Robert Franklin Brisbin and Kyle L. Brisbin

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
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06/10/06
Robert Franklin Brisbin and Kyle L. Brisbin
04-10642
Interim Order on [33-1] Objection filed by Debtor Kyle L. Brisbin and Debtor
Robert Franklin Brisbin to Claim of CIT Group/Consumer Financial I; Claim Number
#5 in the amount of Various Amounts.
Received on: 2005-09-22 16:15:33.000
2005-09-22 00:00:00.000
2005-09-23 00:00:00.000
James Burke
Case 04-10642-s13 Doc 49 Filed 09/22/05 Entered 09/23/05 13:12:00 Page 1 of 4

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
Robert Franklin Brisbin
and Kyle L. Brisbin,
Debtors. No. 13 - 04-10642 - SA
INTERIM ORDER ON DEBTORS’ AMENDED OBJECTION
TO PROOF OF CLAIM #5 FILED BY CIT GROUP
This matter is before the Court on Debtors’ Amended
Objection to Proof of Claim #5 of CIT Group (“CIT”)(doc. 33).
Debtors appear through their attorney William P. Gordon &
Associates. CIT Group appears through its attorney Reeves,
Chavez, Albers, Anderson & Baca, P.A. The Chapter 13 Trustee
appeared through her attorney Annette DeBois. CIT Group filed
a response (doc. 35), and Debtors filed a brief in support of
their objection (doc. 39). This is a core proceeding. 28
U.S.C. § 157(b)(2)(B).
The sole issue dealt with in this Order is whether the
Debtors may object to CIT’s claim after obtaining an Order
confirming their Chapter 13 Plan. This Order does not deal
with the merits of the claim or the objection thereto.
Having considered the arguments of the parties, and being
otherwise sufficiently informed, the Court finds that Debtors
are permitted, both by the language in their plan and as a
matter of law, to object to CIT’s claim at this time.
Case 04-10642-s13 Doc 49 Filed 09/22/05 Entered 09/23/05 13:12:00 Page 2 of 4

Page -2-
Therefore, the Court will schedule a pretrial conference to
set discovery and deadlines for this contested matter.
First, Debtors’ plan anticipates payments on arrearages
“allowed by the court” if the proof of claim exceeds the
plan’s estimated amount due. Second, the Court finds In re
Shank, 315 B.R. 799 (Bankr. N.D. Ga. 2004) persuasive. That
court thoroughly analyzed the issue of objecting to claims
after confirmation and reasoned that nothing in the code or
rules require objections to be filed before confirmation. Id.
at 801. See also United States v. Kolstad (In re Kolstad),
928 F.2d 171, 174 (5th Cir.), cert. denied, 502 U.S. 958
(1991)(There is no bar date for filing objections to proofs of
claim.); Morton v. Morton (In re Morton), 298 B.R. 301, 309
(6th Cir. B.A.P. 2003)(The line of cases that finds that there
is no requirement to object to proofs of claim before the time
of confirmation of a chapter 13 case is better reasoned.)
Therefore,
IT IS ORDERED that Debtors objection to CIT’s claim will
be heard on the merits. It is further ordered that the Court
will conduct a pretrial conference on October 17, 2005 at 9:30
a.m. in the Hearing Room, Room 13102, Dennis Chavez Federal
Building and United States Courthouse, 500 Gold Avenue, SW,
Albuquerque, New Mexico 87102.
Case 04-10642-s13 Doc 49 Filed 09/22/05 Entered 09/23/05 13:12:00 Page 3 of 4

Page -3-
Honorable James S. Starzynski
United States Bankruptcy Judge
I hereby certify that on September 22, 2005, a true and
correct copy of the foregoing was electronically transmitted,
faxed, delivered, or mailed to the listed counsel and/or
parties.
Bill Gordon and Associates
2501 Yale SE Suite 204
Albuquerque, NM 87106
Kelly P. Albers
650 Montana Ave. Ste. D
Las Cruces, NM 88001
Kelley L. Skehen
Chapter 13 Trustee
625 Silver Avenue SW, Suite 350
Albuquerque, NM 87102-3111
Note: Counsel/parties may appear via telephone if a written
request is received in the Court's Chambers no later than 5:00
pm (MT) of the business day prior to the day of the hearing.
For this purpose only, requests to appear via telephone may be
faxed to Chambers at (505) 348-2432.
Case 04-10642-s13 Doc 49 Filed 09/22/05 Entered 09/23/05 13:12:00 Page 4 of 4