Hebbring v. U.S. Trustee ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LISA R. HEBBRING,  No. 04-16539
Appellant,
v.  D.C. No.
CV-03-00612-HDM
U.S. TRUSTEE,
OPINION
Appellee.

Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted May 19, 2006*
San Francisco, California
Filed September 11, 2006
Before: Pamela Ann Rymer and Kim McLane Wardlaw,
Circuit Judges, and James Ware,** District Judge.
Opinion by Judge Wardlaw
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable James Ware, United States District Judge for the
Northern District of California, sitting by designation.
11055
11058 HEBBRING v. U.S. TRUSTEE
COUNSEL
Christopher P. Burke, Reno, Nevada, for the debtor-appellant.
Nicholas Strozza, William B. Cossitt, Office of the U.S.
Trustee, U.S. Department of Justice, Reno, Nevada; Donald F.
Walton, P. Matthew Suko, Mark A. Redmiles, Executive
Office for U.S. Trustees, U.S. Department of Justice, Wash-
ington, D.C., for the trustee-appellee.
OPINION
WARDLAW, Circuit Judge:
We must decide whether a debtor seeking protection under
Chapter 7 of the Bankruptcy Code may ever include voluntary
contributions to a retirement plan as a reasonably necessary
expense in calculating his disposable income. We hold that
the Bankruptcy Code does not disallow such contributions per
se, but rather requires courts to examine the totality of the
debtor’s circumstances on a case-by-case basis to determine
whether retirement contributions are a reasonably necessary
expense for that debtor. In this case the bankruptcy court did
not clearly err in finding that Lisa Hebbring’s voluntary
retirement contributions are not a reasonably necessary
expense based on her age and financial circumstances, and
thus that she has sufficient disposable income to repay her
creditors. We therefore affirm the district court’s decision
affirming the bankruptcy court’s dismissal of Hebbring’s peti-
tion on the ground that allowing her to proceed under Chapter
7 would be a substantial abuse of the Code.1
1
This case arose prior to the enactment and effective date of the Bank-
ruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAP-
HEBBRING v. U.S. TRUSTEE 11059
I
Lisa Hebbring filed a Chapter 7 bankruptcy petition in the
United States Bankruptcy Court for the District of Nevada on
June 5, 2003, seeking relief from $11,124 in consumer credit
card debt. Her petition and accompanying schedules show
that Hebbring owns a single-family home in Reno, Nevada
valued at $160,000, on which she owes $154,103; a 2001
Volkswagen Beetle valued at $14,000, on which she owes
$18,839; and miscellaneous personal property valued at
$1,775. Hebbring earns approximately $49,000 per year as a
customer service representative for SBC Nevada. Her petition
reports monthly net income of $2,813 and monthly expendi-
tures of $2,897, for a monthly deficit of $84. In calculating
her income, Hebbring excluded a $232 monthly pre-tax
deduction for a 401(k) plan and an $81 monthly after-tax
deduction for a retirement savings bond. When she filed for
bankruptcy Hebbring was thirty-three years old and had accu-
mulated $6,289 in retirement savings.
The United States Trustee (“Trustee”) moved to dismiss
Hebbring’s petition for substantial abuse, see 11 U.S.C.
§ 707(b), arguing that she should not be allowed to deduct
voluntary retirement contributions from her income and that
her recent paystubs showed that her gross income was higher
than she had claimed. As a result, the Trustee contended,
Hebbring’s monthly net income was actually $3,512, leaving
her $615 per month in disposable income, sufficient to repay
100% of her unsecured debt over three years.
Opposing the Trustee’s motion, Hebbring argued that her
recent paystubs were not representative of her monthly
CPA), Pub. L. No. 109-8, 119 Stat. 23, and BAPCPA’s amendments to the
Bankruptcy Code are not relevant to the issues before us. Accordingly, all
references herein are to the pre-BAPCPA Code in effect when Hebbring’s
petition was filed. 11 U.S.C. §§ 101-1330 (2000).
11060 HEBBRING v. U.S. TRUSTEE
income because they included overtime and premium wages
received during a one-time sales promotion. She further stated
that her petition mistakenly omitted veterinary expenses and
homeowner’s association and insurance fees, and under-
reported her monthly food expense by $200 to $250. She
included receipts to corroborate these claims, but she never
amended her expense schedule.
The bankruptcy court granted the Trustee’s motion to dis-
miss, stating in relevant part:
[Hebbring’s retirement contributions] wouldn’t be
meaningful if she owed fifty thousand dollars. But
she doesn’t owe that much. . . . She only owes a
small amount of money. . . . She’s not an older per-
son. She’s a young person. . . . I have consistently
held that putting away money in 401[k]’s is inconsis-
tent with what you’re trying to do . . . . You can’t be
looking after yourself and saving money at the
expense of your creditors . . . . [S]he has disposable
income that she’s otherwise trying to save through
different plans; [a]nd she is also using part of her
money to support her animals; [a]ll of which, I think
she can pay something on account of her creditors
. . . . I think it would be an abuse of Chapter 7 for
her to be able to discharge all these debts and not
pay something to these creditors . . . . [a]nd so I am
going to grant the motion to dismiss unless within
thirty days she files a Chapter 13 and agrees to pay
. . . a meaningful amount to the creditors.
Hebbring appealed the dismissal to the Ninth Circuit Bank-
ruptcy Appellate Panel. The Trustee transferred the appeal to
the United States District Court for the District of Nevada,
which affirmed the bankruptcy court. Hebbring filed this
appeal challenging, inter alia, the bankruptcy court’s finding
that her contributions to her 401(k) plan and savings bond are
not a reasonably necessary expense.
HEBBRING v. U.S. TRUSTEE 11061
II
We have jurisdiction pursuant to 28 U.S.C. § 158(d). On
appeal from a district court’s affirmance of a bankruptcy court
decision, we independently review the bankruptcy court’s
decision, without giving deference to the district court. In re
Cossu, 410 F.3d 591, 595 (9th Cir. 2005). We review a bank-
ruptcy court order dismissing a Chapter 7 case for abuse of
discretion; legal conclusions are reviewed de novo, and fac-
tual findings are reviewed for clear error. In re Price, 353
F.3d 1135, 1138 (9th Cir. 2004). We review for clear error a
bankruptcy court’s fact-intensive determination that an
expense or property interest is not reasonably necessary for a
debtor’s support. See In re Bernard, 40 F.3d 1028, 1033 (9th
Cir. 1994).
III
The purpose and structure of the Bankruptcy Code, as well
as our precedent, compel the conclusion that voluntary contri-
butions to a retirement plan may be a reasonably necessary
expense for some debtors. Courts must therefore conduct a
fact-specific inquiry to determine whether a debtor who saves
for retirement at the expense of his creditors may nevertheless
proceed under Chapter 7. The bankruptcy court erred in sug-
gesting that voluntary retirement contributions are per se not
reasonably necessary. However, the bankruptcy court’s alter-
native finding that Hebbring’s retirement contributions are not
reasonably necessary based on her age and financial circum-
stances, and that she is therefore capable of paying her unse-
cured debts, is not clearly erroneous; nor did it abuse its
discretion in dismissing her Chapter 7 petition. We therefore
affirm.
A
[1] At the time Hebbring filed her petition, 11 U.S.C.
§ 707(b) provided that a court “may dismiss a case filed by an
11062 HEBBRING v. U.S. TRUSTEE
individual debtor under this chapter whose debts are primarily
consumer debts . . . if it finds that the granting of relief would
be a substantial abuse of the provisions of this chapter.” In
determining whether a petition constitutes a substantial abuse
of Chapter 7, we examine the totality of the circumstances,
focusing principally on whether the debtor will have sufficient
future disposable income to fund a Chapter 13 plan that would
pay a substantial portion of his unsecured debt. Price, 353
F.3d at 1139-40; see also In re Kelly, 841 F.2d 908, 914 (9th
Cir. 1988) (“[A] debtor’s ability to pay his debts will, stand-
ing alone, justify a section 707(b) dismissal.”). To calculate
a debtor’s disposable income, we begin with current monthly
income and subtract amounts “reasonably necessary to be
expended . . . for the maintenance or support of the debtor or
a dependent of the debtor.” 11 U.S.C. § 1325(b)(2).
[2] Neither the Bankruptcy Code nor the Code’s legislative
history defines “reasonably necessary.” Some courts, includ-
ing the Third and Sixth Circuits, have employed a per se rule
that voluntary contributions to retirement plans are never a
reasonably necessary expense. See, e.g., In re Anes, 195 F.3d
177, 180-81 (3d Cir. 1999); In re Harshbarger, 66 F.3d 775,
777 (6th Cir. 1995); In re Mendoza, 274 B.R. 522, 524-25
(Bankr. D. Ariz. 2002); In re Cavanaugh, 175 B.R. 369, 373
(Bankr. D. Idaho 1994). These courts typically emphasize that
allowing debtors to exclude retirement contributions from dis-
posable income at the expense of unsecured creditors is
unfair. See, e.g., In re Merrill, 255 B.R. 320, 324 (Bankr. D.
Or. 2000). In contrast, other courts, including the Second Cir-
cuit, have adopted a case-by-case approach, under which con-
tributions to a retirement plan may be found reasonably
necessary depending on the debtor’s circumstances. See, e.g.,
In re Taylor, 243 F.3d 124, 129-30 (2d Cir. 2001); In re Bell,
264 B.R. 512, 516-17 (Bankr. S.D. Ill. 2001); In re Mills, 246
B.R. 395, 401-02 (Bankr. S.D. Cal. 2000), as amended.
[3] We believe this latter approach better comports with
Congress’s intent, as expressed in the language, purpose, and
HEBBRING v. U.S. TRUSTEE 11063
structure of the Bankruptcy Code. By not defining the phrase
“reasonably necessary” or providing any examples of
expenses that categorically are or are not reasonably neces-
sary, see 11 U.S.C. § 1325(b)(2), the Code suggests courts
should examine each debtor’s specific circumstances to deter-
mine whether a claimed expense is reasonably necessary for
that debtor’s maintenance or support. See In re Davis, 241
B.R. 704, 709 (Bankr. D. Mont. 1999). We find no evidence
that Congress intended courts to employ a per se rule against
retirement contributions, which may be crucial for debtors’
support upon retirement, particularly for older debtors who
have little or no savings. See, e.g., In re King, 308 B.R. 522,
532 (Bankr. D. Kan. 2004); Mills, 246 B.R. at 402. Where
Congress intended courts to use a per se rule rather than a
case-by-case approach in classifying financial interests or
obligations under the Bankruptcy Code, it has explicitly com-
municated its intent. See, e.g., 11 U.S.C. § 522(d) (exempting
from property of the estate several specific types of property,
including interests in personal jewelry, a debtor’s tools of
trade, and the right to receive payments from a pension plan).
Congress’s decision not to categorically exclude any specific
expense, including retirement contributions, from being con-
sidered reasonably necessary is probative of its intent. See,
e.g., ARC Ecology v. U.S. Dept. of Air Force, 411 F.3d 1092,
1099-100 (9th Cir. 2005) (“[O]missions are the equivalent of
exclusions when a statute affirmatively designates certain per-
sons, things, or manners of operation.”); BV Eng’g v. Univ. of
Calif., Los Angeles, 858 F.2d 1394, 1398 (9th Cir. 1988) (“It
is well settled that in interpreting a statute we must consider
each provision in the context of the statute as a whole.”).
Requiring a fact-specific analysis to determine whether an
expense is reasonably necessary is sound policy because it
comports with the Code’s approach to identifying substantial
abuse of the Chapter 7 relief provisions. We have consistently
held that § 707(b) does not include a “bright line test” for sub-
stantial abuse, but rather “commit[s] the question of what con-
stitutes substantial abuse to the discretion of bankruptcy
11064 HEBBRING v. U.S. TRUSTEE
judges within the context of the Code.” Price, 353 F.3d at
1140; see also Kelly, 841 F.2d at 916. “Congress chose nei-
ther to define ‘substantial abuse’ in the 1984 Act nor to leave
specific guidance in legislative history. Congress thus left a
flexible standard enabling courts to address each petition on
its own merit.” In re Lamanna, 153 F.3d 1, 3 (1st Cir. 1998)
(footnote omitted). That Congress granted courts the discre-
tion to identify substantial abuse necessarily suggests it
intended courts to have the discretion to answer the subsidiary
question of whether particular expenses are reasonably neces-
sary.
[4] In light of these considerations, and in the absence of
any indication that Congress sought to prohibit debtors from
voluntarily contributing to retirement plans per se, we con-
clude that bankruptcy courts have discretion to determine
whether retirement contributions are a reasonably necessary
expense for a particular debtor based on the facts of each indi-
vidual case. See Taylor, 243 F.3d at 129. In making this fact-
intensive determination, courts should consider a number of
factors, including but not limited to: the debtor’s age, income,
overall budget, expected date of retirement, existing retire-
ment savings, and amount of contributions; the likelihood that
stopping contributions will jeopardize the debtor’s fresh start
by forcing the debtor to make up lost contributions after
emerging from bankruptcy; and the needs of the debtor’s
dependents. See id. at 129-30. Courts must allow debtors to
seek bankruptcy protection while voluntarily saving for retire-
ment if such savings appear reasonably necessary for the
maintenance or support of the debtor or the debtor’s depen-
dents. See 11 U.S.C. § 1325(b)(2).
We are not dissuaded by cases endorsing a per se rule. See,
e.g., Anes, 195 F.3d at 180-81; Harshbarger, 66 F.3d at 777.
The Bankruptcy Code and congressional intent control how
courts should identify reasonably necessary expenses. A per
se rule is inappropriate in the face of Congress’s delegation of
HEBBRING v. U.S. TRUSTEE 11065
discretion to bankruptcy courts to evaluate expenses on a
case-by-case basis.
Nor do we believe that “the case by case approach . . . is
potentially difficult to apply and may lead to disparate results
even before the same judge.” Mendoza, 274 B.R. at 524. The
case-by-case approach we adopt should be no more difficult
to apply to retirement contributions than to other forward-
looking expenses that bankruptcy courts must evaluate for
reasonableness, such as life insurance premiums, see, e.g., In
re Smith, 207 B.R. 888, 890 (B.A.P. 9th Cir. 1996); private
school tuition for debtors’ children, see, e.g., In re Watson,
403 F.3d 1, 7-8 (1st Cir. 2005); In re Nicola, 244 B.R. 795,
796-97 (Bankr. N.D. Ill. 2000); or home maintenance costs,
see, e.g., In re Voelkel, 322 B.R. 138, 142 (B.A.P. 9th Cir.
2005).
B
[5] Here, the bankruptcy court suggested that it employed
a per se rule against retirement contributions, but also found,
in the alternative, that Hebbring’s retirement contributions are
not a reasonably necessary expense based on her age and spe-
cific financial circumstances. This finding is not clearly erro-
neous. When she filed her bankruptcy petition, Hebbring was
only thirty-three years old and was contributing approxi-
mately 8% of her gross income toward her retirement.
Although Hebbring had accumulated only $6,289 in retire-
ment savings, she was earning $49,000 per year and making
mortgage payments on a house. In light of these circum-
stances, the bankruptcy court’s conclusion that Hebbring’s
retirement contributions are not a reasonably necessary
expense is not clearly erroneous. Compare, e.g., In re
Osborne, No. 02-24999, 2003 WL 1960375, at *1, *4 (Bankr.
D. Colo. 2003) (holding that 401(k) contributions of less than
2% of debtors’ $71,280 annual gross income were not a rea-
sonably necessary expense for a married couple in their early
thirties), with Mills, 246 B.R. at 399, 402 (holding that 401(k)
11066 HEBBRING v. U.S. TRUSTEE
contributions of 10% of debtor’s $36,228 annual gross
income were a reasonably necessary expense for a fifty-six-
year-old debtor with total retirement savings of $9,000).
IV
Hebbring also challenges the bankruptcy court’s ruling on
three bases that require little discussion. She contends that the
bankruptcy court should have held an evidentiary hearing;
that it erred in finding, based on schedules she submitted, that
she had the ability to fund a Chapter 13 plan; and that it erred
in concluding that the Trustee met his burden of demonstrat-
ing substantial abuse by a preponderance of the evidence.
A
[6] The bankruptcy court was not required to hold an evi-
dentiary hearing because there were no disputed issues of
material fact. See Bankr. R. 9014(d). Although in her opposi-
tion to the Trustee’s motion to dismiss Hebbring argued that
her expenses were higher than she had stated in her expense
schedule, she never filed an amended schedule. Cf. In re
Michael, 163 F.3d 526, 529 (9th Cir. 1998) (“No court
approval is required for an amendment, which is liberally
allowed.”). Nor does In re Harris aid Hebbring. 279 B.R. 254(B.A.P. 9th Cir. 2002). In Harris, unlike here, the bankruptcy
court concluded that the debtors’ expenses were unreasonable
and dismissed their Chapter 7 petition for substantial abuse
without making any factual findings or taking any evidence
regarding the reasonableness of the disputed expenses. Id. at
258, 260.
B
[7] The bankruptcy court did not err in concluding that
Hebbring has the ability to fund a Chapter 13 plan. The court
calculated Hebbring’s income and expenses from the very
schedules Hebbring submitted to support her petition for relief
HEBBRING v. U.S. TRUSTEE 11067
from her debts. These uncontested schedules demonstrate
that, including her voluntary retirement plan contributions,
Hebbring has $172 per month in disposable income, sufficient
to repay 56% of her unsecured debt over three years or 93%
over five years (not including interest on the debt). Even sub-
tracting attorneys’ and trustee fees for a Chapter 13 plan from
Hebbring’s disposable income, she can still pay 27% over
three years or 65% over five years (not including interest on
the debt). The bankruptcy court thus did not err in finding that
Hebbring is able to fund “a substantial portion of the unse-
cured claims” in a Chapter 13 plan. In re Price, 353 F.3d at
1139; see also In re Behlke, 358 F.3d 429, 437 (6th Cir. 2004)
(debtors seeking Chapter 7 relief who could pay 14% of unse-
cured debt over three years had the ability to fund a Chapter
13 plan).
C
[8] We find no merit in Hebbring’s muddled argument that
the Trustee failed to meet its burden of proving substantial
abuse. The Trustee relied on Hebbring’s own schedules in
arguing that Hebbring has the ability to fund a Chapter 13
plan. To the extent Hebbring contends that the bankruptcy
court made inadequate factual findings, she ignores the
record. Based on Hebbring’s schedules, the district court
found that her retirement contributions are not a reasonably
necessary expense and that she has sufficient disposable
income to fund a Chapter 13 plan. As noted above, these find-
ings are not clearly erroneous, and the bankruptcy court there-
fore did not abuse its discretion in dismissing her petition for
substantial abuse. See Price, 353 F.3d at 1140. In re Hotel
Hollywood, on which Hebbring relies, is inapposite because
there “the bankruptcy court did not make findings of fact” and
the appellate court was therefore “unable to ascertain the legal
grounds on which the [bankruptcy] court reached its deci-
sion.” 95 B.R. 130, 132, 134 (B.A.P. 9th Cir. 1988).
11068 HEBBRING v. U.S. TRUSTEE
V
For the foregoing reasons, the district court’s order affirm-
ing the bankruptcy court’s order dismissing this case is
AFFIRMED.