UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT In the Matter of: ROGER A. EVANS; No. 22-35216 LORI A. STEEDMAN, Debtors, D.C. No. 4:20-cv-00112- ------------------------------ DCN ROGER A. EVANS; LORI A. STEEDMAN, OPINION Appellants,

v. KATHLEEN A. MCCALLISTER, Chapter 13 Trustee, Appellee.

Appeal from the United States District Court for the District of Idaho David C. Nye, Chief District Judge, Presiding

Argued and Submitted February 7, 2023 Portland, Oregon

Filed June 12, 2023

Before: MILAN D. SMITH, JR., DANIELLE J. FORREST, and JENNIFER SUNG, Circuit Judges. 2 EVANS V. MCCALLISTER

Opinion by Judge Milan D. Smith, Jr.

SUMMARY*

Bankruptcy

The panel reversed the district court’s judgment reversing the bankruptcy court’s order requiring a standing Chapter 13 trustee to return her percentage fee when the case was dismissed prior to confirmation. Joining the Tenth Circuit, the panel held that the trustee was not entitled to a percentage fee of plan payments as compensation for her work in the Chapter 13 case. 28 U.S.C. § 586(e)(2) provides that the trustee shall “collect” the percentage fee from “payments . . . under plans” that she receives. 11 U.S.C. § 1326(a)(1) provides for the debtor to make payments in the amount “proposed by the plan to the trustee.” Section 1326(a)(2) provides that the trustee shall retain these payments “until confirmation or denial of confirmation.” This section further provides that if a plan is not confirmed, the trustee shall return to the debtor any payments not previously paid to creditors and not yet due and owing to them. Section 1326(b) provides that, before or at the time of each payment to creditors under the plan, the trustee shall be paid the percentage fee under § 586(e)(2). The panel held that, reading these statutes together, “payments . . . under plans” in § 586 refers only to payments

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. EVANS V. MCCALLISTER 3

under confirmed plans. Prior to confirmation a trustee does not “collect” or “collect and hold” fees under § 586, but instead “retains” payments “proposed by the plan” pursuant to § 1326(a)(2). If a plan is not confirmed, then § 1326(a)(2) requires return to the debtor of payments “proposed by the plan.” If a plan is confirmed, then § 1326(b) provides for payment of the percentage fee to the trustee. Thus, under the plain meaning of the statutory text, a trustee is not paid her percentage fee if a plan is not confirmed. The panel concluded that statutory canons of construction, such as the rule against superfluities, and the provisions’ amendment history confirmed its reading of the statutes. And policy arguments made by the trustee were not enough to overcome the plain language and context of the relevant statutory provisions.

COUNSEL Alexandra O. Caval (argued), Caval Law Office P.C., Twin Falls, Idaho, for Appellants. Mahesha Subbaraman (argued), Subbaraman PLLC, Minneapolis, Minnesota; Jeffrey P. Kaufman, Office of Kathleen McCallister, Meridian, Idaho; for Appellee. Tara Twomey, National Consumer Bankruptcy Rights Center, San Jose, California; Matthew D. Resnik, RHM Law LLP, Encino, California; for Amici Curiae National Consumer Bankruptcy Rights Center and National Association of Consumer Bankruptcy Attorneys. Henry E. Hildebrand III, Office of the Chapter 13 Trustee, Nashville, Tennessee, for Amicus Curiae the National Association of Chapter Thirteen Trustees. 4