UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE DIVISION

 

 

IN RE:

FRANKLIN D. FITZPATRICK

NANCY SUE FITZPATRICK

DEBTORS CASE NO. 91-70410

CHAPTER 13

 

MEMORANDUM OPINION

 

This matter is before the Court on the Motion for Relief from Automatic Stay of creditor Associates Commercial Corporation ("Associates") filed herein on November 1, 1993. The trustee filed a Response on November 5, 1993. The trustee filed a Report Concerning Disbursements to Associates Commercial Corporation on May 19, 1994.

The record in this case indicates that the debtors filed their Chapter 13 petition and Plan on August 30, 1991. The Plan proposed to pay $1800.00 per month to the trustee for a period of 60 months. It identified Associates' claim as secured in the amount of $38,000.00. The trustee recommended confirmation of the Plan and an Order confirming it was entered herein on December 18, 1991. An Agreed Order of Secured Status concerning Associates' claim was entered on the same date.

The debtors filed a Motion to Temporarily Suspend Chapter 13 Payments Based Upon Hardship on December 23, 1993. This Court entered an Order on January 13, 1994, suspending the payments for a period of 60 days commencing January 1, 1994. According to the trustee's Report, supra, the debtors began paying into the Plan on September 24, 1991. Through May 1994 they should have made 33 payments less the two suspended payments for a total of 31. Through May 1994 they had made 28 $1800.00 payments.

The Report also shows that through April 30, 1994, the trustee had disbursed a total of $23,347.39 to Associates toward the payment of its claim. Associates has therefore been paid more than 60% of its claim with almost 2 years to go until the Plan is completed. Associates Motion for Relief from Automatic Stay was filed before the debtors' Plan was confirmed and only two months after they started making payments to the trustee. The level of indebtedness to Associates has obviously changed a great deal since the Motion was filed.

While the debtors are not fully in compliance with the terms of their confirmed plan, it does not appear that Associates is jeopardized and the Court finds that the debtors should be given 180 days to make up the three payments that they have fallen in arrears. Based upon the foregoing, the motion for relief should be overruled without prejudice to the creditor to raise the issue again if the debtors fail to comply with the Court's order or for other appropriate cause. A separate order will issue.

Dated:

By the Court -

 

__________________________

Judge

 

 

Copies to:

Debtors

Brian P. Conaty, Esq.

Paul D. Deaton, Esq.

Chapter 13 Trustee

U.S. Trustee