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Different facts and circumstances in cases under chapter 13 operate to make any rule of thumb of limited usefulness.
Sections 727(a) (8) and (9) of the House amendment represent a compromise between provisions contained in section 727(a)(8) of the House bill and Senate amendment. (1), “section within” for “section, within” and “discharge is granted” for “discharge was granted” in par. Section 727(a)(8) of the House amendment adopts section 727(a)(8) of the House bill. (1), “section before” for “section, before” in provisions of par. (A), and “discharge; and” for “discharge; or” in par. However, section 727(a)(9) of the House amendment contains a compromise based on section 727(a)(8) of the Senate amendment with respect to the circumstances under which a plan by way of composition under Chapter XIII of the Bankruptcy Act [chapter 13 of former title 11] should be a bar to discharge in a subsequent proceeding under title 11. The paragraph provides that a discharge under section 660 or 661 of the Bankruptcy Act [section 1060 or 1061 of former title 11] or section 1328 of title 11 in a case commenced within 6 years before the date of the filing of the petition in a subsequent case, operates as a bar to discharge unless, first, payments under the plan totaled at least 100 percent of the allowed unsecured claims in the case; or second, payments under the plan totaled at least 70 percent of the allowed unsecured claims in the case and the plan was proposed by the debtor in good faith and was the debtor’s best effort. (d) generally, substituting “, a creditor, or the United States trustee,” for “or a creditor,” in provisions preceding par. It is expected that the Rules of Bankruptcy Procedure will contain a provision permitting the debtor to request a determination of whether a plan is the debtor’s “best effort” prior to confirmation of a plan in a case under chapter 13 of title 11. (1) and “acquisition of or entitlement to such property” for “acquisition of, or entitlement to, such property” in par.
In determining whether a plan is the debtor’s “best effort” the court will evaluate several factors.