. 2. This case is dismissed. _____________________________________ Robert J. Kressel United States Bankruptcy Judge

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UNITED STATES BANKRUPTCY COURT DISTRICT OF MINNESOTA FOURTH DIVISION ----------------------------------------------------------In re: BKY 11-45314 Benjamin L. Jones-Norman, Chapter 13 Case Debtor. ----------------------------------------------------------UNSWORN DECLARATION FOR PROOF OF SERVICE I, Thomas E. Johnson, employed by Jasmine Z. Keller, Chapter 13 Trustee, declare that on May 8, 2012, I served Notice of Hearing and Motion Objecting to Confirmation of Chapter 13 Plan and for Dismissal of Case, Memorandum of Facts and Law, and proposed Order on all filing users and others who have consented to electronic service in this case by electronic mail, as disclosed on the Notice of Electronic Filing herein, and on the individual(s) listed below, in the manner described: By first class U.S. mail, postage prepaid: Benjamin L. Jones-Norman 345 South Harvard Blvd., Unit 202 Los Angeles, CA 90020 JPMorgan Chase Bank, NA Mail Code LA4-5555 700 Kansas Lane Monroe, LA 71203 Oak Harbor Capital III, LLC c/o Weinstein & Riley, P.S. 2001 Western Ave., Ste. 400 Seattle, WA 98121 And I declare, under penalty of perjury, that the foregoing is true and correct. Executed: May 8, 2012 /e/ Thomas E. Johnson