Egebjerg v. Anderson

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 29, 2009
• Docket: 08-55301
• Status: Published

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

In re: SCOTT LEE EGEBJERG,  Debtor.

No. 08-55301 SCOTT LEE EGEBJERG, Debtor-Appellant,  D.C. No. CV-07-6850-PA v. OPINION PETER C. ANDERSON, United States Trustee, Trustee-Appellee.  Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted March 12, 2009—Orange, California

Filed May 29, 2009

Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Clifton, Circuit Judges.

Opinion by Judge Hawkins

6379 6382 IN RE EGEBJERG

COUNSEL

Michael R. Totaro, Totaro & Shanahan, Pacific Palisades, California, for the debtor-appellant.

Kelsi Brown Corkran, Civil Division, Department of Justice, Washington, D.C., for the trustee-appellee.

OPINION

HAWKINS, Circuit Judge:

In this direct appeal from the bankruptcy court, Scott Lee Egebjerg (“Egebjerg”) challenges the bankruptcy court’s dis- missal of his Chapter 7 petition for abuse under 11 U.S.C. § 707(b)(3). In an issue of first impression in this circuit under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”), we consider whether a debtor’s repayment of a 401(k) loan constitutes a “monthly payment on account of secured debts” or an “[o]ther [n]ecessary [e]xpense” that can be deducted from a debtor’s monthly income for purposes of calculating the debtor’s disposable monthly income under § 707(b)(2). Because we conclude it is not, the debtor’s filing in this case was presumptively abusive IN RE EGEBJERG 6383 under the “means test” of § 707(b)(2). We therefore affirm the bankruptcy court’s dismissal of his Chapter 7 petition.

FACTS AND PROCEDURAL HISTORY

Egebjerg filed a voluntary Chapter 7 bankruptcy petition on December 31, 2006. At the time, he had been employed by Ralph’s grocery store for twenty-seven years and earned a gross income of $6,115.56 per month. Egebjerg was single with no assets. His only secured property was an automobile he used for work and a timeshare. He had unsecured con- sumer debt of about $31,000.

Approximately two years before he filed for bankruptcy, Egebjerg had taken a loan from his 401(k) plan. The plan automatically deducted $733.90 from his paycheck each month to repay this loan, which was scheduled to be fully repaid by September 2008. According to Egebjerg’s amended schedule of necessary expenses (in which he included the 401(k) repayment), he was left with a monthly disposable income of $15.31.1

The U.S. Trustee moved to dismiss Egebjerg’s Chapter 7 petition, arguing that Egebjerg had improperly included the 401(k) repayment in his necessary expenses. If, the Trustee urged, this amount were not subtracted from income as a nec- essary expense, Egebjerg’s filing was presumptively abusive under the “means test” of § 707(b)(2). The Trustee further argued that even if the presumption of abuse did not arise 1 Egebjerg’s estimated monthly disposable income on the amended schedule was $170.31, less a $155 deduction for the difference between his actual rent and the applicable monthly rent expense specified in the IRS’s Housing and Utility Standards, which debtors are required to use for means test purposes. Egebjerg listed this rent differential as a necessary “Other Expense[ ]” on line 56 of his amended means test form. The gov- ernment does not challenge this deduction and we express no opinion on its propriety. Instead, we assume, without deciding, that the deduction was proper. 6384 IN RE EGEBJERG under § 707(b)(2), the court should still dismiss the case because, under the totality of the circumstances, Egebjerg had sufficient means to repay a meaningful portion of his debts, especially once his 401(k) loan was repaid.

The bankruptcy court rejected the Trustee’s first argument, concluding that the 401(k) loan was a “secured debt” and could be deducted from income for purposes of the means test. By including this figure, no presumption of abuse arose under § 707(b)(2).

Still, agreeing with the Trustee on the totality of the cir- cumstances ground, the bankruptcy court dismissed the Chap- ter 7 petition under § 707(b)(3), noting that, at the time of the court’s order in June 2007, the 401(k) loan would be repaid in just over a year, leaving $525 a month to repay unsecured creditors. The court concluded that the debtor could therefore pay a significant amount of his debts in a Chapter 13 proceed- ing and that, because of his ability to pay, it would be an abuse to permit the case to continue as a Chapter 7 proceed- ing. The court ordered the case to be dismissed unless the debtor converted to a Chapter 13 within ten days, which Ege- bjerg did not do.

Egebjerg filed a notice of appeal and requested that the bankruptcy court enter an order certifying the decision for direct appeal pursuant to 28 U.S.C. § 158(d)(2). The bank- ruptcy court entered the certification, and a motions panel of this court granted Egebjerg’s petition for direct appeal and stayed the district court appeal pending circuit review.

DISCUSSION

I. Statutory Background

Prior to BAPCPA, there was a presumption “in favor of granting the relief requested by the Debtor.” 11 U.S.C. § 707(b) (2004). This presumption could be overcome if the IN RE EGEBJERG 6385 court found that “granting of relief would be a substantial abuse” of Chapter 7. Id. (emphasis added). Courts looked to the “totality of the circumstances” to make this substantial abuse determination. In re Price, 353 F.3d 1135, 1139-40 (9th Cir. 2004).

[1] BAPCPA produced a sea change. There is now no pre- sumption favoring Chapter 7 relief, but an emphasis on repay- ing creditors as much as possible. H.R. Rep. No. 109-31, pt. 1 at 2 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89. BAP- CPA introduced a mathematical formula, commonly referred to as the “means test,” to determine whether a debtor’s finan- cial circumstances create a presumption against granting relief under Chapter 7. 11 U.S.C. § 707(b)(2) (2008). A presump- tion of abuse may be rebutted if the debtor demonstrates “spe- cial circumstances” such as “a serious medical condition or a call or order to active duty in the Armed Forces.” § 707(b)(2)(B). Even if a debtor’s financial situation does not create a presumption of abuse (or if the presumption is rebut- ted), the bankruptcy court may still dismiss the petition if the debtor filed the petition in bad faith or if the “totality of the circumstances” demonstrates “abuse” of Chapter 7. § 707(b)(3); Blausey v. U.S. Trustee, 552 F.3d 1124, 1127 n.1 (9th Cir. 2009).

This case potentially implicates both § 707(b)(2) and § 707(b)(3). However, because the statute is framed to con- sider the presumptive abuse question first, and resorts to the totality of circumstances analysis only if the debtor survives the means test, we have chosen to address the proper interpre- tation of § 707(b)(2) first. We review the bankruptcy court’s legal conclusions de novo. In re Fowler, 394 F.3d 1208, 1212 (9th Cir. 2005).

II. Presumption of Abuse under § 707(b)(2)

A. Secured Debt

[2] In calculating the debtor’s current monthly income, § 707(b)(2) permits the debtor to deduct “the average monthly 6386 IN RE EGEBJERG payments on account of secured debts.” § 707(b)(2)(A)(iii) (emphasis added). In the Bankruptcy Code, the term “debt” means “liability on a claim.” § 101(12). “Claim” is defined very broadly within the Code to mean any “right to payment,” whether fixed, contingent, matured, disputed, secured, and so on. § 101(5). The terms “debt” and “claim” are coextensive, “flip sides to the same coin.” In re Rifkin, 124 B.R. 626, 628 (Bankr. E.D. N.Y. 1991); S. Rep. No. 989, 95th Cong. 2d Sess., 23 (1978), reprinted in U.S.C.C.A.N. 5787, 5809. Therefore, Egebjerg’s 401(k) loan constitutes a “debt” only if the plan administrator has a “claim” for repayment.

[3] We join the vast majority of courts in holding that the debtor’s obligation to repay a loan from his or her retirement account is not a “debt” under the Bankruptcy Code. See, e.g., In re Villarie, 648 F.2d 810 (2d Cir. 1981) (loan drawn on employee’s contributions to retirement system not a “debt” because plan has no right to sue a member for the amount of the advance, it is simply offset against future benefits); Bolen v. Adams, 2009 WL 605270, *3 (N.D. Miss. 2009) (vast majority of courts have held a debtor’s obligation to repay retirement account loan is not a “debt” under the Code); Eisen v. Thompson, 370 B.R. 762, 769 (N.D. Ohio 2007) (majority view is that retirement plans loans are not secured debts); In re Esquivel, 239 B.R. 146, 152 (Bankr. E.D. Mich. 1999) (“clear consensus” that borrowing from retirement account does not give rise to either secured or unsecured “claim” under the Bankruptcy Code); see also McVay v. Otero, 371 B.R. 190, 195 (W.D. Tex. 2007); In re Fulton, 211 B.R. 247, 264 (Bankr. S.D. Ohio 1997); In re Scott, 142 B.R. 126, 131- 32 (Bankr. E.D. Va. 1992); In re Jones, 138 B.R. 536, 537-38 (Bankr. S.D. Ohio 1991).

The reasoning behind these decisions is straightforward. Egebjerg’s obligation is essentially a debt to himself — he has borrowed his own money. In re Smith, 388 B.R. 885, 887 (Bankr. C.D. Ill. 2008); see also McVay, 371 B.R. at 197 (col- lecting cases). Egebjerg contributed the money to the account IN RE EGEBJERG 6387 in the first place; should he fail to repay himself, the adminis- trator has no personal recourse against him. In re Villarie, 648 F.2d at 812. Instead, the plan will deem the outstanding loan balance to be a distribution of funds, thereby reducing the amount available to Egebjerg from his account in the future. [ER 317, § 18.3] See In re Mowris, 384 B.R. 235, 238 (Bankr. W.D. Mo. 2008); see also Mullen v. United States, 696 F.2d 470, 472 (6th Cir. 1983). This deemed distribution will have tax consequences to Egebjerg, but it does not create a debtor- creditor relationship. In re Smith, 388 B.R. at 888 (“Nonpayment comes with liability for income taxes and pen- alties, but nonpayment is a valid, lawful alternative.”).

As succinctly explained by one district court:

Retirement plan loans are qualitatively different than secured debts such as home mortgages and car loans. The retirement plan administrator does not loan the plan participant the administrator’s money. It simply deducts the requested loan amount from the partici- pant’s own account, and credits the loan payments and interest back to the participant’s account. If the participant defaults on the loan, the plan administra- tor deducts the amount owed from the vested account balance, and repays the loan with this deduction. The participant must treat this deduction as a distribution which is taxable as income to the participant in the default year. The participant may also be subject to an early withdrawal penalty. But, the plan administrator has no right to payment under the Bankruptcy Code.

Thompson, 370 B.R. at 768 n.10.

[4] Because the debtor’s loan repayment obligation is not a “claim” or “debt” under the Bankruptcy Code, the debtor may not include payments on such loans as deduction for pur- poses of the means test under § 707(b)(2). See, e.g., In re 6388 IN RE EGEBJERG Smith, 388 B.R. at 888; In re Mowris, 384 B.R. at 237-38; McVay, 371 B.R. at 203; Thompson, 370 B.R. at 768-72. This conclusion under BAPCPA is not only supported by the defi- nitions of “claim” and “debt” within the Code, but also by two basic cannons of statutory construction.

First, we presume that when Congress legislates, it is aware of past judicial interpretations and practices. See Dewsnup v. Timm, 502 U.S. 410, 419 (1992). (“When Congress amends the Bankruptcy laws, it does not write on a clean slate.”) (internal quotation marks omitted). “Because overwhelming case law preceding [BAPCPA] held that 401(k) loans were not ‘debts’ under the Code, and because Congress has not expressly said otherwise, the Court must presume that ‘debt’ retains its pre-2005 Act meaning.” Thompson, 370 B.R. at 771; see also In re Mowris, 384 B.R. at 238 (“The over- whelming majority of pre-BAPCPA opinions held that a debt- or’s obligation to make payments on a loan taken from a qualified retirement account was not a claim or debt under the Code, and the court must assume that Congress was aware of this judicial interpretation when it enacted BAPCPA.”).

Second, we also presume that if Congress includes particu- lar language in one section of a statute but omits it in another, Congress acted intentionally in that exclusion. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 118 (2004). Here, in BAPCPA, Congress expressly gave Chapter 13 debtors the ability to deduct 401(k) payments from their disposable income calculation, § 1322(f), but did not include any similar exemption for Chapter 7 debtors. Con- gress also added a section which provides that the automatic stay does not apply to automatic deductions to repay a retire- ment plan loan, but expressly stated that the provision shall not be construed to provide that such a loan constitutes a “claim” or “debt.” § 362(b)(19). “In light of the amendments sprinkled throughout the Code [addressing 401(k) loans] — especially section 1322(f) — the lack of a 401(k) provision in section 707 is a glaring indication that Congress did not IN RE EGEBJERG 6389 intend 401(k) loan repayments to be deducted in Chapter 7.” In re Turner, 376 B.R. 370, 376 (Bankr. D. N.H. 2007).

Although Egebjerg contends that this construction creates anomalous results, “[t]he explanation for the lack of such a provision in section 707 is that Congress intended to steer many would-be Chapter 7 debtors toward Chapter 13.” Id. As one court explained:

First, 401(k) loan repayments are finite; a loan will eventually be paid off. Second, a Chapter 13 case is prospective, i.e., it encompasses a debtor’s current and future financial circumstances for a period of three to five years. . . . Excluding 401(k) loans from the means test evidences a “wait and see” approach that would channel debtors with such expenses into the longer period of bankruptcy supervision of Chap- ter 13 rather than the relatively short tenure of a Chapter 7 case, notwithstanding that doing so might result in a zero payment plan. However, because, as here, 401(k) loans might be paid off within the com- mitment period of a Chapter 13 case, the ability to increase the monthly plan payment would direct newly available funds to creditors. Such an approach serves both the Congressional intent to protect retire- ment contributions and “ensure that debtors repay creditors the maximum they can afford,” a primary goal of BAPCPA.

In re Lenton, 358 B.R. 651, 660 (Bankr. E.D. Penn. 2006).

B. Other Necessary Expense

In addition to maintaining that his 401(k) loan to himself is a “secured debt,” Egebjerg also contends that his loan repayments are an “other necessary expense” for the purposes of applying the means test. We reject that argument as well. 6390 IN RE EGEBJERG [5] Under the statutory provisions governing the means test, debtors may deduct, in addition to payments on secured debt, their “actual monthly expenses for the categories speci- fied as Other Necessary Expenses issued by the Internal Rev- enue Service.” 11 U.S.C. § 707(b)(2)(a)(ii). The IRS defines a “necessary expense” as one that “provide[s] for the health and welfare of the [debtor] and/or his or her family or [pro- vides] for the production of income.” Internal Revenue Ser- vice Manual (“IRM”) § 5.15.1.10. Although the determination whether an expense qualifies as a “necessary expense” is made on a case-by-case basis, the IRS supplies extensive guidance on whether and under what conditions certain types of expenses are “necessary expenses.” See id. For example, under the IRS guidelines, “[e]ducation” costs are necessary expenses only if they are “required for a physically or men- tally challenged child and no public education providing simi- lar service is available,” or if they are “required as a condition of [the debtor’s] employment.” Id.

Egebjerg contends that his monthly 401(k) loan repayments are a “necessary expense” and are therefore deductible for means test purposes. According to Egebjerg, the replenish- ment of his 401(k) plan is necessary to his long-term “health and welfare,” because he is approaching retirement and his 401(k) plan is his only significant asset.2

[6] The IRS’s guidelines foreclose Egebjerg’s contention. The guidelines, which Congress expressly incorporated into § 707(b)(2)(A)(ii), state specifically that “[c]ontributions to voluntary retirement plans are not a necessary expense.” IRM § 5.15.1.23; see also In re Lenton, 358 B.R. at 658. Egebjerg acknowledges that his initial contributions to his 401(k) plan were voluntary, as was his decision to borrow those funds. As the court explained in In re Lenton, “[i]f future voluntary con- 2 Egebjerg does not actually provide his age. He states only that “[s]ince he has been employed with Kroger for 27 years he is not someone who is many years from retirement.” IN RE EGEBJERG 6391 tributions to the 401k plan are not necessary expenses, it is hard to argue that the replenishment of past voluntary contri- butions to the 401k account by repaying loans is a necessary expense.” 385 B.R. at 658. Moreover, the loan repayments themselves are voluntary in the sense that Egebjerg can sim- ply ask the loan administrator to treat his outstanding loan balance as an early withdrawal from his 401(k) and thereby relieve himself of a future repayment obligation. Doing so would have tax consequences, but Egebjerg would retain the use of most of the money loaned.

[7] In short, Egebjerg’s monthly 401(k) repayments are the functional equivalent of voluntary contributions to a retire- ment plan. Per the IRS’s guidelines, such contributions are not deductible “[o]ther [n]ecessary [e]xpenses” under § 707(b)(2)(A)(ii). See also In re Lenton, 358 B.R. at 660-61.

[8] Arguing to the contrary, Egebjerg cites Hebbring v. United States Trustee, 463 F.3d 902 (9th Cir. 2006), In re Hill, 328 B.R. 490 (Bankr. S.D. Tex. 2005), and In re Vans- ickel, 309 B.R. 189 (Bankr. E.D. Va. 2004) for the proposi- tion that voluntary 401(k) contributions are not per se unnecessary expenses for the purposes of calculating a debt- or’s disposable income under § 707(b)(2). What Egebjerg fails to note is that each of these cases either pre-dates the BAPCPA (and therefore pre-dates the means test) or applies pre-BAPCPA law. See, e.g., Hebbring, 463 F.3d at 904 n.1. This point is critical because the pre-BAPCPA § 707(b)(2) “totality of circumstances” test for abuse, which is now part of § 707(b)(3), is distinct from the current § 707(b)(2) means test. When it introduced the means test, Congress provided, by reference to the IRS guidelines, specific guidance as to what qualifies as a necessary expense for the purposes of applying that test. For purposes of the new means test, volun- tary retirement contributions are per se not a necessary expense and will remain so unless the IRS changes its guide- lines.3 Our holding in Hebbring, which concerns only the for- mer “totality of circumstances” test, is simply not applicable. 3 Egebjerg also argues that our failure to recognize his 401(k) repay- ments as a “necessary expense” would create a conflict with the Bank- 6392 IN RE EGEBJERG [9] For all the foregoing reasons, the bankruptcy court erred by allowing Egebjerg to deduct his 401(k) repayment from disposable income for purposes of the means test. If the amount of his loan repayment is included in Egebjerg’s income, then a presumption of abuse arises under § 707(b)(2).

III. Special Circumstances

[10] The bankruptcy court also held, in the alternative, that even if the amount of Egebjerg’s loan repayment obligation should not be included as a secured debt or necessary expense, it could be properly included as a “special circum- stance” which could rebut the presumption of abuse, citing In re Thompson, 350 B.R. 770 (Bankr. N.D. Ohio 2006). How- ever, Thompson was reversed by the district court on this very point on appeal, Thompson, 370 B.R. at 772-73, and the majority of courts agree that the mere obligation to repay a 401(k) loan is not itself a special circumstance. See, e.g., Smith, 388 B.R. at 888, In re Mowris, 384 B.R. at 240, In re Turner, 376 B.R. at 378.

Section 707(b)(2)(B) provides:

In any proceeding brought under this subsection, the presumption of abuse may only be rebutted by dem- onstrating special circumstances, such as a serious medical condition or a call or order to active duty in the Armed Forces, to the extent such special circum- stances . . . justify additional expenses or adjust- ments of current monthly income for which there is no reasonable alternative.

Thus, Congress did not provide an exhaustive list of “special circumstances,” but did indicate examples of situations it

ruptcy Code’s automatic stay provisions. We reject this argument for the reasons already stated in Part II.A. IN RE EGEBJERG 6393 would consider sufficient to rebut the presumption of abuse. As one court has noted, both examples given by Congress share “a commonality; they both constitute situations which not only put a strain on a debtor’s household budget, but they arise from circumstances normally beyond the debtor’s con- trol.” In re Castle, 362 B.R. 846, 851 (Bankr. N.D. Ohio 2006).

[11] We need not explore the outside parameters of the spe- cial circumstance provision, however, for we agree that “re- tirement plan loans are neither extraordinary nor rare; many individuals take loans for many different reasons, and they are all required to repay the loans. Without more, a situation as common as the withdrawal of one’s retirement funds cannot be a ‘special circumstance’ within the accepted definition of this term.” Thompson, 370 B.R. at 773.

While there may be situations in which the debtor’s under- lying reason for taking out a 401(k) loan may constitute a spe- cial circumstance, see In re Tauter, 402 B.R. 903, 906-7 (Bankr. M.D. Fla. 2009), Egebjerg’s only explanation was that he was using the money to “pay off bills” in the hope of avoiding bankruptcy in the first instance. Although a com- mendable goal, “the fact that he borrowed from those retire- ment funds and now wishes to pay the loans back is not a life altering circumstance of the kind referenced in the statute. It is simply the consequence of a prior financial decision.” Smith, 388 B.R. at 888.

It appears that borrowing from a 401(k) is not an uncom- mon approach for many debtors, usually stemming from their “longstanding general inability to keep up with their obliga- tions to creditors.” Thompson, 370 B.R. at 773; see also In re Mowris, 384 B.R. at 240; In re Turner, 376 B.R. at 378. Indeed, if the original unsecured consumer obligation could not be considered a special circumstance, it would seem prob- lematic to find “special circumstances” for the 401(k) loan that merely replaced those debts. See In re Jackson, 2008 WL 6394 IN RE EGEBJERG 5539790 at *3 n.20 (Bankr. D. Kan. 2008); cf. Turner, 376 B.R. at 378-79 (401(k) repayment may be special circum- stance if taken out for a “special” reason other than general financial problems preceding almost every bankruptcy).

[12] Thus, on this record, while we agree with the bank- ruptcy court’s bottom line conclusion, it erred by concluding Egebjerg had demonstrated special circumstances under § 707(b)(2)(B). Because Egebjerg thus did not rebut the pre- sumption of abuse under § 707(b)(2)(A), the bankruptcy court properly dismissed Egebjerg’s Chapter 7 petition.

AFFIRMED.