In Re Gregory A. Lemaire, Debtor. Paul Handeen v. Gregory A. Lemaire , 898 F.2d 1346 ( 1990 )

JOHN R. GIBSON, Circuit Judge.

The issue before us is whether a civil judgment awarded to the victim of an intentional shooting may be discharged under Chapter 13 of the Bankruptcy Act, 11 U.S.C. §§ 1301-1330 (1988). Paul Han-deen, the victim of the assault and subsequently a judgment creditor, asks this court to hold, as a matter of law, that the judgment arising out of criminal conduct may not be discharged. Alternatively, he argues that the bankruptcy court’s holding that the debtor Gregory LeMaire proposed his Chapter 13 plan in good faith was clearly erroneous. We conclude that the court’s finding of good faith was clearly erroneous and therefore reverse and remand for further proceedings consistent with this opinion.

On July 9, 1978, at about noon, Handeen went to pick up his son and found LeMaire waiting for him. When Handeen got out of his car, LeMaire shot at him nine times with a bolt action rifle. The first two shots missed Handeen, but the third struck him on the left side of his neck. Handeen then attempted to hide behind the car. LeMaire circled the car, shot at and missed Handeen twice more, and then hit him inside of his left knee. LeMaire circled again and Han-deen jerked his head back to avoid the bullet at the time he thought LeMaire would pull the trigger of the rifle aimed at his head. LeMaire fired, and the bullet went through Handeen s right nostril, shattering the roof of his mouth and going through his tongue. LeMaire then fired a shot at Handeen’s left arm. The bullet went through Handeen’s arm and lodged on his spine. LeMaire fired a final shot through Handeen’s ankle. In all, five of the nine shots fired by LeMaire struck Handeen. LeMaire declared that he had intended to kill Handeen. (Tr. Bankr.D. Minn. Oct. 28, 1987, at 23, 35-38). He pled guilty to a charge of aggravated assault and was sentenced to imprisonment for a term of one to ten years. He served twenty-seven months of his sentence and was released in 1981. LeMaire then returned to graduate school at the University of Minnesota and received his doctorate in experimental behavioral pharmacology in January 1986.

Handeen brought a civil suit against Le-Maire and obtained a consent judgment. LeMaire paid $3,000 of the judgment, but made no further payments, prompting Han-deen to commence garnishment proceedings to collect the $50,362.50 balance on the judgment. Soon after, on January 16, 1987, LeMaire filed this bankruptcy petition under Chapter 13.

Handeen objected to the bankruptcy court confirming LeMaire’s Chapter 13 plan; the bankruptcy court, however, rejected his assertion that the civil judgment arising out of the crime was not discharge-able. The court instead confirmed Le-Maire’s plan, which provided that his creditors be paid approximately 42% on their claims. The plan listed three claims: (1) Handeen’s judgment; (2) a student loan; and (3) a claim by LeMaire’s parents for loans to LeMaire, including $3,600 expended on his legal fees, $3,000 spent in partial payment on the judgment, and $2,172 lent to buy a computer. The record reveals that LeMaire’s debt to his parents was evidenced by a promissory note he signed the day before he filed his Chapter 13 petition.

Handeen appealed to the district court from the bankruptcy court’s order confirming LeMaire’s Chapter 13 plan. The district court affirmed and, upon appeal, a panel of this court also affirmed. In re LeMaire, 883 F.2d 1373 (8th Cir.1989). We granted rehearing en banc, vacated the panel opinion, and heard oral argument. We now reverse.

I.

Handeen vigorously argues that, as a matter of law, his civil judgment cannot be discharged because it arose from a criminal act. The panel rejected this argument and we do likewise.

Handeen’s argument is based upon 11 U.S.C. § 523(a)(6) (1988),¹ which provides that a debt arising from infliction of “willful and malicious injury by the debtor to another entity” may not be discharged under specified sections of the Bankruptcy Code. As the panel observed, there is no question that LeMaire’s assault inflicted a “willful and malicious” injury upon Handeen. 883 F.2d at 1376. Handeen’s reliance upon section 523(a)(6) is unavailing, however, because LeMaire filed his petition under Chapter 13, which does not include section 523(a)(6) in its list of nondischargeable debts. See 11 U.S.C. § 1328(a) (1988).² Although section 523(a)(6) does by its express statutory terms apply to a petition for bankruptcy under Chapter 7, its applicability does not extend to a filing under Chapter 13. Therefore, a debt which falls within the scope of section 523(a)(6), such as the debt owed to Handeen, which may not be discharged under Chapter 7, may nevertheless be discharged if the debtor meets the requirements of Chapter 13.³

II.

Alternatively, Handeen argues that the bankruptcy court should not have confirmed LeMaire’s Chapter 13 plan because LeMaire did not propose it in good faith. Section 1325(a) of Title 11 of the Bankruptcy Code establishes six criteria which a debtor must meet in order to have his Chapter 13 plan confirmed by a bankruptcy court. The critical requirement, for present purposes, is that “the plan has been proposed in good faith and not by any means forbidden by law.” 11 U.S.C. § 1325(a)(3) (1988).

In deciding whether LeMaire has met the good faith criterion, we recognize that legislative amendments to section 1325 have affected judicial interpretation of the phrase “good faith,” which is defined neither in the Bankruptcy Code nor in its legislative history. Prior to the Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No. 98-353, 98 Stat. 333 (1984), our analysis focused upon “whether the plan constitutes an abuse of the provisions, purpose or spirit of Chapter 13.” In re Estus, 695 F.2d 311, 316 (8th Cir.1982). This required looking to the totality of circumstances to discern whether good faith existed, a task aided by the Estus court listing a number of factors it considered relevant to this analysis.⁴ This approach was widely used in other circuits. See Neufeld v. Freeman, 794 F.2d 149,152 (4th Cir.1986); Flygare v. Boulden, 709 F.2d 1344, 1347 (10th Cir.1983); In re Kitchens, 702 F.2d 885, 888-89 (11th Cir.1983); In re Goeb, 675 F.2d 1386, 1390 (9th Cir.1982); In re Rimgale, 669 F.2d 426, 432-33 (7th Cir.1982).

After Estus, the Bankruptcy Amendments and Federal Judgeship Act of 1984 added a new section 1325(b) which authorizes courts to confirm a plan in which all of the debtor’s disposable income for three years is applied to make payments under the plan. 11 U.S.C. § 1325(b). In Education Assistance Cory. v. Zellner, 827 F.2d 1222 (8th Cir.1987), we considered the effect of the new section 1325(b) on the Estus analysis of good faith. We stated that the new section’s “ability to pay” criteria subsumed most of the Estus factors and thus narrowed the focus of the good faith inquiry. Id. at 1227. We described the narrower focus as depending upon “whether the debtor has stated his debts and expenses accurately; whether he has made any fraudulent misrepresentation to mislead the bankruptcy court; or whether he has unfairly manipulated the Bankruptcy Code.” Id.

Although Zellner modified the good faith determination in response to the new section 1325(b), it is recognized that Zellner preserved the traditional “totality of circumstances” approach with respect to Estus factors not addressed by the legislative amendments. See In re Smith, 848 F.2d 813, 820 n. 8 (7th Cir.1988). Thus, in considering whether LeMaire proposed his plan in good faith, factors such as the type of debt sought to be discharged and whether the debt is nondischargeable in Chapter 7, and the debtor’s motivation and sincerity in seeking Chapter 13 relief are particularly relevant. Estus, 695 F.2d at 317. These are factual findings made by the bankruptcy court which we review under a clearly erroneous standard. “When a district court reviews a bankruptcy court’s judgment, it acts as an appellate court.” Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir.1987). In turn, when the case is appealed to this court, we perform the same appellate function as the district court of reviewing legal conclusions on a de novo basis and factual findings under a clearly erroneous standard. Id.

The Supreme Court carefully articulated the principles governing a court examining factual findings under the clearly erroneous standard in Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Id. at 573, 105 S.Ct. at 1511 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Anderson cautions that the clearly erroneous standard does not entitle us to reverse the trier of fact simply because we would have decided the case differently. Id. We are directed that we may not decide factual issues de novo, id., and that when there are two permissible views of the evidence, we may not hold that the choice made by the trier of fact was clearly erroneous. Id. at 574, 105 S.Ct. at 1511. Moreover, where the factual findings call for an assessment of witness credibility, even greater deference to the trier of fact is demanded. Id. at 575, 105 S.Ct. at 1512.

Under Anderson, this deference also extends to the trier of fact’s consideration of physical or documentary evidence. Id. at 574, 105 S.Ct. at 1511. This deference is not unlimited, however, and we may consider documents or objective evidence which contradict a witness’ story, or take notice of the fact that the story is so internally inconsistent or facially implausible that a reasonable factfinder would not credit it. Id. at 575, 105 S.Ct. at 1512.

Thus, our task here is to review the bankruptcy court’s factual findings under the clearly erroneous standard, as developed in Anderson, in order to determine whether LeMaire proposed his Chapter 13 plan in good faith. When we do so, based upon the uncontradicted record before the bankruptcy court, we are left with “the definite and firm conviction that a mistake has been committed.” Id. at 573, 105 S.Ct. at 1511 (quoting United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. at 542).

In its order confirming LeMaire’s plan, the bankruptcy court examined in detail each of the eleven factors enumerated by the Estus court to assess whether a plan has been proposed in good faith. We are particularly concerned with the court’s treatment of two of these factors:⁵ (1) whether the debt is nondischargeable in Chapter 7; and (2) the debtor’s motivation and sincerity in seeking Chapter 13 relief. See Estus, 695 F.2d at 317.

A.

Estus directs a bankruptcy court to consider whether the debt would be nondis-chargeable in a Chapter 7 filing, and the court did so here, observing that this factor is closely linked to the debtor’s motivation and sincerity. Although the court was correct in this observation, our review of the record convinces us that the court accorded insufficient weight to this factor. The specific evidence in the record which persuades us that the bankruptcy court was clearly erroneous in finding that LeMaire proposed his plan in good faith is discussed below in the context of another Estus factor, LeMaire’s motivation and sincerity in seeking Chapter 13 relief. At this point, we need only observe that this debt could not be discharged under Chapter 7.

B.

In evaluating LeMaire’s motivation and sincerity, the bankruptcy court balanced Handeen’s desire to be compensated for his injuries against LeMaire’s desire to have a fresh start and found the latter to outweigh the former in importance. The court noted that, while LeMaire had been unable to pay his debt to his victim, he had paid his debt to society by serving a prison sentence and had attempted to reorder his life and make a fresh start. The court found that forcing LeMaire to be burdened the rest of his life with a judgment which would continue to accrue interest, result in endless garnishments, and prevent him from accumulating property would be inimical to such a fresh start. The court concluded that LeMaire had made a wholehearted attempt to pay Handeen as much as possible, and that LeMaire’s motivation was proper and his sincerity real.

We are convinced that the court’s analysis here fails to properly consider the strong public policy factors, inherent in the Bankruptcy Code, which are implicated in discharging this debt and gives undue emphasis to the fact that the statutory terms governing Chapter 13 petitions do not expressly make a debt resulting from a willful and malicious injury nondischargeable. In light of the court’s clear errors both in according insufficient weight to the nondis-chargeability of this debt in Chapter 7, and in finding that LeMaire's motivation and sincerity in seeking Chapter 13 relief were proper, we do not believe that LeMaire has fulfilled the good faith requirement of Chapter 13. We are “left with the definite and firm conviction that a mistake has been committed.” Anderson, 470 U.S. at 573, 105 S.Ct. at 1511 (quoting United States Gypsum Co., 333 U.S. at 395, 68 S.Ct. at 542).

After reviewing the bankruptcy court’s findings here, according due deference to its credibility determinations, we are compelled to conclude that the bankruptcy court’s finding was clearly erroneous because the evidence before the court regarding LeMaire’s good faith was so "implausible on its face that a reasonable factfinder would not credit it.” Id. at 575, 105 S.Ct. at 1512. The record here very clearly indicates that LeMaire intended to kill Han-deen, he shot at him nine times, he hit him with five of the bullets, and he nearly succeeded in his intention. The record also reveals that LeMaire sought the protection of bankruptcy when Handeen tried to collect his judgment. Ironically, LeMaire listed the $3000 which he actually paid on the judgment as a debt owed to his parents, as evidenced by a promissory note signed the day before he sought bankruptcy protection.⁶ The record shows that LeMaire received his doctorate from the University of Minnesota and was appointed as a postdoctoral re'search fellow at the University. Handeen argues that LeMaire’s fellowship, which pays him a relatively low wage, is essentially a means of repaying a debt of $30,000 to $50,000 owed to the United States Public Health Service. As we have observed, this debt was not included in the plan but LeMaire testified freely that he was aware of it and of his obligation to pay it back if he failed to comply with his obligations to the Public Health Service. The bankruptcy court did not address this argument. We believe, however, that the court should have discussed whether Le-Maire’s failure to disclose this contingent debt when he filed his petition and his testimony of the continuing obligation demonstrated a lack of good faith and unfair manipulation of the Bankruptcy Code. The bankruptcy court’s order does not specifically discuss whether LeMaire has attempted to unfairly manipulate the Bankruptcy Code, despite the fact that this inquiry has been identified as central to the court’s task of determining whether the plan “constitutes an abuse of the provisions, purpose or spirit of Chapter 13.” Zellner, 827 F.2d at 1227 (quoting Estus, 695 F.2d at 316).⁷

We recognize that “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 creditors’ claims.” Neufeld, 794 F.2d at 153 (emphasis added). While pre-filing conduct is not determinative of the good faith issue, it is nevertheless relevant. See, In re Doersam, 849 F.2d 237, 239 (6th Cir.1988); Smith, 848 F.2d at 818; Neufeld, 794 F.2d at 152. When we consider the pre-filing conduct here, including the maliciousness of the injury which LeMaire inflicted upon blandeen, in light of the lack of “other factors” sufficient to establish good faith, we are persuaded that the bankruptcy court clearly erred in finding that LeMaire proposed his plan in good faith.

Our decision does not rest solely on considerations of public policy; we believe, however, that it is appropriate to note that our decision is consistent with the policies underlying the Bankruptcy Code. “[T]he primary purpose of the bankruptcy statute ... is the collection and distribution of the debtor’s estate to his creditors.” In re May, 12 B.R. 618, 621 (N.D.Fla.1980). A secondary purpose is to discharge the debt- or’s financial obligations and is “designed to give the honest debtor the opportunity to reinstate himself in the business world; it is not intended to be available to a dishonest debtor.” Id.⁸ See also In re Shapiro, 59 B.R. 844, 847 (Bankr.E.D.N.Y.1986) (“the discharge of debts inures to the benefit of only the honest debtor”).⁹

While the bankruptcy court correctly recognized that the exceptions to discharge specified in section 523(a)(6) do not expressly apply to a Chapter 13 petition, the court’s analysis falls short by failing to examine the public policies promoted by not discharging the debts enumerated there. It is valuable to compare section 523(a)(6), stating that debts resulting from willful and malicious injury may not be discharged, with the other debts which section 523 states may not be discharged. The section exempts from discharge debts for a tax or customs duty; for money obtained by false pretenses; for embezzlement or larceny; for support of a spouse, former spouse, or child; for governmental fines or penalties; and for educational loans guaranteed by the government. While there is a strong public policy prohibiting the discharge of each of these types of debts, we believe that there is a particularly strong policy prohibiting the discharge of a debt resulting from a willful and malicious injury following an attempted murder.

We recognize that Congress intentionally expanded the scope of the debtor’s discharge in Chapter 13 after he completes his plan in order to “encourage more debtors to attempt to pay their debts under bankruptcy court supervision.” Estus, 695 F.2d at 313. “The fact that a discharge would not be available in a [chapter 7] liquidation case should furnish a greater incentive for the debtor to perform under the [Chapter 13] plan.” H.R.Rep. No. 95-595, 95th Cong., 2d Sess. 129 (1978), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6090. But we believe that the public policies promoted by not discharging a debt resulting from willful or malicious injury in any Chapter 7 case are also implicated in this particular Chapter 13 case, and that the bankruptcy court’s decision was clearly erroneous in not according these policies sufficient weight. Our decision should not be read as a broad declaration extending beyond the facts before us. We simply hold that the circumstances surrounding this particular debt reveal that Lemaire did not demonstrate the requisite good faith to seek Chapter 13 protection and that refusing to discharge this particular debt, because of his lack of good faith, is consistent with the policies which the Bankruptcy Code seeks to advance.

We recognize our obligation to evaluate the good faith determination in the totality of the circumstances, and we have reviewed the bankruptcy court’s treatment of the factors enumerated in Estus. We also recognize, however, that the weight accorded to each factor varies with the circumstances of each case, Estus, 695 F.2d at 317, and, “in the final analysis, good faith should be evaluated on a case-by-case basis in light of the structure and general purpose of Chapter 13.” Doersam, 849 F.2d at 239 (citing Estus, 695 F.2d at 316). There are no “precise formulae or measurements to be deployed in a mechanical good faith equation.” In re Okoreeh-Baah, 836 F.2d 1030, 1033 (6th Cir.1988). When we consider the totality of the circumstances in light of the purposes of Chapter 13, we are compelled to conclude that the bankruptcy court’s finding that LeMaire proposed his plan in good faith was clearly erroneous.

We remand this case to the district court with instructions to remand, in turn, to the bankruptcy court for further proceedings consistent with this opinion.

1 . This section of the Bankruptcy Code provides:

(а) A discharge under section 727, 1141,, [sic] 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt—

(б) for willful and malicious injury by the debtor to another entity or to the property of another entity.

11 U.S.C. § 523(a)(6).

2 . This section provides:

(a) As soon as practicable after completion by the debtor of all payments under the plan, unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt—

(1)provided for under section 1322(b)(5) of this title; or

(2)of the kind specified in section 523(a)(5) of this title.

11 U.S.C. § 1328(a).

3 . A number of bankruptcy and district court decisions support this. See, e.g., In re Swan, 98 B.R. 502, 504 (Bankr.D.Neb.1989); In re DeSimone, 25 B.R. 728, 729 (E.D.Pa.1982); In re Seely, 6 B.R. 309, 311 (Bankr.E.D.Va.1980).

4 . As enumerated by the Estus court, these factors include:

(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;

(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.

695 F.2d at 317.

5 . We are also concerned with the bankruptcy court’s treatment of other Estus factors. Estus directs the bankruptcy court to determine the extent of preferential treatment between classes of creditors and the court here found that Le-Maire’s proposed plan did not discriminate among his creditors. There was evidence in the record, however, that LeMaire’s petition failed to disclose a contingent debt in the amount of $30,000 to $50,000 which he would have to pay back to the United States Public Health Service if he failed to fulfill the terms of this fellowship stipend. (Tr. Bankr.D.Minn. May 20, 1987, at 10-11, 30). At the hearing, LeMaire testified freely about this debt and his understanding that it would have to be paid back if he did not satisfy the terms of his fellowship. Since Le-Maire failed to include this contingent debt in his plan, it would not be discharged after he completed payments to other creditors under the plan. See In re Gregory, 705 F.2d 1118, 1122 (9th Cir.1983); In re Gamble, 85 B.R. 150, 152 (Bankr.N.D.Ala.1988); In re Martinez, 51 B.R. 944, 948 (Bankr.D.Colo.1985); In re Doane, 19 B.R. 1007, 1009 (W.D.Va.1982). Since the debt would be accorded different treatment than Le-Maire’s other debts, there would be discrimination among creditors.

Another Estus factor, the accuracy of Le-Maire’s statements of debts and expenses, is also affected by this failure to disclose. The amount of this undisclosed contingent debt, $30,000 to $50,000, makes this omission quite significant. The bankruptcy court, however, found no evidence of inaccuracies.

6 . We are troubled by the circumstances surrounding LeMaire’s obligations to his parents. The record shows that LeMaire signed a promissory note evidencing a debt to his parents of $12,722 only one day prior to filing his bankruptcy petition. Prior to this filing, LeMaire had never made any payments on his debts to his parents, even though he had incurred some of them years earlier and he was receiving a regular stipend from his fellowship. (Tr. Bankr.D.Minn. Oct. 28, 1987, at 15-16, 25). Le-Maire's plan also listed as an expense a monthly rental payment of $240 to his parents. The record shows that he had never paid rent while living at home in the past. (Tr. Bankr.D.Minn. May 20, 1987, at 16).

Despite this evidence in the record, the bankruptcy court found that LeMaire’s financial dealings with his parents did not indicate bad faith on his part. We need not review these findings more closely, however, because we believe that there is other evidence in the record which persuades us that the bankruptcy court's finding of good faith was clearly erroneous.

7 . We do not mean to imply that the bankruptcy court should have disregarded all of the Estus factors and focused solely on whether LeMaire had attempted to unfairly manipulate the Bankruptcy Code. We recognize, as the Estus court did, that no litmus test exists for determining good faith and that "the factors and the weight they are to be given will vary with the facts and circumstances of the case.” Estus, 695 F.2d at 317. We believe, however, that the facts and circumstances of this particular case merited at least some discussion of whether LeMaire had attempted to unfairly manipulate the Bankruptcy Code. The bankruptcy court simply failed to address the issue altogether.

8 . The dissent takes issue with our consideration of policy factors in holding that LeMaire did not propose his bankruptcy plan in good faith. We believe, however, that Congress did not intend to replace the discretion of courts with a rigid, mechanistic checklist to assess good faith. We are to bear in mind that the good faith requirement is "the only safety valve available through which plans attempting to twist the law to malevolent ends may be cast out.” In re Waldron, 785 F.2d 936, 939 (11th Cir.1986) (quoting In re Leal, 7 B.R. 245, 248 (Bankr.D.Colo.1980)). Thus, our task is to consider the totality of the circumstances, in light of the policies inherent in the Bankruptcy Code, to determine whether a court's finding of good faith was clearly erroneous. The Eleventh Circuit has explained the role of policy analysis in this determination:

[W]ith section 1325(a)(3) Congress intended to provide bankruptcy courts with a discretionary means to preserve the bankruptcy process for its intended purpose. Accordingly, whenever a Chapter 13 petition appears to be tainted with a questionable purpose, it is incumbent upon the bankruptcy courts to examine and question the debtor’s motives. If the court discovers unmistakable manifestations of bad faith, as we do here, confirmation must be denied.

Unmistakable manifestations of bad faith need not be based upon a finding of actual fraud, requiring proof of malice, scienter or an intent to defraud. We simply require that the bankruptcy courts preserve the integrity of the bankruptcy process by refusing to condone its abuse.

Id. at 941 (emphasis added).

9 . In a case cited by both the dissent and this opinion, In re Okoreeh-Baah, 836 F.2d 1030 (6th Cir.1988), the Sixth Circuit explained the effect of dishonesty in the Chapter 13 context. "One way to refuse to sanction the use of the bankruptcy court to carry out a basically dishonest scheme under Chapter 13 is to deny confirmation of the proposed plan. When the debtor’s conduct is dishonest, the plan simply should not be confirmed.” Id. at 1032 (emphasis removed) (quoting Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427, 432 (6th Cir.1982)); see also In re Rasmussen, 888 F.2d 703, 705-06 (10th Cir.1989) (per curiam); Neufeld, 794 F.2d at 152-53.