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nevertheless "fair and equitable" (and can be crammed down over the unsecured creditor's objections), so long as an individual debtor does not retain property except property included in the bankruptcy estate under § 1115." The court then examined what property, under section 1115, is included in the bankruptcy estate when the debtor is an individual. The conducted a "plain meaning" analysis of these sections while keeping in mind the "contextual statutory scheme and logic of plan confirmation requirements of chapter 11." The court found no contextual discordance with its conclusion that the absolute priority rule did not apply here. In fact, the court concluded that the confirmation requirements overall supported its conclusion, noting, among other things, that "combined with the new additional requirement [added by BAPCPA] of five years of debtor's disposable income, it is illogical to thereafter remove the debtor's means of production of debtor's disposable income by maintaining the absolute priority rule in an individual's case." The court then noted that section 1115 identifies property of the estate as, "in addition to" property specified in section 541, two post-petition acquired assets-newly acquired property and income." The court then examined the meanings of "included" in section 1129(b)(2) (B)(ii) and "in addition to" in section 1115. The court stated that "'[i]ncluded' is not a word of limitation. To limit the scope of estate property in §§ 1129 and 1115 would require the statute to read "included, except for the property set out in Section 541" (in the case of § 1129(b)(2)(B) (ii)), and "in addition to, but not inclusive of the property described in Section 541" (in the case of § 1115)." In short, the court found that a plain reading of these sections supported its conclusion that the absolute priority rule did not apply here. The court then discussed the legislative history and congressional behind the applicability of the absolute priority rule to individual chapter 11 debtors. The court noted that in adopting BAPCPA's individual chapter 11 debtor provisions, congress had borrowed from chapter 13. The court ultimately concluded that "a plain reading of §§ 1129 and 1115 demonstrates that, just as in chapter 13, to confirm a plan does not require the application of an absolute priority rule. As in Chapter 13, the disposable income requirement insures that the individual debtor is required to dedicate all of his or her disposable income over a designated time period (three or five years in Chapter 13, at least five years in chapter 11) to plan payments directed to unsecured creditors. When decisions have gone further than exercising a plain reading of the statute, they have entered into speculative analyses that are fatally flawed." The court, in rejecting the analysis of the bankruptcy court in Gbadebo, stated as follows: "If the plan provides distributions of property equal to the allowed amount of the unsecured claim, both §§ 1129(a)(15)(A) and 1129(b)(2)(B)(i) are met, and the court may confirm the plan if it is fair and equitable under § 1129(b)(1). If the plan provides for less than satisfaction in full on a present value basis and the impaired class votes no, then it may be confirmed as long as § 1129(a)(15)(B) and (b)(1) are satisfied. In essence, Congress affirmatively amended the law so that § 1129(a)(15)(B) would trump § 1129(b)(2)(B)(ii) in individual debtor cases. Thus, § 1129(b)(2)(B)(ii)'s proscription on the retention of ownership interests by an individual debtor is not an aspect of the absolute priority rule in individual debtor chapter 11 cases. In this instance, recourse to legislative history and spirited analytics is unnecessary in light of the plain meaning of this particular statute." The court rejected the dissent's argument that, in chapter 11, creditors may vote against a plan without filing an objection (section 1129(a)(15) is triggered by an objection to confirmation). The court stated, "clearly, the drafters of § 1129(a)(15) tried to create symmetry between chapters 11 and 13 for
©2014 William L. Norton III
