Publication Date

Fall 2009


American Bankruptcy Law Journal


A very large number of chapter 13 plans are confirmed each year. Unlike chapter 11 plans (for non-individuals), these plans may be revised after confirmation. The modification provisions of the Bankruptcy Code, however, give very little guidance as to what constitutes a permissible modification. In contrast, confirmation of the original plan is very carefully governed. This article theorizes that modification must honor the basic chapter 13 bargain. According to this bargain, the debtor is entitled to the bankruptcy estate and the creditors are entitled to net surplus income. The article assesses whether the diffuse and disorganized caselaw of modification adheres to this normative structure. It explains how some of the precedents permit creditors to raid the bankruptcy estate in violation of a debtor's rights. In particular, it argues that, in a modification, a court should not perform again the "best interest of the creditors" test of Bankruptcy Code 1325(a)(4), nor should bifurcation of secured claims be revisited.



First Page



National Conference of Bankruptcy Judges


Bankruptcy, Modification, Rebifurcation, Res Judicata, Creditor Standing, Confirmed Plans, Debtor, Creditor


Bankruptcy Law | Law | Law and Economics | Religion Law



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.