In re: Scholz

Summarized by:

  • Court: 9th Circuit Court of Appeals Archives
  • Area(s) of Law: Bankruptcy Law
  • Date Filed: 11-15-2012
  • Case #: 11-60023
  • Judge(s)/Court Below: Circuit Judge Watford for the Court; Circuit Judge Callahan and Senior District Judge Singleton
  • Full Text Opinion

The use of “anticipated” in the Railroad Retirement Act of 1974 has a trust law meaning, and annuities under such act are included in calculating projected disposable income for purposes of Chapter 13 bankruptcy plans.

The Scholzes filed for Chapter 13 bankruptcy protection. Mr. Scholz receives an annuity under the Railroad Retirement Act of 1974 (RRA), which states that payment of such annuities shall not be “anticipated.” In the bankruptcy court, the Scholzes excluded Mr. Scholze’s annuity in the calculation of their current monthly income, and the Trustee appealed to the Bankruptcy Appellate Panel (BAP). The BAP ruled that the annuity should be included in calculating monthly income, but that including it in projected disposable income would “anticipate” its payment, in contravention of the RRA. Based on, Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), the Court determined that “anticipate” in the RRA had a trust law meaning that “the interest of a sole beneficiary shall not be paid to him before a certain date.” The Court reasoned that including the RRA annuity in projected disposable income did not allow the debtor to “anticipate” payments before Congress determined they were due under the RRA, but rather “allows the bankruptcy court to calculate the amount of future income a debtor will in fact have available . . . to repay creditors.” Therefore, such annuity payments are included in calculating projected disposable income. REVERSED AND REMANDED.

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