Roy John Montana and Jeanne Marie Montana

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Memorandum
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	Case No. 06-42428 EDJ
ROY JOHN MONTANA, III and 	Chapter 13
JEANNE MARIE MONTANA,
Debtors./
MEMORANDUM RE: MOTION TO DISMISS
On January 30, 2008, Creditor RyAnn Montana (“Creditor”) moved
to dismiss the above-captioned chapter 13 case or convert it to
chapter 7. 	Creditor contends that the debts of Debtors Roy John
Montana, III and Jeanne Marie Montana (“Debtors”) exceed the debt
limits of Bankruptcy Code § 109(e) and that the Debtors are thus
ineligible to file under chapter 13. 	The court heard the matter on
March 13, 2008. 	Both Creditor and Debtors appeared through counsel.
The court will deny Creditor’s motion to dismiss.
On December 12, 2006, Debtors filed a petition for relief under
chapter 13 of the Bankruptcy Code. 	Along with their petition,
Signed: March 18, 2008

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
March 18, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-42428 Doc# 125 Filed: 03/18/08 Entered: 03/18/08 14:22:44 Page 1 of
5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1Debtors filed an amended Schedule F on February 21, 2007 to
add two creditors, whose claims total approximately $5,281.
2The court notes that the $284,589 and $890,345 amounts are
the same as those used in Creditor’s motion.
2	Memorandum
Debtors filed schedules D, E, and F. 1 	Schedule D shows secured
claims totaling $890,345.00. 	Schedule E shows unsecured priority
claims totaling $0. 	Amended Schedule F shows general unsecured
claims totaling $284,589.51. 	Amended Schedule F includes Creditor’s
unliquidated, disputed claim with a stated value of “undetermined.”
Creditor’s motion to dismiss hinges on Debtors being over the
§ 109(e) debt limits. 	On the date Debtors filed their petition,
§ 109(e) stated, in relevant part:
Only ... an individual ... and such individual’s spouse ...
that owe, on the date of the filing of the petition,
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.
Debtors’ noncontingent, liquidated, unsecured debt is $284,589,
which is less than the $307,675 debt limit. 2 	Debtors’
noncontingent, liquidated, secured debt totals $890,345, which is
less than the $922,975 debt limit. 	Therefore, Debtors do not exceed
the § 109(e) debt limits.
Creditor states in her motion that the debt limits are $250,000
for unsecured debts and $750,000 for secured debts. 	(Motion to
Dismiss 4). 	That is incorrect. 	While those were the figures in
2000, they were increased twice prior to Debtors’ date of filing.
See § 104.
To the extent that Creditor used her claim of $685,773.98 in
Case: 06-42428 Doc# 125 Filed: 03/18/08 Entered: 03/18/08 14:22:44 Page 2 of
5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3	Memorandum
the calculation of Debtors’ debts, Creditor is also incorrect.
Unliquidated claims are not to be used in determining eligibility to
be a debtor under chapter 13. 	See In re Ho, 274 B.R. 867 (9th Cir.
B.A.P. 2002) (Bankruptcy court erred in including unliquidated claim
when computing debt limits). 	All of the evidence points to this
claim being unliquidated. 	Debtors scheduled this claim as
unliquidated, disputed, and of an unknown amount. 	Debtors also
objected to the claim arguing that it was not liquidated. 	Nowhere
in Creditor’s responses to the objection to claim does she dispute
that her claim is unliquidated. 	Furthermore, Creditor’s claim is
currently the subject of an adversary proceeding and a state court
civil proceeding.
To the extent that Creditor’s motion argued unreasonable delay,
the court does not find any unreasonable delay. 	Debtors’ plan was
confirmed timely. 	While Debtors’ Motion to Modify and Objection to
Claim have been continued several times, this was done primarily to
give the parties time to resolve their disputes. 	In addition, these
matters have been set for a final hearing.
Finally, Creditor argues that Debtors have not been making
their plan payments. 	Debtors filed a motion to modify the required
payment, which Creditor opposes. 	The matter is set for hearing. 	If
Debtors prevail, the issue will be moot. 	Therefore, Creditor
presents the argument prematurely. 	Moreover, the argument
apparently assumes, improperly, that if the court denies Debtors’
pending motion that the Debtors will be unable to perform under
their current plan or to obtain any relief as to a further proposed
Case: 06-42428 Doc# 125 Filed: 03/18/08 Entered: 03/18/08 14:22:44 Page 3 of
5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
4	Memorandum
modification. 	The court declines to dismiss the case on this
ground.
For the reasons stated above, the court will issue its order
denying Creditor’s motion.
** END OF DOCUMENT **
Case: 06-42428 Doc# 125 Filed: 03/18/08 Entered: 03/18/08 14:22:44 Page 4 of
5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
5	Memorandum
COURT SERVICE LIST
James P. McBride
Law Offices of James P. McBride
1065 A St. #224
Hayward, CA 94541-4122
Max Cline
Law Offices of Max Cline
1300 Clay St. #600
Oakland, CA 94612
Julian T. Lastowski
Law Offices of Julian T. Lastowski
459 Fulton Street, Suite 200
San Francisco, CA 94102
Case: 06-42428 Doc# 125 Filed: 03/18/08 Entered: 03/18/08 14:22:44 Page 5 of
5