Joseph E Bateman

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
	In Re: JOSEPH E. BATEMAN, JR.;
NAVEED A. KHAN,
Debtors.
TIMOTHY P. BRANIGAN, Trustee,
Trustee-Appellant,
No. 07-1030	v.
JOSEPH E. BATEMAN, JR.,
Debtor-Appellee,
and
NAVEED A. KHAN,
Debtor. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Deborah K. Chasanow, District Judge.
(8:06-cv-02818-DKC)
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	In Re: ARTHUR LEE GRAVES;
REMEGIA PATRIMONIO GRAVES,
Debtors.
TIMOTHY P. BRANIGAN, Trustee, No. 07-1307	Trustee-Appellant,
v.
ARTHUR LEE GRAVES; REMEGIA
PATRIMONIO GRAVES,
Debtors-Appellees. 
Appeal from the United States Bankruptcy Court
for the District of Maryland, at Greenbelt.
Thomas J. Catliota, Bankruptcy Judge;
Nancy V. Alquist, Bankruptcy Judge.
(BK-06-10634)
Argued: December 6, 2007
Decided: February 4, 2008
Before WILLIAMS, Chief Judge, DUNCAN, Circuit Judge,
and John Preston BAILEY, United States District Judge
for the Northern District of West Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge Williams wrote the opin-
ion, in which Judge Duncan and Judge Bailey joined.
COUNSEL
Timothy P. Branigan, Laurel, Maryland, for Appellant. Brett Weiss,
Olney, Maryland, for Appellees.
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OPINION
WILLIAMS, Chief Judge:
In this consolidated appeal, Timothy Branigan, standing Chapter 13
Trustee for the District of Maryland, Greenbelt Division ("Chapter 13
Trustee"), appeals (1) the district court’s order affirming both the
bankruptcy court’s denial of his motion to dismiss the Chapter 13
petition of Joseph Bateman, Jr. and its confirmation of Bateman’s
Chapter 13 plan and (2) the bankruptcy court’s orders denying his
motion to dismiss the Chapter 13 petition of Arthur and Remegia
Graves (collectively "the Graveses") and likewise confirming the
Graveses’ Chapter 13 plan.1 The Chapter 13 Trustee contends that,
because both Bateman and the Graveses are ineligible for discharges
under 11 U.S.C.A. § 1328(f) (West Supp. 2006), they should not be
allowed to file a Chapter 13 petition. We disagree, and for the reasons
set forth below, we affirm.
I.
A.
This case requires us to determine the meaning of 11 U.S.C.A.
§ 1328(f), which provides:
Notwithstanding subsections (a) and (b), the court shall not
grant a discharge of all debts provided for in the plan or dis-
allowed under section 502, if the debtor has received a dis-
charge—
(1) in a case filed under chapter 7, 11, or 12 of
this title during the 4-year period preceding
the date of the order for relief under this
chapter, or
(2) in a case filed under chapter 13 of this title
1All references to the "bankruptcy court" refer to the Bankruptcy Court
for the District of Maryland.
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during the 2-year period preceding the date of
such order.
B.
Bateman previously filed for Chapter 7 bankruptcy on March 25,
2005 and received a discharge on June 29, 2005.2 Later that year, on
December 12, Bateman filed the Chapter 13 bankruptcy petition at
issue in this appeal to stop a pending foreclosure on his home. If ulti-
mately put into effect, his confirmed Chapter 13 plan would fully pay
all allowed claims.
Bateman, however, would not receive a Chapter 13 discharge. The
United States Trustee filed a complaint seeking an order denying
Bateman a discharge pursuant to § 1328(f)(1) because Bateman had
initiated the Chapter 13 proceeding within four years of the date that
he had filed his previous Chapter 7 bankruptcy petition.3 Bateman did
not respond to the United States Trustee’s complaint, and the bank-
ruptcy court entered a default judgment denying Bateman a Chapter
13 discharge.
The Chapter 13 Trustee filed a motion to dismiss Bateman’s Chap-
ter 13 petition based on his interpretation of § 1328(f), arguing that
Bateman could not file a Chapter 13 petition because he was currently
ineligible for a Chapter 13 discharge. The bankruptcy court denied the
motion. In re Bateman, 341 B.R. 540 (Bankr. D. Md. 2006). After the
2Chapter 7 is the chapter of the Bankruptcy Code that governs the
debtor’s liquidation, a form of relief that involves the collection, liquida-
tion and distribution of the debtor’s nonexempt property and culminates
in the debtor’s discharge. 6 Collier on Bankruptcy P 700.01 (Alan N.
Resnick & Henry J. Sommer eds., 15th ed. rev. 2007). Chapter 13 of the
Bankruptcy Code is titled "Adjustment of Debts of an Individual With
Regular Income" and is essentially a reorganization that allows the
debtor to "deal comprehensively with both unsecured and secured debts."
8 Collier on Bankruptcy P. 1300.01.
3In this opinion, "United States Trustee" refers to the person responsi-
ble for appointing and supervising the standing Chapter 13 Trustee. Any
use of the term "Chapter 13 Trustee" refers only to the standing Chapter
13 Trustee, not the United States Trustee.
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bankruptcy court confirmed the plan over the Chapter 13 Trustee’s
objection, the Chapter 13 Trustee appealed to the United States Dis-
trict Court for the District of Maryland, and the district court
affirmed. In re Khan, No. DKC 2006-2818, 2006 U.S. Dist. LEXIS
90421 (D. Md. Dec. 14, 2006). The Chapter 13 Trustee appeals this
decision.
C.
Like Bateman, the Graveses filed a joint Chapter 13 bankruptcy on
February 7, 2006 to stop a pending foreclosure on their home, and
like Bateman’s, their confirmed Chapter 13 plan will pay all allowed
claims in full. The Graveses had previously filed a Chapter 13 bank-
ruptcy petition on January 4, 1999, and received a Chapter 13 dis-
charge on June 16, 2004, after completing five years of Chapter 13
plan payments.
As in Bateman’s case, the Chapter 13 Trustee filed a motion to dis-
miss the Graveses’ second Chapter 13 petition, arguing that the
Graveses were ineligible to file the petition because they were ineligi-
ble to receive a Chapter 13 discharge. The Chapter 13 Trustee con-
tended that § 1328(f)(2) prohibits a discharge in a Chapter 13 case
filed within two years of the date of discharge in the prior bankruptcy
and that because the Graveses had received a discharge in a prior case
in the 2-year period preceding the date of the filing in the present
case, they were ineligible for a Chapter 13 discharge under
§ 1328(f)(2). The United States Trustee filed a motion in opposition
to the Chapter 13 Trustee’s motion, arguing that the Graveses were
indeed eligible for a discharge under § 1328(f) because the period
during which a discharge is prohibited runs from the date of filing in
the prior bankruptcy case to the date of filing in the present Chapter
13 case.
The bankruptcy court denied the Chapter 13 Trustee’s motion in
part, finding that the Graveses were eligible to file a Chapter 13 peti-
tion even if they could not receive a discharge, but also concluding
that the question of their eligibility for a discharge was premature
pending confirmation of the plan. In re Graves, No. 06-10634-TJC,
2006 Bankr. LEXIS 4238 (Bankr. D. Md. Sept. 29, 2006) ("Graves
I"). Ultimately, the bankruptcy court adopted a "filing date to filing
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date" interpretation of § 1328(f) and concluded that the Graveses were
eligible for a discharge as their Chapter 13 filings were over seven
years apart. The bankruptcy court thus confirmed the Graveses’ Chap-
ter 13 plan over the Chapter 13 Trustee’s objection. In re Graves, No.
06-10634-TJC, 2007 Bankr. LEXIS 1274 (Bankr. D. Md. Jan. 19,
2007) ("Graves II").
The Chapter 13 Trustee sought a direct appeal of the bankruptcy
court’s order to this Court, which we granted, and the Graveses’ case
was consolidated with Bateman’s.4 We possess jurisdiction over the
Chapter 13 Trustee’s appeal in Bateman’s case under 28 U.S.C.A.
§ 158(d)(1) (West 2006) (conferring jurisdiction on courts of appeals
to review final decisions of district courts reviewing bankruptcy deci-
sions), and we possess jurisdiction over the Chapter 13 Trustee’s
appeal in the Graveses’ case pursuant to 28 U.S.C.A. § 158(d)(2)
(West 2006) (conferring jurisdiction on courts of appeals to hear
direct appeals from the bankruptcy court).
II.
In this appeal, we must answer two questions of statutory interpre-
tation. To resolve the Graveses’ entitlement to receive a discharge in
their second Chapter 13 petition, we must first decide whether the 2-
year and 4-year periods described in § 1328(f) run from the date of
filing of the previous bankruptcy petition or from the date of dis-
charge with respect to the previous petition. In addition, to resolve
Bateman’s right to file a Chapter 13 petition, we must decide whether
an individual may file a Chapter 13 petition if he is ineligible for a
discharge under § 1328(f). Because this appeal presents only ques-
tions of bankruptcy law, our review is de novo. In re White, 487 F.3d
199, 204 (4th Cir. 2007).
Resolution of the first issue is a matter of grammar, for we must
decide whether the phrase "during the 2-year period preceding the
date of such order" in § 1328(f)(2) modifies the phrase "received a
4Another case involving debtor Naveed A. Khan, was originally con-
solidated with these cases. Before oral argument, however, we granted
the Chapter 13 Trustee’s unopposed motion to dismiss Khan as a party
to the appeal.
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discharge" or the phrase "filed under chapter 13 of this title."5 The
Chapter 13 Trustee contends that the phrase modifies the phrase "re-
ceived a discharge," so that the Graveses are not eligible for a dis-
charge under § 1328(f)(2) because they received a discharge in a
prior case in the 2-year period preceding the date of the filing in the
present case. Under the Chapter 13 Trustee’s interpretation, the filing
date of the prior bankruptcy petition is immaterial. The Chapter 13
Trustee thus urges us to adopt a "discharge date to filing date" inter-
pretation of subsection (f)(2).
In contrast, the Graveses argue that a "filing date to filing date"
interpretation is correct because the phrase "during the 2-year period
preceding the date of such order" modifies the immediately preceding
phrase "filed under chapter 13 of this title." Under this interpretation,
the Graveses could only be denied a discharge in the present case if
their prior Chapter 13 case was filed in the 2-year period preceding
the date of filing in the present case.
Because we conclude that the statutory language is plain, our anal-
ysis begins and ends with that language. Lamie v. United States Tr.,
540 U.S. 526, 534 (2004) ("[W]hen the statute’s language is plain, the
sole function of the courts — at least where the disposition required
by the text is not absurd — is to enforce it according to its terms."
(internal quotation marks omitted)). Applying the plain meaning of
the statutory language, we conclude that the "filing date to filing date"
interpretation of § 1328(f) is correct. This interpretation "gives effect
to the logical sequence of the language used. Each subsequent clause
modifies the immediately preceding clause. All words are given
effect. No punctuation needs to be added or deleted." Graves II, 2007
Bankr. LEXIS 1274, at *9.
Our conclusion is buttressed by the doctrine of the last antecedent,
which teaches that "a limiting clause or phrase . . . should ordinarily
be read as modifying only the noun or phrase that it immediately fol-
5Because Bateman does not contest his ineligibility for a discharge
under 11 U.S.C.A. § 1328(f)(1) (West Supp. 2006), we will focus only
on the language of § 1328(f)(2) in our analysis. In any event, the analysis
for the 4-year period described in § 1328(f)(1) would be the same.
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lows."6 Barnhart v. Thomas, 540 U.S. 20, 26 (2003); see also 73 Am.
Jur. 2d Statutes § 138 (2001) ("Qualifying words, phrases, and clauses
are ordinarily confined to the last antecedent, or to the words and
phrases immediately preceding."). Applying this doctrine, the phrase
"during the 2-year period preceding the date of such order" in
§ 1328(f)(2) modifies the immediately preceding phrase "filed under
. . ." rather than the more distant phrase "received a discharge."
Moreover, any conclusion to the contrary would run counter to the
general rule that "‘courts should disfavor interpretations of statutes
that render language superfluous.’" In re Witt, 113 F.3d 508, 512 (4th
Cir. 1997) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253
(1992)). The Chapter 13 Trustee’s interpretation would render the
word "filed" superfluous, for Congress could have accomplished what
the Chapter 13 Trustee believes the statute already accomplishes by
omitting the word "filed" entirely and having subsection (f)(2) to read
"in a case under Chapter 13 of this title . . . ." In contrast to the Chap-
ter 13 Trustee, we believe that when Congress used the phrase "filed
under," it meant "filed under" and not just "under."7
6In Barnhart v. Thomas, 540 U.S. 20 (2003), the Supreme Court pro-
vided an example to explain how the doctrine of the last antecedent
works: If "parents who, before leaving their teenage son alone in the
house for the weekend, warn him, ‘You will be punished if you throw
a party or engage in any other activity that damages the house[,]’" the
limiting clause "that damages the house" modifies only the last anteced-
ent "any other activity" and not "a party." Id. at 27-28. Thus, the teenager
could be punished for throwing a party regardless of whether damage
occurred to the house.
7Bankruptcy courts in this circuit have rejected the idea that the word
"filed" in §§ 1328(f)(1) and (f)(2) is used to differentiate cases filed
under one chapter of the Bankruptcy Code, but converted to a different
chapter under which the discharge is ultimately granted. In re Sours, 350
B.R. 261, 269 (Bankr. E.D. Va. 2006); In re Capers, 347 B.R. 169, 171-
72 (Bankr. D.S.C. 2006). Those courts have noted that the "plain mean-
ing" rule requires that the language of § 1328 be read in conjunction with
11 U.S.C.A. § 348(a), which deems a converted case to be filed under the
chapter to which the case is converted. In re Sours, 350 B.R. at 267-68;
In re Capers, 347 B.R. at 171-72.
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Reading the statute as the Chapter 13 Trustee would have us do
also requires some grammatical finagling that is not needed with the
"filing date to filing date" interpretation that we adopt. Under the
Chapter 13 Trustee’s view, the statute must be reorganized so that
subsection (f)(2) would then read as follows: "if the debtor has
received a discharge— . . . during the 2-year period preceding the
date of such order, in a case filed under chapter 13 of this title." Even
the Chapter 13 Trustee concedes that "‘[t]he position of words in a
sentence is the principle [sic] means of showing their relationship,’"8
(Appellant’s Supp. Br. at 12 (quoting William Strunk, Jr. & E.B.
White, The Elements of Style 28 (Macmillan 3d ed. 1979) (elementary
principle of composition 20)), a principle which is borne out by our
application of the doctrine of the last antecedent in this case.
Undeterred by the grammatical obstacles to his interpretation, the
Chapter 13 Trustee argues that because most Chapter 13 plans histori-
cally run for five years, a "filing date to filing date" interpretation
essentially renders § 1328(f)(2) meaningless. The bankruptcy court
persuasively responded to this argument:
[W]hile it may be true that many plans state on their face
that they are five-year plans, it is not the case that the Bank-
8The Chapter 13 Trustee notes that "[t]he proper place for the word or
group of words that the writer desires to make most prominent is usually
the end." (Appellant’s Supp. Br. at 12 (quoting William Strunk, Jr. &
E.B. White, The Elements of Style 32 (Macmillan 3d ed. 1979) (elemen-
tary principle of composition 22).) We fail to see how this principle aids
our analysis. That the Chapter 13 Trustee considers the phrases "during
the 2-year period . . ." and "during the 4-year period . . ." to be the most
important is of little guidance in determining what antecedent these
phrases modify.
The Chapter 13 Trustee’s reading of § 1328(f) could also be achieved
by the inclusion of commas after the word "discharge" and after the word
"title" in subsection (f)(2)—commas that Congress did not include.
Although punctuation is not controlling, it may provide useful confirma-
tion of conclusions drawn from the words of the statute. United States v.
Naftalin, 441 U.S. 768, 774 n.5 (1979). Here, Congress’s choice not to
include these commas further confirms that our "filing date to filing date"
interpretation is best.
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ruptcy Code requires that result in all cases. And it certainly
is not the case that the Bankruptcy Code does not allow a
one or two-year plan if the circumstances of Section
1325(b)(4) are met. Accordingly, Congress expressly made
a distinction between plans running three years or longer, on
the one hand, and plans running less than three years, on the
other hand, in Section 1325(b). There is nothing in the
Bankruptcy Code to indicate that Congress also did not dis-
tinguish between plans completed in two years or less, com-
pared to plans completed in three years or more, in Section
1328(f)(2).
Graves II, 2007 Bankr. LEXIS 1274, at *19-*20. Indeed, as the Chap-
ter 13 Trustee concedes, "many [Chapter 13] plans are predicated on
a refinancing or sale of estate property in less than three years."9
(Appellant’s Supp. Br. at 6 n.13.)
Likewise, although Collier on Bankruptcy has recognized that,
under a "filing date to filing date" interpretation, § 1328(f)(2) "should
rarely be applicable," it nevertheless believes such an interpretation
flows from the plain language of the statute:
It might be suggested that Congress really intended that the
four-year period run from the date of the discharge in the
prior case, but such a reading of the subsection does vio-
lence to its plain language, which links the time period to
the filing of the prior case in each subparagraph. . . . [The
reading urged by the Chapter 13 Trustee] would fly in the
face of Congress’ oft-expresses[sic] policy of encouraging
chapter 13 rather than chapter 7, punishing only those who
successfully completed chapter 13 plans and received a dis-
charge.
8 Collier on Bankruptcy P 1328.06[2] (Alan N. Resnick & Henry J.
Sommer eds., 15th ed. rev. 2007) [hereinafter Collier].
9It is also possible that a hardship discharge under 11 U.S.C.A.
§ 1328(b) (West 2004 & Supp. 2006) could be granted to a debtor within
two years of the Chapter 13 petition in a prior case.
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Finally, courts have "repeatedly emphasized Congress’s preference
that individual debtors use Chapter 13 instead of Chapter 7." In re
McDonald, 205 F.3d 606, 614 (3d Cir. 2000); In re Bartee, 212 F.3d
277, 284 (5th Cir. 2000). The "filing date to filing date" interpretation
we adopt today is in keeping with this preference: a debtor who files
a new Chapter 13 petition after receiving a discharge in a typical
three-to-five-year Chapter 13 plan would never be prohibited under
§ 1328(f)(2) from receiving a discharge, but a debtor who obtained a
Chapter 13 discharge in a case filed within the last two years would
be prohibited from receiving a discharge, as would debtors filing
under Chapter 7 within the last four years. In re Ward, 370 B.R. 812,
814-15 (Bankr. D. Neb. 2007).
As the Graveses’ case illustrates, however, the "discharge date to
filing date" interpretation urged by the Chapter 13 Trustee would
reach an absurd result that runs counter to Congress’s often-expressed
preference for Chapter 13 bankruptcy. The Graveses filed for Chapter
13 bankruptcy on January 4, 1999, and received a Chapter 13 dis-
charge on June 16, 2004. Under the Chapter 13 Trustee’s interpreta-
tion, the Graveses would not be able to receive a discharge in a new
Chapter 13 bankruptcy, which would pay all creditor claims in full,
until June 16, 2006. But because the Graveses’ previous Chapter 13
plan paid at least 70 percent of the allowed unsecured claims, was
proposed in good faith, and represented their best efforts, the
Graveses would be eligible for a Chapter 7 discharge on the very day
they received their previous Chapter 13 discharge.10 See 11 U.S.C.A.
§ 727(a)(9) (West 2004 & Supp. 2006) (providing for a six-year wait-
ing period for a Chapter 7 discharge after a debtor has been granted
discharge in a Chapter 13 case, unless payments under the plan
totaled 100% of allowed claims or 70% of such claims and the plan
was proposed by the debtor in good faith and with the debtor’s best
efforts). This would produce the strange result that the Graveses
would not be able to receive a Chapter 13 discharge, which would pay
10Even if the Graveses’ previous plan did not meet the conditions of
§ 727(a)(9)(B), the Graveses would, at the very latest, be eligible to
receive a Chapter 7 discharge on June 16, 2005—a full year before they
would be eligible to receive a Chapter 13 discharge under the Chapter 13
Trustee’s interpretation of § 1328(f). See 11 U.S.C.A. § 727(a)(9)(West
2004 & Supp. 2006).
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the creditor claims in full, but would be permitted to file a Chapter
7 bankruptcy and thereby avoid payment of a larger portion of their
outstanding debts. The Chapter 13 Trustee’s interpretation thus would
encourage debtors that had intended to pay back all of their debts to
instead opt for a Chapter 7 discharge merely because a Chapter 13
discharge would not be available to them at the height of their finan-
cial difficulties.
In sum, the plain language of § 1328(f) supports a "filing date to
filing date" interpretation, and this result is not absurd.11 Accordingly,
we hold that under § 1328(f), a debtor may not obtain a Chapter 13
discharge in a bankruptcy filed within two years of filing an earlier
Chapter 13 petition that resulted in a discharge, or within four years
of filing an earlier Chapter 7, 11, or 12 petition that resulted in a dis-
charge.12 Because the time between the Graveses’ Chapter 13 filings
was more than 2 years, § 1328(f)(2) does not prohibit the Graveses
from receiving a discharge. We therefore affirm the bankruptcy court
orders denying the Chapter 13 Trustee’s motion to dismiss and con-
firming the Graveses’ Chapter 13 Plan.
11The Seventh Circuit, the only circuit to address the issue, noted that
the recent bankruptcy amendments "bar[red] a debtor from relief under
Chapter 13 within four years of receiving a discharge under Chapters 7,
11, or 12, or within two years of receiving a discharge in a previous
Chapter 13 proceeding." In re Sidebottom, 430 F.3d 893, 897 n.1 (7th
Cir. 2005). Although the Sidebottom language supports the "discharge
date to filing date" interpretation urged by the Chapter 13 Trustee, this
language is mere dicta. Moreover, as the preceding quote suggests, the
Seventh Circuit engaged in no analysis of the statutory language.
12We also find that "such order" in § 1328(f)(2) refers to the order for
relief in the instant case (the filing of the Chapter 13 petition), not the
order of discharge. This is the most natural grammatical reading of the
statute, and to conclude otherwise—that "such order" refers to the order
of discharge in the prior case—would create the absurd result that a
debtor could never again receive a Chapter 13 discharge if he had
received a prior Chapter 13 discharge within two years of the date of fil-
ing in the prior case.
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III.
On the other hand, because the time between Bateman’s previous
Chapter 7 filing in which he received a discharge and his current
Chapter 13 filing was less than 4 years, Bateman is not eligible for
a discharge under § 1328(f)(1); indeed, Bateman does not contend
otherwise. Instead, to resolve Bateman’s case, we must decide
whether a party (like Bateman) can file a Chapter 13 bankruptcy peti-
tion when a discharge is not available.
The Chapter 13 Trustee argues that § 1328(f) was added to the
Bankruptcy Code to put an end to the proliferation of serial filings
and prohibit debtors like Bateman from filing for Chapter 13 relief
when they are ineligible to receive a discharge upon completion of
their confirmed plan. Bateman counters that the unavailability of a
discharge does not preclude a good faith Chapter 13 filing and we
agree.
First, we do not believe that § 1328(f) is an eligibility provision. In
re Lewis, 339 B.R. 814 (Bankr. S.D. Ga. 2006). Rather, whether an
individual "may be a debtor under chapter 13" is established under 11
U.S.C.A. § 109(e) (West 2004 & Supp. 2006).13 Section 1328(f) never
mentions the word "filing," speaks only of "discharge," and does not
purport to limit the eligibility provisions of § 109(e). We therefore
hold that the plain language of § 1328(f) does not prohibit a debtor
who is ineligible for a discharge from filing a Chapter 13 petition.14
1311 U.S.C.A. § 109(e) (West 2004 & Supp. 2006) provides:
Only an individual with regular income that owes, on the date of
the filing of the petition, noncontingent, liquidated, unsecured
debts of less than $307,675 and noncontingent, liquidated,
secured debts of less than $922,975, 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 peti-
tion, noncontingent, liquidated, unsecured debts that aggregate
less than $307,675 and noncontingent, liquidated, secured debts
of less than $922,975 may be a debtor under chapter 13 of this
title.
14The Chapter 13 Trustee also argues that the interpretation we adopt
will undercut newly amended 11 U.S.C.A. § 1328(a) (West 2004 &
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See 8 Collier P 1328.06[1] (noting that § 1328(f) "does not prevent
a debtor from filing a chapter 13 case after a chapter 7 case" or "after
a prior [Chapter 13] case in which a discharge was received"); Hon.
William Houston Brown, Taking Exception to a Debtor’s Discharge:
The 2005 Bankruptcy Amendments Make It Easier, 79 Am. Bankr. L.
J. 419, 448-49 (2005) ("[T]his provision does not prevent the debtor
from filing for Chapter 13 relief and potentially obtaining the benefit
of the automatic stay, nor does it prevent that debtor from obtaining
confirmation of a plan in a second case, even though that debtor
might not be able to ultimately obtain a discharge in that case.").
The Chapter 13 Trustee relies heavily on the following statement
from the United States Supreme Court in Johnson v. Home State
Bank, 501 U.S. 78 (1991):
Congress has expressly prohibited various forms of serial
filings. See, e. g., 11 U. S. C. § 109(g) (no filings within 180
days of dismissal); § 727(a)(8) (no Chapter 7 filing within
six years of a Chapter 7 or Chapter 11 filing); § 727(a)(9)
(limitation on Chapter 7 filing within six years of Chapter
12 or Chapter 13 filing). The absence of a like prohibition
on serial filings of Chapter 7 and Chapter 13 petitions, com-
bined with the evident care with which Congress fashioned
these express prohibitions, convinces us that Congress did
not intend categorically to foreclose the benefit of Chapter
Supp. 2006), which requires a debtor with a domestic support obligation
to certify that he or she is current on those obligations as a prerequisite
to a Chapter 13 discharge, and 11 U.S.C.A. § 1328(g)(1) (West Supp.
2006), which states that a debtor will not receive a discharge unless he
or she has completed an instructional course concerning personal finan-
cial management. We are unpersuaded by this argument. These provi-
sions of the Bankruptcy Code are not rendered toothless simply because
they do not apply to every potential case; debtors desiring a discharge
still must comply with these provisions. Further, as the district court
noted, "[w]hether debtors with certain kinds of debt, such as domestic
support orders, may seek to abuse the system is immaterial. The bank-
ruptcy court always has the authority to guard against bad faith filing."
In re Khan, No. DKC 2006-2818, 2006 U.S. Dist. LEXIS 90421, at *6
(D. Md. Dec. 14, 2006).
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13 reorganization to a debtor who previously has filed for
Chapter 7 relief.
Id. at 87 (emphasis added).
Essentially, the Chapter 13 Trustee argues that Congress, when it
enacted § 1328(f), was aware of the language in Johnson construing
§§ 727(a)(8) and 727(a)(9)—both of which contain language similar
to § 1328(f)—as prohibitions on filing.15 Thus, the Chapter 13 Trustee
reasons that § 1328(f) can only be interpreted as a prohibition on filing.16
Although the Chapter 13 Trustee’s argument is appealing, we need
not look to other statutes to interpret § 1328(f), for its terms are plain.
As noted above, if the statute is unambiguous on its face, we must
enforce the statute’s language as written without looking for other
indications of Congressional intent. Lamie, 540 U.S. at 534. Further-
more, we note that the language in Johnson, which discusses provi-
sions of Chapter 7 but not the Chapter 13 provisions that are the
subject of this appeal, is dicta unaccompanied by any analysis from
which we might gain insight into the Court’s reasoning. We are mind-
ful that dicta of the U.S. Supreme Court, although non-binding,
should have "considerable persuasive value in the inferior courts,"
Myers v. Loudoun County Pub. Schs., 418 F.3d 395, 406 (4th Cir.
2005) (internal quotation marks omitted), but we nonetheless adopt
1511 U.S.C.A. § 727(a) reads as follows:
The court shall grant the debtor a discharge, unless—
. . .
(8) the debtor has been granted a discharge under this section
. . . in a case commenced within 8 years before the date of
the filing of the petition;
(9) the debtor has been granted a discharge under section 1228
or 1328 of this title . . . in a case commenced within six
years before the date of the filing of the petition . . . .
16Notably, the Trustee only asks us to consider this dicta in our analy-
sis of whether a debtor may file a petition if he is ineligible for a dis-
charge. Presumably, this is because this dicta would support the "filing
date to filing date" interpretation of § 1328(f) even though the language
in § 1328(f) differs somewhat from that in §§ 727(a)(8) and 727(a)(9).
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the position that we believe flows from the plain terms of § 1328(f)—
that the statute does not prevent a debtor from filing a Chapter 13
bankruptcy case even though he is ineligible for a discharge.17 Indeed,
despite the language in Johnson, Collier on Bankruptcy instructs that
§ 727(a)(8), the Chapter 7 provision that is analogous to § 1328(f),
"does not preclude a debtor [who received a discharge in a prior case]
from again becoming a debtor within eight years of commencement
of the prior case, although no discharge may be granted in the second
proceeding." 6 Collier P 727.11[1][a]; see also In re McKittrick, 349
B.R. 569, 574 (Bankr. W.D. Wis. 2006) ("The amended version of
§ 727(a)(8) does not even act to deny access to the bankruptcy sys-
tem, as debtors remain free to file; they simply may not receive a dis-
charge.").
Our conclusion that the dicta from Johnson should not be afforded
talismanic effect is supported by the fact that bankruptcy courts post-
Johnson have concluded that "where a debtor is denied a discharge
pursuant to the provisions of 11 U.S.C.A. § 1328(f), such debtor may
still qualify for chapter 13 relief if the debtor’s plan is otherwise con-
firmable." In re West, 352 B.R. 482, 483 n.1 (Bankr. E.D. Ark. 2006);
In re Sanders, 368 B.R. 634, 640 (Bankr. E.D. Mich. 2007); In re
McGhee, 342 B.R. 256, 258 (Bankr. W.D. Ky. 2006); In re Lewis,
339 B.R. at 817.
The Chapter 13 Trustee further contends that the Chapter 13 plans
here were not confirmable because the debtors filed their Chapter 13
petitions in bad faith knowing that a discharge was not possible. See
11 U.S.C.A. § 1325(a)(7) (West Supp. 2006) (stating that the court
shall confirm a plan if "the action of the debtor in filing the petition
was in good faith"). We have previously stated, however, that the
proper good faith inquiry is "whether or not under the circumstances
of the case there has been an abuse of the provisions, purpose, or
spirit of [the Chapter] in the proposal or plan." Deans v. O’Donnell,
692 F.2d 968, 972 (4th Cir. 1982) (internal quotation marks omitted).
The availability of a discharge is only one factor relevant in consider-
17Like the district court, we believe that §§ 727(a)(8), 727(a)(9) and
1328(f) do function as limitations on serial filing in practice, even though
they do not expressly prohibit the filing of any bankruptcy petition. In re
Khan, 2006 U.S. Dist. LEXIS 90421, at *8.
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ing whether a plan was proposed in bad faith, and that factor standing
alone is insufficient to support a finding of bad faith. In re Lewis, 339
B.R. at 817.
Indeed, a Chapter 13 debtor may not always be motivated by the
availability of a discharge, so courts would be wrong to impute bad
faith to a Chapter 13 petitioner simply because discharge was unavail-
able. Although the availability of a discharge is "undoubtably the
main reason Chapter 7 cases are filed" and Chapter 7 debtors view the
bankruptcy discharge as "the holy grail," In re Williams, 333 B.R. 68,
73 (Bankr. D. Md. 2005), a Chapter 13 debtor ineligible for a dis-
charge may "file a Chapter 13 case and utilize the tools in chapter 13
to cure a mortgage, deal with other secured debts, or simply pay debts
under a plan with the protection of the automatic stay." 8 Collier P
1328.06[2]. Thus, in many Chapter 13 cases, it is the ability to reorga-
nize one’s financial life and pay off debts, not the ability to receive
a discharge, that is the debtor’s "holy grail."
In Bateman’s case, the plan will fully pay all allowed claims. We
therefore hold, as did the lower courts, that Bateman’s Chapter 13 fil-
ing was in good faith.18
18The fact that the bankruptcy court has the responsibility to determine
the good faith of a debtor on a case-by-case basis is sufficient to over-
come the Chapter 13 Trustee’s concerns about recidivism where debtors
use serial filings to unreasonably delay paying creditors. In fact, one
bankruptcy court has noted:
[T]he lack of available discharge does not establish an unreason-
able delay if the plans are otherwise confirmable. As to secured
creditors an orderly distribution of debtor’s post-petition income
to pay down pre-petition creditor obligations provides for ade-
quate protection of creditor’s pre-petition collateral interest and
is far superior to a first come first paid race to the courthouse
contemplated under non-bankruptcy law. Unsecured creditors
have a better chance and more cost-efficient opportunity to be
paid in a chapter 13 plan under court supervision than contem-
plated under available state debt-collection law. Merely because
the chapter 13 debtor will not receive a discharge under an other-
wise confirmable plan does not establish unreasonable delay that
is prejudicial to creditors.
In re Lewis, 339 B.R. 814, 817 (Bankr. S.D. Ga. 2006).
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To summarize, we hold that a debtor is not precluded from filing
in good faith a new Chapter 13 bankruptcy case even though he may
be ineligible for a discharge under § 1328(f). Thus, we affirm the dis-
trict court order affirming the bankruptcy court’s denial of the Chap-
ter 13 Trustee’s motion to dismiss and its confirmation of Bateman’s
Chapter 13 Plan.
IV.
For the foregoing reasons, the judgments of the district court and
the bankruptcy court are hereby
AFFIRMED.
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