Egebjerg v. Anderson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: SCOTT LEE EGEBJERG, 
Debtor.
No. 08-55301
SCOTT LEE EGEBJERG,
Debtor-Appellant,  D.C. No.
CV-07-6850-PA
v.
OPINION
PETER C. ANDERSON, United States
Trustee,
Trustee-Appellee.

Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
March 12, 2009—Orange, California
Filed May 29, 2009
Before: Michael Daly Hawkins, Marsha S. Berzon and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Hawkins
6379
6382 IN RE EGEBJERG
COUNSEL
Michael R. Totaro, Totaro & Shanahan, Pacific Palisades,
California, for the debtor-appellant.
Kelsi Brown Corkran, Civil Division, Department of Justice,
Washington, D.C., for the trustee-appellee.
OPINION
HAWKINS, Circuit Judge:
In this direct appeal from the bankruptcy court, Scott Lee
Egebjerg (“Egebjerg”) challenges the bankruptcy court’s dis-
missal of his Chapter 7 petition for abuse under 11 U.S.C.
§ 707(b)(3). In an issue of first impression in this circuit under
the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 (“BAPCPA”), we consider whether a debtor’s
repayment of a 401(k) loan constitutes a “monthly payment
on account of secured debts” or an “[o]ther [n]ecessary
[e]xpense” that can be deducted from a debtor’s monthly
income for purposes of calculating the debtor’s disposable
monthly income under § 707(b)(2). Because we conclude it is
not, the debtor’s filing in this case was presumptively abusive
IN RE EGEBJERG 6383
under the “means test” of § 707(b)(2). We therefore affirm the
bankruptcy court’s dismissal of his Chapter 7 petition.
FACTS AND PROCEDURAL HISTORY
Egebjerg filed a voluntary Chapter 7 bankruptcy petition on
December 31, 2006. At the time, he had been employed by
Ralph’s grocery store for twenty-seven years and earned a
gross income of $6,115.56 per month. Egebjerg was single
with no assets. His only secured property was an automobile
he used for work and a timeshare. He had unsecured con-
sumer debt of about $31,000.
Approximately two years before he filed for bankruptcy,
Egebjerg had taken a loan from his 401(k) plan. The plan
automatically deducted $733.90 from his paycheck each
month to repay this loan, which was scheduled to be fully
repaid by September 2008. According to Egebjerg’s amended
schedule of necessary expenses (in which he included the
401(k) repayment), he was left with a monthly disposable
income of $15.31.1
The U.S. Trustee moved to dismiss Egebjerg’s Chapter 7
petition, arguing that Egebjerg had improperly included the
401(k) repayment in his necessary expenses. If, the Trustee
urged, this amount were not subtracted from income as a nec-
essary expense, Egebjerg’s filing was presumptively abusive
under the “means test” of § 707(b)(2). The Trustee further
argued that even if the presumption of abuse did not arise
1
Egebjerg’s estimated monthly disposable income on the amended
schedule was $170.31, less a $155 deduction for the difference between
his actual rent and the applicable monthly rent expense specified in the
IRS’s Housing and Utility Standards, which debtors are required to use for
means test purposes. Egebjerg listed this rent differential as a necessary
“Other Expense[ ]” on line 56 of his amended means test form. The gov-
ernment does not challenge this deduction and we express no opinion on
its propriety. Instead, we assume, without deciding, that the deduction was
proper.
6384 IN RE EGEBJERG
under § 707(b)(2), the court should still dismiss the case
because, under the totality of the circumstances, Egebjerg had
sufficient means to repay a meaningful portion of his debts,
especially once his 401(k) loan was repaid.
The bankruptcy court rejected the Trustee’s first argument,
concluding that the 401(k) loan was a “secured debt” and
could be deducted from income for purposes of the means
test. By including this figure, no presumption of abuse arose
under § 707(b)(2).
Still, agreeing with the Trustee on the totality of the cir-
cumstances ground, the bankruptcy court dismissed the Chap-
ter 7 petition under § 707(b)(3), noting that, at the time of the
court’s order in June 2007, the 401(k) loan would be repaid
in just over a year, leaving $525 a month to repay unsecured
creditors. The court concluded that the debtor could therefore
pay a significant amount of his debts in a Chapter 13 proceed-
ing and that, because of his ability to pay, it would be an
abuse to permit the case to continue as a Chapter 7 proceed-
ing. The court ordered the case to be dismissed unless the
debtor converted to a Chapter 13 within ten days, which Ege-
bjerg did not do.
Egebjerg filed a notice of appeal and requested that the
bankruptcy court enter an order certifying the decision for
direct appeal pursuant to 28 U.S.C. § 158(d)(2). The bank-
ruptcy court entered the certification, and a motions panel of
this court granted Egebjerg’s petition for direct appeal and
stayed the district court appeal pending circuit review.
DISCUSSION
I. Statutory Background
Prior to BAPCPA, there was a presumption “in favor of
granting the relief requested by the Debtor.” 11 U.S.C.
§ 707(b) (2004). This presumption could be overcome if the
IN RE EGEBJERG 6385
court found that “granting of relief would be a substantial
abuse” of Chapter 7. Id. (emphasis added). Courts looked to
the “totality of the circumstances” to make this substantial
abuse determination. In re Price, 353 F.3d 1135, 1139-40 (9th
Cir. 2004).
[1] BAPCPA produced a sea change. There is now no pre-
sumption favoring Chapter 7 relief, but an emphasis on repay-
ing creditors as much as possible. H.R. Rep. No. 109-31, pt.
1 at 2 (2005), reprinted in 2005 U.S.C.C.A.N. 88, 89. BAP-
CPA introduced a mathematical formula, commonly referred
to as the “means test,” to determine whether a debtor’s finan-
cial circumstances create a presumption against granting relief
under Chapter 7. 11 U.S.C. § 707(b)(2) (2008). A presump-
tion of abuse may be rebutted if the debtor demonstrates “spe-
cial circumstances” such as “a serious medical condition or a
call or order to active duty in the Armed Forces.”
§ 707(b)(2)(B). Even if a debtor’s financial situation does not
create a presumption of abuse (or if the presumption is rebut-
ted), the bankruptcy court may still dismiss the petition if the
debtor filed the petition in bad faith or if the “totality of the
circumstances” demonstrates “abuse” of Chapter 7.
§ 707(b)(3); Blausey v. U.S. Trustee, 552 F.3d 1124, 1127 n.1
(9th Cir. 2009).
This case potentially implicates both § 707(b)(2) and
§ 707(b)(3). However, because the statute is framed to con-
sider the presumptive abuse question first, and resorts to the
totality of circumstances analysis only if the debtor survives
the means test, we have chosen to address the proper interpre-
tation of § 707(b)(2) first. We review the bankruptcy court’s
legal conclusions de novo. In re Fowler, 394 F.3d 1208, 1212
(9th Cir. 2005).
II. Presumption of Abuse under § 707(b)(2)
A. Secured Debt
[2] In calculating the debtor’s current monthly income,
§ 707(b)(2) permits the debtor to deduct “the average monthly
6386 IN RE EGEBJERG
payments on account of secured debts.” § 707(b)(2)(A)(iii)
(emphasis added). In the Bankruptcy Code, the term “debt”
means “liability on a claim.” § 101(12). “Claim” is defined
very broadly within the Code to mean any “right to payment,”
whether fixed, contingent, matured, disputed, secured, and so
on. § 101(5). The terms “debt” and “claim” are coextensive,
“flip sides to the same coin.” In re Rifkin, 124 B.R. 626, 628
(Bankr. E.D. N.Y. 1991); S. Rep. No. 989, 95th Cong. 2d
Sess., 23 (1978), reprinted in U.S.C.C.A.N. 5787, 5809.
Therefore, Egebjerg’s 401(k) loan constitutes a “debt” only if
the plan administrator has a “claim” for repayment.
[3] We join the vast majority of courts in holding that the
debtor’s obligation to repay a loan from his or her retirement
account is not a “debt” under the Bankruptcy Code. See, e.g.,
In re Villarie, 648 F.2d 810 (2d Cir. 1981) (loan drawn on
employee’s contributions to retirement system not a “debt”
because plan has no right to sue a member for the amount of
the advance, it is simply offset against future benefits); Bolen
v. Adams, 2009 WL 605270, *3 (N.D. Miss. 2009) (vast
majority of courts have held a debtor’s obligation to repay
retirement account loan is not a “debt” under the Code); Eisen
v. Thompson, 370 B.R. 762, 769 (N.D. Ohio 2007) (majority
view is that retirement plans loans are not secured debts); In
re Esquivel, 239 B.R. 146, 152 (Bankr. E.D. Mich. 1999)
(“clear consensus” that borrowing from retirement account
does not give rise to either secured or unsecured “claim”
under the Bankruptcy Code); see also McVay v. Otero, 371
B.R. 190, 195 (W.D. Tex. 2007); In re Fulton, 211 B.R. 247,
264 (Bankr. S.D. Ohio 1997); In re Scott, 142 B.R. 126, 131-
32 (Bankr. E.D. Va. 1992); In re Jones, 138 B.R. 536, 537-38
(Bankr. S.D. Ohio 1991).
The reasoning behind these decisions is straightforward.
Egebjerg’s obligation is essentially a debt to himself — he has
borrowed his own money. In re Smith, 388 B.R. 885, 887
(Bankr. C.D. Ill. 2008); see also McVay, 371 B.R. at 197 (col-
lecting cases). Egebjerg contributed the money to the account
IN RE EGEBJERG 6387
in the first place; should he fail to repay himself, the adminis-
trator has no personal recourse against him. In re Villarie, 648
F.2d at 812. Instead, the plan will deem the outstanding loan
balance to be a distribution of funds, thereby reducing the
amount available to Egebjerg from his account in the future.
[ER 317, § 18.3] See In re Mowris, 384 B.R. 235, 238 (Bankr.
W.D. Mo. 2008); see also Mullen v. United States, 696 F.2d
470, 472 (6th Cir. 1983). This deemed distribution will have
tax consequences to Egebjerg, but it does not create a debtor-
creditor relationship. In re Smith, 388 B.R. at 888(“Nonpayment comes with liability for income taxes and pen-
alties, but nonpayment is a valid, lawful alternative.”).
As succinctly explained by one district court:
Retirement plan loans are qualitatively different than
secured debts such as home mortgages and car loans.
The retirement plan administrator does not loan the
plan participant the administrator’s money. It simply
deducts the requested loan amount from the partici-
pant’s own account, and credits the loan payments
and interest back to the participant’s account. If the
participant defaults on the loan, the plan administra-
tor deducts the amount owed from the vested
account balance, and repays the loan with this
deduction. The participant must treat this deduction
as a distribution which is taxable as income to the
participant in the default year. The participant may
also be subject to an early withdrawal penalty. But,
the plan administrator has no right to payment under
the Bankruptcy Code.
Thompson, 370 B.R. at 768 n.10.
[4] Because the debtor’s loan repayment obligation is not
a “claim” or “debt” under the Bankruptcy Code, the debtor
may not include payments on such loans as deduction for pur-
poses of the means test under § 707(b)(2). See, e.g., In re
6388 IN RE EGEBJERG
Smith, 388 B.R. at 888; In re Mowris, 384 B.R. at 237-38;
McVay, 371 B.R. at 203; Thompson, 370 B.R. at 768-72. This
conclusion under BAPCPA is not only supported by the defi-
nitions of “claim” and “debt” within the Code, but also by two
basic cannons of statutory construction.
First, we presume that when Congress legislates, it is aware
of past judicial interpretations and practices. See Dewsnup v.
Timm, 502 U.S. 410, 419 (1992). (“When Congress amends
the Bankruptcy laws, it does not write on a clean slate.”)
(internal quotation marks omitted). “Because overwhelming
case law preceding [BAPCPA] held that 401(k) loans were
not ‘debts’ under the Code, and because Congress has not
expressly said otherwise, the Court must presume that ‘debt’
retains its pre-2005 Act meaning.” Thompson, 370 B.R. at
771; see also In re Mowris, 384 B.R. at 238 (“The over-
whelming majority of pre-BAPCPA opinions held that a debt-
or’s obligation to make payments on a loan taken from a
qualified retirement account was not a claim or debt under the
Code, and the court must assume that Congress was aware of
this judicial interpretation when it enacted BAPCPA.”).
Second, we also presume that if Congress includes particu-
lar language in one section of a statute but omits it in another,
Congress acted intentionally in that exclusion. KP Permanent
Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111,
118 (2004). Here, in BAPCPA, Congress expressly gave
Chapter 13 debtors the ability to deduct 401(k) payments
from their disposable income calculation, § 1322(f), but did
not include any similar exemption for Chapter 7 debtors. Con-
gress also added a section which provides that the automatic
stay does not apply to automatic deductions to repay a retire-
ment plan loan, but expressly stated that the provision shall
not be construed to provide that such a loan constitutes a
“claim” or “debt.” § 362(b)(19). “In light of the amendments
sprinkled throughout the Code [addressing 401(k) loans] —
especially section 1322(f) — the lack of a 401(k) provision in
section 707 is a glaring indication that Congress did not
IN RE EGEBJERG 6389
intend 401(k) loan repayments to be deducted in Chapter 7.”
In re Turner, 376 B.R. 370, 376 (Bankr. D. N.H. 2007).
Although Egebjerg contends that this construction creates
anomalous results, “[t]he explanation for the lack of such a
provision in section 707 is that Congress intended to steer
many would-be Chapter 7 debtors toward Chapter 13.” Id. As
one court explained:
First, 401(k) loan repayments are finite; a loan will
eventually be paid off. Second, a Chapter 13 case is
prospective, i.e., it encompasses a debtor’s current
and future financial circumstances for a period of
three to five years. . . . Excluding 401(k) loans from
the means test evidences a “wait and see” approach
that would channel debtors with such expenses into
the longer period of bankruptcy supervision of Chap-
ter 13 rather than the relatively short tenure of a
Chapter 7 case, notwithstanding that doing so might
result in a zero payment plan. However, because, as
here, 401(k) loans might be paid off within the com-
mitment period of a Chapter 13 case, the ability to
increase the monthly plan payment would direct
newly available funds to creditors. Such an approach
serves both the Congressional intent to protect retire-
ment contributions and “ensure that debtors repay
creditors the maximum they can afford,” a primary
goal of BAPCPA.
In re Lenton, 358 B.R. 651, 660 (Bankr. E.D. Penn. 2006).
B. Other Necessary Expense
In addition to maintaining that his 401(k) loan to himself
is a “secured debt,” Egebjerg also contends that his loan
repayments are an “other necessary expense” for the purposes
of applying the means test. We reject that argument as well.
6390 IN RE EGEBJERG
[5] Under the statutory provisions governing the means
test, debtors may deduct, in addition to payments on secured
debt, their “actual monthly expenses for the categories speci-
fied as Other Necessary Expenses issued by the Internal Rev-
enue Service.” 11 U.S.C. § 707(b)(2)(a)(ii). The IRS defines
a “necessary expense” as one that “provide[s] for the health
and welfare of the [debtor] and/or his or her family or [pro-
vides] for the production of income.” Internal Revenue Ser-
vice Manual (“IRM”) § 5.15.1.10. Although the determination
whether an expense qualifies as a “necessary expense” is
made on a case-by-case basis, the IRS supplies extensive
guidance on whether and under what conditions certain types
of expenses are “necessary expenses.” See id. For example,
under the IRS guidelines, “[e]ducation” costs are necessary
expenses only if they are “required for a physically or men-
tally challenged child and no public education providing simi-
lar service is available,” or if they are “required as a condition
of [the debtor’s] employment.” Id.
Egebjerg contends that his monthly 401(k) loan repayments
are a “necessary expense” and are therefore deductible for
means test purposes. According to Egebjerg, the replenish-
ment of his 401(k) plan is necessary to his long-term “health
and welfare,” because he is approaching retirement and his
401(k) plan is his only significant asset.2
[6] The IRS’s guidelines foreclose Egebjerg’s contention.
The guidelines, which Congress expressly incorporated into
§ 707(b)(2)(A)(ii), state specifically that “[c]ontributions to
voluntary retirement plans are not a necessary expense.” IRM
§ 5.15.1.23; see also In re Lenton, 358 B.R. at 658. Egebjerg
acknowledges that his initial contributions to his 401(k) plan
were voluntary, as was his decision to borrow those funds. As
the court explained in In re Lenton, “[i]f future voluntary con-
2
Egebjerg does not actually provide his age. He states only that “[s]ince
he has been employed with Kroger for 27 years he is not someone who
is many years from retirement.”
IN RE EGEBJERG 6391
tributions to the 401k plan are not necessary expenses, it is
hard to argue that the replenishment of past voluntary contri-
butions to the 401k account by repaying loans is a necessary
expense.” 385 B.R. at 658. Moreover, the loan repayments
themselves are voluntary in the sense that Egebjerg can sim-
ply ask the loan administrator to treat his outstanding loan
balance as an early withdrawal from his 401(k) and thereby
relieve himself of a future repayment obligation. Doing so
would have tax consequences, but Egebjerg would retain the
use of most of the money loaned.
[7] In short, Egebjerg’s monthly 401(k) repayments are the
functional equivalent of voluntary contributions to a retire-
ment plan. Per the IRS’s guidelines, such contributions are
not deductible “[o]ther [n]ecessary [e]xpenses” under
§ 707(b)(2)(A)(ii). See also In re Lenton, 358 B.R. at 660-61.
[8] Arguing to the contrary, Egebjerg cites Hebbring v.
United States Trustee, 463 F.3d 902 (9th Cir. 2006), In re
Hill, 328 B.R. 490 (Bankr. S.D. Tex. 2005), and In re Vans-
ickel, 309 B.R. 189 (Bankr. E.D. Va. 2004) for the proposi-
tion that voluntary 401(k) contributions are not per se
unnecessary expenses for the purposes of calculating a debt-
or’s disposable income under § 707(b)(2). What Egebjerg
fails to note is that each of these cases either pre-dates the
BAPCPA (and therefore pre-dates the means test) or applies
pre-BAPCPA law. See, e.g., Hebbring, 463 F.3d at 904 n.1.
This point is critical because the pre-BAPCPA § 707(b)(2)
“totality of circumstances” test for abuse, which is now part
of § 707(b)(3), is distinct from the current § 707(b)(2) means
test. When it introduced the means test, Congress provided,
by reference to the IRS guidelines, specific guidance as to
what qualifies as a necessary expense for the purposes of
applying that test. For purposes of the new means test, volun-
tary retirement contributions are per se not a necessary
expense and will remain so unless the IRS changes its guide-
lines.3 Our holding in Hebbring, which concerns only the for-
mer “totality of circumstances” test, is simply not applicable.
3
Egebjerg also argues that our failure to recognize his 401(k) repay-
ments as a “necessary expense” would create a conflict with the Bank-
6392 IN RE EGEBJERG
[9] For all the foregoing reasons, the bankruptcy court erred
by allowing Egebjerg to deduct his 401(k) repayment from
disposable income for purposes of the means test. If the
amount of his loan repayment is included in Egebjerg’s
income, then a presumption of abuse arises under § 707(b)(2).
III. Special Circumstances
[10] The bankruptcy court also held, in the alternative, that
even if the amount of Egebjerg’s loan repayment obligation
should not be included as a secured debt or necessary
expense, it could be properly included as a “special circum-
stance” which could rebut the presumption of abuse, citing In
re Thompson, 350 B.R. 770 (Bankr. N.D. Ohio 2006). How-
ever, Thompson was reversed by the district court on this very
point on appeal, Thompson, 370 B.R. at 772-73, and the
majority of courts agree that the mere obligation to repay a
401(k) loan is not itself a special circumstance. See, e.g.,
Smith, 388 B.R. at 888, In re Mowris, 384 B.R. at 240, In re
Turner, 376 B.R. at 378.
Section 707(b)(2)(B) provides:
In any proceeding brought under this subsection, the
presumption of abuse may only be rebutted by dem-
onstrating special circumstances, such as a serious
medical condition or a call or order to active duty in
the Armed Forces, to the extent such special circum-
stances . . . justify additional expenses or adjust-
ments of current monthly income for which there is
no reasonable alternative.
Thus, Congress did not provide an exhaustive list of “special
circumstances,” but did indicate examples of situations it
ruptcy Code’s automatic stay provisions. We reject this argument for the
reasons already stated in Part II.A.
IN RE EGEBJERG 6393
would consider sufficient to rebut the presumption of abuse.
As one court has noted, both examples given by Congress
share “a commonality; they both constitute situations which
not only put a strain on a debtor’s household budget, but they
arise from circumstances normally beyond the debtor’s con-
trol.” In re Castle, 362 B.R. 846, 851 (Bankr. N.D. Ohio
2006).
[11] We need not explore the outside parameters of the spe-
cial circumstance provision, however, for we agree that “re-
tirement plan loans are neither extraordinary nor rare; many
individuals take loans for many different reasons, and they are
all required to repay the loans. Without more, a situation as
common as the withdrawal of one’s retirement funds cannot
be a ‘special circumstance’ within the accepted definition of
this term.” Thompson, 370 B.R. at 773.
While there may be situations in which the debtor’s under-
lying reason for taking out a 401(k) loan may constitute a spe-
cial circumstance, see In re Tauter, 402 B.R. 903, 906-7
(Bankr. M.D. Fla. 2009), Egebjerg’s only explanation was
that he was using the money to “pay off bills” in the hope of
avoiding bankruptcy in the first instance. Although a com-
mendable goal, “the fact that he borrowed from those retire-
ment funds and now wishes to pay the loans back is not a life
altering circumstance of the kind referenced in the statute. It
is simply the consequence of a prior financial decision.”
Smith, 388 B.R. at 888.
It appears that borrowing from a 401(k) is not an uncom-
mon approach for many debtors, usually stemming from their
“longstanding general inability to keep up with their obliga-
tions to creditors.” Thompson, 370 B.R. at 773; see also In re
Mowris, 384 B.R. at 240; In re Turner, 376 B.R. at 378.
Indeed, if the original unsecured consumer obligation could
not be considered a special circumstance, it would seem prob-
lematic to find “special circumstances” for the 401(k) loan
that merely replaced those debts. See In re Jackson, 2008 WL
6394 IN RE EGEBJERG
5539790 at *3 n.20 (Bankr. D. Kan. 2008); cf. Turner, 376
B.R. at 378-79 (401(k) repayment may be special circum-
stance if taken out for a “special” reason other than general
financial problems preceding almost every bankruptcy).
[12] Thus, on this record, while we agree with the bank-
ruptcy court’s bottom line conclusion, it erred by concluding
Egebjerg had demonstrated special circumstances under
§ 707(b)(2)(B). Because Egebjerg thus did not rebut the pre-
sumption of abuse under § 707(b)(2)(A), the bankruptcy court
properly dismissed Egebjerg’s Chapter 7 petition.
AFFIRMED.