In re Franklin

506 B.R. 765, 2014 Bankr. LEXIS 956, 2014 WL 960874
CourtUnited States Bankruptcy Court, C.D. Illinois
DecidedMarch 12, 2014
DocketNo. 13-81207
StatusPublished
Cited by17 cases

This text of 506 B.R. 765 (In re Franklin) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, C.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Franklin, 506 B.R. 765, 2014 Bankr. LEXIS 956, 2014 WL 960874 (Ill. 2014).

Opinion

OPINION

THOMAS L. PERKINS, Bankruptcy Judge.

This matter is before the Court on the objection of the Chapter 7 Trustee, Jeana K. Reinbold (TRUSTEE), to the claimed exemptions of the Debtor, David J. Franklin (DEBTOR), in two bank accounts and the TRUSTEE’S motion for turnover of the funds. The primary issue concerns the application of 42 U.S.C. § 407, which protects social security benefits paid or payable, to a bank account containing funds traceable to social security benefits. The TRUSTEE contends that the exemption provided by § 407 may be denied for equitable reasons and may be capped based upon a needs-based test. For two alternative reasons, the TRUSTEE’S objection must be denied.

The DEBTOR filed a petition under chapter 7 of the Bankruptcy Code on June 13, 2013. At the time the petition was filed, the balance on hand in his checking account was $2,303.43 and his savings account had a balance of $11,119.47. The only funds deposited into the savings account were from social security. The DEBTOR owns his residence valued at $90,804, which has no nonexempt equity. The DEBTOR’S vehicle, a 1990 Volvo, valued at $1,000, was described as not currently driveable. Schedule I discloses that the DEBTOR is retired and that he has a monthly income of $4,091.09, comprised solely of pension income of $2,699.69 and social security benefits of $1,391.40. According to Schedule J, the DEBTOR’S monthly expenses total $2,650.42, including a tax payment to the Internal Revenue Service of $400, leaving monthly net income of $1,440.67. The Internal Revenue Service has filed a priority claim for 2011 and 2012 income taxes totaling $4,778.92.

In his original Schedule C, the DEBTOR did not assert an exemption in the savings account under 42 U.S.C. § 407. The TRUSTEE objected to the DEBTOR’S claim of exemption under 735 ILCS 5/12 — 1001(g)(1), correctly noting that the state law exemption is limited to a debtor’s “right to receive” a social security benefit and does not protect benefits which the debtor received and placed in a bank account prior to the filing of bankruptcy. In re Schoonover, 331 F.3d 575 (7th Cir.2003); Fayette County Hosp. v. Reavis, 169 Ill.App.3d 246, 119 Ill.Dec. 937, 523 N.E.2d 693 (Ill.App. 5 Dist.1988). Both the federal bankruptcy and the Illinois exemption schemes draw a distinction between a “debtor’s right to receive” a payment or benefit and “property that is traceable” thereto.

In response to the TRUSTEE’S objection, the DEBTOR filed Amended Schedule C on September 30, 2013, again claiming the savings account balance as fully exempt under § 12 — 1001(g)(1), and adding a claim of full exemption under 42 U.S.C. § 407. The DEBTOR also claimed the funds in the cheeking account as fully exempt under 735 ILCS 5/12-704, which exempts from garnishment benefits payable by pension or retirement funds or systems, and as fully exempt under the wildcard exemption as well. The TRUSTEE objected to the amended exemption claims, contending that 42 U.S.C. § 407 is not a blanket exemption for all segregated funds traceable to social security payments without regard to the amount of funds accumulated. She argues that a court has the authority to limit the exemption to [769]*769amounts reasonably necessary to pay for basic living expenses.

There is no dispute that the DEBTOR opened the savings account at least eight months before bankruptcy, upon the advice of counsel, for the sole purpose of segregating and holding his social security payments in order to preserve their exempt status. There is also no dispute that the funds in the checking account consist solely of accumulated pension benefits. The parties have submitted briefs and the issues are ripe for decision.

ANALYSIS

In her brief, the TRUSTEE, acknowledging that the DEBTOR’S exemption overage under the wildcard provision is minimal, represents that her objection to the claim of exemption in the checking account will not be pursued if her objection to the savings account is not sustained by the Court.1 As a result, the Court will first address the DEBTOR’S claim of exemption in his savings account, based upon the exemption provided for social security benefits under federal law.

Upon the filing of a petition in bankruptcy, section 522 of the Bankruptcy Code provides that a debtor is entitled to retain certain assets as exempt from the bankruptcy estate. 11 U.S.C. § 522. Section 522(b) allows a debtor to claim either the federal bankruptcy exemptions listed in subsection (d) or exemptions available under nonbankruptcy law, unless the applicable state law precludes the debtor from claiming the federal bankruptcy exemptions. Section 522(b), in essence, authorizes each state to “opt-out” of the scheme of exemptions provided under federal bankruptcy law, restricting its residents to the exemptions provided under the law of that state and under federal statutes other than section 522(d). Illinois has exercised that opt-out option, thus mandating the use of other federal exemptions plus the exemption statutes enacted in Illinois. One such nonbankruptcy federal exemption is that provided for social security benefits. Sections 407(a) and (b) of the Social Security Act provide:

(a) In general
The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.
(b) Amendment of section
No other provision of law, enacted before, on, or after April 20, 1988, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

42 U.S.C. § 407.

Section 407(a) contains three distinct directives. First is the anti-assignment provision, which prevents a recipient from assigning or otherwise transferring the right to future payments. Second is the general exemption provision, which protects social security benefits paid or payable from creditor collection rights. Third is the exclusion from bankruptcy and insolvency laws, which decrees that [770]*770benefits paid or payable are not subject to the operation of the federal bankruptcy laws or any other insolvency law. These proscriptions have been part of the Social Security Act since 1985.

Under the Bankruptcy Act of 1898, exempt property was expressly excluded from the interests of the bankrupt that vested in the trustee. Bankruptcy Act, sec. 70a.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tammy Bonam
S.D. Georgia, 2022
Mostoller v. Garrett
E.D. Tennessee, 2022
Timothy Russell Hoffman
N.D. Georgia, 2019
In re Manzo
577 B.R. 759 (N.D. Illinois, 2017)
In re Hoover
574 B.R. 413 (D. Massachusetts, 2017)
Lakewood Credit Union v. Goodrich
2016 WI App 77 (Court of Appeals of Wisconsin, 2016)
In re Castellano
550 B.R. 214 (E.D. New York, 2016)
In re Lua
529 B.R. 766 (C.D. California, 2015)
Mateer v. Ostrander (In re Mateer)
525 B.R. 559 (D. Massachusetts, 2015)
In re Nothdurft
521 B.R. 640 (C.D. Illinois, 2014)
In re Frueh
518 B.R. 881 (N.D. Illinois, 2014)
Neblett v. Gress (In re Gress)
517 B.R. 543 (M.D. Pennsylvania, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
506 B.R. 765, 2014 Bankr. LEXIS 956, 2014 WL 960874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-franklin-ilcb-2014.