Johnny Costantino

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
JOHNNY CONSTANTINO,
Debtor.
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Case No. 09-00420
(Chapter 13)
Not for publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION And ORDER RE OBJECTION OF CARMAX BUSINESS
SERVICES, LLC DBA CARMAX AUTO FINANCE TO DEBTORS’ CHAPTER 13 PLAN
By an objection to confirmation filed on July 16, 2009,
CARMAX Business Services, LLC doing business as CARMAX Auto
Finance (CARMAX), asserts that it has a claim secured by a motor
vehicle belonging to the debtor, and has objected to confirmation
of a plan in this case. 	The objection does not specify whether
this is an objection to the original plan filed May 15, 2009, the
amended plan filed May 18, 2009, or the amended plan filed July
15, 2009. 	CARMAX objects to confirmation on the basis that:
The Plan values the Vehicle at $19,010. However, as the
Vehicle was purchased and financed on March 31, 2008,
within the 910-day period prior to the filing of the
debtors’ bankruptcy petition, Debtor may not cram down
the value of the Vehicle. 11 U.S.C. § 1325(a). 	As
such, CARMAX’s collateral must be valued as fully
securing its claim of $20,632.54.
The debtor’s amended plan filed on July 15, 2009, provided that
The document below is hereby signed.
Signed: August 25, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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“THE AMOUNT SECURED CLAIM OF [CARMAX] WILL BE PAID IN FULL WITH
8% POST-PETITION INTEREST PER ANNUM.” 	The July 15, 2009, amended
plan (unlike the plan filed on May 15, 2009) placed no value on
the vehicle and did not specify the amount of the allowed secured
claim. 	If the so-called hanging paragraph of § 1325(a) applies
to make § 506(a) inapplicable to the determination of the amount
of the allowed secured claim, CARMAX is still free under the
amended plan filed on July 15, 2009, to show that the hanging
paragraph indeed does apply. 	Nothing in the July 15, 2009,
amended plan suggests that it is decreeing, one way or the other,
whether the hanging paragraph applies.
In any event, CARMAX did not timely object by the deadline
that ran in June to the debtor’s earlier amended plan filed May
18, 2009, which provided worse treatment of CARMAX’s allowed
secured claim (by providing that “ALL ALLOWED SECURED CLAIMS
SHALL BE PAID IN FULL 100% PAYMENT PLUS 6% POSTCONFIRMATION
INTEREST PER ANNUM” and providing for no different treatment of
CARMAX’s allowed secured claim. 	The court was thus justified in
deeming CARMAX to have waived any objection to the amended plan
filed July 15, 2009, which gave its claim better treatment. 	The
court accordingly confirmed the amended plan that was filed on
July 15, 2009, by an order entered on July 16, 2009, before
CARMAX filed its objection. 	The court will strike the objection
as having been waived by reason of failure timely to object to
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3	O:\TEEL\Judge Temp Docs\Constantino (Johnny) Mem Dec & Order re Objn to Plan.wpd
the first amended plan. 	It is thus
ORDERED that the objection of CARMAX to confirmation is
overruled and stricken.
[Signed and dated above.]
Copies to:
Robert M. Gants, Esq.; Debtor; debtor's attorney; trustee.
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