In re Metzner

157 B.R. 332, 1993 Bankr. LEXIS 1144, 1993 WL 311270
CourtUnited States Bankruptcy Court, N.D. Ohio
DecidedApril 6, 1993
DocketBankruptcy No. 92-33092
StatusPublished

This text of 157 B.R. 332 (In re Metzner) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Metzner, 157 B.R. 332, 1993 Bankr. LEXIS 1144, 1993 WL 311270 (Ohio 1993).

Opinion

MEMORANDUM OPINION AND ORDER

RICHARD L. SPEER, Bankruptcy Judge.

This cause comes before the Court upon Trustee’s Motion for Evidentiary Hearing on Debtor’s Claim of Exemption and Motion for Turnover. At the trial, the parties were afforded the opportunity to present evidence and arguments they wished the Court to consider in reaching its decision. The Court has reviewed the entire record in this case. Based upon that review, and for the following reasons, this Court finds that the Trustee’s Objection to Exemption should be Sustained; and that the Trustee’s Motion for Turnover should be Granted in Part.

FACTS

Debtor opened an Individual Retirement/KEOGH Account (hereafter “IRA”) on February 5, 1987 with a balance of Two Thousand Five Hundred Forty and 92/100 Dollars ($2,540.92). The account balance as of March 13, 1992 is Six Thousand Nine Hundred Nine and 46/100 Dollars ($6,909.46), exclusive of earnings accrued and withdrawals made after that date. The IRA Certificate sets forth the following consequences for premature withdrawals from the account:

“In the event of any withdrawal from the account prior to maturity date, the ac-countholder shall forfeit an amount equal to six months of interest or dividends, whether earned or not, on the amount withdrawn at the nominal (simple interest) rate being paid on the account regardless of the length of time the funds withdrawn have remained in the account....
Any withdrawal which reduces the account balance below the Minimum Balance Requirement shall be considered as a withdrawal of the entire account balance and shall be subject to the penalty prescribed herein....
If the account or any portion thereof is withdrawn not more than 7 days after a maturity date, earnings shall be paid [334]*334thereon at the Rate of Earnings above set forth to the date of withdrawal without penalty....
Earnings credited to this account during any term may be withdrawn at any time during such term without penalty described in this section. However, such withdrawal of earnings may result in adverse tax consequences under IRS rules.”

On August 27, 1992, Debtor filed a Chapter 7 Petition in Bankruptcy. On Schedule B, Debtor claimed an interest in the IRA valued at Six Thousand Nine Hundred Nine and 46/100 Dollars ($6,909.46). Shortly after the First Meeting of Creditors, the Trustee, Bruce C. French, filed a Turnover Demand, requesting that Debtor turnover the non-exempt IRA funds. The Trustee also filed an Objection to Claims for Exemptions. On January 11, 1993, Debtor’s discharge was granted. All other property of the estate was deemed abandoned by the Trustee on January 29, 1993.

At trial, Debtor testified on direct examination that he is in his mid-forties; resides with his father; and has been employed at KP Industries (hereafter “KP”) for seventeen (17) years. At present, he earns net weekly income of Two Hundred Sixty Eight and 00/100 Dollars ($268.00). This amount represents a reduction from his previous weekly net income of Two Hundred Eighty Two and 00/100 Dollars ($282.00). Debtor’s hourly wage decreased from Nine and 32/100 Dollars ($9.32) to Eight and 56/100 Dollars ($8.56) during KP’s attempt at reorganization. Debtor presented an article from The Daily Herald which states that KP will close its doors on May 31, 1993. Upon cross-examination, Debtor admitted that he has not accepted KP’s offer to relocate and reemploy him since he does not want to leave his home in Delphos, Ohio.

LAW

Ohio Revised Code § 2329.66(A)(10)(b) reads in relevant part as follows:

(A) Every person who is domiciled in this state, may hold property exempt from execution, garnishment, attachment or sale to satisfy a judgment or order, as follows:
(10)(b) Except as provided in section 3113.21 of the Revised Code, the person’s right to receive a payment under any pension, annuity, or similar plan or contract not including payment from a stock, bonus or profit sharing plan or a payment included in division (A)(6)(b) or (10)(a) of this section, on account of illness, disability, death, age or length of service, to the extent reasonably necessary for the support of the person and any of his dependents, except if all of the following apply:
(i) The plan or contract was established by or under the auspices of an insider that employed the debtor at the time his rights under the plan or contract arose.
(11) The payment is on account of age or length of service.
(iii) The plan or contract is not qualified under the “Internal Revenue Code of 1986,” 100 Stat. 2085, 26 U.S.C. 1, as amended.

11 U.S.C. § 522(d)(10)(E) reads as follows:

(d) The following property may be exempted under subsection (b)(1) of this section:
(10) The debtor’s right to receive—
(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length or service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, unless—
(i) such plan or contract was established by or under the auspices of an insider that employed the debtor at the time the debtor’s rights under such plan or contract arose;
(11) such payment is on account of age or length of service; and
(iii) such plan or contract does not qualify under section 401(a), 403(a), 403(b), 408, or 409 or the Internal Reve[335]*335nue Code of 1954 (26 U.S.C. 401(a), 403(a), 403(b), 408, or 409).

11 U.S.C. § 542 reads in relevant part:

(a) Except as provided in subsection (c) or (d) of this section, an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this , title, or that the debtor may exempt under section 522 of this title, shall deliver to the trustee, and account for, such property or the value of such property, unless such property is of inconsequential value or benefit to the estate.

DISCUSSION

This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(B) and 157(b)(2)(E). The dis-positive issues include Debtor’s entitlement to an exemption for IRA funds on deposit; and the extent of Trustee’s entitlement to turnover of funds from Debtor’s IRA account.

The Trustee argues that Debtor has failed to show that the funds on deposit are reasonably necessary to maintain his basic support.

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Related

Maggio v. Zeitz
333 U.S. 56 (Supreme Court, 1948)
Warren v. Taff (In Re Taff)
10 B.R. 101 (D. Connecticut, 1981)
In Re Bloom
91 B.R. 445 (N.D. Ohio, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
157 B.R. 332, 1993 Bankr. LEXIS 1144, 1993 WL 311270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-metzner-ohnb-1993.