Morse v. Rudler

576 F.3d 37, 411 B.R. 37, 62 Collier Bankr. Cas. 2d 373, 2009 U.S. App. LEXIS 17438, 2009 WL 2385469
CourtCourt of Appeals for the First Circuit
DecidedAugust 5, 2009
Docket08-9007
StatusPublished
Cited by9 cases

This text of 576 F.3d 37 (Morse v. Rudler) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morse v. Rudler, 576 F.3d 37, 411 B.R. 37, 62 Collier Bankr. Cas. 2d 373, 2009 U.S. App. LEXIS 17438, 2009 WL 2385469 (1st Cir. 2009).

Opinions

LIPEZ, Circuit Judge.

This bankruptcy appeal requires us to resolve a question of statutory construction that has divided bankruptcy courts and has not yet been addressed by any other circuit: whether the means test for identifying an abusive Chapter 7 petition allows a debtor to deduct from his income the installment payments due for property he plans to surrender in the bankruptcy. See 11 U.S.C. § 707(b)(2). Both the bankruptcy court and the Bankruptcy Appellate Panel (“BAP”) held that such a deduction is permitted because, at the time the disposable income calculation is performed, such payments remain — in the words of the statute — “scheduled as contractually due.” We agree, and therefore affirm.

I.

A. Applicable Law

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was enacted in response to an upward trend in consumer bankruptcy filings and concerns that bankruptcy relief was “too readily available” and “sometimes used as a first resort, rather than a last resort.” H.R.Rep. No. 109-31(1), at 4 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 90. Of particular concern was the pursuit of Chapter 7 liquidations instead of Chapter 13 debt repayment plans by consumer debtors who could afford to repay some of their debts. See 151 Cong. Ree. S2459, 2468-70 (daily ed. Mar. 10, 2005) (Statement of Sen. Hatch); In re Hardacre, 338 B.R. 718, 720 (Bankr.N.D.Tex.2006) (citing 151 Cong. Rec. at 2469-70).

The BAPCA was designed to lessen the resort to Chapter 7 filings by, among other measures, amending section 707(b) of the Bankruptcy Code to relax the standard for dismissing a Chapter 7 case as abusive. See, e.g., In re King, No. OS-41975, 2009 WL 62252, at *3 (Bankr. E.D.Tex. Jan. 6, 2009). Previously, a showing of “substantial abuse” was required, and “[t]here was a presumption in favor of granting the relief sought by the debtor.” Id. As amended by the BAPCA, section 707(b) drops the qualifying word “substantial,” permitting a bankruptcy court to dismiss a Chapter 7 proceeding brought by an individual debtor who has mostly consumer debts “if [the court] finds that the granting of relief would be an abuse.” 11 U.S.C. § 707(b)(1). In order to “ensure that debtors repay creditors the maximum they can afford,” the BAPCPA established a mathematical formula, known as a “means test,” by which some Chapter 7 cases are deemed presumptively abusive. See H.R.Rep. No. 109-31(1), at 1, reprinted in 2005 U.S.C.C.A.N. at 89 (describing the “income/expense screening mechanism” as “[t]he heart of the bill’s consumer bankruptcy reforms”); 11 U.S.C. § 707(b)(1), (2); see also Ross-Tousey v. Neary {In re Ross-Tousey), 549 F.3d 1148, 1151 (7th Cir.2008) (“The purpose of the means test is to distinguish between debtors who can repay a portion of their debts and debtors who cannot.”).1

Only those debtors whose monthly income exceeds the state median for their family size are subject to means testing. 11 U.S.C. § 707(b)(7). The formula calculates the debtor’s average monthly disposable income, over a sixty-month pe[41]*41riod,2 by deducting statutorily prescribed expenses from current monthly income. See id. at § 702(b)(2)(A)(ii)-(iv). If the resulting income figure exceeds a threshold amount specified in the statute — $167 per month at the time relevant here — the bankruptcy case is presumptively abusive. 11 U.S.C. § 707(b)(2)(A)®.3 Upon motion by the United States Trustee, the bankruptcy court may either dismiss such a case or, with the debtor’s consent, convert it into a Chapter 13 proceeding. 11 U.S.C. § 707(b)(1).

The deductible expenses under the means test include standard living expenses prescribed by the Internal Revenue Service, see, e.g., id. at § 707(b)(2)(A)(ii)(I); certain “reasonably necessary” actual expenses (such as for health and disability insurance), id.; and other actual expenses up to a maximum allowable deduction (for example, expenses for the education of a minor child “not to exceed” $1650 per year), id. at § 707(b)(2)(A)(ii)(IV). At issue here is the allowable deduction “on account of secured debts,” such as mortgage or car payments. Id. at § 707(b)(2)(A)(iii)(I). The critical language describes the deductible amount of such debts to be “the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition,” divided by 60. Id.4 The resulting amount is the debtor’s average monthly expense for secured debt.

Debtors submit their calculations under the means test on Form B22A (“Chapter 7 Statement of Current Monthly Income and Means-Test Calculation”), one of the documents a debtor must file with a Chapter 7 bankruptcy petition. See 11 U.S.C. § 707(b)(2)(C); Fed. R. Bankr.P. 1007(b)(4).5 Debtors also must file “a [42]*42schedule of current income and current expenditures,” known as Schedules I and J, respectively, and a Statement of Intention that discloses plans to retain or surrender the properties that are securing the debts listed on a separate schedule of assets and liabilities. See 11 U.S.C. § 521(a)(l)(B)(ii); id. at § 521(a)(2)(A); Fed. R. Bankr.P. 1007(b)(1), (2).

The type of dispute that underlies this case arises when a debtor announces an intention to surrender certain property— here, a house that secures two mortgages — but includes future mortgage payments in calculating the amount of secured debt to be deducted from monthly income on Form B22A. Given that the property will be surrendered and the mortgage will no longer be paid, the question is whether such payments are “scheduled as contractually due ... in each month of the 60 months following the date of the petition.”

B. Factual Background

Appellee Glen H. Rudler filed a Chapter 7 bankruptcy petition in August 2006. Since his monthly income at the time of the filing exceeded the applicable state median for his family size, Rudler was subject to the means test to determine if his bankruptcy case should be categorized as presumptively abusive. In a Statement of Intention, Rudler reported that he intended to surrender his home, which was secured by two mortgages with a combined monthly payment of approximately $4,000.

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Bluebook (online)
576 F.3d 37, 411 B.R. 37, 62 Collier Bankr. Cas. 2d 373, 2009 U.S. App. LEXIS 17438, 2009 WL 2385469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morse-v-rudler-ca1-2009.