Berg v. Social Security Administration (In re Berg)

569 B.R. 755
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedJune 15, 2017
DocketCase Number: 14-13435-7; Adversary Number: 16-89
StatusPublished
Cited by2 cases

This text of 569 B.R. 755 (Berg v. Social Security Administration (In re Berg)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berg v. Social Security Administration (In re Berg), 569 B.R. 755 (Wis. 2017).

Opinion

MEMORANDUM DECISION

Hon. Catherine J. Furay, U.S. Bankruptcy Judge

This matter is before the Court on the motion of Plaintiff Peggy A. Berg (“Berg”) for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), made applicable to bankruptcy proceedings through Fed. R. Bankr. P. 7012(b). To decide this motion, the following facts alleged or presented by agreement of the parties are recited. For the reasons set forth below, the Court concludes the Social Security Administration’s insufficiency position decreased during the 90 days prior to Berg’s bankruptcy filing in the amount of $2,015.00. Accordingly, Berg is entitled to that amount.

FACTS

Peggy A. Berg filed a voluntary Chapter 13 petition under title 11 of the Bankruptcy Code on August 7, 2014. She moved to convert her case to a Chapter 7 on September 8, 2014. The Court entered a final decree on January 21, 2015. On August 4, 2016, Berg filed a motion to reopen her bankruptcy case. On November 15, 2016, she filed the present' adversary complaint seeking to unwind the Social Security Administration’s prepetition setoff of her social security disability benefits.

Berg received disability insurance benefits from the Social Security Administration (the “SSA”) from June 1994 through December 2003. She became re-employed in 2002. Despite having notified the SSA of her return to employment, it continued to pay and Berg retained benefits until the benefits were terminated in December 2003. This resulted in an overpayment of $25,690.00.

The SSA determined Berg was without fault in causing or accepting the overpayment (20 C.F.R. § 404.507(c)). Nonetheless, it also determined that recovery of the overpayment would not be inequitable. She did not appeal the determination. A payment plan was established for payment at the rate of $300.00 per month. Berg made payments for a period and reduced the overpayment to $19,400.00 as of July 2014.

Berg stopped working on November 17, 2012. In March 2014, she filed another application for disability benefits with a protective filing date of January 2014. On July 15, 2014, the SSA granted the application. It determined that she met the criteria for disability as of November 17, 2012. Under the regulations, she was entitled to receive benefits beginning in May 2013. The SSA’s Notice of Award letter dated July 30, 2014, explained the benefits, their accrual rate, and adjustments for cost of living. The Award letter also told Berg that the SSA determined it would use $19,400.00 of the accrued benefits to pay off the remaining overpayment. The SSA kept and applied $19,400.00 of back benefits and sent a payment of $907.00 to Berg [758]*758for July 2014.1 Full benefit payments commenced in August 2014.

Berg filed bankruptcy on August 7, 2014. She identified the $19,400.00 as a possible asset subject to recovery in her schedules. She also disclosed it as a setoff in her Statement of Financial Affairs. Berg commenced this adversary proceeding seeking recovery of the amount of back benefits set off by the SSA. The basis for her claims are 11 U.S.C. §§ 553(b) and 522(h). The parties have stipulated the relevant facts are undisputed. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1334(a) and 157(a). This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(A), (I), and (O).

ARGUMENTS

The parties agree the transaction at issue is a setoff governed by 11 U.S.C. § 553(b). They disagree on the extent to which section 553(b) unwinds that transaction.

The SSA argues the offset of benefits was not inequitable. It points out the SSA cannot waive recovery of overpayments except in narrow circumstances that are inapplicable in this case. It argues the statutory preservation of setoff supports the application of accrued benefits against the overpayment. It contends it did not improve its position or, alternatively, the only possible improvement was $1,163.00 representing a change in position between May 9, 2014,2 and July 30, 2014.

Berg argues the offset of accrued benefits against the overpayment occurred within 90 days of the petition date and would have been recoverable by a trustee under section 553. Further, she asserts there was no “mutual debt” within the 90 days and that the SSA improved its position. In her response, it is clear what Berg does not argue:

(1) the SSA did not overpay her;
(2) the amount of overpayment was incorrectly calculated;
(3) the amount of accrued benefits that were set off were incorrectly calculated;
(4) that, in the qbsence of a bankruptcy, there would have been a right of setoff.

The parties frame the issues as (1) whether the SSA’s actions qualify as a setoff under section 553, and (2) whether, notwithstanding the provisions of section 553, the rights are constrained by section 522 and thus recoverable.

STANDARD

A motion for judgment on the pleadings is subject to the same standard as a motion to dismiss under Rule 12(b)(6). Federal Sign v. Fultz (In re Fultz), 232 B.R. 709, 716 (Bankr. N.D. Ill. 1999). The Court “may not look beyond the pleadings, and all uncontested allegations to which the parties had an opportunity to respond are taken as true.” Alexander v. City of Chicago, 994 F.2d 333, 335 (7th Cir. 1993). Therefore, we must determine whether the complaint states “a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). All [759]*759well-pleaded factual allegations in Berg’s complaint are taken as true, and all reasonable inferences from the facts are drawn in favor of the non-movant. Chicago Bldg. Design, P.C. v. Mongolian House, Inc., 770 F.3d 610, 612 (7th Cir. 2014); see also Golden v. Gibrick, 561 B.R. 470, 473 (Bankr. N.D. Ill. 2016). There are no contested facts.

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569 B.R. 755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berg-v-social-security-administration-in-re-berg-wiwb-2017.