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finding that the availability of unencumbered assets resulting from the debtors' payment of their mortgage using exempt funds was not a legitimate reason for the trustee's motion to modify the plan
Summary of this case from In re MurphyOpinion
Case No. 03-09405 (ESL).
March 31, 2009
OPINION AND ORDER
This case is before this court on the motion for post confirmation modification of the chapter 13 plan dated August 29, 2003, and the motion to dismiss, filed by Mr. Alejandro Oliveras, Chapter 13 Trustee (the "Trustee"); the former on August 18, 2008 (Docket No. 37), and the latter on August 29, 2008 (Docket No. 38). Miguel Gonzalez Salva and Luz S. Rivera Padilla (the "Debtors") filed an opposition to confirmation of the modified plan on September 10, 2008 (Docket No. 39) and an answer to the motion to dismiss on October 15, 2008 (Docket No. 44), later amended on October 16, 2008 (Docket No. 45). For the reasons set forth below the motion for post confirmation modification and the motion to dismiss are denied.
Procedural History
The Debtors filed a chapter 13 petition on August 29, 2003, together with Schedules and a chapter 13 plan of even date (Docket Nos. 1, 2). In Schedule A the Debtors included as their only real property their residence located at Bo. Esperanza, Carr. 625 Km 2.3 Int., Arecibo, P.R., valued at $100,000 and securing a claim in the amount of $63,623. In Schedule B the Debtors included as their personal property equipment inventory in the amount of $2,900.00, and animals (specifically porks) in the amount of $14,400, among other assets. The Debtors claimed as exempted under 11 USC § 522(d)(6) the $2,900 in equipment inventory and $36,377 in their residence under 11 USC § 522(d)(1) and (5). The chapter 13 plan provided for a payment schedule of $721.00 for sixty months and maintaining regular payments outside the plan directly to the lienholder USDA-Farm Service Agency.
Schedule C provides that the secured lienholder is USDA-Farm Service Agency.
No objection to these claimed exemptions was ever filed.
On December 3, 2003 the Trustee filed his report recommending confirmation of the chapter 13 plan dated August 29, 2003 (Docket No. 11). In such report the liquidation value was determined to be $34,193 and the plan base $43,260.00. The chapter 13 plan was confirmed on December 3, 2003 (Docket No. 12).
The Debtors' residence had no equity for unsecured creditors when taking into account the lien and the claimed exemption. The total amount of scheduled personal property was $50,250 and the claimed exemptions over personal property were $14,373. On Schedule D the Debtors listed Ford Motor Credit Company with a claim of $1,684.45 secured with a lien over a 1998 Ford F150.
On April 4, 2008 the Debtors filed a request for authorization to sell their residence for $90,000 (Docket No. 15) (Request to Sell). The Request to Sell provided that the sale of the real estate would produce proceeds in the amount of $73,129.93 which would be applied as needed for the completion of the confirmed plan with the remainder to be used as the down payment for the purchase of a new residence in the San Juan metropolitan area where the Debtors wanted to relocate. The Request to Sell further provides that all liens encumbering the property to be sold were paid off. Lastly, the Debtors state that their residence was appraised at $113,000 but it had been on the market for over one year and this had been the highest offer they received. On April 21, 2008 the Request to Sell was approved as unopposed (Docket No. 17).
The following amounts were deducted from the sales price to reach this estimated net proceeds figure:
5,582.32 Settlement charges to seller/debtor
4,500.00 Realtor's fees
3,000.00 Notarial fees and charges related to cancellation of lost mortgage notes
3,787.75 Escrow taxes
Such statement is supported by a Title Study attached to the Request to Sell.
On June 17, 2008 the Trustee filed a motion to compel the Debtors to file a report of sale, while acknowledging that on June 10, 2008 the Debtors had completed the base of their confirmed plan with the payment of $2,884.00 (Docket No. 18). On June 18, 2008 such motion was granted by the court (Docket No. 19) and the following day the Debtors filed an opposition (Docket No. 20). In their opposition the Debtors state that the Trustee's request would be premature inasmuch as the property had been sold on May 29, 2008 and they had 30 days from such date to file a report pursuant to LBR 6004(a)(4), and that such report was not required in this instance because the property sold was not property of the estate but property of the Debtors. The Trustee filed his opposition, amended on June 25, 2008 (Docket Non 24), expressing concern regarding the failure to disclose how and when the debt to USDA-Farm Service Agency was paid off. The cancellation of the lien resulted in equity that could be made available to creditors according to the Trustee. The Report of Sale was filed on June 30, 2008 (Docket No. 28). A hearing on this matter was held on July 14, 2008 wherein the Debtors were ordered to supplement the Report of Sale, and the Trustee was granted 10 days thereafter to move the court accordingly. The Report of Sale was supplemented on July 24, 2008 (Docket No. 31) (Supplemental Report of Sale).
The Supplemental Report of Sale provides that the Debtors' source of income at the time of the bankruptcy filing came from a farming operation devoted to a hog production and a taxi rental business. The Debtors stated that during 2006 they were forced to close their farming operation due to their financial inability to install a new irrigation equipment required by the Department of Agriculture as a condition for the renewal of applicable governmental permits, and which would have required an investment of approximately $25,000, an amount beyond their reach. With their farming operations closed, the Debtors wanted to move from the remote rural area of Arecibo, where they lived, to the San Juan metropolitan area, to facilitate taking care of their health problems. Moreover, they were left with their taxi lease operation as their only source of income which demanded an expensive commute to San Juan. Without their farming operation, the Debtors' income was reduced by half, leaving them unable to meet their basic expenses and to fund the chapter 13 plan. Then they realized that the payoff balance of their mortgage loan was at the time $18,929.28. The Debtors decided to payoff their mortgage loan with the proceeds of the sale of the hogs and the equipment inventory and account any difference with the collection of the current accounts receivable. The mortgage loan was paid off in October of 2006 and thereafter the Debtors were able to continue funding the plan.
The sale of the Debtors' real property took place in May of 2008. The Debtors intend to use the proceeds of the sale to purchase a new home in the San Juan metropolitan area. The Debtors are currently living with Mr. Gonzalez' parents in Vega Baja. Mr. Gonzalez is a 63 year old man with undisclosed health problems which allegedly require managed medical treatment for life, and his wife, co-petitioner Luz Rivera, is a housewife. Their plan is to purchase a home with the proceeds of the sale in order to be able to live with their social security benefits as their sole source of income in two years when Mr. Gonzalez plans to retire.
On August 14, 2008 the Trustee objected to the Debtors' Supplemental Report of Sale arguing that the Supplemental Report failed to support its allegations with evidence of any kind and the Debtors failed to request authorization to sell the equipment inventory out of the ordinary course of business. The Trustee submits that the Debtors should have presented a copy of the mortgage lien encumbering the realty in favor of the U.S. Department of Agriculture and copies of the bills, invoices or receipts evidencing the sale of the hogs, the equipment inventory and the collection of the accounts receivables. The Trustee concludes that their failure to produce any documentation in support of their explanations shows the Debtors' lack of good faith and manipulation of the Bankruptcy Code in detriment of the unsecured creditors. The Trustee maintains that the liquidation value can be reassessed after the confirmation of the plan. In support of his position the Trustee cites In re Profit, 269 B.R. 51 (Bankr. D. Nev. 2001) rev'd 283 B.R. 567 (B.A.P. 9th Cir. 2002); In re Barbosa, 236 B.R. 549 (Bankr. D. Mass 1999) aff'd, 235 F.3d 31 (1st Cir. 2000); In re Suratt, 1996 WL 914095 (D. Ore 1996) and In re Solis, 172 B.R. 530 (Bankr. S.D.N.Y. 1994).
On August 18, 2008 the Trustee filed a motion for post confirmation modification of the chapter 13 plan dated August 29, 2003 (Docket No. 37), and on August 29, 2008 a motion to dismiss (Docket No. 38). The Trustee moves to increase the base of the plan by an amount equal to the non exempted transactional gain produced by the sale of the debtors' residential property, or the amount of $39,425.00. The total base of the plan is increased from $43,260 to $82,685. The Trustee argues that the request for modification is timely because it was originally made on June 24, 2008, before the expiration of the 60-month term of the confirmed plan. The Trustee further alleges that the Debtors' lack of good faith is evidenced by the fact that they were not willing to file a report of sale presumably in order to prevent parties in interest to file their modifications of the plan on time; they should have filed their modified plan with a term of completion of 58 months when they prepaid; and they did not file evidence supporting their allegations in reference to the sale of the real estate. Based on this the Trustee requests that the modified plan be approved or, in the alternative, that the court order the dismissal of the case for cause pursuant to 11 U.S.C. 1307(c)(1) due to the Debtors' lack of good faith, their failure to satisfy the best interests of creditors, and unreasonable delay in complying with this court's order issued during the hearing held on July 14, 2008 in prejudice of creditors.
In their objection to confirmation the Debtors refute the Trustee's arguments by stating that the Trustee's motion to compel the filing of the report on sale was filed a full week after the base of the plan was completed, thus the time for parties to file modifications to the plan had transpired. Furthermore, the Debtors argue that at the time of their last payment they could not foresee the objections subsequently raised by the Trustee. The Debtors maintain that a plan may not be modified to account for newly-acquired funds after a debtor has paid his plan balance, Meza v. Truman, 467 F.3d 874 (5th Cir. 2006), and that pursuant to 11 U.S.C. § 1329(a) a debtor is not obligated to formally modify its plan in order to reduce the time for payments. As to the alleged "additional non exempted gain from the sale of property" of $39,425, which did not take into account a capital gain tax of $8,950 according to the Debtors, it is not disposable income and is needed for the Debtors' basic housing needs.
In their amended response to Trustee's motion to dismiss as to the "good faith" argument, the Debtors state that the Schedules filed at the inception of the case disclosed the existence of the lien in favor of the USDA-Farm Service Agency with an outstanding balance of $63,307.89. In turn, Schedule J disclosed that such mortgage paid $1,183.08 monthly; thus, it was easy to recognize that the mortgage would be paid off during the life of the plan. Furthermore, their only aim at paying off the mortgage earlier was to be able to comply with their plan payments in view of their reduced income. The Request to Sell contained all the information regarding their intention to buy another property and such motion was granted without objection. At the time the last payment on the plan was made no objection had been filed. As to the "best interest of creditors" argument, the Debtors allege that the same should have been raised at confirmation and not after all plan payments have been completed, particularly because the basis for this argument (that with the plan payments Debtors would build substantial equity in the property) was ascertainable before such confirmation. As to the delay to comply with this court's July 14, 2008 order, the supplement to the report of sale was filed within the time granted by the court, 10 days.
Discussion
Modification of Plan
The Bankruptcy Code in its section 1329(a) provides that:
(a) At any time after confirmation of the plan but before the completion of payments under such plan, the plan may be modified, upon request of the debtor, the trustee, or the holder of an allowed unsecured claim, to
(1) increase or reduce the amount of payments on claims of a particular class provided for by the plan;
(2) extend or reduce the time for such payments;
(3) alter the amount of the distribution to a creditor whose claim is provided for by the plan to the extent necessary to take account of any payment of such claim other than under the plan; or
(4) reduce amounts to be paid under the plan by the actual amount expended by the debtor to purchase health insurance for the debtor . . .
(b)(1) Sections 1322(a), 1322(b), and 1323(c) of this title and the requirements of section 1325(a) of this title apply to any modification under subsection (a) of this section. (2) The plan as modified becomes the plan unless, after notice and a hearing, such modification is disapproved.
11 U.S.C. § 1329. The first question to be determined by this court is whether the Trustee's request for post confirmation modification is timely; that is, if it was made before completion of the plan. Section 1329(a) sets forth a limitations period in which a party can move for a post-confirmation modification of a plan. The modification may be allowed if it was filed before the payments due under the plan were completed. 8 Alan Resnick and Henry Sommer, Collier on Bankruptcy ¶ 1329.08, at 1329-18 (15th Ed. Rev'd 2007). The Bankruptcy Code does not define what constitutes completion of payments under the plan. Thus, the murky area is what constitutes completion; that is, the number of payments under the confirmed plan, the passage of time, or the payment of the amounts provided for in the confirmed plan. "Indeed, the literal language of section 1329(a) would appear to permit a debtor to complete payments during the 20 days that a request to modify must be pending under Federal Rule Bankruptcy Procedure 3015(g) and thereby deprive the court of the power to modify the plan." Id. In this case the motion for post confirmation modification was filed two months after the debtors prepaid the balance of the plan. The Trustee argues that his motion is timely because it was filed on the 59th month of a 60-month plan.
It is largely undisputed "that a plan cannot be modified once all payments have been made . . . [a]ccordingly, if a debtor pays his plan balance and the trustee then seeks to modify the plan under § 1329 to account for newly-acquired funds, modification is not permitted." In re Meza, 467 F.3d 874, 878 (5th Cir. 2006). Therefore, post-confirmation motions to modify are untimely when the monetary balance due under a plan has been completed. Matter of Casper, 154 B.R. 243, 247 (N.D. Ill. 1993) ("completion of payments under 11 U.S.C. § 1329(a) occurs when the debtor pays to the Trustee the full amount the plan requires the debtor to pay which satisfies the percentage the debtor proposed to pay to a class of creditors"); In re Sounakhene, 249 B.R. 801 (Bankr.S.D. Cal. 2000) (the trustee's motion to modify plan filed before the 36-month term of the plan expired but after the debtors' lump sum prepayment of amounts due under the plan upon the refinancing of their real estate, is time-barred); 9D Am. Jur. 2d Bankruptcy § 3088 (Thompson Reuters/West 2008) ("A Chapter 13 plan is "complete" and may no longer be modified, when the debtor has made all payments required by the plan. Once Chapter 13 payments are complete, a motion to modify a confirmed plan is time-barred").
Section 1328 provides that debtor is entitled to the entry of a discharge order as soon as practicable "after completion by the debtor of all payments under the plan." Therefore, if a trustee could amend a Chapter 13 plan after the debtor completes his or her payments to the trustee, the mandatory nature of the discharge provision of 11 U.S.C. § 1328 would be eviscerated.Meza, 467 F.3d at 878; see also Bayshore Nat. Bank of La Porte v. Smith, 252 F.3d 1357, 2001 WL 422945 (not selected for publication in the Federal Reporter (5th Cir. April 5, 2001) (the court found that a debtor is statutorily entitled to a discharge after prepayment of all amounts due under a confirmed plan, rejecting the creditor's argument that the debtor was not yet entitled to a discharge because she had failed to submit all of her disposable income to the plan by failing to make payments for a minimum of 36 months; the term of the plan). As the court noted in Matter of Casper: "[p]art of the goal in bankruptcy is to provide finality and an incentive for a debtor to complete payments promptly to secure a discharge." 154 B.R. at 246. Therefore, this court concludes that the Trustee's modification of the plan is time-barred.
The Trustee argues that the Debtors showed their lack of good faith when they refused to file a report of sale thereby preventing parties in interest to seek modification of the plan before completion of payments. This argument lacks merit. The Request to Sell their residence filed on April 4, 2008, clearly provides that the proceeds of the sale would serve to complete payments under the plan. Notice of this motion was sent to all parties in interest as per attached master address list. No objection to the Request to Sell was filed, and the same was approved. All parties were informed since April 4, 2008 about the Debtors' intention to complete payments under the plan upon the sale of their residence. The sale took place at the end of May 2008 and the completion of payments in June 2008. The Trustee's motion to compel a report on sale was not filed until June 17, 2008, that is, 7 days after the Debtors completed their payments of the confirmed plan, which took place on June 10, 2008. There is no indication from the record in this case that the Debtors were trying to withhold information from creditors and the Trustee in order to avoid a motion for modification of plan.
The Trustee also argues that before the Debtors could prepay their confirmed plan they had to obtain the confirmation of a modified plan proposing this prepayment. There is caselaw in support of the Trustee's position. See, In re Fridley, 380 B.R. 538 (B.A.P. 9th Cir. 2007). On the other hand, there are decisions suggesting that prepayments on confirmed plans may be permitted without a formal modification. See, Matter of Casper, 154 B.R. 243, 247 (N.D. Ill. 1993) (the court found that the debtors were entitled to the entry of a discharge after paying the Trustee sufficient funds to cover the ten percent owed on the creditors' claims as provided by the plan and the trustee's motion to modify filed subsequently was untimely. Completion of payments was attained before the expiration of the 60-month term of the plan with a lump sum payment and without the filing of a modification of plan by debtors.); In re Sunahara, 326 B.R. 768, 773 fn 5 (B.A.P. 9 th Cir. 2005) (the court noted that as a practical matter debtors do often pay off their plans earlier without seeking plan modifications and by the time an objection is filed it is time-barred as the plan has been "completed"). In re Sounakhene, 249 B.R. 801 (Bankr.S.D. Cal. 2000) (the court denied trustee's motion to modify debtors' plan as time-barred because plan was "complete" when debtors refinanced their home and made a lump sum prepayment to the trustee prior to the expiration of the plan); In re Smith, 237 B.R. 621 (Bankr. E.D.Texas 1999) (the court concluded that "without providing advance notice to any party, a Chapter 13 debtor may tender all the payments due and owing under a confirmed plan on an accelerated basis and thereby create an entitlement to a discharge."). A debtor may wish to modify a plan because he has fallen behind on post petition mortgage payments and wants to cure the post petition default, or wants to extend the payments to provide for a post petition claim, or decrease payments to a secured creditor due to payments to that creditors outside the plan. 8 Alan N. Resnick and Henry J. Sommer, Collier on Bankruptcy, ¶ 1329.01, p. 1329-3 (15th Ed. Rev'd 2007) The procedure for modification after confirmation is set forth by Federal Rule of Bankruptcy Procedure 3015(g) . However, if the base of the plan remains unaltered, the debtors want to complete their payments earlier, and the intent is disclosed and notified to all parties in interest, a formal request to modify a plan pursuant to § 1329 may not be required. In this case the Debtors informed all parties of their intention to prepay their plan two months before they prepaid it, which, although not a formal modification, gave all parties notice and the opportunity to file a motion requesting a modified plan before the Debtors' completion of payments. Only the Trustee filed a modified plan and it was after the last payment on the plan was made, two months after the Debtors announced they would.
Fed.R.Bankr.P. 3015(g) provides as follows:
Modification of plan after confirmation
A request to modify a plan pursuant to § 1229 or § 1329 of the Code shall identify the proponent and shall be filed together with the proposed modification. The clerk, or some other person as the court may direct, shall give the debtor, the trustee, and all creditors not less than 20 days notice by mail of the time fixed for filing objections and, if an objection is filed, the hearing to consider the proposed modification, unless the court orders otherwise with respect to creditors who are not affected by the proposed modification. A copy of the notice shall be transmitted to the United States trustee. A copy of the proposed modification, or a summary thereof, shall be included with the notice. If required by the court, the proponent shall furnish a sufficient number of copies of the proposed modification, or a summary thereof, to enable the clerk to include a copy with each notice. Any objection to the proposed modification shall be filed and served on the debtor, the trustee, and any other entity designated by the court, and shall be transmitted to the United States trustee. An objection to a proposed modification is governed by rule 9014.
The Trustee seeks the modification of the plan in part because the Debtors did not substantiate the allegations made in the Supplemental Report of Sale with evidence. The Trustee seeks through the modified plan the distribution to creditors of the equity created by the cancellation of the lien in favor of the USDA-Farm Service Agency. Therefore, the relevant information the Debtors provided in the Supplemental Report is that this lien in favor of the USDA-Farm Service Agency would be paid in full during the life of the plan. However, this fact was easily ascertainable from the Schedules filed at the inception of the case. The Trustee was surprised to learn that the Debtors paid their mortgage debt earlier with proceeds from the sale of hogs, equipment inventory and collection on the accounts receivables. But in reality the lien would have been paid off by the date of the sale, liberating the property and giving way to the equity realized through the sale. Court authorization for the sale of the hogs was unnecessary because such sale was made in the ordinary course of the Debtors' business, just as the collection of the accounts receivables. See, 11 U.S.C. § 363(c)(1). Likewise the sale of the equipment inventory did not require court authorization because it was claimed exempted and was not estate property. 11 U.S.C. § 522(c). The funds that the Debtors claimed were generated from these sales conforms with the values disclosed in the Schedules. Thus, the court is satisfied with the uncontested factual explanation given in the Supplemental Report of Sale.
According to the Schedules the Debtors made monthly payments on the mortgage of $1,183. The balance of the mortgage was at the time of filing $63,307.89, thus the mortgage would be paid off by the 53rd month of the plan, approximately February 2008.
The Trustee cites the First Circuit case of Barbosa, 235 F.3d 31, in support of their argument that the liquidation value can be reassessed after the confirmation of the plan, leading to its modification under 11 U.S.C. § 1329. In his response to the Debtors' Supplemental Report of Sale the Trustee cites Barbosa in part, as follows: " 11 U.S.C. § 1329(a) is intended, in part, to provide the protection the debtor claims is missing. Its purpose is to protect creditors' rights to a debtor's increased income, including from proceeds from the sale of property that has appreciated in value, post-confirmation." The Trustee argues that based on this case sale proceeds in excess of the claimed exemption belong to the estate and is subject to distribution to creditors. In Barbosa the Chapter 13 trustee moved to modify the debtors' confirmed plan to compel the debtors to increase distribution to unsecured creditors following the sale of real estate at a price significantly higher than the value assigned to it at confirmation. The Barbosa court found that the bankruptcy court did not abuse its discretion in granting the modification given the factual circumstances of the case where the debtors realized through the sale an appreciation in value of almost 215% of the stipulated value of the property at confirmation. InBarbosa the debtors argued that the modification was precluded by the doctrine of res judicata because at the time of the stipulation the parties contemplated the sale of the property and the appreciation in value was foreseeable. Adopting the Seventh Circuit approach in In re Witkowski, 16 F.3d 739 (7th Cir. 1994) the Barbosa court found that § 1329 does not require a change in circumstance as a prerequisite for modification. However, the court stated that §§ 1327 and 1330 accord significant finality to confirmation orders in Chapter 13 cases and as a practical matter "parties requesting modifications of Chapter 13 plans must advance a legitimate reason for doing so, and they must strictly conform to the three limited circumstances set forth in § 1329.Barbosa, 235 F.3d at 41. Furthermore, the court stated that the bankruptcy court had been careful to note that "motions to modify cannot be used to circumvent the appeals process for those creditors who have failed to object confirmation of a Chapter 13 plan or whose objections to confirmation have been overruled." Id.
It is important to note that in Barbosa the motion for modification of plan was filed before completion of payments, and thus, was not time-barred.
Therefore, even though the Trustee does not have to show a substantial and unanticipated change in circumstance as a requirement for requesting a post confirmation modification, which was not present in this case, he must show a "legitimate reason" for the modification, which does not constitute a circumvention of the appeals process after failing to object to the confirmation of the original plan. The Debtors' residence did not appreciate in value, in effect it decreased in value. The equity that is now available came about upon the Debtors' payment of its mortgage debt, the terms of the same were fully disclosed since the inception of the case, and the cancellation of the debt was foreseeable before confirmation of the original plan. The fact that the Debtors paid the mortgage in full earlier is not a determining factor because it was paid with exempt funds and funds generated in the ordinary course of business when liquidating their farming operation. Moreover, all assets were disclosed in the Schedules. In sum, the Trustee failed to show a legitimate reason for this court to allow a modified plan.
It should also be noted that the Debtors claimed as exempt all of their equity in their residence. A properly filed exemption removes property from the bankruptcy estate and consequently from the reach of creditors and the trustee. 11 U.S.C. § 522(c). "Absent objection to a claimed exemption within thirty days of the creditors meeting, the property claimed as exempt belongs to the debtor and not the estate-even if the exemption was improper." In re Barroso-Herrans, 524 F.3d 341, 344 (1st Cir. 2008) citing Taylor v. Freeland Kronz, 503 U.S. 638 (1992). As stated earlier, the Debtors listed a secured lien over their residence with an outstanding balance of $63,623, and in Schedule C claimed the amount of $36,377 over their residence exempted. The sum of these two amounts total exactly $100,000, that is, the scheduled value of their real property. Therefore, their clear intent was to exempt the full value of their residence. See, In re Anderson, 377 B.R. 865, 875 (B.A.P. 6th Cir. 2007) ("when a debtor schedules an exemption with identical market and exemption values, as in this case, the debtor is clearly indicating the intention to exempt the property in full, regardless of its actual value.") The Supreme Court in Taylor was clear in that "when a debtor makes an unambiguous manifestation of intent to seek an unlimited exemption in property, then, absent a timely objection, the property is exempt in its entirety, even if its actual value exceeds statutory limits, and it is no longer property of the estate." Id.
Dismissal
The Trustee requests that the court allow the filing and approve the post confirmation modified plan, and in the alternative, that it order the dismissal of the case for cause pursuant to 11 U.S.C. § 1307(c)(1) due to the Debtors' lack of good faith, failure to satisfy the best interests of creditors and unreasonable delay in complying with this court's order issued during the expedited hearing held on July 14, 2008, in prejudice of creditors. For the reason stated above, the court finds that the Trustee failed to show the Debtors' lack of good faith. The "best interest of creditors" test was not raised by the Trustee when he recommended confirmation of the August 29, 2003 plan, and which was confirmed. The Trustee may not resuscitate the matter at this stage. Finally, the record reflects that the Debtors complied with the order issued during the July 14, 2008 within the 10 days granted by the court to do so. The Supplemental Report of Sale was filed on July 24, 2008.
Conclusion
In view of the aforestated the motion for post confirmation modification of the Chapter 13 plan dated August 29, 2003 filed on August 18, 2008, and the motion to dismiss filed on August 29, 2008, are hereby denied. The Chapter 13 Trustee shall file a final report within thirty (30) days.
SO ORDERED.