In re Moore
In re Moore
Opinion of the Court
This matter is before the Court on the chapter 13 trustee's motion to modify the confirmed chapter 13 plan of debtors James Moore and Labridget Moore ("the Debtors") [Doc. No. 56] and the Debtors' objection [Doc. No. 59]. Also before the Court is the Debtors' related Motion for Consent to retain inheritance money to purchase a vehicle [Doc. No. 44], which was filed before the motion to modify, and the trustee's response in opposition [Doc. No. 46]. At the request of the Court, both parties have filed supplemental briefs. [Doc. Nos. 55, 57].
I. Jurisdiction
The Court has jurisdiction to determine this matter pursuant to
II. Factual Background
The Debtors filed chapter 13 bankruptcy on November 15, 2016. The Court confirmed the Debtors' amended plan on February 14, 2017. [Doc. No. 28]. Mr. Moore's father passed away on June 24, 2018, more than 180 days after filing. [Doc. No. 50]. In January or February 2019, Mr. Moore received an inheritance of $ 14,764.83 from his father's estate, which is being administered in the Probate Court of Hamilton County, Tennessee. [Doc. Nos. 44, 50].
On January 21, 2019, the Debtors filed a motion to retain inheritance to purchase a vehicle, pursuant to
The Debtors argue that the positive change in their circumstances resulting from the inheritance should not be reviewed in isolation without considering their need for a new vehicle and the attendant expenses. [Doc. No. 57, at 6]. They dispute whether the trustee is correctly applying the best interest of creditors test to their plan and challenge whether a requirement that they commit all of their disposable income is applicable to a modified plan. They argue that the need for a working vehicle should be viewed as an additional expense that must be considered in any analysis of a motion to modify. Following a hearing on the motion to retain inheritance, the parties agreed that the exempt portions of the inheritance could be distributed to the Debtors to purchase reliable transportation while the Court determines whether the inheritance is property of the estate and whether the entire amount should be charged against the Debtors' exemptions or treated as increased expenses. An agreed order was entered to that effect. [Doc. No. 50].
III. Legal Analysis
The contested matters at issue concern whether the inheritance is property of the estate and whether the modification proposed by the chapter 13 trustee is confirmable. If the inheritance is not property of the estate, it would not need to be exempted under § 522. If it is property of the estate, then the Debtors' circumstances have changed, and the trustee seeks to modify the plan to provide a greater dividend to unsecured creditors. The trustee argues that the money acquired by the Debtor is like the property specified in § 541, that it is included as property of the estate under § 1306(a)(1), and that the Debtors must comply with the Bankruptcy Code requirements for the use of those funds.
The Debtors contend that the inheritance is excluded from the estate because it would be excluded by § 541(a)(5)(A). If it is not excluded under that code section, then the additional property should be available to help the Debtors complete their plan and for expenses before automatically going to the creditors.
A. Inheritance as Property of the Estate
The Bankruptcy Code defines property of a chapter 13 estate in §§ 541 and 1306. "[T]he interplay between these two sections ... underlies the dispute" now before the Court.
*45In re Tinney , No. 07-42020-JJR13,
" Section 541 defines generally what property becomes property of the bankruptcy estate in a chapter under Title 11, but is modified in certain chapters for that particular type of case." In re Gilbert ,
(a) Property of the estate includes, in addition to the property specified in section 541 of [the Code]-
(1) all property of the kind specified in such section that the debtor acquires after the commencement of the case but before the case is closed, dismissed, or converted to a case under chapter 7, 11, or 12 of this title, whichever occurs first[.]
Considering the interplay between the two statutes, "an apparent conflict arises ... as to whether the 180-day time restriction applies to inheritances obtained in chapter 13 cases, or whether the extended timeframe contained in § 1306(a)(1) governs." In re Gilbert ,
The Fourth Circuit found that the plain language of § 1306 "manifests Congress's intent to expand the estate for [c]hapter 13 purposes by capturing the types, or 'kind,' of property described in [§] 541 (such as bequests, devises, and inheritances), but not the 180-day temporal restriction." Carroll ,
Further, it is a well-established rule of statutory construction that "a specific statutory provision governs a general one." In re Crowell ,
This canon of statutory interpretation applies to the situation here, where there exists a general exclusion of property of the estate after a certain date which is contradicted by a specific inclusion of property of the estate after that date. As discussed above, § 541 defines property of the estate generally. While § 541(a)(5) does contain a specific time restriction in which a debtor's interest in certain property becomes property of the estate, that restriction applies generally to most chapters in Title 11, unless another section within a particular chapter expands or restricts the definition for that specific type of case. However, *47§ 1306(a)(1) is specific to chapter 13 cases, and contains a specific time restriction for chapter 13 cases only. Therefore, the Court believes that § 1306(a)(1) is the more specific statute that should govern over the general exclusion in chapter 13 cases.
Gilbert ,
A minority of courts have adopted a contrary view, holding instead "that the phrase 'of the kind' in § 1306 must carry with it the temporal 180-day element of § 541(a)(5)(A) and, therefore, § 1306 incorporates the 180-day time frame." In re Tinney ,
The majority position on expanding the temporal limitation also relies on congressional intent. "Congress intended to expand property of the estate in chapter 13 cases, and this resolution of the two statutes does just that." In re Gilbert ,
In considering this question, many courts have noted that the majority view is in keeping with the risks and benefits that accompany the long-term commitment required of a chapter 13 case. As explained by the Tinney Court,
The benefits of chapter 13 come with a price tag, and ... some risk. For the privilege of retaining encumbered assets and imposing a payment plan on secured creditors, a chapter 13 debtor, unlike her chapter 7 counterpart, must make a long-term commitment, during which her post-petition property and wages are utilized to satisfy that commitment. And that commitment is subject to modification when circumstances change the debtor's ability to pay during the life of the case. See generally § 1329; In re Waldron, 536 F.3d at 1243 ("The [First *48Circuit] reasoned that this approach 'harmonizes two apparent inconsistent sections,' 1306(a) and 1327(b); allows for meaningful plan modification under [§] 1329; and is consistent with the ability-to-pay policy underlying Chapter 13. " Emphasis added). If those changed circumstances result in additional post-petition estate property becoming available, the debtor's plan should be modified to increase the amount paid to unsecured creditors. Such additional property may be increased earnings, but most often comes in the form of a lump-sum payment from, for example, casualty insurance, settlement of a lawsuit, life insurance proceeds, or as in this case, an inheritance. And a debtor has the duty to disclose property acquired post-petition by amending her schedules. Robinson v. Tyson Foods, Inc.,595 F.3d 1269 , 1274 (11th Cir. 2010) (citing § 541(a) ); Waldron, 536 F.3d at 1244. Thus, not applying the 180-day limitation under § 541(a)(5) when determining what is included within a chapter 13 estate under § 1306(a) is consistent with a major distinction between chapters 13 and 7.
Tinney ,
In considering the analysis of the issue, which has respected judges on both sides offering thoughtful and substantive support for their decisions, this Court is ultimately persuaded by the majority position that § 541 is a general statute whose definition of property of the estate is expanded by § 1306 and that the temporal time constraints in § 541(a)(5) are omitted. If there was a reason to include an inheritance received within 180 days after filing in a chapter 7, then extending that period of inclusion to the end of a chapter 13 case is consistent with § 1306's inclusion of property acquired after the commencement of the case for the duration of the plan. Because the Debtor acquired the inheritance "after the commencement of the case but before the case is closed, dismissed, or converted," the Court finds that the inheritance is property of the estate under § 1306(a)(1).
B. Whether the Trustee's Modified Plan Meets the Requirements for Confirmation
Having determined that the inheritance is property of the estate, the Court must consider whether the proposed modification may be confirmed. The trustee has proposed a modification to include the inheritance less any exemption as an additional distribution to creditors. The trustee's reason for the modification is sound. Property of the estate is available to the Debtors' creditors unless it is properly exempted. In re Sizemore ,
1. Is "projected disposable income" relevant to the Court's determination of whether the trustee's plan is confirmable?
Both parties refer to disposable income in their arguments. The Debtors *49argue that in a chapter 13 their additional expenses, in addition to exemptions, should reduce the property available to creditors. To meet the confirmation requirements at the initial confirmation of a plan, a debtor is only required to commit his or her projected disposable income to creditors for the applicable commitment period.
This argument has some equitable appeal. All parties admit that the Debtors' vehicle no longer works and that purchasing a replacement vehicle is an action that benefits the Debtors and will assist in the completion of their plan. If these Debtors were to purchase a replacement vehicle on credit, and pay for it with a postpetition income increase, the Debtors might be moving for their own modification to reduce the payments to creditors due to increased expenses. They certainly would not need to claim an exemption in the increased periodic income. The Debtors contend there should not be a different result where the same need exists but a debtor receives an improvement in his or her financial circumstances in a lump sum.
Upon a review of modification cases in which new assets or lump sums come into a case, this Court has not found authority for applying the type of disposable income analysis requested by the Debtors. Other courts have consistently allowed exemptions but have not considered expenses to reduce the amount available to creditors. The Court has found no basis in the Bankruptcy Code or the case law that would require such an analysis prior to a determination of what property should be paid to creditors.
The trustee argues that the Debtors must commit these additional monies to the plan under § 1325(b). In the motion to modify, the trustee proposes to consider "monies ... as disposable income." [Doc. No. 56, at 2, ¶ 6]. The Debtors, while arguing for a disposable income analysis to limit what should be paid to creditors, oppose the application of the disposable income test as a reason that the trustee's plan should be confirmed. They argue that designating the inheritance money as "disposable income" poses "a legal impossibility." [Doc. No. 59, at 1]. Section 1325(b)(2) describes "disposable income" as "current monthly income received by the debtor" less certain exclusions and reasonable expenses. As the Debtors point out, "current monthly income," defined in § 101(10A), "captures the six whole months of income immediately before the filing of the case." [Doc. No. 59, at 1]. Because the inheritance was not received during that time period, the Debtors argue it falls outside the statutory definition of disposable income.
Courts within the Sixth Circuit have "wrestled with" the issue of whether the disposable income requirement in § 1325(b) applies to chapter 13 post-confirmation modifications. In re Martin ,
Because § 1329 does not reference § 1325(b), this Court concludes that § 1325(b) does not apply to confirmation of a modified chapter 13 plan. Accordingly, meeting the projected disposable income test of § 1325(b) is not a requirement to confirm a modified plan. In re Martin ,
2. Does the trustee's plan meet the requirements for confirmation?
The trustee's authority to modify a plan is granted by the Bankruptcy Code. After confirmation but before completion of the payments under the plan, the trustee may request a modification to increase payments to unsecured creditors.
Section 1329(b)(1) provides the confirmation requirements that the trustee must satisfy to confirm a modified plan. Relevant to this case, a proposed modified plan must meet the best interest of creditors test ( § 1325(a)(4) ), the requirements for good faith ( § 1325(a)(3) ), and feasibility ( § 1325(a)(6) ).
When the trustee is the plan proponent, the trustee will have the burden of proof usually assigned to the debtor at a confirmation hearing. See Keith M. Lundin & William H. Brown, CHAPTER 13 BANKRUPTCY , 4th Ed., § 253.1 at ¶ 28, Sec. Rev. June 15, 2004, www.Ch13online.com. ("The trustee ... will have the burdens normally assigned to the debtor, including the ultimate burden of persuasion with respect to each of the § 1325(a) elements."); but see, SouthTrust Mobile Servs. Inc. v. Englebert ,
Turning to the requirements for confirmation, the Debtors argue that "the *51best interest of creditor's test is not implicated here" because the inheritance in this case would not qualify as property of the estate under § 541(a)(5)(A). [Doc. No. 57, at 2.]. However, as discussed above, the Court has held that the inheritance is property of this estate. The Debtors are correct that the Court should not include the inheritance in what creditors would receive in a chapter 7 case when looking to see whether the trustee's modification has met the test. The Debtor received the inheritance more than 180 days after filing, so the inheritance would not be property of the estate under a chapter 7 absent a bad faith conversion of this chapter 13 case. See § 348(f)(2). However, the exclusion of the inheritance does not mean the test is inapplicable. It is, and when this test is applied to the modification, the increased distribution proposed by the trustee offers more to creditors than they would get in a chapter 7. Accordingly, the trustee's modified plan meets the best interest of creditors test.
With respect to the "good faith" requirement, the Sixth Circuit "does not focus on one item, but instead 'requires consideration of the totality of the circumstances.' " In re Martin , No. 10-64790,
An increase in the Debtors' assets available to creditors is part of the Court's consideration of a modification. "[T]he debtor's actual income and expenses at the time of the proposed modification are used to determine whether the payments should be adjusted." In re Crim ,
The Debtors have not specifically objected to the modification as being proposed in bad faith, but they have raised the issue of whether the Court should consider not only the increase in assets that reflects a change in circumstances but also whether there have been increased expenses that should be considered in any determination of a "debtor's resources." Here, the Debtors propose that any consideration of the "totality of the circumstances" should include the Debtors' allowed property exemptions plus demonstrated need with only the remainder going to the creditors. [Doc. No. 57, at 6]. The Debtors argue that they need the inheritance. [Id. ]. The Debtors also argue that the inheritance "is so small that the proceeds are either exempt or the non-exempt balance is an equivalent type of cash collateral under § 363(a) necessary for the Debtor's rehabilitation." [Id. ]. The Debtors need a working vehicle. The vehicle that they owned when the case started no longer runs. The Debtors argue that this increased expense should be considered before the Court requires *52the Debtors to use the remaining exemption to pay a necessary expense. [Id. at 7]. The trustee has no issue with using exempt funds to obtain reliable transportation. Such a use "fits squarely into the purpose of exemptions." [Doc. No. 55, at 5]. Her dispute is that the Debtors may not "keep items necessary for living and exempt additional other property up to the amount of the allowed statutory exemptions." [Id. ] (emphasis in original).
The Court does not entirely agree with the trustee's contention. If these Debtors were to purchase a replacement vehicle on credit and pay for it with a postpetition salary increase, the Debtors would not have had to claim any exemptions in the additional salary or increase the dividend to creditors. The Court is concerned that the result is so different when the same need exists but a debtor receives the financial improvement via a lump sum. Therefore, under a totality of the circumstances analysis, the Court finds that the Debtors should be given a chance to show whether their liabilities and expenses have increased along with their assets or income.
With respect to the feasibility requirement, the plan proponent must show that a debtor "will be able to make all payments under the plan and to comply with the plan[.]"
IV. Conclusion
For the reasons stated above, the Debtors' Motion for Consent to retain inheritance property [Doc. No. 44] is DENIED. The Court finds that the inheritance is property of the estate. The Court will defer ruling on the trustee's motion to modify until a further evidentiary hearing can be held on whether the plan meets the requirements of good faith and feasibility. The Court will reset a hearing on the confirmation of the trustee's motion for modification for May 23, 2019, at 2:30 p.m., in Courtroom A, Historic United States Courthouse, Chattanooga, Tennessee. The Debtors shall have until May 6, 2019, to file any amendment to their objection to the trustee's plan and to file amended Schedules C, I, and J if they wish to rely on exemptions and changed income and expenses in support of their objection to confirmation. If no amendments are filed, the trustee may rely on the sworn schedules on the docket and include the inheritance of $ 14,764.83 less any exemption claimed as additional property of the estate. The trustee shall have until May 15, *532019, in which to respond if she wishes to file any additional response. It is so ORDERED.
SO ORDERED.
Section 1303 provides that, "Subject to any limitations on a trustee under this chapter, the debtor shall have, exclusive of the trustee, the rights and powers of a trustee under sections 363(b), 363(d), 363(e), 363(f), and 363(l), of this title."
Section 363(b)(1) provides that:
The trustee, after notice and a hearing, may use, sell, or lease, other than in the ordinary course of business, property of the estate, except that if the debtor in connection with offering a product or a service discloses to an individual a policy prohibiting the transfer of personally identifiable information about individuals to persons that are not affiliated with the debtor and if such policy is in effect on the date of the commencement of the case, then the trustee may not sell or lease personally identifiable information to any person unless--
(A) such sale or such lease is consistent with such policy; or
(B) after appointment of a consumer privacy ombudsman in accordance with section 332, and after notice and a hearing, the court approves such sale or such lease--
(i) giving due consideration to the facts, circumstances, and conditions of such sale or such lease; and
(ii) finding that no showing was made that such sale or such lease would violate applicable nonbankruptcy law.
The Court notes that when considering whether a post-confirmation asset would become part of the bankruptcy estate of a chapter 13 debtor, other courts have also grappled with the relationship between
The bankruptcy estate includes:
(5) Any interest in property that would have been property of the estate if such interest had been an interest of the debtor on the date of the filing of the petition, and that the debtor acquires or becomes entitled to acquire within 180 days after such date-
(A) by bequest, devise, or inheritance;
Reference
- Full Case Name
- IN RE: James David MOORE, Jr., Labridget Denise Moore, Debtors
- Cited By
- 4 cases
- Status
- Published