I have previously written that Social Security income, whether retirement, survivor benefits, SSI, or Social Security disability are not included in debtor’s income for the purposes of means testing. While not included in the means test figures, do the debtors have to include such payments in their Chapter 13 Bankruptcy plan and use that income toward making their plan payments?
According to a decision from the Bankruptcy Court for the Northern District of New York, a Chapter 13 Plan can be confirmed despite not including Social Security retirement income. In In Re Burnett, together with its companion case, In re Uzailkos, the proposed payment plans did not include social security income on Schedule I. As filed, the Burnett plan projected paying unsecured creditors 10% of their claims, Uzailko’s plan proposed to pay creditors 37%.
Because social security income was not included, the Burnett’s Schedule I income exceeded Schedule J expenses by $493,67. If social security was included, the income available for repayment would increase by $878 to $1,371.67. For Uzailko, the available payment amount would increase from $400.25 to $1,496.25.
The Chapter 13 Trustee filed objections to both plans arguing that the cases were not filed in “good faith” because social security income was not included in calculating the minimum plan payment. A “good faith” objection is the general objection to confirmation of a Chapter 13 Plan. Under the Bankruptcy Code Section 1325(a)(3), a plan which fails to pay this disposable income minimum can be denied confirmation on the grounds the debtor’s plan was not filed in good faith.
Social security income is different from other forms of income under BAPCPA. Under BAPCPA, Section 101(10A) was modified to exclude Social Security benefits from the Chapter 7 Bankruptcy means test and the Chapter 13 Bankruptcy disposable income test.
After reviewing different lines of cases addressing these issues, the court accepted the reasoning in a series of cases that held that the treatment of social security income in BAPCPA’s disposable income test precluded requiring a chapter 13 debtor to apply social security income in a plan. Accordingly, as there were no other ‘bad faith’ factors in Burnett and Uzalko cases, the judge confirmed the plans over the trustee’s objections.
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