In re Cantu

553 B.R. 565, 2016 Bankr. LEXIS 2585, 2016 WL 3982881
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedJuly 14, 2016
DocketCase No. 15-14556-BFK
StatusPublished
Cited by12 cases

This text of 553 B.R. 565 (In re Cantu) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cantu, 553 B.R. 565, 2016 Bankr. LEXIS 2585, 2016 WL 3982881 (Va. 2016).

Opinion

MEMORANDUM OPINION

Brian F. Kenney, United States Bankruptcy Judge

This case comes before the Court on: (a) the Chapter 13 Trustee’s Objections to the Debtor’s claim of exemptions (Amended Schedule C); and (b) the Chapter 13 Trustee’s Objections to the Debtor’s Amended Plan. The Court sustains the Trustee’s Objections to the Debtor’s claim of exemptions and overrules the Trustee’s Objections to the Debtor’s Amended Plan.

Findings of Fact

The following facts are not genuinely in ' dispute:

A. The Debtor’s Bankruptcy Filing and His Initial Chapter 13 Plan.

1.The Debtor filed a Voluntary Petition under Chapter 13 with this Court on December 31, 2015. Docket No. 1. His income is above-median. Docket No. 10 (Official Forms 122C-1,122C-2).

2. The Debtor filed his initial Chapter 13 Plan on January 14, 2016. Docket No. 11. The Debtor attached a copy of his Schedule I to the Plan, under which he deducted $0.00 for voluntary contributions to a retirement plan, and $338.37 for required repayments on two retirement fund loans. Id. at Schedule I, Lines 5c, 5d.

3. The Debtor’s initial Chapter 13 Plan was denied confirmation. Docket No. 20.

B. The Debtor’s Amended Chapter 13 Plan.

4. On March 31, 2016, the Debtor filed an Amended Chapter 13 Plan. Docket No. 22. The Amended Plan called for payments of $1,250.00 per month for 6 months and then $810.00 per month for 54 months, for total plan funding of $51,240.00. Id. at ¶ 1. This, according to the Amended Plan, will result in a distribution to unsecured creditors of approximately 13% of their allowed claims. Id. at ¶ 4.

5. At the same time, the Debtor filed Amended Schedules B and C. Docket No. 23. In his Amended Schedule B, the Debtor identified $804.00 in “future income from 1/21/2016-5/11/2016 from a retirement loan being paid off on 1/20/2016.” Id. at .Amended Schedule B, ¶ 16. In his Amended Schedule C, the Debtor claimed this $804.00 as exempt pursuant to Va. Code § 34-4, Virginia’s wildcard exemption statute. Id. at Schedule C, ¶2; see also Va.Code Ann. § 34-4 (West 2016).1

' 6. One of the Debtor’s retirement fund loans was paid in full in January 2016. Accordingly, the Debtor attached an Amended Schedule I to his Amended Plan, under which the Debtor indicated that he [568]*568will pay $268.62 per month as a voluntary contribution to his retirement plan, and will continue to pay $69.75 in required repayments on the other retirement fund loan. Docket No. 22, Schedule I, Lines 5c and 5d.

7. The Trustee filed an Objection to confirmation of the Debtor’s Amended Chapter 13 Plan, on the grounds of good faith and disposable income. Docket No. 24

8. The Trustee also filed an Objection to the Debtor’s Amended Schedule C. Docket No. 25.

C. The May 12, 2016, Hearing.

9. The Court held a hearing on May 12, 2016. At the hearing, Debtor’s counsel argued that the Debtor was entitled to exempt the income represented by the savings in not having to pay his retirement fund loan under either Va.Code § 34-29 (which allows an exemption from garnishment of 75% of wages for non-support debts) or Va.Code § 34-4 (the wildcard exemption, which allows an exemption of up to $5,000 in value — $10,000 for those over 65 — plus $500 for each dependent). See Va.Code Ann. § 34-29 (West 2016); Va.Code Ann. § 34-4 (West2016).2

10. Debtor’s counsel represented to the Court that the Debtor’s employer refused to allow him to make voluntary contributions to his retirement plan because he had taken out two hardship loans under the same plan. Debtor’s counsel also represented that the proposed $268.62 per month in voluntary contributions were about one-third of what the Debtor legally would be entitled to contribute to his retirement plan, outside of bankruptcy. These representations were not challenged by the Chapter 13 Trustee, and the Court accepts them.

11.The Court ruled from the bench that it would sustain the Trustee’s Objection to the Debtor’s claim of exemption under Va.Code § 34-29, on the ground that such a claim of exemption was inconsistent with Bankruptcy Code § 1306(a)(2), which defines property of the estate to include “earnings from services performed by the debtor after the commencement of the case.” 11 U.S.C. § 1306; Docket No. 29 (Order Sustaining Trustee’s Objection in Part). The Court took under advisement: (a) the Trustee’s Objection to the Debtor’s claim of exemption under Va. Code § 34-4; and (b) the Trustee’s Objection to confirmation of the Debtor’s Amended Plan. Id.

Conclusions of Law

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334 and the Order of Reference entered by the District Court for this District on August 15, 1984. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(B) (“allowance or disallowance of ... exemptions from property of the estate”), and (L) (confirmation of plans).

I. The Debtor’s Claim of Exemption in Post-Petition Income.

Section 1306(a)(2) provides that proper-. ty of the estate includes, in addition to the property specified in Section 541, “earnings from services performed by the debt- or after the commencement of the case ...” 11 U.S.C. § 1306(a)(2). Section 1325(b) of the Code requires that, if the trustee or the holder of an allowed unsecured claim objects, the Debtor must ei[569]*569ther pay all allowed claims in full or the plan must provide that “all of the debtor’s projected disposable income” be devoted to the Debtor’s Chapter 13 Plan. 11 U.S.C. § 1325(b)(1)(B). For above-median debtors, the debtor’s disposable income is measured by the means test contained in Sections 1325(b)(2) and (3), and 707(b) of the Code. 11 U.S.C. §§ 1325(b)(2)-(3), 707(b). Section 101(10A) of the Code defines the debtor’s current monthly income as “the average monthly income from all sources that the debtor receives” during the six months preceding the filing, with certain exclusions and adjustments not relevant here. 11 U.S.C. § 101(10A) (emphasis added).

The Trustee argues that the Debt- or’s claim of exemption under Va.Code § 34-4 cannot be allowed because the Debtor had not yet earned the income as of the date of the petition. This, however, is not a bar to a claim of exemptions. In re Walz, 546 B.R. 836, 840 (Bankr.D.Minn. 2016) (allowing exemption in post-petition inheritance; “the Code does not limit exemptions to property owned by the debtor as of the petition date”); In re Walley, 525 B.R.

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Cite This Page — Counsel Stack

Bluebook (online)
553 B.R. 565, 2016 Bankr. LEXIS 2585, 2016 WL 3982881, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cantu-vaeb-2016.