UNITED STATES BANKRUPTCY COURT
|DO NOT PUBLISH
This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.
NORTHERN DISTRICT OF CALIFORNIA
JEAN A. GUNNARSON, No. 98-11658
Memorandum re Sanctions
The debtor's Chapter 13 plan was confirmed on July 20, 1998. It provides for a 100% dividend
to creditors, paid over 36 months. Craig Cryer is the debtor's former spouse. On November 4, 1999,
Cryer filed a motion to "modify and/or terminate the Chapter 13 plan after confirmation." The court
has denied the motion. The issue now before the court is whether it should honor the debtor's request
for sanctions contained in her response to the motion.
The motion was patently meritless insofar as it sought "termination" of the plan. Section
1330(a) of the Bankruptcy Code provides the only means for undoing a confirmed plan. It may be
invoked only for 180 days after confirmation, and only by adversary proceeding. FRBP 7001(5).
Creditors do have a right to seek modification of a plan under § 1329(a). However, that
section is intended to allow upward or downward adjustment of plan payments in response to changes
in the debtor's circumstances that substantially affect the ability to make future payments. In § 1329(a)
motions, "parties may not raise issues as to aspects of the plan that have not changed, or issues that
could have been raised at the confirmation hearing. The confirmed plan is res judicata
as to all such
issues." 8 Collier on Bankruptcy (15th
Ed. Rev.), ¶ 1329.02, p. 1329-5.
Considering the lack of merit to the motion, the court would have considered the debtor's
request for sanctions if it had been properly presented. However, FRBP 9011(c)(1) forbids the
consideration of motions for sanctions not separately presented, and requires a 21-day notice and
opportunity for the offending party to withdraw its motion. Since the request for sanctions was not
properly presented, it will be denied with prejudice.
The court notes that both the debtor's counsel and Cryer's counsel are from Southern
California, which may have a different legal culture from that prevailing in this part of the state. This
court is not used to incivility and meritless motions. It sees requests for sanctions very rarely, and does
not treat such requests lightly. The court strongly suggests that both sides carefully consider any further
motions and tactics. The court is slow to find sanctionable conduct, but repeated treatment of
bankruptcy proceedings as a family feud is likely to arouse the ire of the court. The court strongly
suggests that this Chapter 13 case proceed to conclusion and discharge without further litigation. Any
further motions had better be well-founded in the law.
Dated: December 21, 1999 ____________________________
United States Bankruptcy