Memorandum of Decision Re: Chapter 13 Eligibility

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Judge's Decisions
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re LEIF and SYDNEY SODERLING,                                       No. 98-14751      Debtor(s). ______________________________________/
Memorandum
     Debtors Leif and Sydney Soderling filed a Chapter 13 petition on December 17, 1998, despite owing criminal restitution debt of $4,835,600.12. Section 109(e) of the Bankruptcy Code prohibits debtors who owe more than $250,000.00 in noncontingent, liquidated unsecured debts from being eligible for relief under Chapter 13. The U.S. government accordingly seeks dismissal. The Soderlings argue that the government claim should not be counted for eligibility purposes because its enforcement is time-barred.      It appears to the court that Solderlings' argument has already been rejected by the Court of Appeals. U.S. v. Soderling, 970 F.2d. 529, 535 (9th Cir. 1992). To the extent that the circuit decision is for some reason not binding, such a conclusion could only be reached after extensive research, argument, hearings, and analysis which is inappropriate in the context of determining Chapter 13 eligibility. "So long as a debt is subject to ready determination and precision in computation of the amount due, then it is considered liquidated and included for eligibility purposes under § 109(e), regardless of any dispute." In re Nicholes, 184 B.R. 82, 89 (9th Cir.BAP 1995)(emphasis added).      The debt here at issue is neither contingent nor unliquidated, merely disputed. The only time a statute of limitations can be raised in a dispute over Chapter 13 eligibility is when the statute of limitations bar is either readily admitted or can be simply determined in the briefest of hearings. In re Loya, 123 B.R. 338, 341 (9th Cir.BAP 1991).      In this case, the government vigorously disputes that its criminal restitution claim is time-barred. To the extent resolution is not a simple matter of applying the express wording of U.S. v. Soderling, it is a complex matter which involves disputed issues of law, the interplay of state and federal statutes, and possibly examination of the conduct of the parties since the criminal proceedings. Such litigation is not appropriate in determining eligibility under § 109(e).      For the foregoing reasons, this Chapter 13 case will be dismissed, with prejudice. The Soderlings may not file another Chapter 13 petition until they have obtained a final judgment of a court of proper jurisdiction establishing that their criminal restitution obligations are no longer enforceable, or the government readily admits that fact.
Dated: March 19, 1999                                                                              ____________________________                                                                                                                      Alan Jaroslovsky                                                                                                                      United States Bankruptcy