Watson, Jerry v. Smith, Edwin ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-2149
IN RE: EDWIN R. SMITH,
Debtor-Appellee.
APPEAL OF: JERRY WATSON
Appeal from the United States District Court
for the Southern District of Indiana, New Albany Division.
No. 00 C 44--Sarah Evans Barker, Judge.
ARGUED NOVEMBER 5, 2001--DECIDED APRIL 11, 2002
Before BAUER, POSNER and RIPPLE, Circuit
Judges.
RIPPLE, Circuit Judge. Jerry D. Watson
appeals from the decision of the district
court affirming the bankruptcy court’s
confirmation of Edwin R. Smith’s Chapter
13 plan. Ms. Watson contends that Mr.
Smith filed his Chapter 13 reorganization
plan in bad faith and, therefore, that he
should have been denied discharge. For
the reasons set forth in this opinion, we
affirm the judgment of the district
court.
I
BACKGROUND
A. Facts
Edwin R. Smith is a Certified Public
Accountant who, in the late 1980s,
fraudulently induced Jerry D. Watson to
loan $75,000 to William Compton. Mr.
Smith claimed, falsely, that Ms. Watson’s
investment was secured by real property
owned by Compton. Mr. Smith, using the
power of attorney conferred on him by Ms.
Watson, also used her credit cards to
their limit, took out a mortgage against
her home and put her in debt to her life
insurance company. Mr. Smith also
borrowed $6,000 from Ms. Watson to buy
his daughter a car; he has not repaid the
loan.
Ms. Watson brought an action in a state
court in Kentucky to recover the loan
proceeds that had been fraudulently
taken. The jury awarded her a judgment of
$197,247.88, including punitive damages;
that judgment was later affirmed on
appeal. With interest, the judgment is
now worth about $267,000. Ms. Watson
domesticated the judgment in the Circuit
Court of Harrison County, Indiana, where
Mr. Smith resides.
B. Bankruptcy Court Proceedings
In March 1999, Mr. Smith filed for
Chapter 7 bankruptcy in the United States
Bankruptcy Court for the Southern
District of Indiana. Ms. Watson filed an
adversary proceeding challenging the
dischargeability of Mr. Smith’s debt to
her. On July 22, 1999, the bankruptcy
court granted Ms. Watson’s motion for
summary judgment and declared that Mr.
Smith’s debt was nondischargeable because
of Mr. Smith’s fraudulent representations
and his fraud while serving as Ms.
Watson’s fiduciary. See 11 U.S.C. sec.
523(a)(2) & (4).
Mr. Smith then filed this Chapter 13
proceeding and a reorganization plan
("the Plan"). Ms. Watson is Mr. Smith’s
only remaining creditor. Under the more
liberal rules of Chapter 13, Mr. Smith’s
debt to Watson is dischargeable, subject
to certain limitations, which will be
discussed below. Ms. Watson again filed
an adversary proceeding, arguing that
"the plan is not proposed in good faith,
that the income has been underreported,
that the expenses have been overstated,
and that there is more money available to
pay on this plan than the debtor is
indicating." Bankruptcy Tr. at 5.
The bankruptcy court held an evidentiary
hearing regarding Ms. Watson’s objection
to confirmation of the Plan. The focus of
the hearing was Ms. Watson’s charge that
Mr. Smith had padded his expenses in the
Plan and underreported his income. Ms.
Watson’s counsel cross-examined Mr.
Smith, suggesting that he claimed
household expenses that were not
characterized properly as such, that he
failed to estimate properly his income
over the course of the five-year Plan and
that his wife’s income was not properly
documented. The court also examined Mr.
Smith. Ms. Watson presented documentary
evidence in support of her claims.
Ms. Watson also testified, describing
Mr. Smith’s fraudulent conduct while he
was serving as her fiduciary. Ms. Watson
described her precarious financial
condition, made more difficult by Mr.
Smith’s fraud, which had deprived her of
much of her savings. She also testified
that Mr. Smith "remarked to me after I
found out what he had been doing, that he
knew how to make it that I would never be
able to collect a dime from him. . . . I
don’t think he’s done it in good faith."
Bankr. Tr. at 67-68. Ms. Watson’s counsel
argued that "with the fraud that was
involved in this particular debt, I think
you ought to hold the debtor to a very
high standard of proof that he really
does spend each month what he claims to
spend each month. . . . [T]here comes a
point where you’re padding your expenses
so bad that your Chapter 13 plan just
isn’t a good faith plan." Bankr. Tr. at
72-73.
After hearing the evidence, the court,
ruling from the bench, adjusted, and then
confirmed, Mr. Smith’s Chapter 13 plan.
The court stated, "I just have to make
sure that this debtor puts all [his]
disposable income into the plan." Bankr.
Tr. at 76. The original Plan called for
payments of $200 per month; the court
accepted this number for the first five
months of the Plan. After that period,
however, Mr. Smith would pay $250 per
month for the next seven months, then
$300 per month for a year, and then $350
per month for the final three years of
the Plan. As adjusted, the Plan would
increase Mr. Smith’s payments to account
for any pay raises he receives. After
describing these adjustments, the court
concluded that "[b]ased upon payment of
that [adjusted] level, the Court would
find that the plan as submitted is
proposed in good faith." Bankr. Tr. at
79. The bankruptcy court issued a written
order, using a pre-printed form, which
confirmed the details of the Plan as
amended at the hearing./1
C. District Court Proceedings
Ms. Watson appealed to the district
court; she argued that the bankruptcy
court had erred in concluding that the
Plan was filed in good faith. Ms. Watson
submitted to the district court that the
disparity between the amount of her state
judgment with interest, $267,000, and the
amount of the proposed pay out, around
$20,000, and Mr. Smith’s pre-petition
actions were evidence that the Plan was
filed in bad faith. After examining the
record made in the bankruptcy court, the
district court concluded that Ms. Watson
had not raised this latter argument
before the bankruptcy court and therefore
had waived the right to make it in
appellate proceedings. The district court
then determined that there was
insufficient evidence to support Ms. Wat
son’s claim that the bankruptcy court had
determined erroneously Mr. Smith’s
financial situation and thereby had
confirmed a plan with too low a payout.
The district court affirmed the judgment
of the bankruptcy court on these grounds.
II
DISCUSSION
We apply the same standard of review to
the bankruptcy court’s decision as did
the district court. The bankruptcy
court’s findings of fact are reviewed for
clear error, see In re Generes, 69 F.3d
821, 824-25 (7th Cir. 1995); its
conclusions of law are reviewed de novo,
see Meyer v. Rigdon, 36 F.3d 1375, 1378
(7th Cir. 1994). A bankruptcy court’s
determination that a plan was filed in
good faith is a factual finding;
therefore, we shall reverse only if the
court’s finding was clearly erroneous.
See In re Love, 957 F.2d 1350, 1354 (7th
Cir. 1992).
We cannot accept the district court’s
determination that Ms. Watson’s good
faith argument had been waived by her
failure to raise it in the bankruptcy
hearing. Ms. Watson, in both her written
objections and her counsel’s argument at
the hearing, objected to confirmation of
Mr. Smith’s Plan on the ground that it
was not filed in good faith. She based
her objection on three grounds. First,
Ms. Watson pointed to Mr. Smith’s pre-
petition conduct, including his
fraudulent conduct and a statement he
made to her that he had arranged things
so as to preclude her from recovering her
judgment against him, as evidence of his
bad faith. The bankruptcy court had some
of the records from the fraud trial and
was aware of Mr. Smith’s conduct, having
previously held that this debt was
nondischargeable in Mr. Smith’s Chapter 7
proceeding. Second, Ms. Watson contended
that Mr. Smith’s plan was in bad faith
because of the low amount of the pay out,
relative to the overall debt. Third, Ms.
Watson argued that Mr. Smith was padding
his expenses, understating his income and
had structured his assets in such a way
as to prevent her from recovering what
she was owed.
We note at the outset that the
obligation of good faith is imposed on
the debtor at two stages of a Chapter 13
proceeding. First, the debtor must file
his petition for Chapter 13 bankruptcy in
good faith. See In re Love, 957 F.2d at
1354-55. Second, the debtor must file his
Chapter 13 plan in good faith. See id.;
In re Schaitz, 913 F.2d 452, 453 (7th
Cir. 1990); see also 8 Lawrence P. King
et al., Collier on Bankruptcy, at 1325-13
(15th ed. 2001). At different times, and
at different places in her brief to this
court, Ms. Watson has objected to a
finding of good faith both in filing the
petition and the Plan.
In our earlier cases, we have read 11
U.S.C. sec. 1307(c), which provides for
dismissal of a Chapter 13 provision "for
cause," to include a dismissal premised
on a debtor’s bad faith in filing the
petition. See In re Love, 957 F.2d at
1354; In re Smith, 848 F.2d 813, 816 n.3
(7th Cir. 1988). Although Ms. Watson has
not cited sec. 1307(c), her brief to this
court asks us to reverse the bankruptcy
court and conclude that neither the
petition nor the Plan was filed in good
faith. Most of her brief focuses on
whether Mr. Smith’s Plan was proposed in
good faith, as did almost all of the
bankruptcy hearing.
We turn first to the petition. On this
record, only Mr. Smith’s pre-petition
conduct bears on his good faith in filing
the petition. Ms. Watson has not pointed
toward anything leading up to bankruptcy
that would point to a finding of bad
faith other than Mr. Smith’s fraudulent
conduct with respect to the underlying
debt./2 We have held that simply
availing oneself of the more liberal
provisions of Chapter 13 to discharge a
debt that is not dischargeable in Chapter
7 is not sufficient to constitute bad
faith. See In re Smith, 848 F.2d at 819.
We therefore shall focus our examination
on whether the bankruptcy court clearly
erred in its determination that the Plan
was filed in good faith.
Before a bankruptcy court confirms a
debtor’s plan under Chapter 13, it must
find that the plan was filed in good
faith. See 11 U.S.C. sec. 1325(a)(3).
"The provisions of 11 U.S.C. sec. 1325
ensure that a Chapter 13 plan . . . will
be properly scrutinized by the bankruptcy
court before the plan is confirmed,
mitigating the danger of abuse." In re
Young, 237 F.3d 1168, 1174 (10th Cir.
2001). In considering whether a plan is
filed in good faith, the court asks of
the debtor: "Is he really trying to pay
the creditors to the reasonable limit of
his ability or is he trying to thwart
them?" In re Schaitz, 913 F.2d at 453.
"At base, this inquiry often comes down
to a question of whether the filing is
fundamentally unfair." In re Love, 957
F.2d at 1357. Whether a plan or petition
is filed in good faith is a question of
fact based on the totality of the
circumstances surrounding the proposed
plan. See In re Smith, 848 F.2d at 817-
18.
We have articulated several factors that
courts should consider in analyzing the
totality of the circumstances. See In re
Rimgale, 669 F.2d 426, 432 (7th Cir.
1982)./3 Several of those factors are
relevant to our inquiry in this case. We
consider whether the plan accurately
reflects the debtor’s financial condition
and affords substantial protection to un
secured creditors. If there are
inaccuracies, we consider whether these
flaws are "an attempt to mislead the
bankruptcy court," id.; we also consider
whether the plan, taken as a whole,
indicates "a fundamental fairness in
dealing with one’s creditors," In re
Bassak, 705 F.2d 234, 237 (7th Cir. 1983)
(quoting Rimgale, 669 F.2d at 432-33). In
applying this last factor, we suggested
in Rimgale that "the bankruptcy court may
wish to examine the timing of the
bankruptcy filings, the proportion of the
total unsecured debt that is represented
by the [tort] judgment, and the equities
of classifying together ordinary consumer
debt and a judgment debt arising out of
intentionally tortious conduct." In re
Rimgale, 669 F.2d at 433 n.22. Other
courts of appeals have adopted a similar
approach, providing courts within their
jurisdictions a non-exhaustive list of
factors to guide the good faith inquiry.
See, e.g., In re Young, 237 F.3d at 1174
(quoting Flygare v. Boulden, 709 F.2d
1344, 1347-48 (10th Cir. 1983)); In re
Estus, 695 F.2d 311, 317 (8th Cir. 1982).
In this case we are concerned with three
factors bearing on Mr. Smith’s good
faith, as raised by Ms. Watson: Mr.
Smith’s pre-petition conduct, including
the nature of the underlying debt, see In
re Smith, 848 F.2d at 818-19, the
sufficiency of the pay out, see Flygare,
709 F.2d at 1348, and the accuracy of Mr.
Smith’s financial disclosures in his
Plan, see In re Rimgale, 669 F.2d at 432.
Ms. Watson argues that Mr. Smith’s pre-
petition conduct demonstrates that his
Plan was not filed in good faith.
Specifically, Ms. Watson points to Mr.
Smith’s fraudulent behavior while serving
in a fiduciary capacity and to a
statement Ms. Watson alleged Mr. Smith
made to the effect that he had so
arranged his affairs as to preclude her
from recovering her judgment against him.
"Under a ’totality of the circumstances’
test, a debt’s nondischargeability under
Chapter 7 arising from a debtor’s pre-
filing conduct is relevant to the
debtor’s good faith." In re Smith, 848
F.2d at 818. There is no question that
Mr. Smith’s treatment of Ms. Watson was
deplorable and it appears from this
record that Mr. Smith abused the trust
Ms. Watson placed in him for his own
pecuniary benefit. It is also clear, if
the Plan is confirmed, that Mr. Smith
will not only pay far less than the
$267,000 he currently owes to Ms. Watson,
but will pay her less than her actual
losses, unadjusted for inflation. This
consideration alone, however, is not
sufficient to defeat Mr. Smith’s plan.
Congress has made it clear that some
debts, although nondischargeable in
Chapter 7, may be discharged under the
more liberal rules of Chapter 13. See
Johnson v. Home State Bank, 501 U.S. 78,
87 (1991). We are not free to second-
guess Congress’ policy choice in this
regard. What is required is "that the
plan must be ’proposed in good faith,’
not that the debt was incurred in good
faith." In re Smith, 848 F.2d at 819
(emphasis in original). "[A] Chapter 13
plan may be confirmed despite even the
most egregious pre-filing conduct where
other factors suggest that the plan
nevertheless represents a good faith
effort by the debtor to satisfy his cred
itor’s claims." Neufeld v. Freeman, 794
F.2d 149, 153 (4th Cir. 1986).
Mr. Smith’s pre-petition conduct,
without more, is not sufficient for us to
conclude that the bankruptcy court’s
decision is clearly erroneous. Ms. Watson
contends that this case is controlled by
our decision in Smith. See In re Smith,
848 F.2d at 818-21./4 The debtor, who
owned and operated a home repair
business, defrauded senior citizens by
making unnecessary repairs. See id. at
814. The State of Indiana obtained a
judgment against him for violations of
the state’s Deceptive Consumer Sales Act.
See id. Without appealing the judgment,
the debtor filed a Chapter 13 petition
three months later. See id. We reversed
the decision of the bankruptcy court,
which had confirmed the debtor’s Chapter
13 plan over the objection of a judgment
creditor. See id. at 822. Specifically,
we vacated the bankruptcy court’s
decision and remanded for further
proceedings because the bankruptcy court
failed to consider the debtor’s pre-peti
tion conduct in making the good faith
determination. See id. at 821. We
specifically declined to express an
opinion on whether the plan should be
confirmed on remand. See id. at 822.
Smith would be of assistance to Ms.
Watson only if she were able to
demonstrate that the bankruptcy court
failed to consider Edwin Smith’s pre-
petition conduct here. Although the
bankruptcy judge did not make any
explicit findings about the pre-petition
conduct, he indicated that he was aware
of the nature of Mr. Smith’s debt to Ms.
Watson. Further, the same bankruptcy
judge had handled Mr. Smith’s Chapter 7
proceeding and had granted summary
judgment to Ms. Watson on her objection
to discharge in Chapter 7. We therefore
are confident that the bankruptcy court
considered Mr. Smith’s pre-petition
conduct before it confirmed Mr. Smith’s
plan.
Although the nature of the underlying
debt, not dischargeable in Chapter 7,
weighs against a finding of good faith,
this factor alone cannot defeat
confirmation of Mr. Smith’s plan. We also
take note of Ms. Watson’s statement that
Mr. Smith told her that he had fixed
things so that she would not recover.
Without any evidence of how he had so
arranged his affairs, other than the
bankruptcy court’s noting that Mr. Smith
did not have a checking account, we
cannot say that the bankruptcy court’s
conclusion that bad faith had not been
established is clearly erroneous.
Ms. Watson next points to the low
percentage repayment of her debt as
evidence of Mr. Smith’s bad faith. Unless
he receives significant pay raises over
the repayment period, Mr. Smith will end
up repaying less than 10% of what he
currently owes Ms. Watson. Congress has
not adopted a minimum payment for
confirmation of a Chapter 13 plan, and we
cannot read one into the Code through its
good faith requirement. See In re
Rimgale, 669 F.2d at 431-32. Further, it
is difficult to see how the low
percentage of the payout adds anything to
the other good faith factors and the
other statutory requirements. The
percentage repayment is a function of the
size of the debt relative to the debtor’s
anticipated earnings; this factor is not
relevant to determining whether the
debtor has acted in good faith. The Code
requires a debtor to commit all of his
disposable income to repayment of his
creditors over the term of his Chapter 13
plan. If this process, honestly and
fairly undertaken, produces a payment
that is a small percentage of the debt,
the Code permits such a payment so long
as it is "not less than the amount that
would be paid on such claim if the estate
of the debtor were liquidated under
chapter 7." 11 U.S.C. sec. 1325(a)(4).
The Sixth Circuit requires bankruptcy
courts to give additional scrutiny to
Chapter 13 plans that propose repayment
of only a small percentage of a debt that
could not be discharged in Chapter 7. See
In re Caldwell, 895 F.2d 1123, 1126 (6th
Cir. 1990). We have no quarrel with the
proposition that a low payout is a red
flag, which ought to prompt the
bankruptcy court to engage in a
particularly careful examination of a
debtor’s finances or of a creditor’s
challenge to the accuracy or completeness
of the debtor’s disclosures. We do not
think, however, that the bankruptcy court
can be said to have failed in that
obligation here.
Ms. Watson’s final contention is that
Mr. Smith’s Plan is in bad faith because
it does not accurately describe his
financial position. Chapter 13 requires
that a debtor commit all of his
disposable income to repayment of his
debts. Disposable income is defined as
"income which is received by the debtor
and which is not reasonably necessary to
be expended for the maintenance or
support of the debtor or a dependent of
the debtor." 11 U.S.C. sec.
1325(b)(2)(A). Although this mandate is
independent of the good faith
requirement, courts also have considered
the accuracy of a debtor’s financial
disclosures in determining whether a
debtor has dealt fairly with his
creditors. Ms. Watsoncontends that Mr.
Smith’s Plan was not filed in good faith
because he failed to accurately state his
income, and because his expenses were
padded to include items "not reasonably
necessary to be expended for the
maintenance or support of the debtor or a
dependent of the debtor." 11 U.S.C. sec.
1325(b)(2)(A). "Complete and truthful
disclosure is particularly important in a
Chapter 13 case because, since creditors
do not vote on the plan, there is no
disclosure statement as such, and parties
in interest and the court must evaluate
the debtor’s proposal in a short period
of time based on facts mostly revealed by
the debtor." 5 William L. Norton, Jr.,
Norton Bankruptcy Law & Practice, sec.
122 at 18-19 (2d ed. 1997); see also In
re Leavitt, 171 F.3d 1219, 1224-25 (9th
Cir. 1999); In re Robinson, 987 F.2d 665,
668 n.6 (10th Cir. 1993) (quoting
Flygare, 709 F.2d at 1348); In re
Caldwell, 895 F.2d at 1126-27; In re
Langguth, 52 B.R. 572, 577 (Bankr. N.D.
Ill. 1985). In the seminal Seventh
Circuit case dealing with the question of
good faith in Chapter 13, four of the
five factors/5 we enumerated as
relevant to the good faith inquiry
addressed the accuracy of a debtor’s
financial disclosures in his plan. See In
re Rimgale, 669 F.2d at 432.
The bankruptcy hearing was focused on
the accuracy of Mr. Smith’s financial
disclosures accompanying his Plan. Ms.
Watson’s attorney thoroughly cross-
examined Mr. Smith about his income and
expenses. Counsel challenged what he
claimed were extraneous expenses and
inquired about fluctuations in Mr.
Smith’s and his wife’s income over the
years before bankruptcy, suggesting that
Mr. Smith was being less than forthcoming
about his likely income over the duration
of the Plan. The court examined Mr. Smith
about the alleged discrepancies in the
schedules accompanying his Plan. Neither
examination produced evidence of serious
discrepancies in Mr. Smith’s financial
disclosures, but the process did raise
for the court the question whether Mr.
Smith was committing all of his
disposable income to the Plan.
In an oral ruling, the court modified
the Plan and then confirmed it. The court
did so after stating that he "closely
scrutinizes these cases to determine
whether there--the plan is proposed in
good faith." Bankr. Tr. at 75. The court
was satisfied that Mr. Smith’s
disclosures were accurate and that his
pre-petition conduct did not warrant
denial of confirmation: "I just have to
make sure that this debtor puts all [his]
disposable income into the plan." Bankr.
Tr. at 76. Taking all of the information
adduced at the hearing into account, the
bankruptcy court, in confirming the Plan,
increased Mr. Smith’s payout from $200
per month for the duration of the Plan to
$300 per month for the second year and
$350 per month for the final three years
of the Plan. Finally, the court said:
"Based upon payments of that level, the
Court would find that the plan as
submitted is proposed in good faith."
Bankr. Tr. at 79.
One could argue that implicit in the
court’s above-quoted conclusion is a
belief that the Plan as submitted by Mr.
Smith was not in good faith and that it
was only upon adjustment by the court
that the Plan’s payout was sufficient to
meet the good faith test. Or one could
suppose that the court believed that Mr.
Smith was padding his expenses, or
understating his income, and adjusted the
Plan accordingly. If the court did so
believe, it would have been within its
discretion to deny confirmation of the
Plan. The likely result would have been
to return the issue to Mr. Smith, to
permit him to file an amended plan and
then to return to court to seek
confirmation. Essentially, the bankruptcy
court skipped that intermediate step and
adjusted the Plan in light of the
information before him. Mr. Smith did not
object to the Plan as adjusted by the
court. Ms. Watson does not invite our
attention to any evidence ignored or
improperly weighed by the bankruptcy
court. Our review of the evidence
indicates no clear error on the part of
the bankruptcy court.
The bankruptcy court’s adjustment of the
Plan forecloses Ms. Watson’s good faith
challenge. In order for Ms. Watson to
prevail, she would need to combine the
evidence of Mr. Smith’s pre-petition
conduct with any discrepancies in Mr.
Smith’s financial disclosures in the
bankruptcy court. The court’s action
increasing Mr. Smith’s payout under the
Plan compensates for any irregularities
or understatements in Mr. Smith’s
proposed Plan and precludes a
determination on our part that the
bankruptcy court erred.
Conclusion
The bankruptcy court’s conclusion that
Mr. Smith’s plan was proposed in good
faith was not clearly erroneous.
Therefore, the decision of the district
court to affirm its judgment must be
upheld.
AFFIRMED
FOOTNOTES
/1 Ms. Watson suggests that this case ought to be
remanded for further fact-finding by the bank-
ruptcy court. Although appellate review is facil-
itated by detailed findings, particularly on a
fact-specific issue like good faith under the
Bankruptcy Code, see In re Schaitz, 913 F.2d 452,
455-56 (7th Cir. 1990), failure to include a
written opinion does not warrant an automatic
remand. Ms. Watson had the opportunity to bring
forward evidence of Mr. Smith’s bad faith at the
evidentiary hearing. There is no need for further
fact-finding because there is no indication in
the record that the bankruptcy court’s decision
was clearly erroneous.
/2 Some cases have held that close temporal proximi-
ty between a debt coming due and a bankruptcy
filing indicates an effort by the debtor to avoid
payment of the judgment or to forgo appeal in
favor of bankruptcy. See In re Leavitt, 171 F.3d
1219, 1221, 1224-25 (9th Cir. 1999); In re Smith,
848 F.2d 813, 821 (7th Cir. 1988); In re Sana-
bria, 52 B.R. 75, 76-77 (N.D. Ill. 1985). Also,
serial bankruptcy filings may indicate bad faith.
See In re Jackson, 91 B.R. 473, 473-75 (Bankr.
N.D. Ill. 1988). Ms. Watson has made no such
allegations here.
/3 In In re Rimgale, 669 F.2d 426, 432 (7th Cir.
1982), we listed the following factors as a guide
to bankruptcy courts evaluating whether a plan
had been filed in good faith: (1) whether the
plan states the secured and unsecured debts of
the debtor accurately; (2) whether the plan
states the expenses of the debtor accurately; (3)
whether the percentage of repayment of unsecured
debts is correct; (4) whether inaccuracies in the
plan amount to an attempt to mislead the bank-
ruptcy court; and (5) whether the proposed pay-
ments indicate a fundamental fairness in dealing
with creditors. See In re Rimgale, 669 F.2d at
432-33. We stressed that this list is not exhaus-
tive.
/4 The debtor in the earlier Smith decision is not
the same Mr. Smith as the party here.
/5 See note 3, supra.