IN RE LUCERO

RICHARD LEE, Bankruptcy Judge

This memorandum decision is not approved for publication and may not be cited except when relevant under the doctrine of law of the case or the rules of res judicata and claim preclusion.

On June 25, 2007, the Debtor, Elarido Larry Lucero (the "Debtor"), lodged with this court a proposed order confirming plan (the "Confirmation Order"). The Confirmation Order was approved by the chapter 13 trustee. The Debtor's chapter 13 plan (the "Plan") was filed on May 7, 2007. It was properly served on creditors and there were no objections. The Confirmation Order was therefore submitted for approval without a hearing. For the reasons set forth below, the court cannot find that the Plan complies with 11 U.S.C. § 1325(a)(4). Confirmation of the Plan will be denied.

This memorandum decision contains the court's findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a), made applicable to this contested matter by Federal Rule of Bankruptcy Procedure 7052. The bankruptcy court has jurisdiction over this matter under 28 U.S.C. § 1334 and 11 U.S.C. § 524 and General Orders 182 and 330 of the U.S. District Court for the Eastern District of California. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2).

The Confirmation Order purports to amend the Plan as it was served on creditors by adding the following provision regarding an unliquidated asset:

Any net recovery upon the claim against Julie Ann Roos Bresemen and Kaweah Delta Hospital for disclosure of confidential medical information is to be shared equally between the Debtor and the Bankruptcy Estate.

The value of the above-referenced asset is listed in the Debtor's bankruptcy schedules as "unknown." The asset is not listed as exempt. The Plan commits the Debtor to pay nothing to his unsecured creditors. At the same time, the Debtor has apparently done nothing to enforce or liquidate the asset for the benefit of creditors. The above-referenced plan modification purports to be some compromise with the chapter 13 trustee over disposition of the asset. Unfortunately, the above provision, as drafted, is virtually unenforceable in terms of measuring the Debtor's performance, and it was not noticed to creditors. The court must presume that a chapter 7 trustee would diligently investigate the above-referenced asset and either abandon it or attempt to liquidate it for some value. It does not appear from the record here that the chapter 13 trustee has done either. The court cannot find that the Plan complies with § 1325(a)(4) in that the Debtor is not committed to maximize the value of his assets and to distribute to unsecured creditors at least as much as they would receive in a chapter 7.