ELECTRONIC C ITATION: 2004 FED App. 0003P (6th C ir.) File Name: 04 b0003p.06

BA NKRUPTC Y A PPELLA TE PA NEL OF TH E SIXTH CIR CUIT

In re: STEPHANIE RUE HLE , ) ) Debtor. )

_____________________________________ ) ) STEPHANIE RUE HLE , ) ) Plaintiff-Appella nt, ) ) v. ) No. 03-8066 ) EDUCATIONA L CRED IT MAN AGEME NT ) CORPORATION , ) ) Defendant-Appellee. )

_____________________________________ )

Appeal from the Unite d States Bankruptcy Court for the Northern Di strict of Ohi o, at Canton

No. 98-62381 Argued : February

4, 2004
Decided and Fi led: March 17, 2004
Before: AUG, H OWARD, and LA TTA , Bankruptcy Appellate Panel Judges.

____________________ COUNSEL
ARGUED: Donald M. M iller, Sr ., Canton, Ohio, for Appellant. D aniel S. Fisher, St. Paul, Minnesota, for Appellee. ON BRIEF: Donald M. Miller, Sr., Canton, Ohio, for Appell ant. FrederickS. Coombs III , HARRING TON, HOPPE & M ITCHELL, Young stown, Ohi o, for Appellee.1 Hereinafter, refe rences t o theFede ral Rul es of C ivil Pr oc edure wil l be made as “Civil Rule ____” an d references to theFederal Rul es of Bankruptcy Procedure w ill be made as “Bankruptcy Rule ____.”

-2- ____________________ OPINION

____________________ J. VINCENT AUG, JR., Chief Bank ruptcy Appel late Panel Judg e. The chapter 13 debtor, Stephanie Ruehle(the “Debtor”) , appeals the bankruptcy court’s M emorandum of Decision granting th e Motion to Vacat e Dischar ge as to Educational C redit Manag ement Corporation (the “Moti on to Vacate”). The confirmation or der was v

acated pursuant to Federal Rule of Civil Procedure 60(b)(4), made applicable in bankruptcy cases by Federal Rule of Bankruptcy

Procedure 9024. 1 The bankruptcy court gr anted the Motion to Vacate
on the basis that Educational Credit Ma nagement Corpor ation (“ECM C”) was denied due process of law by the Debtor’s discharge of her s tuden t loan th rough her plan rath er than by filing a se parate adver

sary pro ceeding. W e affirm the ba nkruptcycourt’s w ell-reasoned decision.

I. ISSUES ON APP EAL The issue in this appeal is whether th e bankruptcy court erre d in vacati ng its order confirming the Debtor’s chapter 13 p l an. In our analy sis, we must consider whether the provisi ons of 11 U.S.C. § 1327( a) providi ng that a confirmed plan is binding on t he debtor and creditor ar

e trumped by

ECMC’s due process rights set forth in the Fifth Amendment to the United States Constitut ion.

II. JURISDICT ION AND STANDARD OF REVIEW The Bankruptcy

Appellate Panel of the Sixth Ci rcuit (the “BAP”) has jurisdict ion to decide this appeal. The United States Distric t Court for theNorthern Districtof Ohio has authorized appeals to the BA P. A "final order" of a ba nkruptcycourt may b e appealed by right under 28 U.S.C. § 158(a)(1). For purposes ofappeal, an order is final if it

"ends the litig at ion on the merits a nd leaves not hing for the co urt to do but ex ecute the judg ment."-3-

Midland Asphalt Cor

p. v. United States , 489 U.S. 794, 798 , 109 S. Ct. 1494, 1497 (1989) (citations omitted). The Pane l revie ws the bank rupt cy c ourt’s concl usions of law de novo. See Nicholson v

. Isaacman (In re Isaac man) , 26 F.3d 629 (6th Cir. 1994). “A de novoreview allo ws the revi ewing pa nel to examin e the interpre t ati on and applicati on of the relevant statutes independent

of the determination of the bankruptcy court.” Peerless Ins. Co. v. Miller (In re Miller) , 228 B.R. 399, 400 (B.A.P. 6th C ir. 1999) ( citation omitted). “Whethera Chapter 13 pl an provis ion requir ed an adversa ry proce eding and whether the confirmation pr

ocess vi olate d a credito r’s due process right s are both leg al questionswe review de novo.” Banks v. Sall ie Mae Servi

cing Corp. (In re Banks) , 299 F.3d 296, 300 (4th Cir. 2002).

III. FACTS The Debtor filed her

chapter 13 peti tion and plan on July 28, 1998. She states in her brief that her c hapter 13 petiti on included one s ecured debt for an automobile and her
unsec ured student loan in the amount of $17,000 ow ed at that time to Bank On e/Grea t Lakes Higher E ducation Corpor ation . The Debtor had prev iously di scharged al l of her unsecured debt, other than the stu dent loan, in a chapter 7 case that closed a mere two months before she filed her c hapter 13 petition. The D ebtor’s chapter 13 plan inclu ded the following provisi on discharg ing the Debtor’s student loan:

(16) All timely fil ed and allowed u nsecured claims, inc luding th e claim of Bank One/Great Lakes Higher Education, whic h are government

guaranteed education loans, shal l be p aid f ive p er cent(5%) of each claim, and the ba lance of each claim shall be discharg ed. Pursuant to 11 U.S.C. Section 523(a)(8), excepting the af oremen tioned educat ion loan s from discharge will impose an undue hard ship on the debtor and th e debtor’s depe ndents. Confirmation of debtor ’s plan shal l constitute a finding to that effect and that said debt is dischar geable. As noted by the bankruptcy court, this or similar plan language has b eco me known as a “discharg e by declar

ation” prov ision. No objections were filed to the Debtor’s plan and it w as confirmed on October 16, 1998. Subsequent to confirma tion of her plan, the Deb tor’s student loan was assigned to2 Part VII of the Bankruptcy Ru les deals specifically with adversary proceedings.

Bankruptcy Rule 7001(6) provides that “a proceeding to determine thedischarg eability of a debt” is an ad versary proceeding. Bankrupt cy R ule 4007 is ti tled “Deter mination of Discharg eability

of a Debt ” and sets out the par ties who may

file and the time fra me for filing the complaint. Bankruptcy Rule 4007(e)

providesthat the complai nt is “go verned by Part VII of the ru les” referr ing back to the adversar y procedur

es.

-4- ECMC. An order di scharging the Debtor w as entered on Apr il 27, 2001, and the case was closed on May

1, 2001. On December 19, 2002, ECMC filed a motion to reopen t he case whi ch wasgranted
on December 23, 2002. Th ereafter, on Janua ry 27, 2003, ECMC filed its Mo tion to Vacate the D ebtor’ s discharge as to the student loan. In bringing its Motion to Vaca te, ECMC relied on Civil Rule 60(b)(4) and (6). On July 17, 2003, the bankruptcy court gr anted the Motion to Vacate based on i ts finding that ECMC h a d been d enied due process of law and that

the order g ranting confirmation of the Debtor’s plan wasvoid purs uant to Civ il Rule 60( b)(4). The bankruptcy court found that Civ il Rule 6 0(b)(6) was no t applicable to the present cas e. The Debtor filed her timely

appeal.

IV. DISC USSION Section 523(a)(8) of the Ba nkruptcy Code provides:

Adischarg e under section 727, 1141, 1228(a) , or 1328(b) of this title does not dischar ge an indiv idual debtor from any debt . . . for an e d ucational benefit ov erpayment or loan made, insured, or

guaranteed by a governmental unit, or made under an y progr am fun ded in who le or i n par t by a governmental unit or no np rofit institu tion, or for an ob ligation to repay fundsreceived as an educational benefit, scholar ship, or stipend, unles s exceptin g such debt from d ischarge under this paragra ph wil l impose an undue har dship on the debtor and the debtor’s depe ndents. Pursuant to Bankruptcy

Rules 4007 and 70 01(6) an acti on to determine di schargeabil ity of a debt must be brought a s an advers ary procee ding. 2 In this cas e, the Debtor at tempted to circumv ent the requi rements of Bankruptc y Rules 4007 and 7001(6)by discha rging h er student loan through the above-q uoted lang uage in he r chapter 13 pl an. She further circumvented the requir ementthat the debtor be ar the burden of prov ing that re payment-5-

of the debt woul d constitute an undue hardship. Dolph v. Penn. Higher Educ. Assistance Agency (In re

Dolph) , 215 B.R. 832, 836(B.A.P. 6th C ir. 1998). Section 1325(a)(1) provides that the bankruptcy court “shall con firm a plan if . . . the plan complies w ith the provisions of this chapter and w ith the other app licable pro visions of this title.” The Seventh Circuit has stated that “[a] bankruptcy cour t lacks the au thority to confirm any pl an unless it ‘ complies w ith the prov isions of thischapter and w ith the other applicable provisi ons of this title.’” In re Escobedo , 28 F.3d 34, 35 (7th Cir . 1994) (cit ing § 1325(a)(1)). It is uncontested that the pr ovisionsof the Debtor’s confirmed chapter 13 plan did not comply with the provisions of the Bankruptcy Code and Bankru ptcyRules in thatthe Debtor failed to file an adver sary pro ceeding to s eek to dischar ge her student

loan. Further, the Debtor’s

plan did not co mply wi th § 1322(b) set ting forth the permitted content s of a ch apte r 13 pla n. P arag raph s (1 ) th roug h (9 ) of § 1322(b) include specific matters that maybe included i n the plan, none of which r elate to disch arging a student loan. P aragraph (10), the catch-al l provi sion, specifies that the plan may

“include a ny oth er appropriate provisi on not inconsist

ent with this title .” 11 U.S.C. § 1322(b) (emphasis adde d). There is no authority

in the Bankruptcy Code or Bankruptcy

Rules for includin g a dischar ge by declaration provision in the Debtor’s plan. The prov ision “is an interloper

in the plan; i t can have no legal status.” Educ. Credit Mgmt. Corp. v. Whelton (In re Whelton) , 299 B.R. 306, 312 (Bankr. D. Vt. 2003) (anal yzing § 1322 regar ding contentsof

a plan and § 1328( a)(2) specifically excepting student loan debts from the dischar

ge of all debts provided for by the plan). However, since theDebtor’s pl an was confirmed, we now have to deci de whether the discharg e by declar ation provi sion is enforce able. Id

. Bankruptcy Code § 1327(a) provides:

The provisi ons of a confirmed plan bind the debtor and each creditor, whether or not the claim of such creditor is provided for by the pl an, and whether or not such c reditor has objected to, has accepted, or hasrejected the p lan. Civil Rule 60(b) provides that the court may reliev e a party

from a final judgment, order, or proceeding under certain circumstan ces. The pertinent circumsta nce here is where “the judgment is void.” Fed. R. Civ. P. 60(b)(4).

Motions under [Civil Ru le 60(b)] su bsections (4) , (5) and (6) maybe made within a “r easona ble t ime, ” which we have de termined is dependent upon th e facts in a case, incl udin g length and ci rcumstances of del ay in fili ng, prejudi ce to-6- opposing party by reason of the delay, and ci rcumst ances warranti ng equitabl e relief. Eglintonv. Loyer (In re G.A.D., Inc. ), 340 F.3d 331, 334 (6th Cir . 2003). “A R ule 60(b)(4) motion leaves no margin for the court’s disc reti on as the judg ment is either void or not.” Pearson v. Dept. o f Educ . (In re Pear son) , 279 B.R. 612, 615 (Bankr. M .D. Ga. 2002) (citing Burke v. Smith, 252 F.3d 1260, 126 3 (11th Cir. 2001)).

Under Rule 60(b)(4), if the rendering court lacked subject matter jurisdiction, the underlying judgment is void, and it is per se an abuse of discr

etion to deny a movant’s motion to vacate. Eglinton , 340 F.3d at 335-3 6. Likewi se, the judgment is void if the court l acked juris diction
ove r th e affe cted par

ty b ecau se of

a lackof notice resulting in a violation of due p rocess and it would be a “ per se abuse of discretion to de ny the movant’s motion to vacate.” Id.;
see e.g., Pearson , 279 B.R. at 615 ( judgment is v

oid under Rul e 60(b)(4) if the court lac ked jurisdiction of either the parties or the subject matter). The Supreme Court of the United Stateshas explai ne d the re quirements of due process as follows:

An elementary and fundamenta l requirement of due proce ss in any proceedi ng whic h is to be accorded final ity i s notice reasonably calculated, u nder all the circumstances, to apprise interested parties of the pende ncy of the action and af ford them an opportunity

to present t heir obj ections. The notice must be of

such nature asreasonably to convey the requir

ed information, and it

must affor

d a rea sonabl e time fo r those interested to make their appearan ce. Mullanev. Central

Hanover Bank

& Trust Co

. , 3 39 U.S. 306, 313, 7 0 S. Ct. 652, 656 (1950) (citations

omitted); see also In re Chess , 268 B .R. 150, 155 (Bankr. W.D. Tenn. 2001) (“Lac k of n otice and suffi cie nt s erv ice of pr oces s le adin g ul tima tely to l ack of du e process properly

renders a j udgment voi d.”); In re Harris , 293 B.R. 438, 441 (Bankr. N.D. Ohio 2003) (“pr

ovisionsof a confirmed Chapter 13 plan are not binding on c reditors to the extent that the confirmati on order v iolates a cr editor’s due process ri ghts”) ( citations omitted). The bankruptcy cour t in Harris

further stated F or purposes of § 1327( a), due proces s requir es tha t notice be given to the creditor that is reasonab ly calc ulated, under all of the circumstances, to appraise [ sic] the creditor that its rig hts a s a cre dito r may b e pla ced i n jeo pard y.-7-

Id. The Debtor in the case before the Panel cann ot argue that the “notice”placed in her plan, where it

was not s upposed to be in thefirst place, was notice reasona bly calc ulated to inform ECMC t hat it was about to lose val uable right s. The Supreme Court h as held that “a creditor’ s knowledg e tha t a reorg anization pr oceeding has b een instituted d oes not make itthe creditor

’s duty to inquir e about possiblecourt order s limiting the time for fili ng
a claim.” In re Rideout, 86 B.R. 523, 52 7 (Bankr. N.D. Ohio 1988) (ci ting City of N. Y. v

. New York, N.H

. & H.R. R. R. Co., 344 U.S. 2 9 3, 7 3 S. Ct. 299 (1953)). Similarly, in this case, it was not ECMC’s duty to inq uire about poss ible actionsinstituted by the Debtor that might affect ECMC’s student loan w here the Debtor failed to properly institute those actions by the methods set forth in the Bankruptcy Code an d Bankruptcy Rules. ECMC had a right to expect that it would receive a summons and compla int if its r ight s were i n jeo pard y. Whe lt on , 299 B.R. at 318. But see Andersen v. Higher Educ. Assistance Found. (In re Andersen) , 179 F.3d 1253 (10t h Cir. 1999) and Great Lakes

Higher Educ. Corp. v. Par dee (In re Pardee) , 193 F.3d 1083 (9th Cir. 1999) (both cas es place the burden on the student loan creditor to review the plan to protect its rights prior to confirmation). There is no doubt that ECMC has contrary pr ecedent to over

come. The abo venoted cas es of Andersen and Pardee represent the current maj ority v iew that a confirmed plan containing a discharg e by declar ation provi sion is binding on the parties . The facts in Andersen and Pardee are similar to those in the case bef ore the Panel. In both cases, the Tenth and Ninth Cir cuits, resp ectively , found that languag e in the respective debtor’s confirmed plan provi ding for the di scharge of stud e nt loans was res judicat a and was binding on the student loan le nders even t hough no adver sary pro ceeding had been filed and no summons issued. The circuits also reli ed on the policy of finality of ju dgmen ts

. Both of the circuit

s em phasized the d uty of the s tude nt lo an le nde rs to p rote ct th eir own rightsby objecting to such plan provisions. However, neither cir cuit looked i nto the deeper concept of whether

the lenders had r

eceived noti ce reasonably calculated toapprise the lenders of the fact that their rights w ere in jeopar

dy and neither ci rcuit consi dered whether the lender’s due process ri ghts had in fact been vio lated. Andersen has been characterized by numerous courts as a “res judic ata ” case. In re Lemons , 285 B.R. 327, 331 (Bankr. W.D. Okla. 2002). Pardee can also be so characterized and both cases can be distinguished from the case be fore the Panel on th at basis. “Even if a d isch arge- bydeclaration provisi on in a confirmati on order was found to be eligib le for res judicat a effect,-8-

itwould still need to pass muster under due pro cess analysisin order for i t to be enforceable.” Whelton , 299 B. R. at 317 (citing Banks , 271 B.R. at 254 (“ [A]n orde r may noto perate as res judicat a should it result in the denial of a credito r’s due process rights.”)). Andersen and Pardee do not represen tbinding autho rity on t he courts in the Six th Circuit. Further, w

e do not find these ca ses persuasi ve but find the r easoning of

the Fourth Circuitin Banksto be the better- reasoned vi ew. Therefore, we choos e to follow t he growi ng trend finding that the student l oan lender has been denied due p rocess w here a debtor attemp ts to disc harge a student loan th rough a dis charge by declaration provisi on. In the wake of Anderson and Pardee , the practice of using dis charge by declaration provisi ons became very popular. Banks , 299 F.3d at 301 ( “The number of Debtors seeking to improperly

discharg e nondischarg eable debt incre ased signi ficantly foll owing t he decisions of our

sister C ircuits i n In re Andersenand In re Pardee .”). As i ndicated in the following discussion, bankruptcy courts and the Fourth Circu it ha ve taken action tosend a clear indication of their disapp roval of these provisions. In Banks , the Fourth C ircuit w as faced with a situation si milar to the onebefore the Panel. The debtor, Banks , included lan guage in hi s chapter 13 pl an providing for the nonaccrual an d discharge of post-peti tion interest on the debtor’sstudent loan and t hat upon discharg e, the debtor w ould be liableonly for the unpa id principa l balance on his studen t loan. No objections w ere filed to the pl an nor appeal taken of the confirmation order. Almo st fi ve years after the debtor received his discharge, the student loan creditor, ECMC, attempted to collect principa l and post-petition interest on the student loan. Ban ks reopened his chapter 13 case and filed an adversary p roceeding r elying on the res judicat a effect of the confirmation order and ask ing the bankruptcy cour t to determine that th e postpetition inter

est on his stu dent loans had been di scharged. The ban kruptcy court in Banksrelied on Andersen and Pardee and held that t h e confirmation or der was res judicat a and barred ECM C from collect ing the post- petition interest. On appeal, the di strict cour t revers ed the bankruptcy court. The di strict co urt, finding that ECMC h ad notreceived proper notice due to Banks’ fa ilure to file an adversary proceeding, stated:

“W hile the Court r

ecognize s that

sophisticated lenders such as ECMC, Great Lakes , and Sallie Mae s hould not turn a blind-9- eye to the c onfirmation process, . . . neither should they fall victim to a Chapter

13 plan that

flouts both bankru ptcy law and the constituti on.” Banks , 299 F.3d 296 , 299-3 00 (quoti ng Sallie Mae Servicing v. Banks , 271 B.R. 249, 255

- 56 ( W. D. Va. 200 1)); see also Cen-Pen Corp. v. Hanson , 58 F.3d 89 (4t h Cir. 1995) (finding provisi ons of

confirmed plan ar

e not res judicat

a so as to depri ve secured creditor of its securi ty intere st where de b tor failed to fil e an adversar y proceedi ng as req uired by Bankruptcy

Rule 7001(2) ). The following cases are furth er examples of the rising judicial concern reg arding the increase d use o f dis char ge by de clara tion provis ions and t he so und reas ons wh y thi s practice should be str

ongly di scouraged. In each case, the debtors, s ubsequent to the decision in Andersen and/or Pardee , included in their chapter 13 plans ill egal prov isions attempting to discharge their student loans through the co nfirmation process rather than through an adversa ry proceed ing. In In re Ma mmel , 2 21 B.R. 238 (Bankr. N.D. Iowa 1998), the deb tor specifically relied on Andersen and Pardee in asserting thathis plan should be confirme d since there
was no objection fil ed by the stud ent loan credi tor. However, the t rustee filed an obj ection to the debtor’s p lan. Interest ingly the trustee w as will ing to withdr

aw the objec

tion but the court, obvi ously concerned about the lar ger due process issue, required briefs and ruled that the plan was not confirmable as presented. The court stated:

Ultim atel y, this typeof prov is ion [dischar ge by declaration] trivi alizes t he entire process and reducesit to a game of chance. If Debtor can obtain confirmation before t he creditors, the Court, or the Trustee i den tify such a pr ovision, the objectionable plan provi sion is elev ated to a statusbeyond challenge. It is the opi nion of this Cour t that this ty pe of plan provisi on should be discouraged rather than enc ouraged unde r the gu ise o f cre ativi ty. Mamm el , 221 B.R. at 243. In re Hensley

, 249 B.R. 318 (Bankr. W.D. Okla. 2000) invol ved a situat ion where the bankruptcy court wa s faced with multiple confir med chapter 13 plans whi ch all incl uded a dischar ge by declar

ation prov ision. The student loan lende rs in each case had filed a mot ion t o dis miss the d ebto r’s ch apte r 13 p lan. The c ourt mad e cle ar its view

thatthe intentional inclusion of language i n a chapter 13 pl an or confirmation o rder prov iding for the d isc harg e of a debtors-10- student loan indebtedness , or of any other prov ision prohi bited by the Ban krup tcy Code or Rules , is both unethi cal and sanctionable conduct. Id. at 320. The court went on to c hastise counsel for at tempting this type of “gamesmanship”and indicated that it “has no place in the practi ce of bankruptcy law, and will not be tolerated by this Court.” Id. at 320-21. In Rideout , the bankruptcy court wa s also faced w ith a situati on similar to that presented in the case before the Panel. The chapter 11 debtors failed to provi de proper notice of the deadline f or filing ballots objecting to theirproposed plan and failed to prov ide notice of the hearing o n confirmation of the plan. Subseq uent to the plan bei ng confirmed, the Hahns, creditors of the Rideout s, filed a motio n pur suant to Civ il Rule 60( b)(4) requesting that the bankruptcy court vacate the or der confirming the plan. The Rideouts objected sta ting that

the t ime f

o r r evoking the plan under 11 U .S.C. § 1144 had pas sed. The bankruptcy

court in Rideout

determined that

it did not have juri sdiction over the Hahns due to the lack

of notice. It t here fo re determined tha t the order co nfirming the Rideouts’ pl an was void because it deprived the creditor of prope rty rights without notice and an opportunity

to be heard. Rideout , 86 B.R. at 530. The court stated : [T]here is no indication in the legislative history, or in the case law, that the purpose of § 1144 is to pr eserve a Plan which is void. Instead, it appears C ongress i ntended § 1144 to prevent the Revocation of a Plan based up on a mistake of law or fact. The policy consideration s underly ing § 1144 do not apply with equal force to the Vacating of a Conf irmed Plan because of a lackof notice. Conse quently, this Court does not read § 1144 as superseding its power to Vacate the Confirmed Plan under Federal Rul e of Civil Procedure 60( b)(4).
Itshould be noted that throughou t this Opini on the Court has used the term “Vacate”, rather tha n “Re vok e”. The Revocation section, § 1144, is primarily used for permanent Revocation of the Plan, and the Dischar ge, because of fraud. In the present cas e, the Court’s ac tion is Vacat ing the “Order Confirming Plan”, and w ill only result in the Hearing on Confi rmat ion being rese t, with t he Court ensur ing that the Creditors are given notice of that Hearing. Because the Court is not perm anent ly revoking t he Pl an, this matter is distinguishable from many of the cases cited by the Rideouts. Rideout , 86 B.R. at 530. Similarly , in this ca se, t he De btor argues that the bankruptcy court could not revoke its confirmation orde r purs uant to § 1328(e) because the time for-11-

filing a moti on for revocat ion has passed. However, the bankruptcy court did not revoke the Debtor’s pl an. As noted above, the order confirmi ng the plan is being vacated pur suant to an entirely dif

f erent procedure. There are no time limits on vacating an order that is void

. The Debt or to ok he r cha nces in tryi ng to d isch arge a nond isch argea ble d ebt b y a process that is inconsistent w ith the Bankruptcy Code and Bankruptcy Rules. She w ill not
now be permitted to a rgue that sherelied on the co nfirmation order that she knew cont ain ed provisions that were inconsistent with the Bankruptcy Code and Bankrup tcy Rules. She must now suffer the consequences of her ill adv ised actions. In its orde r, the bankruptcy court vacated the confirmatio n order only as it

related to the Debtor’s st udent loan. T he Debtor here still has the option of taking procedures s he should havetaken several years ag o to determine i f she is in fact entitled to a d ischarge of her student loan pursuant to § 523( a)(8). Asindicated by the bankruptcy

court in Whelton : Moreover, to enf orce the discharge obtained through a declaration in a plan not only depri ves the affected cr editor of due process, i t erodes the bedr ock integr ity of the bankruptcy system. The inclusion of such a pr ovision in a plan, where it has no legiti macy, consti tutes what I have categ orized as “practice by ambush.” Sneaking a provis ion in a plan, hoping no one will notice it, an d then reaping the benefits of its inclusion violatesthe fundam enta l principles of due process and of fair play, and threatens the h eart of our legal, adversari al sys tem. Enforcement of the discharge here would be tantamount to c ondoni ng a surre ptitious str ategy that should, in fact, b e discourag ed with v igor. Whelton , 299 B.R. at 317- 18. In th is case, couns el for the Debtor stated that, li ke the above cases, the ins tan t
case was

als o fil ed i n thewake of Andersen and Pard ee and that those cas es justified counsel’s belief that the di scharge by declaration provisi on was an appropriate method to dischar ge the Debtor’s student loan. Th e Debtor’s reli ance on And ersen and Pardee is misplaced in that both of those cases cle arly indicate that di scharge by declaration provisi ons violate t he Bankrupt cy Code and Bankruptcy Rules. Andersen , 179 F.3d at 1259 (discharg e by declar ation provi sion did not comply w ith the Code); Pardee , 193 F.3d at 1086 (discharge by declaration provision is inconsistent with the Code). To counsel’s credit, he stated at oral argument that he no long er advise s clients to use dischar ge by-12-

declaration provisi ons in their pl ans. Our deci sion today w ill put to r est any question asto whether the use of such prov isions is appropriate or enforceable in theSixth Ci rcuit.

V. CONCLUSI ON We choose to follow

the Fourth Cir

cuit rather than the Ninth and Tenth Circui ts and AFFIRM the dec ision of the ban kruptcy co urt to vaca te its ord er conf irming t he Debtor’s chapter 13 plan on the basi s that ECMC w as denied due process by the Debtor’s attempted dischar

ge of her student loan through her plan.