Paul

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In re DeVries

Decision: In re Relna James DeVries and Kathryn Lee DeVries, Case No. 13-41591-JDP (Bankr. D. Idaho, 28 Apr. 2015)
Judge: Honorable Jim D. Pappas, United States Bankruptcy Judge
Counsel for Debtors: Paul Ross, Idaho Bankruptcy Law, Paul, Idaho
Chapter 13 Trustee: Kathleen A. McCallister, Meridian, Idaho
Trustee’s Counsel: Holly Roark, Office of Kathleen A. McCallister, Meridian, Idaho

Background

Relna and Kathryn DeVries filed a Chapter 13 petition on 27 December 2013. Their amended plan, confirmed on 19 May 2014, provided that all allowed tax claims would be paid in full. The IRS timely filed a proof of claim for taxes owed for the 2011 and 2012 tax years. The deadline for governmental units to file proofs of claim was 25 June 2014.

The Debtors filed their 2013 federal income tax returns in April 2014, which showed they owed $1,021 to the IRS for the 2013 tax year. The Idaho Tax Commission filed its own proof of claim for the $84 in state taxes owed for 2013 the day after plan confirmation. The IRS, however, did not file a claim for the 2013 federal taxes, nor did it amend its existing claim to include them. Within 30 days of the 25 June 2014 governmental bar date — as permitted by Federal Rule of Bankruptcy Procedure 3004 — the Debtors filed a proof of claim on behalf of the IRS for the $1,021 in 2013 taxes.

The Trustee’s Objection

The Trustee objected to the Debtors’ proof of claim. The Trustee represented that it was allegedly filed at the IRS’s own request, and that the IRS did not wish to have the 2013 tax debt paid through the plan as a § 1305 claim.

The Trustee’s objection rested on 11 U.S.C. § 1305(a)(1), which governs postpetition claims in Chapter 13 cases. That provision permits a proof of claim to be filed by “any entity that holds a claim against the debtor … for taxes that become payable to a governmental unit while the case is pending.” The Trustee argued that the Debtors’ 2013 federal income taxes became payable during the pendency of the bankruptcy case, making them a § 1305 postpetition claim, and that under the plain language of § 1305 only the creditor holding the claim — the IRS — was authorized to file a proof of claim for it. The Debtors’ attempt to file on the IRS’s behalf was therefore improper and the claim should be disallowed in its entirety.

The Debtors’ Response

Debtors filed a response through their counsel arguing that the 2013 tax debt was properly treated as a prepetition claim and that they were authorized to file the proof of claim under § 501(c) and Federal Rule of Bankruptcy Procedure 3004.

Debtors did not rely on § 1305 as their filing authority. Instead, they argued that the 2013 tax obligation was a prepetition claim — or should be treated as one — and that the ordinary debtor claim-filing mechanism of § 501(c) and Federal Rule of Bankruptcy Procedure 3004 therefore applied. On the question of when the claim arose, Debtors urged the Court to apply the “fair contemplation” or “prepetition relationship” test articulated in In re Dixon, 295 B.R. 226 (Bankr. E.D. Mich. 2003). Under that approach, a claim arises prepetition if there was a prepetition relationship between the debtor and the creditor such that a possible claim was within the creditor’s fair contemplation at the time of filing. The IRS and the Debtors had precisely such a relationship: the Debtors were taxpayers, the IRS was their taxing authority, and 361 of the 365 days of the 2013 tax year had elapsed before the petition was filed. The IRS’s claim for 2013 taxes was fully within its fair contemplation at the time of filing, Debtors argued, making it a prepetition claim subject to the ordinary rules permitting debtors to file on a creditor’s behalf.

Debtors also invoked 11 U.S.C. § 502(i), which provides that a postpetition claim for taxes entitled to priority under § 507(a)(8) shall be treated as if it had arisen before the petition date. On that theory, even if the 2013 taxes technically arose postpetition, § 502(i) mandated that they be treated as prepetition claims, restoring the Debtors’ authority to file under § 501(c) and Federal Rule of Bankruptcy Procedure 3004.

The Trustee’s Reply

The Trustee replied that Ninth Circuit authority resolved the question directly and foreclosed the Michigan court’s “fair contemplation” test. Relying on Joye v. Franchise Tax Bd. (In re Joye), 578 F.3d 1070 (9th Cir. 2009), the Trustee argued that taxes owed for a given tax year do not “become payable” — and therefore do not arise as a § 1305 postpetition claim — until the close of that tax year. Because the DeVries filed their petition before the close of 2013, the 2013 taxes became payable only after the petition date and were a postpetition claim that only the IRS could properly file. The Trustee further noted that allowing the improperly filed claim would prejudice general unsecured creditors, whose pro-rata distributions would be reduced by the addition of a priority tax claim.

The Court’s Ruling

Judge Pappas sustained the Trustee’s objection and disallowed the Debtors’ proof of claim in its entirety.

The Court addressed § 502(i) first and found it dispositive against the Debtors. Section 502(i) applies only to postpetition tax claims entitled to priority under § 507(a)(8)(A)(i), which affords priority to income taxes for which the applicable return was due within three years before the petition date. The DeVries’ 2013 federal income tax return was not due until 15 April 2014 — after their 27 December 2013 petition date. Because the return due date fell outside the three-year lookback period, the 2013 taxes were not entitled to priority under § 507(a)(8)(A)(i), and § 502(i) therefore had no application. The Court drew support from the Ninth Circuit BAP’s analysis in In re Jones, 420 B.R. 506 (9th Cir. BAP 2009), aff’d on other grounds, 657 F.3d 921 (9th Cir. 2011), which explained that a postpetition income tax obligation whose return is due postpetition cannot invoke priority status under § 507(a)(8)(A)(i) and thus falls outside § 502(i)’s reach entirely.

The Court then turned to § 1305(a)(1) and rejected the Debtors’ “fair contemplation” argument. Binding Ninth Circuit precedent, not the Michigan court’s test, controlled the analysis. Under In re Joye, taxes become “payable” for purposes of § 1305(a)(1) when they are “capable of being paid.” The Ninth Circuit further established in In re Pacific-Atlantic Trading Co., 64 F.3d 1292 (9th Cir. 1995), that a tax on income is “incurred” on the last day of the income period. Because federal income taxes are assessed by the calendar year, the DeVries’ 2013 taxes were incurred at midnight on 31 December 2013 — after the petition was filed. Both the incurrence and the payability of the 2013 taxes therefore occurred postpetition, placing them squarely within § 1305(a)(1).

The Court also examined the interplay between § 502(i) and § 1305(a)(1) as analyzed in In re Joye, which drew on Collier on Bankruptcy for the proposition that § 502(i) applies to taxes incurred prepetition that do not come due until after the petition is filed, while taxes incurred postpetition can be treated only as postpetition claims under § 1305. Because the 2013 taxes were incurred postpetition under the Pacific-Atlantic rule, § 502(i) offered the Debtors no relief in any event.

Having concluded that the 2013 taxes were a § 1305(a)(1) postpetition claim, the Court applied the well-established rule that postpetition claims under § 1305 may be offered for inclusion in a Chapter 13 plan only by the creditor that holds the claim. A debtor has no authority to force a postpetition creditor into the plan by filing a proof of claim on its behalf. The Trustee’s objection was sustained and the Debtors’ proof of claim disallowed.

Why This Matters

  1. Section 502(i) does not reach postpetition taxes whose returns are due postpetition. The provision applies only to taxes entitled to priority under § 507(a)(8)(A)(i) — which requires the return to have been due within three years before the petition date. An income tax return due after the petition date falls outside that window entirely. Practitioners should not assume § 502(i) will bridge the gap between a postpetition tax liability and prepetition claim treatment.

  2. The Ninth Circuit’s “capable of being paid” standard governs when taxes become payable in the Ninth Circuit. Under In re Joye, the relevant inquiry for § 1305(a)(1) purposes is when the tax was capable of being paid — and under In re Pacific-Atlantic Trading Co., income taxes are incurred on the last day of the tax year. A tax year that closes after the petition date produces a postpetition claim regardless of how many days of that year preceded the filing.

  3. Only the creditor may file a § 1305 postpetition claim. Section 1305(a) grants the right to file a proof of claim for postpetition taxes exclusively to the entity that holds the claim. A debtor cannot invoke § 501(c) or Federal Rule of Bankruptcy Procedure 3004 to file on a creditor’s behalf where the underlying obligation is a § 1305 postpetition claim rather than a prepetition one. The creditor’s silence is the creditor’s choice to make.

  4. The IRS may decline plan treatment of a postpetition tax debt. This case illustrates that § 1305 is entirely creditor-driven. The Trustee’s objection represented that the IRS allegedly sought disallowance of the Debtors’ filing rather than simply declining to participate. A Chapter 13 debtor who owes postpetition taxes has no mechanism to compel inclusion of that debt in the plan over the IRS’s objection.

  5. Debtors who owe taxes for a year that closes after their petition date should address the liability outside the plan. Where postpetition income taxes cannot be included in a confirmed Chapter 13 plan, the debt remains the debtor’s obligation to manage directly with the taxing authority. Counsel should advise clients of this reality at the outset and account for ongoing tax obligations in assessing the feasibility of the plan.


Full Decision: Available on PACER, Case No. 13-41591-JDP, Doc. 57 (Bankr. D. Idaho 28 Apr. 2015)

DecisionDownload
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Lincoln County Courthouse

Lincoln County Idaho Courthouse

Lincoln County is closer to me so I get there more often. Shoshone is the Lincoln County seat. Minidoka County was created out of Lincoln County, so many of the Minidoka cities were incorporated in Lincoln County. This includes the cities of Heyburn, Minidoka, Paul, and Rupert. Acequia is the only city incorporated after the creation of Minidoka County.

This photo is from 2023. The Lincoln County Courthouse has been under renovation, so the last time I had court I attended in the old Wells Fargo Bank building. I will have to get an updated picture next time I am in Lincoln County.

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In re Sprague

Decision: In re Jarred A. Sprague and Elizabeth J. Sprague, Case No. 12-41099-JDP (Bankr. D. Idaho, 18 December 2013)
Judge: Honorable Jim D. Pappas, United States Bankruptcy Judge
Counsel for Debtors: Paul Ross, Idaho Bankruptcy Law, Paul, Idaho
Chapter 13 Trustee: Kathleen A. McCallister, Meridian, Idaho
Trustee’s Counsel: Alexandra O. Caval, Meridian, Idaho

Background

Jarred and Elizabeth Sprague filed a Chapter 13 petition on 2 August 2012. Their plan was confirmed on 12 October 2012, and the bar date for non-governmental creditors to file proofs of claim passed on 3 December 2012. Under Federal Rule of Bankruptcy Procedure (“FRBP”) 3004, the Debtors or Trustee had an additional 30 days — until 2 January 2013 — to file a proof of claim on behalf of any creditor that failed to do so.

The debt at issue arose in May 2009, when U.S. Bank closed Ms. Sprague’s bank account after a scam check deposited into the account bounced. Neither U.S. Bank nor its collection assignee, National Law Group (“NLG”), reported the resulting deficiency to any credit reporting agency, and neither contacted Ms. Sprague after the account was closed. When the Debtors compiled their bankruptcy schedules, they relied heavily on their credit reports — which showed no debt to U.S. Bank — and the obligation was omitted entirely from their filings.

In August 2013 — more than a year after the bar date — NLG contacted Ms. Sprague’s employer seeking to collect. Upon learning of the omitted debt, the Debtors promptly amended Schedule F to list U.S. Bank and NLG as creditors, served them with notice of the bankruptcy, and filed a motion to enlarge the time to file a proof of claim on their behalf under FRBP 3004 and FRBP 9006(b)(1).

The Trustee’s Objection

Trustee objected on several grounds. First, she argued the Debtors had not met the “excusable neglect” standard required under FRBP 9006(b)(1) to justify enlarging the FRBP 3004 deadline after its expiration. Relying on In re Schuster, 428 B.R. 833 (Bankr. E.D. Wis. 2010) — the only reported decision she could locate addressing this precise issue — the Trustee argued that the Debtors’ reason for delay was insufficient, as the account closure in 2009 should have put Ms. Sprague on notice that a claim might exist.

Second, the Trustee argued that granting the motion would prejudice the existing pool of unsecured creditors, who held approximately $37,894 in claims and whose pro-rata distributions would be reduced by the addition of a new creditor more than a year into the plan. She further contended that the omitted creditor itself would be prejudiced because its debt would be discharged upon plan completion — a result she argued was impermissible under 11 U.S.C. §§ 1328(a)(2) and 523(a)(3), which exclude from Chapter 13 discharge debts that are neither listed nor scheduled in time to permit a timely proof of claim.

The Debtors’ Brief

Debtors filed a detailed brief through their counsel addressing each of the Trustee’s arguments.

On the procedural question, Debtors’ counsel confirmed that FRBP 3004’s deadline, unlike FRBP 3002(c)’s creditor bar date, is not enumerated in FRBP 9006(b)(3)’s list of deadlines that can only be extended under their own specific conditions. FRBP 9006(b)(1) therefore applies, and the Court may enlarge the FRBP 3004 deadline upon a showing of excusable neglect.

On excusable neglect, Debtors distinguished Schuster on its facts. In Schuster, the debtor had purchased appliances on credit — physical items that provided tangible, ongoing reminders of an unpaid debt — yet still claimed to have forgotten the obligation. Here, by contrast, the Debtors had no collateral, no invoices, no collection contacts, and no credit report entry to put them on notice. Ms. Sprague did not merely forget a debt she knew existed — she was genuinely unaware that any debt was owed. Upon learning of it, she and her husband acted immediately. Debtors’ counsel also identified three unreported decisions from the District of Utah in which courts had granted similar enlargements under comparable circumstances.

On the Trustee’s standing to seek a non-dischargeability determination, Debtors argued that the Trustee lacked both constitutional and prudential standing to raise a dischargeability objection on behalf of a specific creditor. Dischargeability is a particularized right belonging to the individual creditor, not a general estate matter the Trustee may assert.

On dischargeability itself, Debtors argued that § 523(a)(3) would not apply if the Court granted the enlargement. If the time to file a proof of claim on behalf of NLG were enlarged under FRBP 9006(b)(1), the claim would be deemed timely filed under FRBP 3004, included in the plan’s pro-rata distribution to general unsecured creditors, and “provided for” under the plan within the meaning of § 1328(a). The harm § 523(a)(3) is designed to prevent — a creditor being denied both payment and discharge — would not exist.

The Court’s Ruling

Judge Pappas granted the Debtors’ motion in its entirety. Applying the four-factor equitable test from Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380 (1993), the Court found that each factor weighed in the Debtors’ favor.

On prejudice, the Court found the impact on other unsecured creditors to be minimal. The omitted claim was approximately $1,500 in a pool of roughly $37,894 in unsecured debt — a modest reduction in pro-rata distributions that no creditor had objected to. As for the omitted creditor itself, the Court found it would actually benefit from having its claim filed and paid, rather than being left entirely outside the plan.

On the length and reason for delay, the Court found the delay understandable and outside the Debtors’ reasonable control. The creditor had made no contact for over four years, reported nothing to credit agencies, and provided no basis for the Debtors to know the debt existed. Upon learning of it, the Debtors acted promptly.

On good faith, the Court found no basis to question it — a conclusion the Trustee herself did not dispute.

The Court also expressly disagreed with the Trustee’s dischargeability argument, declining to follow Schuster on that point. Because the Court was enlarging the time to file a proof of claim under 11 U.S.C. § 501(c) and FRBP 3004 and 9006(b)(1), the creditor’s claim would be treated as timely filed. The Court doubted that §§ 1328(a)(2) and 523(a)(3)(A) compelled a contrary result under those circumstances, though it declined to rule definitively on the discharge issue as it was not formally before it.

The Order gave the Debtors fourteen days from 18 December 2013 to file the proof of claim for U.S. Bank.

Why This Matters

1. FRBP 9006(b)(1) can enlarge the FRBP 3004 deadline. Unlike the creditor bar date under FRBP 3002(c) — which is expressly restricted from enlargement except under its own terms by FRBP 9006(b)(3) — FRBP 3004’s debtor/trustee claim-filing window is not enumerated in FRBP 9006(b)(3). Courts therefore retain discretion to enlarge it upon a showing of excusable neglect. This is a critical distinction practitioners must understand when an omitted creditor surfaces mid-case.

2. Excusable neglect is highly fact-specific. The contrast between this case and Schuster illustrates how much the reason for delay matters in the excusable neglect analysis under Pioneer. A debtor who genuinely lacked knowledge of a debt — with no collateral, no billing, and no credit report entry — is in a materially different position than one who simply forgot about a known obligation.

3. Acting promptly upon discovery is essential. The Debtors’ immediate response — amending their schedules, serving the creditor, and filing the motion — was central to the Court’s good faith finding. Delay after discovery would have significantly weakened the equitable case for enlargement.

4. The Trustee lacks standing to raise dischargeability on behalf of a single creditor. A Chapter 13 trustee does not have constitutional or prudential standing to seek a dischargeability determination on behalf of a specific creditor. That creditor’s own silence — it filed no objection — reinforced the point.

5. Timely filing cures the § 523(a)(3) problem. Where a court enlarges the FRBP 3004 deadline and the debtor files a proof of claim on the omitted creditor’s behalf, that claim becomes timely for plan purposes. The debt is then “provided for” under § 1328(a), resolving the non-dischargeability concern under § 523(a)(3). Inclusion in the plan is the better outcome for all parties.

Full Decision: Available on PACER, Case No. 12-41099-JDP, Doc. 54 (Bankr. D. Idaho 18 December 2013)
Order Granting Motion: Doc. 55 (Bankr. D. Idaho 18 December 2013)

Enlargement MemorandumDownload
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Preston England Dedication Handkerchief

Preston England Temple Dedication Handkerchief

On 5 April 2020, I had to go digging to find my Hosanna Shout Handkerchief. It was the 200th Anniversary of the First Vision of Joseph Smith Jr. and President Russell M. Nelson had indicated we would be having a Hosanna Shout the day before to honor and celebrate. At some point on that day I snapped this picture of my handkerchief.

This handkerchief was given to me in Runcorn, England by John and Rose Byrom. It had been used in the Hosanna Shout for the Preston England Temple Dedication. I do not know who it belonged to or why it was being given to some missionary from Idaho, but I gladly accepted it. I got to use it for the first time on 8 October 2000 in the Manchester England Stake Center for the dedication of the Conference Center in Salt Lake City, Utah. Several days later I recall my companion, Elder Gheorghe Simion, telling me that during the night he heard me muttering the Hosanna Shout in my sleep. Later, again, we were in the car and he told me I should stop saying the Hosanna Shout under my breath. I had not realized I was doing it. But I do catch myself once and a while repeating its words to myself on particular occasions. It is deeply entrenched in my soul.

As I sat thinking about this handkerchief in 2020, I was thinking about all the occasions on which I have had the privilege of using it since then. For a record, I thought I better list the dates this handkerchief was used for a Hosanna Shout. I have updated it even for additional uses since 2020, particularly in dedicating our own Burley Idaho Temple.

Preston England Temple – 7-10 June 1998 – Preston England Temple, Chorley, England. I did not use it, someone else did.

Conference Center – 8 October 2000 – Manchester Stake Center, Altrincham, England.

Winter Quarters Nebraska Temple – 22 April 2001 – Branson Chapel, Branson, Missouri.

Nauvoo Illinois Temple – 27 June 2002 – Branson Chapel, Branson, Missouri.

Boise Idaho Temple – 18 November 2012 – Paul Idaho Stake Center – Paul, Idaho.

Provo City Utah Temple – 20 March 2016 – Kaysville Utah South Stake Center, Kaysville, Utah.

Idaho Falls Idaho Temple – 4 June 2017 – Burley West Idaho Stake Center, Burley, Idaho.

Meridian Idaho Temple – 19 November 2017 – Burley West Idaho Stake Center, Burley, Idaho.

Palm Sunday – 5 April 2020 – Ross Home, 819 Fairmont Street, Burley, Idaho.

Pocatello Idaho Temple – 7 November 2021 – American Falls Idaho Stake Center, American Falls, Idaho.

Layton Utah Temple – 16 June 2024 – Kaysville Columbia Heights, Kaysville 11th, and Spencer Wards Building, Kaysville, Utah.

Burley Idaho Temple – 11 January 2026 – Burley Idaho Central Stake Center, Burley, Idaho.

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In re Champ

Decision: In re Richard M. Champ and Helen B. Champ, Case No. 08-40272-JDP (Bankr. D. Idaho, 19 Aug. 2013)
Judge: Honorable Jim D. Pappas, United States Bankruptcy Judge
Counsel for Debtors: Paul Ross, Idaho Bankruptcy Law, Paul, Idaho
Chapter 13 Trustee: Kathleen A. McCallister, Meridian, Idaho

Background

Richard and Helen Champ filed a Chapter 13 petition on 8 April 2008, represented by attorney Emil F. Pike, Jr. Their plan was confirmed in October 2008, requiring monthly payments of $910 over sixty months toward $53,019.09 in unsecured debt. The confirmation order included a specific provision reflecting that Mrs. Champ had a pending Social Security disability claim: if she were awarded benefits, the Debtors were required to file an amended Schedule I to disclose that income.

The Debtors faithfully made plan payments for nearly five years — even through a period in which Mr. Champ suffered a heart attack and the Trustee extended the payment period to allow them to catch up. By the time this dispute arose, only approximately $1,130 remained unpaid under the Plan.

The Trustee’s Motion

In March 2013 — nearly two years after learning of the Social Security award from the Debtors’ 2011 tax return — McCallister filed a motion to dismiss, alleging that the Debtors had failed to comply with the confirmation order by not amending their schedules to disclose Mrs. Champ’s Social Security lump sum award of $37,914.40 and her ongoing monthly benefit of $1,038.90. The Trustee argued the award remained property of the estate and demanded either dismissal or a turnover of approximately $25,600 to pay creditors in full.

The Objection

The Debtors engaged new counsel — Paul Ross with Idaho Bankruptcy Law — and filed a substantive objection raising several important points.

First, the Debtors’ original attorney, Emil Pike, had passed away in April 2010, leaving them without legal guidance at the precise moment they needed it most. When Mrs. Champ received the Social Security award in mid-2011, the Debtors did what they understood to be appropriate — they called the Trustee’s office. A factual dispute arose over what was communicated: the Trustee believed the Debtors were asking about a payoff and were told to contact an attorney; the Debtors believed they were simply told to keep making plan payments. Either way, their outreach demonstrated good faith, not an intent to conceal.

Second, new counsel promptly filed amended Schedules B, C, and I to address all disclosure deficiencies, including the Social Security lump sum, the ongoing monthly benefit, and a previously undisclosed $92 monthly Lamb Weston pension payment to Mrs. Champ.

Third, and critically as a legal matter, Social Security benefits are excluded from the calculation of a debtor’s current monthly income under 11 U.S.C. § 101(10A)(B) following BAPCPA. As such, the Social Security award would not have increased the Debtors’ required plan payments regardless of when it was disclosed. The Trustee’s demand for a $25,600 turnover had no statutory basis.

The objection also raised alternative relief: modification of the plan under § 1329 to reduce any remaining payment obligation to zero given the Debtors’ reduced income and medical hardships, or alternatively, a hardship discharge under § 1328(b) given that the plan shortfall was attributable to circumstances beyond the Debtors’ control — specifically, the death of their attorney and Mr. Champ’s serious medical issues.

The Court’s Ruling

Judge Pappas denied the Trustee’s motion to dismiss in its entirety. While acknowledging that the Debtors technically failed to comply with the confirmation order, the Court exercised its discretion under 11 U.S.C. § 1307(c) — which uses the permissive “may” rather than the mandatory “shall” — and weighed the totality of the circumstances carefully.

The Court’s analysis turned on several key findings:

  • The death of the Debtors’ attorney left them without guidance at a pivotal moment, and their confusion about compliance was understandable given that circumstance
  • The Debtors’ phone call to the Trustee’s office and their voluntary provision of their 2011 tax return — which disclosed the Social Security income — demonstrated that they were not attempting to conceal anything
  • The Debtors had substantially completed five years of plan payments; denying them a discharge at that stage would be a disproportionately harsh sanction
  • Under post-BAPCPA law, Social Security income is excluded from current monthly income under § 101(10A)(B), meaning the award would not have changed the Debtors’ payment obligations in any event — a point recently confirmed by the Ninth Circuit in Drummond v. Welsh (In re Welsh), 711 F.3d 1120 (9th Cir. 2013)
  • The undisclosed Lamb Weston pension of $92 per month, while a concern, was too minor an omission to override five years of consistent plan compliance

The Court declined to consider the alternative requests for plan modification or hardship discharge raised in the objection, noting those would need to be raised by proper motion with appropriate notice — but the dismissal motion itself was denied, clearing the path for the Debtors to receive their discharge.

Why This Matters

1. Disclosure obligations are ongoing and binding. Confirmed plans create court orders, and debtors must comply with them throughout the life of the case — not just at the point of confirmation. A change in financial circumstances mid-case requires prompt attention.

2. Attorney death mid-case creates real risk for clients. When counsel passes away during a long Chapter 13 plan, clients are left without guidance precisely when they may need it most. Practitioners and courts alike should be attentive to these situations, and successor counsel should audit compliance with the confirmation order from the outset.

3. Social Security income is excluded from disposable income calculations post-BAPCPA. While SS income must be disclosed on Schedule I, it does not factor into a debtor’s projected disposable income under § 1325(b), and — as confirmed in In re Welsh — it cannot be considered in a good faith analysis under § 1325(a). The Trustee’s demand for a $25,600 turnover in this case was legally untenable.

4. Dismissal under § 1307(c) is discretionary. Courts are not required to dismiss even upon a finding of material default. Where debtors have acted in good faith, made substantial plan payments, and the equities weigh against dismissal, courts retain and will exercise broad discretion to deny the motion.

5. Good faith communication matters. The Debtors’ efforts — calling the Trustee’s office, providing tax returns, engaging new counsel promptly — were central to the Court’s finding that no intent to evade existed. Documented communication with the Trustee’s office, even if informal, can be meaningful evidence in contested dismissal proceedings.

Full Decision: Case No. 08-40272-JDP, Doc. 72 (Bankr. D. Idaho 19 Aug. 2013)

Memorandum of DecisionDownload
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Burley Idaho Temple Open House

The Burley Idaho Temple Open House ran 3 November 2025 to 22 November 2025. It was an amazing opportunity to invite the local and broader community to walk through a pinnacle of our worship. I attended 5 of the much more individual and personal tours on the 3rd through 5th with public leaders and distinguished guests. I wish everyone could attend these tours, which would often take 45 minutes to 60 minutes for the full tour. Some of these were guided by General Authorities, including Elders Steven R. Bangerter, Karl D. Hirst, and K. Brett Nattress.

On Thursday, the general public was welcome to attend open tours. Our first tour tried to do a small introduction in each room, but about half-way through that was abandoned to keep the lines moving. Every tour I attended afterward did not have any attempted presentations, other than to remind individuals to not take photos and to speak softly.

Amanda sneaked over and caught a personal tour on the 6th.

6 November 2025 – Amanda Ross attended individually

Amanda and I took our family on Friday 7 November 2025.

Saturday morning we attended with some friends. This was my 7th tour that first week!

8 November 2025 – Bud and Karen Marie Whiting, Amanda Ross, James Ross, Aliza Hales, Lea Pierucci Izama, Audra Hales, Aleah Hales, Anson Hales, Brad Hales, Paul Ross

The next weekend, Amanda had a bunch of family come to town and also attend. This Friday night was my 4th tour of the second week.

14 November 2025 – Hiram Ross, Amanda Ross, Lillian Ross, Rowan Hemsley, Margo Hemsley, Bryan Hemsley, Olivia Hemsley, Jill Hemsley, Jack Hemsley, James Ross, Paul Ross, Aliza Ross, Jordan Hemsley, Derek Hemsley

I also got to attend some more times the third week. But my 4th tour in the third week was with my sister and brother-in-law.

22 November 2025 – Paul Ross, Andra and Wes Herbst

That makes 15 trips through the temple for the open house. I was also privileged to do temple security on 5 different occasions, all for the 9:00 PM to 1:00 AM shift. Here are some photos from that opportunity.

4 November 2025
4 November 2025
5 November 2025 – Paul Ross and Kevin Mower for the graveyard shift
10 November 2025 – Paul Ross and Tyson Smith for the graveyard shift

Amanda also got to do a security shift, parking shift, and foot covering (booty) shift.

12 November 2025 – Amanda Ross Parking Shift
12 November 2025 – Amanda Ross Security Shift

Some of the late night security shifts were great opportunities to reflect on the blessings we are now achieving with the ease and access of a temple so close.

When I received my first temple recommend for my own endowment, Paul Idaho Stake President, M. Gene Hansen, invited me to make a commitment to attend the temple every month at a minimum. I took that commitment. I agreed.

In Hazelton, Idaho, it took me roughly 2 1/4 hours to get to the Boise Idaho Temple (speed limits have increased since then); Idaho Falls Idaho Temple was just under 2 hours; Logan Utah Temple was about 2 1/2 hours, and Ogden Utah Temple was 2 1/2 hours. I was endowed in Logan in September 1998 with my Dad. I attended Logan and Boise before going on the mission. But it was at least half a day planning to attend the temple before the mission.

Within the Manchester England Mission is found the Preston England Temple. Attending the temple in the mission required coordination with members as the temple isn’t near public transportation and we relied on members to take us. We could only go on Preparation Day, which was Tuesday. That took some work, but I was able to attend every month of the mission (except for some months where some missionaries had abused the privilege and all missionaries lost temple attendance options for three months). Getting to the temple was within 1 hour for every area in which I served.

I lived in Branson Missouri for a couple of years. Our closest temple for Branson was the St. Louis Missouri Temple. That drive was at least 4 hours one way, often 4 1/2 hours. That required an entire day to be set aside and planned to drive, attend, and return home. Never missed a month in Branson. I sealed my Jonas grandparents together in St. Louis Missouri Temple. The Bentonville Arkansas Temple has been constructed much closer at about 2 hours. The Springfield Missouri Temple will be less than an hour away from Branson.

Amanda and I lived in Richmond Virginia for a couple of years. Our closest temple for Richmond was the Washington D.C. Temple. That drive was between 4 and 5 hours away, depending on beltway traffic. We would often go up and spend Friday night with family, attend the temple that night or in the morning, and then make our way back home. Washington D.C. Temple was closed for a bit, so to make the monthly trip, we had to go to the Raleigh North Carolina Temple. That was almost a 4 hour drive one direction. The new Richmond Virginia Temple is just outside the first neighborhood we lived in and within 10 minutes of the second neighborhood we lived.

When we moved back to Idaho, the Twin Falls Idaho Temple had been dedicated. That dropped the 2 to 2 1/2 hour drive time for all those temples to less than an hour, usually between 50-60 minutes. But it still takes time and planning to ensure I get there every month. This is double now that we also have a commitment to see that Aliza and Hiram are able to attend at least monthly.

Now, with the dedication of the Burley Idaho Temple in January, the temple will be between 5 to 6 minutes away.

Now I have to reevaluate. It seems the once a month commitment is not enough. I think that will remain the absolute minimum going forward for the rest of my life. It also seems I have no reason to not attend to at least one ordinance in the temple at least every week.

To show my gratitude to our Father and our Savior, I intend to attend the Burley Idaho Temple at least daily for the first 30 days it is open after dedication. Which isn’t as much as it seems if you consider it is not open on Sunday, Monday, or Thursday. Still working out what happens after the first 30 days.

For the last three weeks I have found myself regularly humming The Spirit of God and also muttering the Hosanna Shout under my breath. I am looking forward to the dedication of the Burley Idaho Temple on 11 January 2026!

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New Minidoka Councilman

Mayor Julie Peterson swears in new Councilman Monique Hurst

Earlier this year, I wrote about the City of Minidoka having a new Mayor and Councilman sworn in to City service. At that time, Councilman Bridgett Frost was sworn in to service. She had to move out of Minidoka leaving a vacancy on the City Council. On 7 October 2025, Mayor Peterson appointed a new Councilman, Monique Hurst. Welcome Councilwoman Hurst! (State law calls it Councilman, state law also indicates that it is gender neutral)

The City has recently been in the news. The City has more work to do. The City Clerk and Treasurer positions are now open. The City has hired a new certified water operator, Cody Creek. The City is setting up a new accounting/budgeting/billing/utility software through Caselle. Updates and upgrades are being made to some of the electrical system. The City has achieved compliance with the Idaho Tax Commission and Idaho Controller Office in the past few months. Area of Impact has been assigned. Many more good things are moving forward for this little town. Hopefully the ball can keep rolling and gaining speed despite the odds against it. Many thanks to surrounding towns for their assistance: Burley, Heyburn, Paul, and Rupert.

So many things are moving that residents are becoming more awakened to their sleepy little town. The Mayor and all four Councilman positions were up for election in November. Two of the Councilman positions are for 2 years, the other two are 4 years. But every single seat was contested! Julie Peterson and Becky Ziebach were running for Mayor. Bulmaro Paz, Bonnie Hofmeister, and Mark Cartwright were running for the two 4-year seats. James Cook, Monique Hurst, and Jerry Tolivar are running for the two 2-year seats. That is 8 people running for 5 seats! Elections are healthy. Citizens are willing to work for the bettering of their community.

Julie Peterson will continue on as Mayor. Bulmaro Paz will retain his seat and Bonnie Hofmeister will join him for the 4 year seats. James Cook will retain his seat and Monique Hurst will continue on in her newly appointed seat.

Citizens are willing to work for the bettering of their community.

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Circle A Construction 1990 Anniversary

Marvin Aslett and Milo Ross at 20 years service recognition party

Dad has these two photos sitting on his desk at home, they sat on his desk at work too. The one above is from the recognition party given for him and Mel Keyes in 1990. Dad still has the picture, one of the trucks on the cake, and the Traeger smoker. Circle A transferred Dad to AgExpress in about 2004 when AgExpress took over the Paul operations. Dad had roughly 34 years with Circle A Construction. I am posting this in honor of Mel and Dad for what is 55 years since they started for Circle A Construction!

This photo below is for a supervisor training get away some time in the 1990s. Dad could not remember the exact year.

Back (l-r): Jeff Herzinger, Jeff Mecham, Dave Dana, Ed Foreman, Milo Ross, Tom Schmidt, Lenny Aslett, Nick Stephens, Les Abbott; Middle: Jeff Stowell, Terry Vitek, Steve Aslett, Dale Keyes, Jay Simmons, DeLane Fetzer, Mel Keyes, Reece Garrow, Eli Calamantes: Front: Gradus Heeling, Sage Aslett, Boomer Bailey, Mike Ehrmantraut, Tom Ehrmantraut, Larry Aslett

Leslie Sanford Abbott (1953 – 2005)

Lenny Aslett

Larry Dean Aslett (1944 – 2022)

Marvin Bridges Aslett (1926 – 2022)

Sage Aslett

Steven Le Roy Aslett (1947 – 2021)

Clifford “Boomer” Bailey

Eli Calamantes

Dave Dana

Mike Ehrmantraut

Tom Ehrmantraut

DeLane Terry Fetzer (1947 – 2020)

Edward Lenn Foreman (1951 – 2015)

George Reece Garro (1947 – 2012)

Gradus Geert Heeling Jr (1951 – 2020)

Jeff Herzinger

Dale May Keyes (1947 – 2017)

Melvin Eddie Keyes (1943 – 2018)

Jeff Mecham

Milo Paul Ross (1943 – alive)

Tom Schmidt

Nick Stephens

Gerald Stowell

Terry Vitek