a month the trustee objected to confirmation she didn't object because a plan violated in the of the confirmation requirements or any other provisions of the code instead she objected because it didn't pay the creditors but it didn't the debtor did not pay and all of his monthly disposable income which was about two thousand one hundred and ninety one dollars a month therefore she objected the court she said she argued that it wasn't fair the bankruptcy court agreed bankruptcy court refused to confirm the plan as proposed but gave a debtor two options if you could burn the plant if he agreed to what we call or calling them lien the language if he agreed to if you continue to pay the one right to get discharged unless the creditors were in fact paid in full and with the payments to the unsecured creditors to start when you say they're being paid one hundred percent under that thirteen plan with those payments to commence upon explain in more detail but as i understand the concern that your clients facing from the trustee and maybe even from the judge is that if circumstances change then notwithstanding the plan's provision of one hundred percent  circumstances change for the negative then the unsecured creditors get either either less than one hundred percent or nothing at all and they they want you to waive their right to change  hands in some way or orders can be revised later is in some vested rights that somehow make that part of the order i'm just wondering what that advice came to a bankruptcy judge king who i think on came up with this perhaps could he just do that without putting in the order if somebody comes back for a modification thirty five months later he can insist on it there but also consider water range of things what's what is the effect of that language on the judge that is one of the problems of the debtor has in this case is by imposing the court imposed conditions eliminates removes the judge's discretion  bankruptcy judge if in retirement or whatever reason is not really binding the bankruptcy judge i think it could be and if it's not binding then what's the purpose of having that language and that was sort of my question how is that practically speaking really affecting your client others give me a heads up of what a bankruptcy judge is thinking well i want to move on i'm not sure what to make of that but i don't know what the effect of that language is other than it i or further administrative stuff stuff i think for a while and it was is there any circumstance i guess sort of as a supplement to that question is there any circumstance by the bankruptcy judge can reject such a plan i guess the flip side of the even if the bankruptcy court is allowed to impose additional conditions these conditions clearly contravene section one thousand three hundred and twenty five dollars non the debtors ability to modify the plan because as i stated it restricts the right in some way also to increase or reduce the payment to creditors so the debtor no longer has a right to reduce the payment to creditors if he if it reduces a plan to pay less than one hundred percent and i understand in this case you objected to it in the bankruptcy court before the judge imposed the you as i understand the brief you've kind of faced with a don't limit where the judge is saying it's either going to be this or this take your pick and you say well i don't want to i don't want to them but if i have to take one of them  eubanks and in re boies joly and they all state that adding these conditions contravene or makes the bankruptcy court exceeded the bankruptcy courts authority in some of these cases they were exact same alaina language in good morning your honor to may please the court after consideration of the certified issue and if this court is of the opinion that the condition knowingly and voluntarily chosen by the debtor contravenes the code it is not sufficient that the condition be stricken the court vacate the order confirming plan as a plan despite the proposal to pay one hundred percent did not meet the requirements for confirmation considering all the political provisions of chapter thirteen related to the confirmation process because the court considered other up with the bruises of chapter thirteen including the trustees role to preserve assets of the estate and the prohibition to transfer assets of the estate such as additional approximate folkies it is an assertion that it is approximate and also because of the arguments made at the confirmation hearing by doctors counsel were in as much she admitted to  excess income without court authority until such time after it had been spent but there's a patient he's not paying one hundred percent he's not paying off the unsecured creditors st seven months or whatever your calculations that he could do it out to be a bunch of patient it's not being used for that of a debtor's ability to actually comply with the plan that is before the court for confirmation in this case when the debtor is arguing that he has ability to successfully complete which he so much as admitted even in his one of the two alternatives when it is up to date or initially imprisoning the plan which one of those two two structures plan around well the general wants this court to focus on his proposal pay one that what you were doing yes because it doesn't it just talks about the value to be distributed to unsecured claims does not lessen such a claim but nowhere expressively does it state that the debtor gets to retain the required to satisfy the claims when he has the ability to do so in less than five years because if you look at one thousand three hundred and twenty two d one it states that the plan may not provide for payments longer than five years and this is further demonstrated by and twenty two that would prohibit a boat below median debt or with the exact same disposable income from proposing a plan that exceeds thirty six months clearly congress did not intend to penalize a poor debtor prohibiting that debtor from filing a plan or proposing a term longer than thirty six dollars and allowing the debtor who has more financial stability and the same amount of disposable income five years just because he's in above me and better after completion of the  record one can see that the trustee was admitted the trust excuse me the bankruptcy court was admittedly concerned with the dissipation of a state asset because what lies at the heart of this appeal is what constitutes property of the estate as this court has noted in barron vs countryman post petition earnings are property of the chapter thirteen estate and as this court also noted in barron vs countryman the debtor has no authority to transfer post petition earnings to an attorney  that case was limited to the transfer of assets to a particular tourney but the same should apply to any transfer of post petition earnings without court authority and that was one of the main concerns of the court in fact when it imposed the conditions it was and offered the conditions two of them that was one of the concerns especially taking into account his prior decision in re patent as it was addressed in in re offered in  art the that when a debtor transfers or otherwise dissipates additional earnings that constitute a nonexempt acid of the estate and does so without a  it's not economically feasible where a modification could work the only remedy at that point would be dismissal of the case so what hearing to the bankruptcy courts prior decision regarding similar facts the court imposed a condition that was premised on the idea that going down later down the line if you were to seek the modification to reduce the dividend and the horses the proverbial horse is out of the barn in the it because the income is gone modification will not has me with the trustee is arguing with your argument here is is removing the options from b one you did she's made the congress whoever proposes lying is the congress ultimately adopting  said one of the ways to proceed is to avoid what you're talking about and make all these claims payable payable soon as possible and the other option is not to do that and what you're saying is if that's the oftenest chosen we must have the equivalent you don't have to pay off your unsecured creditors as quickly as you could but you know you've got a warehouse that money somewhere to the be no reason it seems to me for the value and i think the majority of the decisions and in bankrupt i have that as an option if that's what you're after why have you wanted he's an option if you want basically require the equivalent to b one b every time you either pay your creditors or you pay somebody else and then sit there until you do pay you and secured credit while it's there because the underlying policy which was the heart of the betsy reforms is for to have a debtor pay the maximum amount that he can afford but we have to remember the fundamental especially those requiring that must be met for confirmation such as the why was that option be there how does it benefit anyone it doesn't but the debt doesn't benefit the debtor it always seems to me you're saying it might benefit be paid off immediately as b one b with four i don't know why congress would've given this argument are them to pay the mafia mediately it just requires them to pay the funds as you read the statute during the a political commitment period confirmed but words important about martinez is that the underlying say yes yes yes that is what happened in my case that is what happened all right but there is a reason why that case was never appealed either because the underlying bankruptcy case had in fact been dismissed prior to the issuance of the opinion by the district court and there being no stereo just high says a value and being no case or controversy at that point in time it was just not economically feasible for the trustee to appeal the debtor could remain in bankruptcy and continue with the bankruptcy part protections and receive the benefits of the automatic stay the confirmation order should be affirmed the alternative would vacating the entire confirmation order because the conditions offered were offered as a means to kind of give effect to one thousand three hundred and twenty five a particularly those provisions that were not being satisfied in this the condition but if this court with the condition that we find it was not authorized if you find that condition is not authorized then the confirmation order should be regulated because the debtors plan is filed did not satisf anyone new question based on what you just said if we agree with the appellant in this case and we agree with you in terms of what should be done in other words that we vacate the confirmation of the plan of the beauty payments while this appeals pending understand that's what i'm asking if we unconfirmed the plan by vacating it we would have to get a credit i guess is that the bankruptcy court would just hold another confirmation hearing and we would proceed accordingly in accordance with the code  that just kind of reminds me to tell this court that it it must not be forgotten that the debtor is and has been receiving a benefits while in chapter thirteen retaining the nonexempt assets with uncontrolled and unreviewable use because again we have to remember that a debtor does not have the authority to transfer post petition earnings which he pretty much admitted that he would do until such time after it was spent because he is of the opinion that the code specifically allows him to do that but nowhere in the code does it state that he has authority to do that in fact the bankruptcy will six thousand and four rule two thousand and two and section three hundred and sixty three of the code prohibit transfer of property without notice to the court and that was a big concern of the court particularly when it had no notice of where this excess income was going despite the fact that the debtor had pretty much admitted that he would expend them and says well but that's all well and good and very broad authority but it doesn't allow the bankruptcy court to negate a specific statutory provision is that if i'm characterizing his opinion correctly how do you respond to that well again this is where the trustee and the bankruptcy court did not agree with the application of the condition against one thousand three hundred and twenty nine because the bankruptcy court did at least address it and find that there is an issue regarding modifications of plan when excess income has been transferred or dissipated without notice it's essentially as if the bankruptcy court made the finding that somewhere down the plan that doesn't have this if bob occasion comes forward if he used the money in a cause in the initial confirmation order does he have to follow or why would that be binding on the court his own decision is on the earlier decision think that was an improper leave limited amount of limitation on modification i'm not going to require that here's what i'm going to confirm but he has the authority to do that despite a molina order on the initial confirmation if if the imposed condition if he had already put in his order i don't believe he would undo his own wishes take well he said i don't think he would i'm asking would he have the authority to confirm a plan that is not consistent with the money in order that he had in the all right you've used up your time they have to be some change in circumstances that would relate the only time you get a modification and that's when you get a modification when there's a change in circumstances under swanning about whether you're doing anything other than informing debtors and creditors what the plan wi that that issue extend let me ask abel cow from the other side and saying they were of significant concern to me and the word expressed by the bankruptcy judge about whether this plan actually complied are and and for that reason that you know we can't say with conviction that the did that the bankruptcy court thought this plan was in compliance if i understand your question correctly just want to play off what you heard from the other side during her argument you agree that there were some sort of concerns being expressed by the district judge and to some extent this extra provision in the confirmation order was supposed to read take care of those concerns i  agree that the bankruptcy judge had concerns but those concerns with the way the statute was written is not concerns about the debtors willingness to perform meaning the one a and b one b else that's written yes the judge did not find that the debtor there were no part of the trustee did not argue that the debtors did or did not propose a playing good faith of any there's nothing wrong with the legal conditions of the plant but the bankruptcy that's why they want to apply this money a language in every case where to your position that if without this condition if a debtor such as the your client in this case moves later under one thousand three hundred and twenty nine a change of circumstances at that time is the bankruptcy judge can express concern in deny such a motion unless its accounts for one hundred percent of payment to unsecured creditors i believe so that's the way that your reading of the law that that's the proper device to accomplish i'm talking about a later filed motion let's say two and a half years from now the debtor comes to court on the one thousand three hundred and twenty nine dollars and says look things and that was then and this is now a now i don't want to pay i can't pay for whatever reason  i would like a modification can the bankruptcy judge then say well i'm going to deny your motion because of what has happened in the two and a half years that have now passed i'm going to deny the motion unless you satisfy the unsecured creditors one hundred that time based on the tally of circumstances for example if a plan is confirmed in two months with the molina language and two months later the debtor kid a longer work as becomes disabled and needs to lower the plan to reduce the the court can deny deny a modified plan at that point that doesn't seem to be fair if the court can also deny a modified plan on grounds that when you had the benefit the debtor had the benefit of disposable income that was not