In re Wheeler
In re Wheeler
Opinion of the Court
DECISION ON TRUSTEE’S MOTION TO DISMISS
This chapter 13 case was filed on August 6, 2009 and the debtors’ proposed plan was confirmed on October 15, 2009. According to the terms of the plan, the debtors were to make payments for 36 months. That time period has run, which would ordinarily result in a request for the entry of a discharge. The trustee has, however, filed a motion to dismiss because the debtors did not disclose significant changes in their income during the life of the plan. The matter is before the court following trial of the issues raised by that motion.
The proper functioning of the bankruptcy system depends upon the complete and accurate disclosure of information concerning the debtor’s assets, liabilities, income, expenses and financial affairs. See, Stamat v. Neary, 635 F.3d 974, 983 (7th Cir. 2011); U.S. v. Ellis, 50 F.3d 419, 423 (7th Cir. 1995); In re Bernard, 99 B.R. 563, 570 (Bankr.S.D.N.Y. 1989) (“complete disclosure is the touchstone of a bankruptcy case”). Although most of these disclosures are made at the time the petition is filed, chapter 13 debtors, in particular, have an ongoing obligation to provide the trustee with information concerning their income and expenses until the case is closed. See, 11 U.S.C. § 521(f)(4); Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1274 (11th Cir. 2010) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1286 (11th Cir. 2002)) (“the duty to disclose ... does not end once the forms are submitted to the bankruptcy court_”) These debtors were aware of that obligation and, at the 341 meeting, had agreed to notify their attorney of any change in income or employment during the case. They did not and so that information was never conveyed to the trustee; the result is the present motion to dismiss.
Although it is not disclosed in the debtors’ bankruptcy schedules or their statement of affairs, at the time of the petition for relief, Mrs. Wheeler was pursuing a social security disability award. At the § 341 meeting she testified she was trying to get disability, but was not receiving anything because her first claim had been denied.
Debtors should have disclosed the social security disability award and the receipt of social security benefits; it represented a material change in their income and circumstances. Their argument that it would have made no difference is a non-starter. The information itself was material. Moreover, the reported decisions are divided over whether and how social security income is considered in determining how much a chapter 13 debtor is required to pay creditors. Some say it is. See, Mains v. Foley, 2012 WL 612006, *5 (W.D.Mich. 2012); In re Thomas, 443 B.R. 213, 218 (Bankr.N.D.Ga. 2010); In re Westing, 2010 WL 2774829, *2-3 (Bankr.D.Idaho 2010); In re Upton, 363 B.R. 528, 536-37 (Bankr.S.D.Ohio 2007). Others say it is not. See, In re Cranmer, 697 F.3d 1314, 1317 (10th Cir. 2012); In re Ragos, 700 F.3d 220, 223 (5th Cir. 2012); In re Thompson, 439 B.R. 140 (8th Cir. BAP 2010). See also, In re Ward, 359 B.R. 741, 745 (Bankr.W.D.Mo. 2007) (social security income not considered, but must still be disclosed). Neither this court nor the Seventh Circuit has decided the issue. By not disclosing that income, the debtors denied the trustee and creditors the opportunity to consider what, if anything, they might want to do as a result of that change in their circumstances. They might have done nothing; but it is also possible that they might have sought to modify the confirmed plan. Nonetheless, they were deprived of that material information and so had nothing to evaluate or to act upon.
The trustee’s motion will be granted and this case will be dismissed. An order doing so will be entered.
. We do not have a transcript of the 341 meeting but according to the trustee's testimony at trial, her usual practice in response to this type of information is to tell debtors that if they receive an award they should tell the trustee.
. The attorney the debtors hired also received $6,000 on account of the case.
Reference
- Full Case Name
- In the Matter of Jon E. WHEELER, Michelle Wyatt-Wheeler, Debtors
- Cited By
- 4 cases
- Status
- Published