In Re Whisenton
In Re Whisenton
Opinion
ORDER
Upon consideration of the debtor’s motion to avoid preferential transfer, and of the record of this case, the Court finds and concludes as follows:
1. Pursuant to a voluntary agreement for wage allotment between the debtor and the creditor HUD Federal Credit Union (“the Credit Union”), the debtor’s employer *469 transferred to the Credit Union the sum of $25.00 per month during the period from October 29, 1983 through March 14, 1984.
2. The debtor filed her Chapter 7 bankruptcy petition on January 27, 1984.
3. Subsection 522(h) limits the debtor’s right of avoidance “to the extent that the debtor could have exempted such property under subsection (g)(1)” of § 522 of the Bankruptcy Code. That subsection in turn provides that the debtor may exempt property recovered by the trustee only if the transfer of that property “was not a voluntary transfer of such property by the debt- or...” 11 U.S.C. § 522(g)(1)(A). In this case the pre-petition transfers were all voluntary; hence they could not be exempted; and therefore they cannot be avoided by the debtor.
4. In view of the automatic stay (11 U.S.C. § 362), the filing of the petition may be regarded as terminating the voluntary nature of wage allotment payroll deductions. Therefore, as to the post-petition payroll deductions, the debtor has met the requirement of involuntariness. However, post-petition earnings of the debtor in a Chapter 7 case, unlike a Chapter 13 case, are not property of the estate. Compare 11 U.S.C. §§ 541 and 1306. And compare In re Shepherd, 12 B.R. 151, 7 B.C.D. 956 (D.C.E.D.Pa. 1981), discussing the differences between Chapter 7 and 13 and holding that post-petition payroll deductions paid to a credit union may be avoided and exempted by a Chapter 13 debtor because the debtor’s post-petition earnings are property of the Chapter 13 estate. In this Chapter 7 case, the post-petition earnings are not property of the estate; therefore the transfers from those earnings to the credit union are not “avoidable by the trustee,” as the explicit language of § 522(h) requires them to be before they can be avoided by the debtor; and hence the debt- or cannot avoid those transfers.
NOW THEREFORE IT IS ORDERED, on June 18, 1984, that the motion to avoid preferential transfer is denied in its entirety, both as to pre-petition amounts, because they were voluntary, and as to post-petition amounts, because they were not property of the estate. This Order is of course without prejudice to whatever rights the debtor may have to assert a claim against the credit union for violation of the automatic stay.
Reference
- Full Case Name
- In Re Conchita WHISENTON, Debtor
- Cited By
- 3 cases
- Status
- Published