Michael J Cluckey and Stacie A Cluckey

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
In Re:
Michael J. Cluckey and Stacie A. Cluckey,
Debtor(s)
) 	Case No. 08-32934
)
) 	Chapter 13
)
)
) 	JUDGE MARY ANN WHIPPLE
ORDER DENYING MOTION TO MODIFY
This case came before the court for 	hearing on December 18, 2012, upon Debtors’ Motion to
Modify Plan (“Motion”) [Doc. # 97]. The Chapter 13 Trustee, Debtors and Attorney for Debtors appeared
in person at the hearing.
The Motion was filed in response to the Chapter 13 Trustee’s separate motion to dismiss, which
raised feasibility issues with the plan resulting from missed monthly payments and post-petition income tax
claims. As of the filing of the motion to dismiss, Debtors were over 18 months behind on their monthly plan
payments and the plan was running 24 months over the statutorily allowed maximum duration. Debtors’
solution to the motion to dismiss is to propose a modification that simply reduces the percentage to be paid
to unsecured creditors from 100% to 19%.
The cause of Debtors’ plan problems is that they failed to pay their post-petition income tax
liabilities for the tax years 2008, 2009 and 2010. See Doc. # 86. At the same time, as Ms. Cluckey completed
her nursing education and gained professional employment 	as an RN, 	the family income increased
substantially from what it was pre-petition. Through under-withholding, Debtors thus had the benefit of
the record of the United States Bankruptcy Court for the Northern District of Ohio.
of this court the document set forth below. This document has been entered electronically in
The court incorporates by reference in this paragraph and adopts as the findings and orders
Dated: December 27 2012
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several years of extra cash flow until non-payment of their post-petition tax liabilities caught up to them
and impaired performance of their plan. 	This conduct contradicts the court’s September 9, 2008, plan
confirmation order, which specifies, among other provisions, that Debtors are “ORDERED that during the
pendency of this case, debtors shall timely file all tax returns and pay any and all post-petition tax liabilities
as required by law;...” [Doc. # 25, p. 2/3]. This confirmation requirement is designed to prevent precisely
what has occurred here, including in the somewhat unusual circumstance where post-petition income has
increased materially.
The requirements of § 1325(a), including that a plan has been proposed in good faith, 11 U.S.C.
§ 1325(a)(3), apply to any proposed plan modification, 11 U.S.C. § 1329(b)(1). Debtors have violated the
confirmation order without any meaningful explanation as to any hardship or necessity for doing so given
their increased post-petition family income. Their amended budget [Doc. # 103] reflects no belt tightening
and unapproved new expenses related to motor vehicles. With their proposed modification, Debtors are
really asking their unsecured creditors to bail them out and pay their post-petition income taxes without
cause and without taking sufficient financial responsibility for the consequences of the failure to pay them
through proper withholding and timely when due. 	For these reasons the court finds that Debtors have not
proposed the modified plan in good faith. The Motion will be denied, without prejudice to another proposed
modification that might pass good faith 	muster 	given the circumstances of this case and their current
improved financial situation.
IT IS THEREFORE ORDERED that Debtors’ Motion to Modify Plan [Doc. # 97] is DENIED,
without prejudice to a further proposed modification and Debtors’ further performance going forward of
their plan.
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