Soderlund v. Cohen (In Re Soderlund), 236 B.R. 271 (9th Cir. BAP 1999). · Go Syfert
Soderlund v. Cohen (In Re Soderlund), 236 B.R. 271 (9th Cir. BAP 1999). Cases Citing This Book View Copy Cite
43 citation events (42 in the last 25 years) across 22 distinct courts.
Strongest positive: In re: Jason M. Lee AND Janice Chen (bap9, 2023-11-13)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 24 distinct citers.
discussed Cited as authority (rule) In re: Jason M. Lee AND Janice Chen
9th Cir. BAP · 2023 · confidence medium
When the Debtors filed their petition in January 2022, the limit for noncontingent, liquidated, unsecured debt was $419,275, and the limit for noncontingent, liquidated, secured debt was $1,257,850. 6 We have stated that “eligibility debt limits should be strictly construed.” Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 274 (9th Cir. BAP 1999).
discussed Cited as authority (rule) In re Simon S Chan, Bankruptcy Case 18-40217, Judge Charles Novack
N.D. Cal. · 2021 · confidence medium
Bankruptcy Code § 5 109(e) defines who is eligible to be a debtor under Chapter 13, and its eligibility debt limits are 6 strictly constructed. 11 U.S.C. § 109 (e); Soderlund v. Cohen, 236 B.R. 271, 274 (9th Cir. BAP 7 1999). 8 At the time that Appellant filed his petition for bankruptcy, Bankruptcy Code § 109(e) 9 provided that “[o]nly an individual with regular income that owes, on the date of the filing of the 10 petition, noncontingent, liquidated, unsecured debts of less than $394,725 . . . may be a debtor 11 under chapter 13 of this title.” 11 U.S.C. § 109 (e) (2018).
discussed Cited as authority (rule) In re: Anna Stahl (2×)
9th Cir. BAP · 2021 · confidence medium
Fountain ultimately held that the bankruptcy court was justified in looking beyond debtor’s schedules on these facts because the creditor “made a good faith objection to eligibility and asked the court to review its proof of claim” and because the proof of claim, when combined with the debtor’s concession that she signed the note demonstrated “to a legal certainty that [the creditor’s] claim was not $1,000 as stated in Debtor's schedules.” Id.9 9 EmCyte also relies on Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 273 (9th Cir. BAP 1999).
cited Cited as authority (rule) In re: Michael Paul Free Hak Suk Free
9th Cir. BAP · 2015 · confidence medium
Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 274 (9th Cir. BAP 1999).
discussed Cited as authority (rule) In re: Michael Paul Free Hak Suk Free
9th Cir. BAP · 2015 · confidence medium
Soderlund v. Cohen (In re Soderlund), 3 236 B.R. 271, 274 (9th Cir. BAP 1999). 4 On appeal, Debtors ask the Panel to hold that wholly- 5 unsecured liens are not “unsecured debts” for eligibility 6 purposes in a so-called chapter 20 case (a chapter 13 case filed 7 after the debtor receives a chapter 7 discharge).
discussed Cited as authority (rule) In re Garcia (2×) also: Cited "see, e.g."
Bankr. D.N.M. · 2014 · confidence medium
Corp. v. Balbus (In re Balbus), 933 F.2d 246, 247 (4th Cir.1991); Miller v. United States, 907 F.2d 80, 82 (8th Cir.1990); In re Day, 747 F.2d 405, 406-07 (7th Cir.1984); United States v. Dallas, 157 B.R. 912, 913 (S.D.Ala.1993); United States v. Edmonston, 99 B.R. 995, 999 (E.D.Cal.1989); In re Griffey, 335 B.R. 166, 170 (10th Cir. BAP 2005); Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 274-75 (9th Cir. BAP 1999); In re Thompson, 2011 WL 5520963 (Bankr.D.Kan.2011); In re Bernick, 440 B.R. 449, 450-51 (Bankr.E.D.Va.2010); In re Smith, 419 B.R. 826, 831-32 (Bankr.C.D.Cal.2009); In re Wer…
cited Cited as authority (rule) In re Blackwell
Bankr. N.D. Cal. · 2014 · confidence medium
In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999).
cited Cited as authority (rule) General Lending Corp. v. Cancio
S.D. Fla. · 2014 · confidence medium
Thus, “the eligibility limits of Section 109(e) should be strictly construed.” In re Rios, 476 B.R. 685, 688 (Bankr.D.Mass.2012), citing In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999).
cited Cited as authority (rule) In re Piovanetti
Bankr. D.P.R. · 2013 · confidence medium
Thus, “the eligibility limits of Section 109(e) should be strictly construed.” In re Rios, 476 B.R. 685, 688 (Bankr.D.Mass. 2012), citing In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999).
discussed Cited as authority (rule) In Re Bernick
Bankr. E.D. Va. · 2010 · confidence medium
The court noted that applying § 506(a) to § 109(e) is necessary to “prevent ‘raising form over substance and manipulation of the debt limits’ to achieve chapter 13 eligibility.” Id. (citing In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999)).
examined Cited as authority (rule) In Re Smith (3×)
Bankr. C.D. Cal. · 2009 · confidence medium
Id., see Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 273 (9th Cir. BAP 1999)(finding a court properly looked to proofs of claim and the Chapter 13 plan when the debtor filed multiple versions of schedules).
examined Cited as authority (rule) In Re Werts (3×) also: Cited "see, e.g."
Bankr. D. Kan. · 2009 · confidence medium
In re Scovis, 249 F.3d at 983 (quoting In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999)).
discussed Cited as authority (rule) Darby Bank & Trust v. Grenchik (In Re Grenchik)
Bankr. S.D. Ga. · 2007 · confidence medium
See e.g., Scovis v. Henrichsen (In re Scovis), 249 F.3d 975, 983 (9th Cir.2001); In re Soderlund, 236 B.R. 271, 273-74 (9th Cir.BAP1999); In re Ficken, 2 F.3d 299 , 300 (8th Cir. 1993); Brown & Co. Securities Corp. v. Balbus (In re Balbus), 933 F.2d 246, 247 (4th Cir.1991): Miller v. U.S., 907 F.2d 80, 82 (8th Cir.1990); Matter of Day, 747 F.2d 405, 406 (7th Cir.1984); U.S. v. Dallas, 157 B.R. 912, 913 (S.D.Ala., 1993); In re Harrold, 257 B.R. 916, 916-17 (Bankr.W.D.Ark.2000); In re Prosper, 168 B.R. 274, 278 (Bankr.D.Conn.1994); In re Strober, 136 B.R. 614, 625 (Bankr.E.D.N.Y.1992); In re Mas…
discussed Cited as authority (rule) De Jounghe v. Mender (In Re De Jounghe)
1st Cir. BAP · 2005 · confidence medium
See id.; see also In re Sullivan, 245 B.R. 416, 418 (S.D.Fla.1999) (rejecting argument that § 109(e) eligibility inquiry should be restricted to review of debtor’s schedules); Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 273 (9th Cir. BAP 1999) (bankruptcy court may look past schedules to other evidence submitted when good faith objection to debtor’s eligibility under § 109(e) is raised); In re Brown, 302 B.R. 913, 915 (Bankr.D.Or. 2003) (“The limits created by § 109 are jurisdictional.
discussed Cited as authority (rule) In Re Smith
Bankr. D.N.H. · 2005 · confidence medium
In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999) (adopting majority view that un-dersecured portion of a secured creditor’s claim should be counted as unsecured debt for section 109(e) analysis); In re Clark, 91 B.R. 570, 572 (Bankr.D.Colo.1988) (as a matter of logic and consequences, an un-dersecured claim should be treated as part secured and part unsecured in determining eligibility under section 109(e)).
cited Cited as authority (rule) In Re Fredricksen
Bankr. D. Or. · 2005 · confidence medium
In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999).
cited Cited as authority (rule) In Re Brown
Bankr. D. Or. · 2003 · confidence medium
In re Soderlund, 236 B.R. 271, 273 (9th Cir. BAP 1999)(internal citations omitted).
cited Cited as authority (rule) In Re Newman
Bankr. M.D. Fla. · 2001 · confidence medium
In re Sullivan, 245 B.R. 416, 418 (N.D.Fla.1999), citing In re Soderlund, 236 B.R. 271, 273 (9th Cir. BAP 1999) and Lucoski v. Internal Revenue Service, 126 B.R. 332, 340 (S.D.Ind.1991).
cited Cited "see" In re Pantazelos
Bankr. N.D. Ill. · 2015 · signal: see · confidence high
See Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 273 (9th Cir. BAP 1999).
discussed Cited "see" In re Rios (2×)
Bankr. D. Mass. · 2012 · signal: see · confidence high
See In re Soderlund, 236 B.R. 271, 274 (9th Cir. BAP 1999). (1) Making the § 109(e) Determination In its Motion for Relief from Stay, Mc-Donough urges me to consider the proposed treatment of its claim under the Debtor’s plan when determining the Debt- or’s unsecured debt as of the petition date.
discussed Cited "see, e.g." Jody Lee Beach and Associated Case in US District Court
Bankr. D.N.M. · 2022 · signal: see, e.g. · confidence medium
See, e.g., In re Soderlund, 236 B.R. 271, 273 (9th Cir. BAP 1999) (unsecured portion of undersecured claims should be included in § 109(e) calculations, citing cases from the 4th, 7th and 8th circuits).
discussed Cited "see, e.g." In re Krueger
Bankr. W.D. Wis. · 2015 · signal: see also · confidence medium
In re Blackwell, 514 B.R. 19, 25-26 (Bankr.N.D.Cal.2014)(Involving a partially secured claim)(footnote omitted); See also In re Soderlund, 236 B.R. 271, 275 (9th Cir. BAP 1999)(In footnote 5, ‘We note that a different question might be presented if the debts in question were entitled to the protection afforded by § 1322(b)(2), i.e., claims secured only by a security interest in real property that is the debtor’s principal residence.
discussed Cited "see, e.g." Smith v. Rojas (In Re Smith) (2×)
9th Cir. BAP · 2010 · signal: see also · confidence medium
See Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir.BAP 2007)(§ 109(h)); see also Soderlund v. Cohen (In re Soderlund), 236 B.R. 271, 272-73 (9th Cir.BAP 1999)(whether a debt is liquidated or contingent is a question of statutory interpretation under § 109(e) which is reviewed de novo).
discussed Cited "see, e.g." In Re Sullivan
N.D. Fla. · 1999 · signal: see, e.g. · confidence low
See, e.g., In re Soderlund, 236 B.R. 271 (9th Cir. BAP 1999) (rejecting the same argument); Lucoski v. I.R.S., 126 B.R. 332 (S.D.Ind.1991) (explaining that, “even if the schedules reflect the eligibility requirements are met, if it is determined within a reasonable time that the debts exceed the statutory máximums, the case must be dismissed, or the debtor may be given the opportunity to convert to a different proceeding under the Bankruptcy Code”).
In Re Dale P. SODERLUND and Judith A. Soderlund, Debtors. Dale P. Soderlund and Judith A. Soderlund, Appellants,
v.
Amrane Cohen, Chapter 13 Trustee, Appellee
BAP No. CC-98-1307-RaBK. Bankruptcy No. SA 97-27211 LR.
United States Bankruptcy Appellate Panel for the Ninth Circuit.
Jun 28, 1999.
236 B.R. 271
Mark R. Campbell, Haberbush & Campbell, LLP, Long Beach, CA, for Dale and Judith Soderlund., Misty Perry Isaacson, Orange, CA, for Amrane Cohen, trustee.
Radcliffe, Klein.
Cited by 31 opinions  |  Published

OPINION

RADCLIFFE, Bankruptcy Judge.

Appellants (debtors), Dale P. Soderlund and Judith A. Soderlund, appeal from an order converting this case from Chapter 13 to Chapter 7 based upon the bankruptcy court’s conclusion that the debtors were ineligible to be debtors under Chapter 13 of the Bankruptcy Code. For the reasons that follow, we AFFIRM.

I.

FACTS

Debtors filed their Chapter 13 petition on October 27, 1997 as a skeletal filing. The debtors filed three versions of their schedules. First, they scheduled various forms of unsecured debt totaling about $500,000, none of which was designated as contingent or unliquidated. They amended twice to reduce noncontingent or.liquidated debt to less than $30,000.

The reductions were accomplished by recharacterizing judgment lien debt, adjusting values of over-encumbered property, and redesignating various debts as contingent or unliquidated.

Proofs of claim asserting general, unsecured debts as to which no objection had been made as of the time of the confirmation hearing included four that exceeded $400,000.

At the confirmation hearing, the bankruptcy judge examined the conflicting schedules, explicitly considered the four uncontested proofs of claim exceeding $400,000, and considered the statements in the plans that indicated unsecured claims would exceed $300,000.

The court concluded that the debtor’s noncontingent, liquidated, unsecured debts as of the time of the filing of the petition exceeded the statutory limit of $250,000 and ordered the case converted to chapter 7. This appeal ensued. On debtors’ unopposed motion, the conversion order has been stayed pending this appeal, provided debtors comply with certain payment conditions.

II.

ISSUE

Whether the bankruptcy court correctly computed the debtors’ unsecured debts in concluding that the debtors were ineligible for Chapter 13 relief pursuant to § 109(e). [2]

III.

STANDARD OF REVIEW

Questions of statutory interpretation, including the question of whether a debt is[*273] liquidated or contingent is a matter of law reviewed de novo. In re Nicholes, 184 B.R. 82 (9th Cir. BAP 1995).

Whether the arithmetic sum of such debts exceeds $250,000 is a question of fact that is reviewed for clear error. Id.

IV.

DISCUSSION

Section 109(e) sets out the requirements for Chapter 13 eligibility. At the time this case was filed it provided:

Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual’s spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title. [3]

A. Evidence Used in Making § 109(e) Determination:

1. Proofs of Claim

First, debtors maintain that it was error to consider the filed proofs of unsecured claim that totaled more than $400,000, which claims were deemed allowed because no objection had been filed. They argue that a § 109(e) eligibility inquiry should be restricted to a review of the debtors’ schedules filed in good faith.

We have held that a bankruptcy court may look past the schedules to other evidence submitted when a good faith objection to the debtor’s eligibility under § 109(e) is raised. In re Scovis, 231 B.R. 336 (9th Cir. BAP 1999); In re Quintana, 107 B.R. 234, 239 n. 6 (9th Cir. BAP 1989), aff'd, 915 F.2d 513 (9th Cir.1990); In re Sylvester, 19 B.R. 671 (9th Cir. BAP 1982); accord, In re Williams Land Co., 91 B.R. 923 (Bankr.D.Or.1988).

We acknowledge that there is contrary authority in other circuits. In re Pearson, 773 F.2d 751 (6th Cir.1985); In re Camp, 170 B.R. 610 (Bankr.N.D.Ohio 1994); In re Robertson, 84 B.R. 109 (Bankr.S.D.Ohio 1988). Nevertheless, we see no reason to depart from our established precedent.

Accordingly, we conclude that the bankruptcy court did not err in looking beyond the debtors’ schedules to the allowed unsecured claims that were on file.

2. Statements contained in the Chapter IS Plan

The debtors contend that the bankruptcy court committed error by relying, at least in part, on the plan’s characterization of unsecured debt.

Clearly, the statements contained in the debtor’s proposed Chapter 13 plan regarding the characterization of unsecured debt is admissible evidence under FRE 801. Accordingly, the bankruptcy court did not err in considering the statements made in the debtors’ proposed plan as part of the evidence in its § 109(e) calculations.

B. Inclusion of Unsecured Portion of Undersecured Claims:

The bankruptcy court counted the unsecured portion ($153,359) of a partially secured claim and all of another claim ($79,000) that had been liquidated in a judgment but which was listed on the debtor’s schedules as being totally unsecured. Debtors argue that counting the unsecured portion of secured debt, as unsecured debt, for § 109(e) eligibility purposes, was in error.

The overwhelming majority of courts, including every circuit that has considered[*274] the question, have concluded that the un-dersecured portion of a secured creditor’s claim should be counted as unsecured debt for § 109(e) purposes. Matter of Day, 747 F.2d 405 (7th Cir.1984); Miller v. U.S., 907 F.2d 80 (8th Cir.1990); Brown & Co. Securities Corp. v. Balbus, (In re Balbus), 938 F.2d 246 (4th Cir.1991). This is impressive authority.

The majority view advocates importing a § 506(a) [4] analysis to § 109(e) to define “secured” and “unsecured”. This prevents raising form over substance and manipulation of the debt limits. Refusing to count the undersecured portion of a secured creditor’s claim as unsecured debt ignores reality and could lead to absurd results.

Nevertheless, debtors urge this panel to adopt the minority view, which rejects a § 506(a) analysis. Its rationale is set out in In re Morton, 43 B.R. 215 (Bankr.E.D.N.Y.1984) and In re Edmonston, 99 B.R. 993 (Bankr.E.D.Cal.1988) aff'd on other grounds, 99 B.R. 995 (E.D.Cal.1989). This view maintains that § 506(a) only applies to allowed claims. A claim is only deemed allowed if it has been filed and has not been objected to by any party in interest or if it has been judicially determined after an objection has been interposed. Morton, supra, at 220 (citing § 502). Thus, if a § 109(e) determination required bifurcation, such a determination could only be made after all claims are filed and all objections thereto had been resolved.

It would be anamolous (sic) to believe that Congress intended that a determination of whether a debtor was eligible for chapter 13 would have to be delayed until the case has substantially progressed.... The focus of section 109(e) is of debts existing at the time of the filing while the focus of section 506(a) is of claims existing and allowed well beyond the filing date.

Id.

Yet, the majority view concludes that, if the schedules themselves reveal underse-cured claims (as is the case here):

[I]t is an overly technical reading of § 506(a) and its impact upon a case to ignore the obvious bifurcation which will occur if the claims are filed as scheduled and the debtor’s valuation of the liened property is unchallenged. Instead, this Court finds that the claims process is to be assumed, given the debtor’s schedules of values and liabilities, absent a showing of bad faith. To do otherwise is to ignore obvious realities.

In re McClaskie, 92 B.R. 285, 287 (Bankr.S.D.Ohio 1988).

While Chapter 13, in general, is the Congressional alternative of choice for small, sole proprietorships, as maintained by the debtors, many courts, including this Circuit, have noted that eligibility debt limits should be strictly construed. See, Quintana, supra (Chapter 12 debt limits should be strictly construed); Lucoski v. I.R.S., 126 B.R. 332 (S.D.Ind.1991); In re Cronkleton, 18 B.R. 792 (Bankr.S.D.Ohio 1982); In re Prince, 5 B.R. 432 (Bankr.W.D.N.Y.1980).

We have recently signaled in dicta our view that the majority position is correct. In re Scovis, 231 B.R. 336, 341 (9th Cir. BAP 1999). We now expressly join the three circuits, and the overwhelming majority of bankruptcy courts, that have[*275] considered the question and hold that the undersecured portion of a secured creditor’s claim is counted as unsecured debt for § 109(e) eligibility purposes. We expressly reject the contrary minority view [5] .

Y.

CONCLUSION

We conclude that the bankruptcy court did not commit clear error in its § 109(e) calculations and its conclusion that the debtors were ineligible to proceed in Chapter 13. Accordingly, we AFFIRM the bankruptcy court’s order entered on April 14, 1998, converting this case to a case under Chapter 7 of the Bankruptcy Code. The stay pending appeal should be terminated.

2

. Unless otherwise specified, all statutory references are to the Bankruptcy Code, Title 11 of the United States Code.

3

. Pursuant to § 104(b), the dollar amounts were adjusted to $269,250 and $807,750 respectively for cases filed on or after April 1, 1998.

4

. Section 506(a) uses the term "claim”. It provides:

An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.
5

. We note that a different question might be presented if the debts in question were entitled to the protection afforded by § 1322(b)(2), i.e., claims secured only by a security interest in real property that is the debtor’s principal residence. See Nobelman v. American Savings Bank, 508 U.S. 324, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) and Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). Here, the debts are not entitled to such protection, accordingly, we do not attempt to resolve this issue.