Joseph A Munger and Linda L Munger

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
____________________________________
) 	CHAPTER 7
IN RE: 	)
JOSEPH A. MUNGER, and 	) 	CASE NO. 07-40439-JBR
LINDA L. MUNGER, 	)
Debtors 	)
)
____________________________________)
MEMORANDUM OF DECISION ON UNITED STATES TRUSTEE’S MOTION
TO DISMISS CASE PURSUANT TO 11 U.S.C. § 707(b)(2) and TO EXTEND
TIME TO OBJECT TO DISCHARGE PURSUANT TO 11 U.S.C. § 727 AND
MOVE TO DISMISS CASE PURSUANT TO 11 U.S.C. § 707(b)(3)
This matter came before the Court on the United States Trustee’s Motion to
Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) and to Extend Time to Object to
Discharge Pursuant to 11 U.S.C. § 727 and Move to Dismiss Case Pursuant to 11. U.S.C.
§ 707(b)(3) and the Debtor’s Answer and Affirmative Defenses thereto. At issue is
whether the Debtors’ current monthly income includes Linda Munger’s unemployment
compensation for purposes of the means test calculation in § 707(b)(2).
FACTS
On February 6, 2007, the Debtors filed, together with a voluntary petition for
relief under chapter 7 of the Bankruptcy Code, a Form 22A Chapter 7 Statement of
Current Monthly Income and Means Test Calculation (“Means Test Form”). The Means
Test Form reported that the Debtors had a current monthly income (“CMI”) of
$10,509.51, which included $1,010.17 that Linda Munger was receiving in
unemployment compensation. On April 16, 2007, the United States Trustee (“UST”),
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disputing the Debtors’ monthly deduction for taxes, filed the motion to dismiss arguing
that a presumption of abuse exists in this case because the Debtors have a monthly
disposable income of more than $500.00 based on their Means Test Form. On April 23,
2007, the Debtors filed an amended Means Test Form, reporting their CMI as $9,499.34.
This figure excluded the $1,010.17 in unemployment compensation that Linda Munger
was receiving. Instead, the unemployment compensation was entered in the Line 9
section where it was designated “Unemployment compensation claimed to be a benefit
under the Social Security Act.”
POSITION OF THE PARTIES
The UST argues that this case should be dismissed, asserting that the Court must
presume the granting of a chapter 7 discharge to be abusive because the Debtors’ CMI,
less certain deductions, is more than $10,000 over 60 months, which exceeds the limit set
forth in 11 U.S.C. § 707(b)(2)(A)(i). The UST concludes that the Debtors’ monthly
disposable income is more than $10,000 over 60 months based on the CMI calculations
in the original Means Test Form. 1 At the May 24, 2007 hearing, the UST argued that
unemployment compensation should be included in CMI. The Court gave the UST ten
days to file a supplemental memorandum in support of her position but no memorandum
was filed.
The Debtors argue that there is not a presumption of abuse because Linda
Munger’s unemployment compensation constitutes a “benefit received under the Social
Security Act” and should be excluded from their CMI calculation under 11 U.S.C. §
1 The CMI minus certain expenses yields a debtor’s monthly disposable income. The
monthly disposable income of $166.67 or greater, when multiplied by 60, meets the
$10,000 threshold.
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101(10A). Relying on In Re Sorrell, 359 B.R. 167 (Bankr. S.D. Ohio 2007), the Debtors
assert that the amended Means Test Form has the accurate calculation of CMI and shows
the Debtors do not have the requisite CMI needed to create a presumption of abuse. The
parties agreed at the May 24, 2007 hearing that the only legal issue in this matter is
whether Linda Munger’s unemployment compensation should be excluded from the
calculation of CMI for purposes of the means test, so the Court will focus on that issue in
this analysis.
DISCUSSION
The UST moves for dismissal pursuant to 11 U.S.C. § 707(b)(2),2 arguing that the
Court should find that there is a presumption of abuse in this case. Section
707(b)(2)(A)(i), added as part of the 2005 Act,3 sets forth a means test for when a court
shall presume abuse based on a debtor’s CMI less certain deductions. Section
707(b)(2)(A)(i) provides in pertinent part:
. . . the court shall presume abuse exists if the debtor’s current monthly
income reduced by the amounts determined under clauses (ii), (iii), and
(iv), and multiplied by 60 is not less than the lesser of –
2 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No.
109-8, 119 Stat. 23 (the “2005 Act”) governs this issue.
3 As noted by the Sorrell court, the 2005 Act effected a major change to § 707(b).
Instead of a burden-free entrance, containing a presumption in favor of
granting the relief available in a chapter 7 case, except in the circumstance
of substantial abuse, now the debtor faces a burden-filled application
process, containing, depending upon the information provided, and subject
to challenge from an expanded number of entities granted standing to
bring such actions, a presumption against the relief available in a chapter 7
case.
In addition to these significant changes, perhaps the most significant
change is the congressionally determined mathematical formula in §
707(b) used to calculated whether a debtor’s financial circumstances
creates a presumption against granting the relief available in a chapter 7
case. In Re Sorrell, 359 B.R. at 179.
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(I) 	25 percent of the debtor’s nonpriority unsecured claims in the case,
or $6,000, whichever is greater; or
(II) 	$10,000. (emphasis added).
In this case, the $10,000 set out in § 707(b)(2)(A)(i)(II) is the standard against which the
Court must determine abuse.4 The Debtors argue that their monthly disposable income
multiplied by 60 is less than $10,000. In fact, they assert that they have no monthly
disposable income because Linda Munger’s unemployment compensation should not be
included in the calculation of CMI pursuant to 11 U.S.C. § 101(10A).
In pertinent part, § 101(10A)(B) defines “current monthly income” to include:
. . . any amount paid by any entity other than the debtor (or in a joint case
the debtor and the debtor’s spouse), on a regular basis for the household
expenses of the debtor or the debtor’s dependents (and in a joint case the
debtor’s spouse if not otherwise a dependent), but excludes benefits
received under the Social Security Act . . . (emphasis added).
The Debtors point to the phrase excluding “benefits received under the Social Security
Act,” to argue that Linda Munger’s unemployment compensation should not be included
in the calculation of their CMI.
In their Answer and Affirmative Defenses, the Debtors rely on Sorrell, the only
reported decision on point, to argue that Linda Munger’s unemployment compensation
should be excluded from the calculation of CMI on the Means Test Form. In that case,
Judge Waldron stated:
. . . in consideration of the text of various relevant portions of the Social
Security Act, United States Supreme Court language, and a comparison
with other statutory text of the 2005 [Bankruptcy Abuse Prevention and
Consumer Protection] Act, which reference specific provisions of the
Social Security Act, the court holds that unemployment compensation is
4 Although a debtor may rebut a presumption of abuse by showing “special
circumstances,” as set forth § 707(b)(2)(B), the only issue before the Court is whether the
presumption exists.
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one of the ‘benefits under the Social Security Act.’ In Re Sorrell, 359 B.R.
at 182.
The court held that unemployment compensation should be excluded from the calculation
of the CMI based on an analysis of the statutory construction of § 101(10A). First, the
court looked to the plain meaning of the language in the statute, noting that “it is well
established that ‘when the statute’s language is plain, the sole function of the courts – at
least where the disposition required by the text is not absurd – is to enforce it according
to its terms.” Id. at 174 (internal quotation marks and citations omitted). The Sorrell
court, rejecting the UST’s argument that because unemployment compensation is an
“indirect payment” under the Social Security Act because each state administers the
payments to eligible individuals, Congress intended to include such compensation in
CMI, concluded that the “applicable text does not speak of ‘payments’, direct, indirect, or
otherwise, but instead contains the unambiguously broader term ‘benefits.’” Id. at 181.
The word “benefit” does not draw a distinction between unemployment compensation
and other benefits.
The court in Sorrell offered further support for the broad interpretation of the term
“benefit” by showing that lawmakers demonstrated, in other sections of the Bankruptcy
Code, that they will purposefully limit the language of a statute when it is their intent for
it to be narrowly construed. For example, in various sections of the 2005 Act, such as §
362(b)(2)(D) through (G); § 704(c)(1)(A)(i); and § 1302(d)(1)(A)(i), “Congress did not
choose the broad term the ‘Social Security Act,’ which is the language chosen in
connection with CMI; but, rather, selected specific provisions of the Social Security Act.”
Id. at 183. Looking at the phrase in § 101(10A) in the context of the entire 2005 Act, the
court concluded “when Congress wished to limit the applicability of the Social Security
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Act, it did so by reference to particular sections.” Id. The language of the 2005 Act
shows that Congress could have limited the scope of the Social Security benefits to which
it was referring in § 101(10A)(B), but the deliberately broad phrase used in §
101(10A)(B) indicates Congress’s intent to include all Social Security Act benefits in
determining what to be excluded from CMI.
Finally, the Sorrell court looked to the purpose of the Social Security Act to
support the decision that “benefits received under the Social Security Act” is intended to
include unemployment compensation. According to the court, the purpose of the Social
Security Act “was to give prompt if only partial replacement of wages to the
unemployed, to enable workers ‘to tide themselves over, until they get back to their old
work or find other employment, without having to resort to relief.” Id. at 183 (citing
California Dept. of Human Resources Development v. Java, 402 U.S. 121, 131-32, 91
S.Ct. 1347, 1354, 28 L.Ed.2d 666 (1971)). With one of the purposes of the Social
Security Act said to be the replacement of wages to the unemployed, it follows that one
of the “benefits under the Social Security Act” would be the unemployment
compensation that a worker receives as replacement wages.
Although In Re Sorrell was decided in the Southern District of Ohio in early
2007, this issue has been subject of debate among bankruptcy commentators since the
drafting of the Means Test Form in 2005. 5 Commentators disagree whether
5 The 2005 Committee Notes attached to the Means Test Form states, “[u]nemployment
compensation is given special treatment. Because the federal government provides
funding for state unemployment compensation under the Social Security Act, there may
be a dispute about whether unemployment compensation is a ‘benefit received under the
Social Security Act.’ The forms take no position on the merits of this argument, but give
debtors the option of reporting unemployment compensation separately from the CMI
calculation. This separate reporting allows parties in interest to determine the materiality
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unemployment compensation is included in CMI. For example, Judge Wedoff argues
that, to categorize unemployment compensation as a “benefit under the Social Security
Act” would be a “strained interpretation . . . since unemployed individuals receive no
benefits ‘under the Social Security Act,’ but only under the programs adopted by their
states, which may provide benefits beyond those that are federally funded.” Eugene R.
Wedoff, Means Testing in the New § 707(B), 79 Am. Bankr. L.J. 231, 247 (Spring 2005).
Moreover, he contends that interpreting the language in the entirety of § 101(10A)
provides more support for his view.6 He argues that the distinction in § 101(10A)
between “income from all sources” and “taxable income” should be interpreted similarly
to the distinction between “gross income” and “taxable income” in the tax code. Under
the tax code, unemployment compensation is included in gross income.7 According to
Judge Wedoff’s analysis, unemployment compensation would be included in the
calculation of CMI. See also Marianne Culhane & Michaela White, Catching Can-Pay
Debtors – Is the Means Test the Only Way? 13 Am. Bankr. Inst. L. Rev. 665, 674 (Winter
2005) (suggesting that the presumed purpose for exclusion of benefits received under the
Social Security Act was specifically “to protect retirement benefits at the expense of
creditors”).
On the other hand, several bankruptcy commentators support the statutory
interpretation set forth in Sorrell. Collier on Bankruptcy, in its analysis of §101(10A),
of an exclusion of unemployment compensation and to challenge it.” 2005 Committee
Notes, p. 2.
6 Section § 101(10A) states, “The term ‘current monthly income’ (A) means the average
monthly income from all sources that the debtor receives (or in a joint case the debtor and
the debtor’s spouse receive) without regard to whether such income is taxable income . .
.” (emphasis added).
7 “In the case of an individual, gross income includes unemployment compensation.” 26
U.S.C. §85(a).
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states, “[u]nemployment benefits are provided for in Titles III, XII, XIII and XV [of the
Social Security Act] . . . While many of these programs primarily benefit lower income
families not affected by the means test, a debtor may receive benefits from such a
program that would otherwise be counted in current monthly income . . .” suggesting that
unemployment compensation should be excluded from the calculation of CMI under the
Means Test. Collier on Bankruptcy 101-81 (Alan N. Resnick & Henry J. Sommer eds.,
2007).
The National Association of Consumer Bankruptcy Attorneys points to the
Unemployment Trust Fund established by the Social Security Administration to prove
that unemployment compensation should constitute one of the “benefits received under
the Social Security Act.” Because the fund is contributed to by the states and distributed
by the Federal Government to the states, the NACBA considers it to fall under the
exclusion when calculating CMI.8
Another commentator argues that the Supremacy Clause supports excluding
unemployment compensation from CMI. As noted in an American Bankruptcy Institute
article, “regardless of whether a State may contribute to the Unemployment Trust Fund,
Federal law governs, supporting the position that unemployment compensation is
ultimately a benefit received under the Social Security Act.” Allard, David W. et al.,
Means Test – Can it Work?, American Bankruptcy Institute, 13th Annual Central States
Bankruptcy Workshop (2006).
8 “The Secretary of the Treasury is authorized and directed to receive and hold in the
Fund all monies deposited therein by a State agency from a State unemployment fund . .
.” 42 U.S.C. §1104; “The Secretary of the Treasury is authorized and directed to pay out
of the Fund to any state agency such amount as it may duly requisition . . .” 42 U.S.C.
§1104(f).
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The Court finds the Sorrell decision, along with commentators’ support for its
interpretation, persuasive. Examination of the statutory construction of the Bankruptcy
Code provides support that the phrase is intentionally broad. Sections of the Bankruptcy
Code distinguish “unemployment compensation” from “a social security benefit.” See,
e.g., 11 U.S.C. § 522(d)(10)(A) (“The following property may be exempted under
subsection (b)(2) of this section: (10) the debtor’s right to receive – (A) a social security
benefit, unemployment compensation, or a local public assistance benefit . . .”). The way
in which Congress chose to phrase the references in the sections supports the view that “a
benefit received under the Social Security Act” in § 101(10A)(B) was purposefully
intended to be broader than “a social security benefit.” “Unemployment compensation”
is included in this broader definition.
Based on canons of statutory construction and the Sorrell decision, this Court
holds that unemployment compensation does constitute a “benefit received under the
Social Security Act” for purposes of calculating CMI under 11 U.S.C. § 101(10A) and
thus was properly excluded from the calculation of CMI. Thus the filing of chapter 7,
rather than a chapter 13, petition is not an abuse warranting dismissal.
CONCLUSION
For the foregoing reasons, the Motion, to the extent it is a Motion to Dismiss
pursuant to 11 U.S.C. § 707 (b)(2) is DENIED. The Motion, to the extent it is a Motion
to Extend Time is ALLOWED.
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A separate order will issue.
Dated: June 21, 2007
_________________________
Joel B. Rosenthal
United States Bankruptcy Judge
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