A Chapter 13 plan may separately classify child support arrearages assigned to a county collection agency without constituting unfair discrimination.
A debtor proposes a Chapter 13 plan that classifies child support arrearages assigned to a county collection agency in a separate class from other general unsecured claims, providing full payment to the counties while other creditors receive only partial payment. The question is whether such separate classification is permitted under the Bankruptcy Code. The court holds that section 1322(b)(1) allows the designation of multiple classes of unsecured claims as long as the classification complies with section 1122 and does not result in unfair discrimination. Because the child support claims are non-dischargeable and the classification has a reasonable basis, the separate treatment does not constitute unfair discrimination.
At page 672 Developing a four-part test for unfair claim classification27 citing cases“(1) [Wjhether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; (4) whether the degree of discrimination is directly related to the basis or rationale for the discrimination”
- In re Orawsky, 387 B.R. 128 (Bankr. E.D. Pa. 2008).published “by allowing for separate classes of unsecured claims, congress anticipated some discrimination, otherwise separate classes would have no significance. it is only unfair discrimination that is prohibited”
- Jordahl v. Burrell (In re Jordahl), 539 B.R. 567 (B.A.P. 8th Cir. 2015).published We address each subsection in turn. (1) 11 U.S.C. § 1322 (b)(1) Under §1322(b)(1), “[a] Chapter 13 debtor's plan of reorganization may place unsecured claims in separate classes ‘as long as the classification 1) complies with section 1122…
- In re Knowles, 501 B.R. 409 (Bankr. D. Kan. 2013).publishedIn re Leser, 939 F.2d at 672; In re Wolff, 22 B.R. at 512 .
- In re Brown, 500 B.R. 255 (Bankr. S.D. Ga. 2013).publishedIn re Leser, 939 F.2d at 672; In re Wolff, 22 B.R. at 512 .
- In re Schumacher, 495 B.R. 735 (Bankr. W.D. Tex. 2013).publishedMickelson v. Leser (In re Leser), 939 F.2d 669, 672 (8th Cir.1991); In re Curtis, 2 B.R. 43, 44 (Bankr.W.D.Mo. 1979).
- Copeland v. Fink (In re Copeland), 483 B.R. 534 (B.A.P. 8th Cir. 2012).published Leser, 939 F.2d at 672 (citations omitted).
- In re Harding, 423 B.R. 568 (Bankr. S.D. Fla. 2010).published Implicit in the LeserfWolff test’s first prong (whether proposed discrimination has a reasonable basis) is a strong consideration for the congressional goal of encouraging repayment of nondischargeable general unsecured debts in a timely m…
- In re Am. Trailer & Storage, Inc., 419 B.R. 412 (Bankr. W.D. Mo. 2009).publishedMickelson v. Leser (In re Leser), 939 F.2d 669, 672 (8th Cir.1991); Apex Oil, 118 B.R. at 711 .
- In re Mason, 300 B.R. 379 (Bankr. D. Kan. 2003).publishedId. at 672. 12 .
- In re Etheridge, 297 B.R. 810 (Bankr. M.D. Ala. 2003).publishedMickelson v. Leser (In re Leser), 939 F.2d 669, 672 (8th Cir.1991).
Show 16 more citing cases
- Crawford v. Chatterton (In re Crawford), 268 B.R. 832 (W.D. Wis. 2001).published Id. at 670.
- In re Thibodeau, 248 B.R. 699 (Bankr. D. Mass. 2000).publishedThe four part Leser test is: 1) whether the discrimination has a reasonable basis; 2) whether the debtor can carry out a plan without the discrimination; 3) whether the discrimination is proposed in good faith; and 4) whether the degree of…
- In re Tennis, 232 B.R. 403 (Bankr. W.D. Mo. 1999).published“(1) [Wjhether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; (4) whether the degree of discri…”
- In re Sullivan, 195 B.R. 649 (Bankr. W.D. Tex. 1996).publishedThe Eighth Circuit, in In re Leser, 939 F.2d 669, 672 (8th Cir.1991), set up a four-part test to determine whether a plan discriminates unfairly: 1) whether the discrimination has a reasonable basis; 2) whether the debtor can carry out a p…
- In re Delauder, 189 B.R. 639 (Bankr. E.D. Va. 1995).publishedIn re Benner, 156 B.R. 631 (Bankr.D.Minn.1993), citing Mickelson v. Leser (In re Leser), 939 F.2d 669, 672 (8th Cir.1991).
- In re Christophe, 151 B.R. 475 (Bankr. N.D. Ill. 1993).publishedThe second and fourth factors in the test for unfair discrimination set out by the 8th Circuit in Leser, 939 F.2d at 672, seem to be two ways of asking the same question.
- Lawson v. Lackey (In Re Lackey), 148 B.R. 626 (Bankr. N.D. Ala. 1992).published “(1) whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; and (4) whether the degree of disc…”
- In re Husted, 142 B.R. 72 (Bankr. W.D.N.Y. 1992).publishedIn re Kovich, 4 B.R. 403 (Bankr.W.D.Mich.1980); In re Dziedzic, 9 B.R. 424 (Bankr.S.D.Tex.1981); In re Harris, 62 B.R. 391 (Bankr.E.D.Mich.1986); In re Davidson, 72 B.R. 384, 386-387 (Bankr.D.Colo.1987); In re Lawson, 93 B.R. 979, 982 (Ban…
- Matter of Keel, 143 B.R. 915 (Bankr. D. Neb. 1992).publishedThe Eighth Circuit Court of Appeals recently applied the four part test in In re Lesser, 939 F.2d at 672, and permitted separate classification and discriminatory treatment of child support obligations.
- In re Saulter, 133 B.R. 148 (Bankr. W.D. Mo. 1991).published“(1) whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; (4) whether the degree of discrimi…”
- In re Colley, 260 B.R. 532 (Bankr. M.D. Fla. 2000).published See Leser, 939 F.2d at 672.
- In re Eiland, 170 B.R. 370 (Bankr. N.D. Ill. 1994).publishedSee Leser, 939 F.2d at 672; In re Chapman, 146 B.R. 411, 417 (Bankr.N.D.Ill.1992) (applying Leser test); Lawson, 93 B.R. at 984.
- In re Foxridge Ltd. P'ship, 238 B.R. 810 (Bankr. W.D. Mo. 1999).published(holding that child support claims can be separately classified if the debtor cannot carry out a plan without the separate classification)
- In re Liggins, 145 B.R. 227 (Bankr. E.D. Va. 1992).published
- In re Eitemiller, 149 B.R. 626 (Bankr. D. Idaho 1993).published
- Matter of Foreman, 136 B.R. 532 (Bankr. S.D. Iowa 1992).published
At page 671 Determining permissible classification of unsecured claims in chapter 13 plans21 citing cases“as long as the classification 1) complies with section 1122 of the code and 2) does not result in unfair discrimination between the claims grouped separately.”
- In re Mason, 456 B.R. 245 (Bankr. N.D. W. Va. 2011).published(‘[B]y allowing for separate classes of unsecured claims, Congress anticipated some discrimination, otherwise separate classes would have no significance.’)
- In re Orawsky, 387 B.R. 128 (Bankr. E.D. Pa. 2008).published (by allowing for separate classes of unsecured claims, Congress anticipated some discrimination, otherwise separate classes would have no significance. It is only unfair discrimination that is prohibited)
- Hartford Accident & Indem. Co. v. Capital Credit Union, No. 24-6008 (B.A.P. 8th Cir. Oct. 20, 2025).publishedUnited States v. Gerth, 991 F.2d 1428, 1430 (8th Cir. 1993) (citing Mickelson v. Leser (In re Leser), 939 F.2d 669, 671 (8th Cir. 1991)).
- Victoria Florita Durand-Day, No. 22-40089 (Bankr. N.D. Tex. Oct. 26, 2022).Ga. 2007). 22 In re Potgieter, 436 B.R. at 743 . 23 In re Potgieter, 436 B.R. at 743 ; In re Leser, 939 F.2d 669, 671-72 (8th Cir. 1991). which the last payment is due after the date on which the final payment under the plan is due.”24 The…
- Lavonda Latrece Evans, No. 22-40625 (Bankr. N.D. Tex. Oct. 26, 2022).Ga. 2007). 22 In re Potgieter, 436 B.R. at 743 . 23 In re Potgieter, 436 B.R. at 743 ; In re Leser, 939 F.2d 669, 671-72 (8th Cir. 1991). which the last payment is due after the date on which the final payment under the plan is due.”24 The…
- Jordahl v. Burrell (In re Jordahl), 539 B.R. 567 (B.A.P. 8th Cir. 2015).published We address each subsection in turn. (1) 11 U.S.C. § 1322 (b)(1) Under §1322(b)(1), “[a] Chapter 13 debtor's plan of reorganization may place unsecured claims in separate classes ‘as long as the classification 1) complies with section 1122…
- Copeland v. Fink (In re Copeland), 483 B.R. 534 (B.A.P. 8th Cir. 2012).published Leser, 939 F.2d at 672 (citations omitted).
- In re Abaunza, 452 B.R. 866 (Bankr. S.D. Fla. 2011).publishedMickelson v. Leser (In re Leser), 939 F.2d 669, 671 (8th Cir.1991); In re Potgieter, 436 B.R. 739 (Bankr.M.D.Fla.2010).
- In re Potgieter, 436 B.R. 739 (Bankr. M.D. Fla. 2010).publishedIn re Leser, 939 F.2d 669, 671 (8th Cir.1991).
- Ramirez v. Bracher, 204 F.3d 595 (5th Cir. 2000).publishedIn re Leser, 939 F.2d 669, 671-72 (8th Cir. 1991); accord In re Thompson, 191 B.R. 967, 971 (Bankr.S.D.Ga. 1996). 3 In re Battista, 180 B.R. 355, 357 (Bankr.D.N.H. 1995). 4 See also In re Battista, 180 B.R. at 357 (citing In re Easley); In…
Show 9 more citing cases
- In re Beverly, 196 B.R. 128 (Bankr. W.D. Mo. 1996).published Leser, 939 F.2d at 671 (citations omitted). 6 .
- In re Clarice Morris Groves, Ethyl Mae Davis, Joyce Belle Harvel-Barney, Debtors. Clarice Morris Groves, Ethyl Mae Davis, Joyce Belle Harvel-Barney v. John v. Labarge, Jr., 39 F.3d 212 (8th Cir. 1994).publishedLeser treated a similar issue as "solely one of legal interpretation," 939 F.2d at 671.
- Groves v. LaBarge (In re Groves), 39 F.3d 212 (8th Cir. 1994).publishedLeser treated a similar issue as “solely one of legal interpretation,” 939 F.2d at 671.
- In re Benner, 146 B.R. 265 (Bankr. D. Mont. 1992).publishedAs noted by the Eighth Circuit in Leser, Congress anticipated some discrimination by allowing for separate classes of unsecured claims, and prohibited only unfair discrimination. 939 F.2d at 671-672.
- Terry ADAMS v. Karen Marie ZENTZ, 963 F.2d 197 (8th Cir. 1992).published Mickelson v. Leser (In re Leser), 939 F.2d 669, 671 (8th Cir.1991).
- Copeland v. Fink (In Re Copeland), 742 F.3d 811 (8th Cir. 2014).publishedSee In re Leser, 939 F.2d 669, 671-72 (8th Cir.1991).
- United States ex rel. Agric. Stabilization & Conservation Serv. v. Gerth, 153 F.2d 1428 (8th Cir. 1993).publishedSee Mickelson v. Leser (In re Leser), 939 F.2d 669, 671 (8th Cir.1991). 11 U.S.C. § 553 preserves a creditor’s right to set off mutual obligations between it and a debtor.
- United States v. Willis R. Gerth, 991 F.2d 1428 (8th Cir. 1993).published See Mickelson v. Leser (In re Leser), 939 F.2d 669, 671 (8th Cir.1991). 11 U.S.C. § 553 preserves a creditor’s right to set off mutual obligations between it and a debtor.
- Matter of Foreman, 136 B.R. 532 (Bankr. S.D. Iowa 1992).published
At page 670 cited at this page1 citing case
- Crawford v. Chatterton (In re Crawford), 268 B.R. 832 (W.D. Wis. 2001).published Id. at 670.
Other citing cases
- In re Hester, 330 B.R. 809 (Bankr. M.D. Fla. 2005).published
- Johnson v. Iannacone, 314 B.R. 779 (Bankr. D. Minn. 2004).published
- Beal Bank, S.S.B v. Way Apts., D.T. (In Re Way Apts., D.T.), 201 B.R. 444 (N.D. Tex. 1996).published
- In re Cox, 186 B.R. 744 (Bankr. N.D. Fla. 1995).published
- Spokane Ry. Credit Union v. Gonzales (In Re Gonzales), 172 B.R. 320 (E.D. Wash. 1994).published
- In re Interior Wood Prods. Co.. Sheridan J. Buckley v. Jeld-Wen, Inc., 986 F.2d 228 (8th Cir. 1993).published
- James v. Moore (In Re James), 150 B.R. 479 (Bankr. M.D. Ga. 1993).published
- Terry Floyd, No. 21-10276, 2021 WL 4944699 (Bankr. N.D. Miss. Oct. 22, 2021).
- In re Idearc Inc., 423 B.R. 138 (Bankr. N.D. Tex. 2009).published
v.
Frank J. LESER and Alicia K. Leser
The question before us is whether a Chapter 13 plan may provide for the separate classification and treatment of unsecured claims for child support arrearages assigned to county collection departments by the debtor’s former wife. According to the plan confirmed by the Bankruptcy Court,[1] the counties would receive full payment of their claims, while other general unsecured creditors would be paid 8% of their claims on a pro rata basis. J.J. Mick-elson, the trustee of the bankruptcy estate of debtors Frank J. and Alicia K. Leser, appeals the decision of the District Court[2] affirming the plan’s confirmation. We affirm that decision.
[*671] This case presents an issue of first impression. Although several courts have decided, with divided results,[3] whether a Chapter 13 plan may designate claims for child support in a class separate from other unsecured claims, no court has published an opinion addressing whether Chapter 13 of the Bankruptcy Code, 11 U.S.C. § 1301 et seq. (1988), permits child support arrear-ages assigned to a county collection agency to be separately classified.
Our standard of review over bankruptcy appeals is the same as that of the District Court. We must determine whether the bankruptcy court’s challenged legal conclusions are correct and whether its challenged factual findings are clearly erroneous. Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). In this case, there are no factual disputes; the question is solely one of legal interpretation.
The starting point of our analysis is the Bankruptcy Code, specifically the section governing the classification of debts in a Chapter 13 plan. Section 1322(b)(1) allows the plan to “designate a class or classes of unsecured claims, as provided in section 1122 of this title, but [the plan] may not discriminate unfairly against any class so designated.” 11 U.S.C. § 1322(b)(1) (1988). Thus, nothing prohibits a debtor from placing unsecured claims in separate classes in his or her Chapter 13 plan as long as the classification 1) complies with section 1122 of the Code and 2) does not result in unfair discrimination between the claims grouped separately.
The portion of section 1122 pertinent to our discussion states that “a plan may place a claim or an interest in a particular class only if such claim or interest is substantially similar to the other claims or interests of such class_” 11 U.S.C. § 1122(a) (1988).[4] In setting forth the “substantially similar” requirement, the section tells us when claims may be included in the same class; it does not tell us when they must be. Although some courts have read section 1122 to require the placement of all unsecured claims in the same class, see, e.g., In re Iacovoni, 2 B.R. 256, 260-61 (Bankr.D.Utah 1980), we rejected this interpretation in Hanson v. First Bank of South Dakota, N.A., 828 F.2d 1310, 1313 (8th Cir.1987), holding that the section “does not prohibit the placement of substantially similar claims in different classes.”
Unlike the case at hand, Hanson involved a Chapter 11 plan. This distinction was emphasized at oral argument by counsel for the trustee. Emphasizing the remedies available to unsecured creditors in Chapter 7 and 11 cases but not under Chapter 13, the trustee argues against separate classification of the counties’ unsecured claims. We are unpersuaded by this line of reasoning. To adopt the trustee’s interpretation of section 1122 “would conflict with section 1322(b)(1), which specifically authorizes designation of more than one class of unsecured creditor, each presumably with equal legal rights to the debtor’s estate.” Barnes v. Whelan, 689 F.2d 193, 201 (D.C. Cir.1982). We therefore conclude that the separate classification of the counties’ claims in the Lesers’ Chapter 13 plan does not violate section 1122.
Turning to the second requirement of section 1322(b)(1), we examine whether placement of the counties’ claims in a separate class unfairly discriminates against the other unsecured claims. As noted by the Bankruptcy Court, “by allowing for separate classes of unsecured claims, Congress anticipated some discrimination, oth[*672]erwise separate classes would have no significance. It is only unfair discrimination that is prohibited.” In re Storberg, 94 B.R. 144, 146 (Bankr.D.Minn.1988). Lacking more explicit direction from Congress, courts have developed a four-part test to determine whether a proposed separate classification of unsecured claims is fair by inquiring: (1) whether the discrimination has a reasonable basis; (2) whether the debtor can carry out a plan without the discrimination; (3) whether the discrimination is proposed in good faith; and (4) whether the degree of discrimination is directly related to the basis or rationale for the discrimination. In re Wolff, 22 B.R. 510, 512 (Bankr.9th Cir.1982). See also Storberg, 94 B.R. at 146 (quoting In re Dziedzic, 9 B.R. 424, 427 (Bankr.S.D.Tex. 1981).[5]
Although the Bankruptcy Court did not explicitly apply each part of the test to determine that the Lesers’ Chapter 13 plan did not unfairly discriminate between the counties and the other unsecured creditors, we are satisfied that its conclusion based on its implicit findings is correct. In reaching his decision, Judge Kressel relied upon his analysis set forth in Storberg. There, following a lengthy discussion of “the overwhelming public policy in favor of providing for support of children, [Judge Kressel rejected the trustee’s argument] that the debtor’s separate classification for such support is unfair.” 94 B.R. at 147. Here, while noting the differences between claims payable directly to the child’s custodian and support claims assigned to a county collection agency, Judge Kressel concluded that “those differences [do not] change the result” of his decision reached in Storberg. In re: Leser, Bky. 4-89-2665 (Bankr.D.Minn. Jan. 5, 1990), reprinted in Appellant’s Appendix, pt. 7 at 1, 2. We find no legal error in that conclusion.
Judge Kressel’s determination is further supported by the Code’s indistinguishable treatment between claims for child support held by a custodial parent and claims assigned to a county collection agency. The assignment of a claim for delinquent child support to a county agency does not render the obligation dischargeable. Section 523(a)(5) provides that a discharge under section 1328(b)
does not discharge an individual debtor from any debt ... to a spouse, former spouse, or child of the debtor, for ... support of such ... child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that ... such debt is assigned to another entity, voluntarily, by operation of law, or otherwise (other than debts assigned pursuant to section 402(a)(26) of the Social Security Act, or any such debt which has been assigned to the Federal Government or to a State or any political subdivision of such State)....
11 U.S.C. § 523(a)(5) (1988) (emphasis added). See also In re Wilson, 29 B.R. 254, 258 (Bankr.D.Kan.1983) (past due child support assigned to county not dischargeable under Chapter 13).
Emphasizing the nondischargeability feature of past due child support claims, one bankruptcy court found that the separate classification of these claims met the four-part test:
[T]he discrimination in favor of the payment of back child support has a reasonable basis since it pertains to a debt which is not dischargeable in Chapter 13. Further ... the failure to pay back child support in full indicates a lack of good faith barring confirmation. Thus, it is doubtful that a Chapter 13 plan could be confirmed in most instances without a separate classification for child support, absent the relatively rare 100% payout plan. The practical effect on the remaining unsecured creditors, whose debts are not paid in full, is virtually non-existent since their debts would be generally discharged under Chapter 7 in any event[*673] while the child support arrearages would not.”
In re Davidson, 72 B.R. 384, 387 (Bankr.D. Colo.1987) (citation omitted). If child support claims can properly be placed in a class separate from other unsecured claims in a Chapter 13 plan, and we are satisfied they can, the same result follows when these support claims are assigned to a county. We therefore conclude that the placement of the counties’ claims for child support arrearages in a separate class is not an unfair discrimination between these and the remaining unsecured claims.
For the reasons stated above, we affirm the decision of the District Court upholding the confirmation of the Lesers’ Chapter 13 plan.
The Honorable Robert J. Kressel, United States Bankruptcy Judge for the District of Minnesota.
The Honorable David S. Doty, United States District Judge for the District of Minnesota.
See, e.g., In re Storberg, 94 B.R. 144 (Bankr.D. Minn.1988) (separate classification confirmed); In re Haag, 3 B.R. 649 (Bankr.D.Or.1980) (separate classification confirmed); In re Warner, 115 B.R. 233 (Bankr.C.D.Cal.1989) (separate classification denied); In re Stewart, 52 B.R. 281 (Bankr.W.D.N.Y.1985) (separate classification denied).
Although not applicable in this case, subsection (b) explicitly permits the separate classification of certain unsecured claims for administrative convenience. 11 U.S.C. § 1122(b) (1988). “[I]t has always been assumed that the purpose of § 1122(b) was to allow special treatment for small claims, so that they could be eliminated early and reduce the number of claims that would have to be paid over time." Storberg, 94 B.R. at 146 n. 2.
Although Dziedzic states the fourth part of the test as "the treatment of the class discriminated against," In re Dziedzic, 9 B.R. 424, 427 (Bankr. S.D.Tex.1981), this semantic difference does not change the substance of the inquiry.