3 ABR 256 UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re:	)
	)	Case No. K93-00171-DMD
FRANK a. YOUNG	)	Chapter 13
aka Guy Young,	)
	)
Debtor.	)
____________________________	)

ORDER CONTINUING CONFIRMATION HEARING

     On August 15, 1992, slightly before midnight, debtor Frank Young, after several hours of drinking, shot and killed Walter Hamile in an alley outside the Pioneer Club in Ketchikan, Alaska. Young was arrested and tried for murder. He was acquitted on the grounds of selfdefense. Civil suits ensued by Rose Hamile, personal representative of the Hamile estate, and Sandra Hamile as "next friend" of Christopher J. Hamile, a minor. On March 4, 1993, prior to answering or responding to the civil complaints, Young filed a petition for relief under chapter 13.

     The debtor's petition indicates that he is a union plumber. He has $55,000.00 in a union pension plan. This plan is alleged not property of the estate under Patterson v. Shumate,_____ U.S._____, 112 S. Ct. 2242, 119 L. Ed. 2d 519 (1992). No creditor has taken issue with the debtor's claim that the pension is not property of the estate.

     The debtor had about $700.00 in cash at the time of the petition. He had $1,295.00 worth of jewelry, clothing, household goods, and furnishings. He co-owns a 1981 Ford truck with his stepmother. His interest in the truck is scheduled at $1,000.00. He owns a snow machine worth $600.00 and has a retainer with attorney M. Guss for $1,500.00. He failed to list his .22 handgun as an asset (it was in the custody of the Ketchikan police).

The debtor's liabilities were listed as follows:
Drs. Moorehead & Ross	$ 148.00
Totem Bar	$ 371.00
Bay Co.	$ 392.81
F. and C. Young (parents)	$ 4,546.00
R. Hamile	$ 50,000.00
S. Fisher	$1,100,000.00

The debtor earns about $918.00 per month unemployment during the times when he is not working. When employed, he can earn approximately

3 ABR 257 $4,500.00 per month. He has no dependents. The plan calls for payment of $100.00 per month for 36 months plus 50 percent of the debtor's monthly income in excess of $2,900.00, after payment of taxes and union dues. Sandra Hamile, next friend, and Rose M. Hamile, personal representative, have filed objections to confirmation of the chapter 13 plan. The debtor has, in turn, filed objections to the claims filed by the Hamiles. From the debtor's perspective, the chapter 13 bankruptcy was filed "to ward off financial disaster" caused by attorneys' fees in defense of the Hamile lawsuits.

Analysis

The threshold question of chapter 13 eligibility under 11 U.S.C. § 109(e) is met in this case. Section 109(e) limits chapter 13 eligibility to liquidated, noncontingent, unsecured debts of less than $100,000.00, and liquidated, noncontingent, secured debts of less than $350,000.00. Here, the Hamile claims are in excess of $1 million. They are contingent and unliquidated, however. No liability or amount has been determined. As such, Young fits within the jurisdictional mandate of § 109. Matter of Belt, 106 B.R. 553, 557-59 (Bankr. N.D. Ind. 1989).

The next issue faced by the debtor is good faith under 11 U.S.C. § 1325(a)(3). As noted by District Judge Singleton in In re Fischer, 136 B.R. 819, 829-30 (D. Alaska 1992), In re Estus, 695 F.2d 311, 317 (8th Cir. 1982), contains 11 factors for determining good faith under the "totality of the circumstances" test:

1.	The amount of the proposed payments and the amount of the debtor's surplus;
2.	The debtor's employment history, ability to earn and likelihood of future increases in income;
3.	The probable or expected duration of the plan;
4.	The accuracy of the plan's statements of the debts, expenses and percentage repayment of unsecured debt and whether any inaccuracies are an attempt to mislead the court;
5.	The extent of preferential treatment between classes of creditors;
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6.	The extent to which secured claims are modified;
7.	The type of debt sought to be discharged and whether any such debt is nondischargeable in Chapter 7;
8.	The existence of special circumstances such as inordinate medical expenses;
9.	The frequency with which the debtor has sought relief under the Bankruptcy Reform Act;
10.	The motivation and sincerity of the debtor in seeking Chapter 13 relief; and
11.	The burden which the plan's administration would place upon the trustee.

These factors are also endorsed in In re Warren, 89 B.R. 87 (Bankr. 9th Cir. 1988).

     Here the proposed payments under the plan are $100.00 per month for 36 months plus 50 percent of the debtor's monthly income in excess of $2,900.00, after payment of taxes and union dues. The $100.00 monthly payments appear reasonable during periods of unemployment. When the debtor is employed, however, the proposed percentage payments are minimal. As a single man, the $2,900.00 net alone would give the debtor a substantial income. His expenses are only $1,296.00 monthly. They include $650.00 per month for food and $400.00 per month for "recreation." The debtor's plan appears significantly underfunded.

     The debtor's employment history mirrors the Alaskan economy. He appears likely to earn substantial amounts of income seasonally as long as construction spending remains high. The duration of the plan is 36 months. The statements and schedules of the debtor are generally accurate, except for the debtor's failure to include his .22 pistol as an asset. There is no preferential treatment between classes of creditors. There is no modification of secured claims.

     The primary type of debt sought to be discharged arises from the debtor's killing of Walter Hamile. The claims arise from wrongful death actions. Based on the testimony presented at the confirmation hearing, it is improbable that this court would find such debts nondischargeable under 11 U.S.C. § 523(a)(6) in a chapter 7 proceeding. From

   3 ABR 259 the evidence presented at the confirmation hearing, it appears that the debtor was acting in self-defense and feared that Walter Hamile was grabbing a weapon with which to shoot the debtor and his companions. ¹

     There are no special circumstances, such as inordinate medical expenses, in this case. The debtor has not sought frequent relief under the Bankruptcy Reform Act. Nor would the plan's administration place a burden on the trustee.

     The motivation and sincerity of this debtor in seeking chapter 13 relief is subject to some question. The debtor's stated reason for filing this chapter 13 petition was to avoid financial disaster incurred through defense of wrongful death claims. While the debtor's desire to avoid expensive litigation is understandable, it will not necessarily be served by filing a chapter 13 petition. Allowance or disallowance of claims against the estate is ordinarily within the bankruptcy court's jurisdiction. 28 U.S.C. § 157(b)(2)(B) provides that core proceedings include, but are not limited to:

Allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purpose of confirming a plan under chapter 11, 12, or 13 of Title 11, but not the liquidation or estimation of contingent or unliquidated personal injury, tort, or wrongful death claims against the estate for purposes of distribution in a case under Title 11 . . . .

This court's jurisdiction is limited to estimation of claims. Here, estimation of the Hamile claims for purposes of confirming a plan under chapter 13 makes no sense. In a case under chapter 11, estimation of the claim could be made for voting purposes. As chapter 13 claimants are not entitled to vote, estimation serves no cognizable purpose. Moreover, in accordance with 28 U.S.C. § 157(b)(5), the district court must order that personal injury, tort, and wrongful death claims be tried in the district court in which the bankruptcy case is pending. Thus, the Hamiles' claims must be tried in federal district court, not in bankruptcy

   3 ABR 260 court. As such, the debtor is still placed in the position of having to respond to the wrongful death suits and incur the attorneys' fees he hoped to avoid by filing this proceeding.

     The net effect of the debtor's filing has been to change the forum of the wrongful death cases. He must still defend the cases and there may be no appreciable savings to him by defending in federal rather than state court. The question faced by this court remains one of good faith, however. While the debtor may not receive the benefits he perceived in this chapter 13 proceeding, in reviewing the totality of circumstances of this case, there is nothing so extraordinary or adverse about his conduct or pleadings that warrants a finding of bad faith.

     On the other hand, the debtor has failed to meet the disposable income test. Until such time as the Hamile claims have been adjudicated, however, this court cannot approve or disapprove of the plan on disposable income grounds. Only the "trustee or the holder of an allowed unsecured claim" may invoke the disposable income test of 11 U.S.C. § 1325(b)(1). The Hamiles' claims have not been allowed and the trustee has not objected to confirmation. Therefore, until the claims are allowed, the confirmation process must grind to a halt. If they are allowed in any amount, the debtor must amend his plan. If they are disallowed in full, the current plan is confirmable.

     Therefore, IT IS ORDERED that the confirmation hearing upon the debtor's chapter 13 plan is continued without date pending adjudication of the Hamile claims;

     IT IS FURTHER ORDERED that the debtor, Sandra F. Hamile and Rose Hamile shall initiate appropriate proceedings in United States District Court for the liquidation of the Hamile claims; and

     IT IS FURTHER ORDERED that the debtor's objections to the claims of Sandra Fisher Hamile and Rose Hamile are dismissed without prejudice due to the lack of jurisdiction of this court over such claims under 28 U.S.C. § 157(b) (2) (B). No purpose would be served by estimating the claims by this court.

          DATED: September 9, 1993.

	BY THE COURT
	DONALD MacDONALD IV
	United States Bankruptcy Judge

N O T E S:

3 ABR 259 1.Both creditors cite In re LeMaire, 898 F.2d 1346 (8th Cir. 1990). Form my viewpoint LeMaire wrongfully applies chapter 7 discharge standards to chapter 13. Moreover, the debtor in this case was acquitted, not convicted, of criminal charges. LeMaire does not apply.