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
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 Gorman v. Cantu (In re Cantu), No. 17-1034 (4th Cir. Dec. 18, 2017) (unpublished).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
