A chapter 13 debtor’s post-petition contributions to his qualified retirement account may be deducted from the calculation of his projected disposable income and the amount of those contributions is presumed to be the average contribution made during the six months preceding bankruptcy. Where, as here, the debtor substantially increased his contributions on the eve of bankruptcy, he bears the burden of proving that his projected disposable income calculation should be reduced by the increased retirement account contributions. In re Huston, 2021 WL 4528883 (Bankr. N.D. Ill. Sept. 30, 2021) (case no. 20-81689). Read More
Tag Archive: Retirement Account Contributions
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Pre-Petition Increase in Retirement Account Contributions
Posted by NCBRC - December 9th, 2021
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Sixth Circuit Addresses 401(k) Contributions
Posted by NCBRC - August 13th, 2021
The Sixth Circuit held that “the bankruptcy code’s text does not permit a Chapter 13 debtor to use a history of retirement contributions from years earlier as a basis for shielding voluntary post-petition contributions from unsecured creditors. This is true even if the debtor had no ability to make further contributions in the six months preceding filing; the code makes no exception for such circumstances.” Penfound v. Ruskin (In re Penfound), No. 19-2200 (6th Cir. Aug. 10, 2021). Read More
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Sixth Circuit Says Contributions to Retirement Plan Not Disposable Income
Posted by NCBRC - June 9th, 2020
Rejecting its dictum to the contrary in Seafort, the Sixth Circuit held that a debtor’s voluntary contributions to her retirement account, begun prior to bankruptcy, may continue during bankruptcy and are excluded from her disposable income. Davis v. Helbling (In re Davis), No. 19-3117 (6th Cir. June 1, 2020).
Ms. Davis had approximately $200,000 in debt of which approximately $189,000 was unsecured. She proposed a chapter 13 plan paying $323.00 for sixty months. The trustee objected on the basis that she underrepresented her disposable income by failing to include $220/month in wages withheld as a contribution to her employee 401(k) retirement plan. The bankruptcy court reluctantly sustained the trustee’s objection, stating that it was bound to follow the Sixth Circuit’s direction on the issue of voluntary contributions to an IRA as set forth in dictum in Seafort v. Burden (In re Seafort), 669 F.3d 662, 674 n.7 (6th Cir. 2012). Ms. Davis amended her plan to reflect the $220 as additional disposable income then objected to her own plan. The bankruptcy court confirmed the amended plan and certified the case for direct appeal. Read More
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Fourth Circuit Side-Steps Retirement Contribution Issue
Posted by NCBRC - December 19th, 2017
Finding that the trustee did not raise the statutory issue of whether and when a chapter 13 debtor may make voluntary contributions to his retirement account, the Fourth Circuit found no clear error in the bankruptcy court’s factual finding of good faith. Gorman v. Cantu (In re Cantu), No. 17-1034 (4th Cir. Dec. 18, 2017) (unpublished).
Ricardo Cantu’s chapter 13 plan proposed to pay $51,240 toward his $148,346 unsecured debt over five years. The plan payments were based on a disposable income calculation which contemplated $338 in monthly repayments to two retirement accounts which Mr. Cantu had taken out against his government-backed Thrift Savings Plan. The trustee argued that one of the loans from the TSP would be paid off shortly after commencement of the plan, and applying the forward-looking approach, the anticipated reduction in retirement contributions should be considered in calculating Mr. Cantu’s disposable income. The trustee also objected to Mr. Cantu’s inclusion of domestic support payments in the amount of $1,625 per month, when his divorce decree ordered monthly payments of $1,500. Mr. Cantu countered that once he paid off the loan from the TSP he intended to resume making contributions in the same amount to that Plan. He also maintained that the discrepancy between the divorce decree and his actual payments was a result of a scrivener’s error in the divorce decree. Read More
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HAVEN Act Guide
The Honoring American Veterans in Extreme Need Act of 2019 (“HAVEN Act”) excludes certain benefits paid to veterans or their family members from the definition of current monthly income (“CMI”) found in the Bankruptcy Code. The HAVEN Act amends § 101(10A) of the Bankruptcy Code and supplements the 2005 amendments to the Code that excluded other government benefits, such as social security income.
This Guide provides an overview of the HAVEN Act identifies benefits that are excluded, and answers frequently asked questions.
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