Michael R. Keenan and Ramona L. Keenan

1The Court has subject matter and personal jurisdiction
pursuant to 28 U.S.C. § 1334 and 157(b); this is a core
proceeding pursuant to 28 U.S.C. § 157(b)(2)(L); and these are
findings of fact and conclusions of law as required by Rule 7052
F.B.R.P. 	This chapter 13 case was filed prior to the effective
date of most of the provisions of the Bankruptcy Abuse Prevention
and Consumer Protection Act of 2005 (“BAPCPA”), Pub.L. No. 109-
08, 119 Stat. 23, and therefore the changes enacted by that
legislation are not applicable to this case.
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re:
MICHAEL KEENAN and
ROBERTA KEENAN,
Debtors. 	No. 13-05-21229 SA
MEMORANDUM OPINION AFTER CONFIRMATION
HEARING ON FIRST AMENDED CHAPTER 13 PLAN
This matter came before the Court to consider confirmation
of Debtors’ 1 st Amended Chapter 13 Plan (doc 73) and the
objections thereto filed by the Chapter 13 Trustee (doc 76) and
creditor Suzanne Mallon (doc 77). 	For the reasons set forth
below, the Court finds that it should confirm the 1 st Amended
Chapter 13 Plan. 1
This case first came before the Court for a 2-day trial over
2 years ago to consider confirmation, lien avoidance, and a
motion to dismiss. 	The Court took the matters under advisement
then issued a 40-page Memorandum Opinion in March, 2007, denying
confirmation with leave to file an amended plan, denying the
motion to dismiss, and partially granting the motion to avoid
lien. 	(Doc 51, In re Keenan, 364 B.R. 786 (Bankr. D. N.M.
2007).) 	This Memorandum Opinion assumes familiarity with the
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earlier opinion and will not restate facts or legal analysis
unless necessary. 	Briefly, in the earlier Opinion the Court 1)
denied confirmation because Debtors did not meet the disposable
income test of § 1325(b), 2) denied confirmation because it
appeared that Debtors did not meet the best interest of creditors
test of § 1325(a)(4), 3) found that the Plan would be feasible if
monthly payments were $1,537, and 4) found the Plan had been
proposed in good faith.
Debtors promptly filed a 1 st Amended Plan, increasing
monthly payments to $1,537 for the remainder of the plan period
(43 months) and lengthening the term of the Plan, thereby meeting
the disposable income requirements the Court set forth in the
Opinion. 	See Keenan, 364 B.R. at 800-01. 	Because the Court
found that payments of $1,537 would be feasible, that issue is no
longer live. 	Similarly, the 1 st Amended Plan did nothing more
than make more money available to creditors, so it also is
proposed in good faith. 	Therefore, the only issue remaining for
confirmation of this 1 st Amended Plan is the best interest of
creditors test.
A large portion of the earlier Opinion dealt with the best
interest of creditors test. 	Id. at 801-04. 	The Court found that
it could not confirm a plan that called for net payments to
unsecured creditors (after trustee fees) of less than a present
value of $63,951 plus the net proceeds of sale of some California
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2Debtors presented no evidence on expenses to be deducted in
arriving at the best interest of creditors number at the original
confirmation hearing.
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real estate. 	Id. at 804. 	This calculation was based, however,
on trustee fees of only $1,000 2, no taxes on the trustee fees,
and a chapter 7 trustee commission of $9,060.
At the 1 st Amended Plan confirmation hearing, Debtors
presented expert testimony that, for this complex case, the
trustee attorney fees would have been $35,000. 	The Court finds
this number reasonable and adopts it. 	The New Mexico gross
receipts tax on a $35,000 attorney fee bill would be roughly
$2,100 (at 6%). 	The expert witness also corrected the Court’s
earlier computation of the trustee’s statutory fee at $9,060;
trustees also receive a commission on payments of secured claims.
The real trustee commission would have been closer to $20,000.
Therefore, to arrive at a final best interest of creditors test
number, the Court should subtract from $63,951 (plus net real
estate proceeds) the following amounts: $34,000 for additional
trustee attorney fees, $2,100 in New Mexico gross receipts taxes,
and $10,040 for additional trustee fees. 	This results in a best
interest of creditors test number of $17,811 (plus net proceeds
from California real estate).
The monthly payments under the 1 st Amended Plan total
$83,652 over the life of the plan. 	There are no secured claims
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provided for under the 1 st Amended Plan, so virtually all the
payments go to the unsecured creditors. 	The 1 st Amended Plan
meets the best interest of creditors test. 	The parties expended
great efforts arguing over the meaning of “effective date.”
Because the best interest of creditors test is no longer
relevant, the Court does not need to address this issue.
CONCLUSION
Based on the foregoing, the Court believes that the parties
should be able to submit a confirmation order. 	Debtors’ attorney
shall draft an order within 14 days of the entry of this
Memorandum Opinion and forward to the other parties for approval.
If the parties cannot agree on the form of an Order, Debtors
should contact Judge Starzynski’s chambers within 20 days to set
a presentment hearing, and each side should serve on the other
sides and file with the Court prior to any presentment hearing,
any proposed confirmation order it wishes the Court to consider.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	October 1, 2008
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copies to:
Christopher L Trammell
3900 Juan Tabo NE
Albuquerque, NM 87111-3984
Kelley L. Skehen
625 Silver Avenue SW
Suite 350
Albuquerque, NM 87102-3111
Rob Treinen
Ste 2000 E
300 Central Ave SW
Albuquerque, NM 87102
James A Askew
PO Box 1888
Albuquerque, NM 87103-1888
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