* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-50163

Summary Calendar

 

In the Matter Of: OSCAR CHACON, JR; PATRICIA CHACON,

Debtors.

______________________________________

OSCAR CHACON, JR; PATRICIA CHACON,

Appellants,

versus

PHYLLIS BRACHER,

Appellee.

 

Appeal from the United States District Court

for the Western District of Texas

No. EP-98-CV-511-DB

 

September 24, 1999

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:*

This is an appeal of the bankruptcy court’s refusal, affirmed

by the district court, to confirm a Chapter 13 bankruptcy plan.

The bankruptcy plan gave a debt cosigned by the debtor’s father

priority over all other unsecured claims, so that the cosigned debt

would have to be paid in full before any other claims could be

paid. The relevant statutory provision allows a plan to “designate
2

a class or classes of unsecured claims, as provided in section 1122

of this title, but may not discriminate unfairly against any class

so designated; however, such plan may treat claims for a consumer

debt of the debtor if an individual is liable on such consumer debt

with the debtor differently than other unsecured claims.” 11 U.S.C.

§ 1322(b)(1).

There is a split among bankruptcy courts concerning whether a

plan that gives priority to a cosigned consumer debt should still

be struck down if it is found to “discriminate unfairly” against

any other class. Compare, e.g., Nelson v. Easley (In re Easley),

72 B.R. 948, 955-56 (Bankr. M.D. Tenn. 1987) (finding that even a

cosigned consumer debt is subject to the unfair discrimination

test), with In re Dornon, 103 B.R. 61, 64 (Bankr. N.D.N.Y. 1989)

(holding that a cosigned consumer debt is an exception to the

general unfair discrimination rule).

The argument for applying the unfair discrimination test even

to a cosigned consumer debt is that the word “differently” must be

given a meaning different from “unfair discrimination,” and reading

the “however” clause as an exception would not do so. See, e.g.,

Easley, 72 B.R. at 956. This rationale is wholly unconvincing. In

its desire not to give any two distinct words or phrases the same

meaning, it reads out the “however” clause. If a cosigned debt

could be prioritized only if it does not discriminate, then the

“however” clause serves no purpose whatsoever. Moreover, the

“however” clause can be read without creating any unnecessary use

of synonyms simply by interpreting it to clarify that such
3

treatment of cosigned consumer debt is usually not unfairly

discriminatory. Differences in treatment are not discriminatory if

they rationally further a legitimate interest of the debtor and do

not disproportionately benefit the cosigner, e.g. by reimbursing

interest where none is due or reimbursing more than the actual

amount of the cosigned debt.

The bankruptcy court was saddled with the complications that

arise when courts create and propagate ambiguity even where there

is absolutely none in the original statute. While the court’s

analysis of this case was more cumbersome than needed, however, his

conclusion remains correct under the test we have articulated. The

debtor proposed to pay the cosigned debt in full, with 12%

interest, prior to any distributions to the general unsecured

class. No justification appears for a high and preferential

interest rate. Consequently, the judgment of the bankruptcy court

and district court, denying confirmation of this Chapter 13 plan,

is AFFIRMED.