In re Moriarty
In re Moriarty
Opinion of the Court
MEMORANDUM OPINION
The matter before the Court is the motion for summary judgment by the debtor, Ms. Julia Elizabeth Moriarty. Although styled as a motion for summary judgment, based on the parties’ joint stipulation of facts
PROCEDURAL BACKGROUND
Ms. Moriarty petitioned for relief under chapter 7 of the Bankruptcy Code on November 24, 2013.
Upon conversion, Ms. Moriarty filed a chapter 13 plan, in which she proposed to maintain her mortgage payments outside of her plan and pay to the trustee only the amounts necessary to satisfy the bankruptcy administrative fees and her attorney’s fees, with a zero percent dividend to her unsecured creditors.
Ms. Moriarty concluded her brief foray into chapter 13 by reconverting her case back to one under chapter 7 of the Bankruptcy Code on September 18, 2014.
Based on the developments in the case, the Court set deadlines for filing disposi-tive motions, filing a joint stipulation of facts, and any memoranda or responsive pleadings thereto.
FACTUAL BACKGROUND AND STIPULATED FACTS
Prior to the hearing and to aid the Court in ruling on the motion for partial summary judgment, Ms. Moriarty and the United States Trustee filed a joint stipulation of all material questions of fact relevant to the inquiry.
6. At the time of filing, the Debtor received gross base pay from employment averaging to $3,226.68 per month, gross survivor’s benefits from the Department of Labor of $2,070.46 per month, and $1,591.00 per month in So*640 cial Security payments under the Social Security Act.
7. The debtor continues to receive income from employment, survivor’s benefits’ from the Department of Labor, and Social Security payments.
8. The parties agree the sole issue the Court should decide regarding the motion for summary judgment is whether payments received under the Social Security Act are part of the Debtor’s financial situation when considering whether the granting of a discharge under chapter 7 is abusive in light of the totality of the circumstances of the Debtor’s financial situation.20
The Court held a hearing on the motion for summary judgment on March 18, 2015, at which both parties appeared and presented argument in support of their respective positions. Upon the conclusion of the hearing, the Court took under advisement only the question of whether it could consider Social Security income as a part of the totality of the circumstances of the debtor’s financial condition when determining if granting a discharge is abusive under Bankruptcy Code section 707(b)(3)(B).
DISCUSSION
a) Summary Judgment
At the. outset, the Court accepts the parties’ representations at trial and, construes Ms. Moriarty’s motion for summary judgment as actually being a motion for partial summary judgment regarding only the question of how the Court may treat her Social Security income. The Federal Rules of Bankruptcy Procedure authorize bankruptcy courts to grant summary judgment regarding any “claim or defense” or any “part of each claim or defense” for which there is no “genuine dispute as to any material fact.”
A court should grant a motion for summary judgment when there is no genuine issue as to any material fact, and the moving party is, entitled to judgment as a matter of law.
In the instant case, Ms. Moriarty has asked the Court to rule on summary judgment whether the income she receives from Social Security should be considered for the purposes of section 707(b)(3)(B). The parties agree there is no dispute regarding the material facts of this narrow issue, namely that the debtor receives Social Security income and that the exclusion of such income from the section 707(b)(3)(B) test is a partial defense to the United States Trustee’s motion to dismiss the case for abuse. The parties agree that the resolution of this part of the debtor’s defense is necessary at this point in the proceeding.
b) Bankruptcy Code Section 7Q7(b)(3) and Case Law
Section 707(b)(1) of the Bankruptcy Code authorizes a bankruptcy court to dismiss a case filed under chapter 7 when granting a discharge in such a case would be an abuse of the Bankruptcy Code.
If a presumption of abuse under section '707(b)(2) does not arise, however, a court may still find a discharge under chapter 7 abusive' by looking to section 707(b)(3). Under section 707(b)(3), if the court finds either, (A) “the debtor filed the petition in bad faith; or (B) the totality of the circumstances ... of the debtor’s financial situation demonstrates abuse,” a court may dismiss the case.
The Code does not define “bad faith” for the purpose of section 707(b)(3)(A), nor does it define the terms “circumstances” or “financial condition” for the purpose of section 707(b)(3)(B). -In considering the former (bad faith) in the context of chapter 13 plan confirmation, the Fourth Circuit has questioned whether “bad faith” includes a debtor’s failure to contribute Social Security income to a chapter 13 plan.
Within the Fourth Circuit, bankruptcy courts generally construe the so-called “totality of'the circumstances” test of section 707(b)(3)(B) to be a means of considering the debtor’s “ability to pay,” based on the debtor’s general financial condition, includ
The only case within the Fourth Circuit directly addressing the question of whether courts should consider Social Security income in the totality of the circumstances test is from this district, authored by the now retired Judge Stone. In that case, In re Riggs,
In so ruling, the court considered several factors. First, the court ruled that the plain meaning of the phrase, “totality of [the debtor’s] financial situation,” with special emphasis on the word “totality,” demonstrated Congress’s intent to have bankruptcy courts consider everything within the operation of section 707(b)(3) — including Social Security benefits.
Second, the Riggs court reflected on the special nature of Social Security income and why Congress might opt to treat it differently under section 707(b)(3). The court stated, “while Social Security income is part of the entire financial picture, it is also ‘special’ and intended for a special purpose,” so “it should not be treated the same as other regular income which a bankruptcy debtor might enjoy.”
Finally, the court determined that although Congress realized the unique nature of Social Security benefits, certain circumstances might justify the consideration of such income in determining abusiveness. Hence, the court held:
[A] debtor’s receipt of Social Security income, taking into account all other relevant circumstances presented in that case, might well support a conclusion that the case represents] an abusive filing under the general provisions of Chapter 7, or that the use of some of a debtor’s Social Security income towards the funding of a Chapter 13 plan might be necessary for the court to be persuaded of the debtor’s good faith....43
Assuming Congress wished to curb abuses that it could not precisely define within the Means Test, the court reasoned, “it probably had no viable alternative to giving bankruptcy judges the discretion to weigh all of the circumstances in those atypical cases in the hope that most of the time they would be appropriate gate keepers to access to bankruptcy relief.”
Based on the foregoing considerations as well as a host of other issues with the debtors’ schedules, the Riggs court ruled, “the Debtors’ ‘financial situation’ does provide them the ability to make a meaningful settlement with their unsecured creditors without sacrificing their standard of living or exhausting Mr. Riggs’ Social Security benefit to' do so,” and, thus, the court allowing the Riggs to receive a discharge without doing so would constitute an abuse of the bankruptcy system.
The Riggs decision, however, is not without controversy, as other courts have disagreed with the Riggs decision. In particular, Judge Dow from the Western District of Missouri disagreed with Riggs in his decision In re Johnson.
The impetus for this about-face was an intervening decision from the Eighth Circuit, Carpenter v. Ries (In re Carpenter),
(a) In general
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
(b) Amendment of section
No other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.55
According to the Johnson court, this particular language from § 407 compelled reexamination of the ruling in Booker.
As part of its analysis, however, the Johnson court also discussed the Riggs decision. The court in Johnson suggested that the Riggs decision was “somewhat equivocal,” with the court displaying some reticence in the holding.
Similarly, the Bankruptcy Court for the Central District of California in the case In re Suttice
c) Ms. Moriarty’s Social Security Income
The Court holds that as a matter of law it is not authorized to consider Ms. Moriarty’s Social Security income when considering the totality of the circumstances under section 707(b)(3)(B). The Court bases its decision on the statutory framework of both the Bankruptcy Code and the Social Security Act as well as the Fourth Circuit’s recent decision in Mort Ranta v. Gorman.
As mentioned above, Congress,' in defining “current monthly income” in section 101(10A) and the calculation of “disposable income” in sections 707(b)(2)(A) and 1325(b), specifically excluded Social Security income.
At the hearing, counsel for the United States Trustee suggested the natural reading of section 707(B)(3)(B) mandates that courts consider Social Security income as a part of the debtor’s total financial situation, which would not conflict with any other provision of either the Bankruptcy Code or the Social Security Act.
The Court, however, disagrees with this assertion, as it cannot read' the statute in isolation from the context of the entire statutory scheme.
Moreover, even if the • Court were to read section 707(b)(3) as entirely separate from (b)(2), the language of the Social Security Act’s non-assignment provision cautions that unless expressly stated, courts may not construe any other statute “to limit, supersede, or otherwise modify” the protections particularly afforded to Social Security benefits.
The Court disagrees with the United States Trustee’s characterization. If the
Similarly, the Court does not agree with the United States Trustee’s assertion this more broad understanding of § 407 would contradict the Fourth Circuit’s decision in Mort Ranta. At the hearing, the parties disagreed over the characterization and breadth of the phrase “operation of any bankruptcy or insolvency law” in § 407(a).
The Court agrees with the United States Trustee’s understanding of the necessity of “control” to violate § 407; however, it does not agree with her supposed outcome from this characterization. Looking to the rest of § 407(a), the Court agrees that the phrase “operation of any bankruptcy or insolvency law,” implies something more akin to the forcible control of — rather than merely “relating to” — Social Security benefits. According to the statutory canon of construction ejusdem generis (“of the same kind, class, or nature”), when the general follows the specific, courts should construe the general in light of the particular class of the specific examples.
Contrary to the United States Trustee’s position, however, based on the Court’s ’ aforementioned reasoning, consideration of Social Security income under section 707(b)(3)(B) constitutes the Court exercising control over such income. As mentioned above, for the Court to dismiss a debtor’s case because of his Social Security income alone would, as a practical matter, be exercising control over Social Security income — i.e., requiring the debtor to pledge such income in a chapter 13 plan or dismissing the debtor’s case. The.Court does not believe § 407(a)’s language is so narrow as to only prohibit a “direct” — as opposed to an “indirect” — exercise of such control, as the statute forbids the operation of “any bankruptcy ... law.”
In fact, the Court believes this understanding of the interplay between the Social Security Act and the Bankruptcy Code comports with the holding of Mort Ranta and is a logical outgrowth from the Fourth Circuit’s reasoning therein. There, the Fourth Circuit determined that although the Bankruptcy Code does not .mandate a debtor include her Social Security income in the funding of a .chapter 13 plan, if a debtor choses to pledge such income for feasibility purposes, she may do so.
The bankruptcy court reasoned that if Social Security income is excluded from “disposable income,” then it must also be excluded when evaluating whether the plan is feasible. But nothing in the Code supports this conclusion. Section 1325(a)(6) simply states that a debtor must be able to make the payments required by the plan; it does not state that only “disposable income” may be used to make payments. Further, it has long been established that Social Security income may be used to fund a Chapter 13 plan.93
In so ruling, the Fourth Circuit considered Social Security benefits protected from the forcible inclusion in the bankruptcy process; however, it allowed a debtor who wished to utilize such income as a means of funding a plan to do so. Thus, the ruling was wholly in accordance with § 407(a)’s mandate that Social Security benefits could not be forcibly seized and controlled. Similarly, here, understanding § 407(a) to shield Ms. Moriarty’s Social Security income from being forcibly included in a chapter 13 plan but allowing her to voluntarily pledge such income to fund a chapter 13 plan if she so chooses, is completely consistent with the Fourth Circuit’s holding in Mort Ranta.
More fundamentally though, the Fourth Circuit in Mort Ranta rejected the notion that based solely on the debtor’s excess Social Security income, he was able to pay more than his .chapter 13 plan proposed, and thus, he had filed his plan in bad faith.
Based on this understanding of the Bankruptcy Code, the Social Security Act, and the Fourth Circuit’s decision in Mort Ranta, the Court disagrees with Riggs and follows the recent trend of courts from other jurisdictions, such as in Suttice and Johnson. Accordingly, the Court concludes that “the totality of the circumstances ... of the debtor’s financial situation” does not include a debtor’s receipt of Social Security income as a matter of law.
CONCLUSION
Ultimately, the Court finds that there is no genuine issue as to any material fact regarding the consideration of Ms. Moriarty’s Social Security income under the totality of the circumstances test in section 707(b)(3)(B). Based on the Court’s review of the relevant statutory provisions and case law, the Court finds that as a matter of law, it is unable to consider such income and, thus, will not do so in this case. To consider Ms. Moriarty’s Social Security income would be for the Court to disregard the express steps Congress took to shield such income from the operation of bankruptcy law.
. Prior to the hearing, the parties filed a joint stipulation of facts wherein Ms. Moriarty conceded "that facts are in dispute which would preclude obtaining [denial of the motion to dismiss] on a summary basis.” Joint Stip. of Facts at 2 n.l, ECF Doc. No. 63 (Feb. 4, 2015).
. Ch. 7 Pet., ECF Doc. No. 1 (Nov. 24, 2013).
. First Mot. to Dismiss Case for Abuse, ECF Doc. No. 9 (Feb. 12, 2014).
. See id. at 4-5.
. See id.
. Order Granting Mot. to Convert to Ch. 13, ECF Doc. No. 13 (May 2, 2014).
. See Ch. 13 Plan, ECF Doc. No. 17 (May 18, 2014).
. See Supp. Report and Show Cause, ECF Doc. No. 41 (Aug. 21, 2014).
. The chapter 13 trustee made this argument orally at the hearing held on September 3, 2015, and the matters were continued for an evidentiary hearing. See Order Continuing Hr’g and Scheduling Deadlines, ECF Doc. No. 44 (Sept. 8, 2014).
. Order Granting Mot. to Convert Case to Ch. 7, ECF Doc. No. 46 (Sept. 18, 2014).
. See Second Mot. to Dismiss Case for Abuse at 3, ECF Doc. No. 56 (Dec. 15, 2014).
. See Resp. to Second Mot. to Dismiss at 2-3, ECF Doc. No. 60 (Jan. 28, 2015).
. See id.
. See Order Setting Deadlines and Scheduling Hr’g, ECF Doc. 62 (Jan. 30, 2015).
. Id. at 2.
. See Mot. for Summ. J., ECF Doc. No. 61 (Jan. 28, 2015).
. See Memo, in Support of Mot. for Summ. J., ECF Doc. No. 64 (Feb. 11, 2015).
. Memo, in Opp’n to Mot. for Summ. J., ECF Doc. No. 70 (Mar. 11, 2015).
. See Joint Stip. of Facts at 2, ECF Doc. No. 63 (Feb. 4, 2015).
. Id. at 2.
. See Fed. R. Bankr. P. 7056 (incorporating by reference Fed. R. Civ. P. 56(a)).
. News & Observer Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010).
. See id.
. See id.
. Id.
. See Transcript at 16:16-21:13, ECF Doc. No. 74 (Mar. 31, 2015) [hereinafter Transcript]; see also Fed. R. Civ. P. 56(a) ("A party may move for summary judgment, identifying each claim or defense-^-or the part of each
. See 11 U.S.C. § 707(b)(1).
. See 11 U.S.C. § 707(b)(2).
. See generally 11 U.S.C. § 707(b)(1). For a more in-depth discussion of the Means Test, see 4 Norton Bankr. L. & Prac.3d § 79:6 (2015).
. 11 U.S.C. § 101(10A).
. Similarly, a debtor cannot be compelled to contribute Social Security income toward a chapter 13 plan. See Mort Ranta v. Gorman, 721 F.3d 241, 250-51 (4th Cir. 2013). Note, however, although courts cannot require a debtor to apply his or her Social Security income to fund a plan, a debtor may pledge such income voluntarily, if he or she so chooses. See id. at 253-54.
. Id. at § 707(b)(3).
. See In re Miller, 445 B.R. 504, 508-09 (Bankr.D.S.C. 2011); see also Mort Ranta, 721 F.3d at 253 (suggesting a debtor’s failure to include Social Security income, by itself, would not constitute bad faith).
. See, e.g., Calhoun v. United States Trustee, 650 F.3d 338 (4th Cir. 2011) (affirming the bankruptcy court’s determination that the debtors had the ability to pay more than suggested on the plan based on prepetition payments to unsecured creditors, the debtors’ borderline extravagant expenses, and the absence of a negative event serving as the impetus for the debtors’ petitioning for relief).
. See In re Riggs, 495 B.R. 704, 713 (Bankr.W.D.Va. 2013) (discussing the Fourth Circuit’s reluctance to take a position on whether courts should consider Social Security income under section 707(b)(3)).
. Id.
. Id. at 717.
. Id. at 716 (alteration in original).
. Id. (internal footnote omitted).
. Id. at 717.
. Id.
. Id.
. See id.
. Id. at 724.
. No. 13-20542-drd-7, 2014 WL 814740 (Bankr.W.D.Mo. Feb. 28, 2014).
. 399 B.R. 662 (Bankr.W.D.Mo. 2009).
. Johnson, 2014 WL 814740, at * 1.
. See id. at *4.
. 614 F.3d 930 (8th Cir. 2010).
.See id. at 936.
. See Johnson, 2014 WL 814740, at *2.
. 42 U.S.C. § 407.
. Id. § 407(a) & (b).
. See Johnson, 2014 WL 814740, at *2.
. Id.
. Carpenter v. Ries (In re Carpenter), 614 F.3d 930, 936 (8th Cir. 2010).
. See In re Suttice, 487 B.R. 245, 252-53 (Bankr.C.D.Cal. 2013).
. See Fink v. Thompson (In re Thompson), 439 B.R. 140, 143 (B.A.P. 8th Cir. 2010).
. Johnson, 2014 WL 814740, at *2.
. See id. at *4.
. Id.
. Id. at *3 (quoting Carpenter, 614 F.3d at 936).
. 487 B.R. 245 (Bankr.C.D.Cal. 2013).
. Id. at 253.
. See id. at 253-54.
.Id. at 254.
. Id.
. 721 F.3d 241 (4th Cir. 2013).
. See 11 U.S.C. § 707(b)(2).
. See Mort Ranta v. Gorman, 721 F.3d 241, 250-52 (4th Cir. 2013).
. See In re Riggs, 495 B.R. 704, 716 (Bankr.W.D.Va. 2013).
. See generally United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct 102, 85 L.Ed. 40 (1940) (construing two statutory acts relating to the same subject matter not to contradict each other).
. See Transcript, supra note 26, at 21:17-22:12.
. See id. at 22:1-3.
. See United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) ("Statutory construction ... is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme....”).
. 42 U.S.C. § 407(b).
. See Transcript, supra note 26, at 3:25-37:18.
. See id. at 29:5-14.
. Id. at 37:18-38:4.
.As an example, the Court believes the Fourth Circuit’s decision in Solomon v. Cosby is instructive to the controversy at bar. See Solomon v. Crosby (In re Solomon), 67 F.3d 1128 (4th Cir. 1995) (declining to find that "hypothetical” withdrawals from an exempt IRA should be included in disposable income, because the debtor had the right to exempt such income and was under no obligation to make a withdrawal earlier than he deemed necessary). In Solomon, the trustee objected to a chapter 13 plan when the debtor declined to utilize exempt IRA assets or take withdraws from his retirement accounts to fund his plan. See id. at 1130-31. In finding that such income was not "disposable income,” under the definition of disposable income included in the statute at that time, the Fourth Circuit declined to impute income or to force the debtor to involuntarily take distributions from his exempt retirement accounts when federal law did not authorize such. See id. at 1132.
Although Ms. Moriarty’s case is slightly different, the result requested by the United States Trustee is for this Court to condition bankruptcy relief upon an involuntary contribution of exempt property, excluded from the definition of disposable income, when such compulsion is not authorized by federal law.
. See Mort Ranta v. Gorman, 721 F.3d 241, 250-53 (4th Cir. 2013) (declining to require a debtor to include all of his Social Security income in his chapter 13 plan beyond what he voluntarily contributed).
. Such a ruling would run afoul of the Fourth Circuit’s determination in Mort Ranta v. Gorman that bankruptcy courts cannot require debtors to pledge such income in a chapter 13 plan. See id.
. See Transcript, supra note 26, at 8:20-22, 29: 5-14.
.See id. at 8:20-22.
. See id. at 29:5-14.
. See Gooch v. United States, 297 U.S. 124, 128, 56 S.Ct. 395, 80 L.Ed. 522 (1936) ('[The rule of ejusdem generis] limits general terms which follow specific ones to matters similar to those specified.').
. 42 U.S.C. § 407(a) (emphasis added).
. See 42 U.S.C. § 407(a).
. See id. at 250-54.
. Mort Ranta v. Gorman, 721 F.3d 241, 253 (4th Cir. 2013).
.See generally id. at 253-54 (‘'[I]n evaluating whether a debtor will be able to make all payments under the plan and comply with the plan, the bankruptcy court must take into account any Social Security income the debt- or proposes to rely upon.... ”).
. See id. at 252-53.
. Id. at 253.
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- IN RE: Julia Elizabeth MORIARTY, Debtor
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