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Postpetition settlement of workers' compensation benefit is covered by § 522(d)(10)(C)'s "right to receive" a disability benefit, rejecting the trustee's attempt to distinguish the postpetition settlement from a prepetition right to receive. The exemption is determined as of filing date and debtor had suffered injury prepetition. In re Nielsen, ___ B.R. ___, 2009 WL 82474 (Bankr. M.D. Pa. Jan. 9, 2009).
Disability insurance benefit included in CMI. Granting direct appeal of dismissal of a Chapter 7 case for abuse, the Ninth Circuit holds that the definition of current monthly income in § 101(10A), including the phrase "without regard to whether such income is taxable income," and the statutory exclusion of certain types of payments, indicates that Congress intended to broadly include income such as disability insurance benefits within CMI. Although such income may not be taxable, it is still subject to debt repayment under CMI. Blausey v. U.S. Trustee, 552 F.3d 1124 (9th Cir. 2009).
Same sex couple didn't abuse system when filing separate cases. When same sex couple filed separate Chapter 7 petitions and didn't include other person's income in means test, dismissal for abuse is denied. Only married couples may file jointly. In re Roll, ___ B.R. ___, 2008 WL 5605001 (Bankr. W.D. Wis. 2008).
Debtor may deduct mortgage on home being surrendered, but § 707(b)(3) abuse still requires dismissal. Although agreeing that the debtor could deduct the mortgage "amount scheduled as contractually due" on a home being surrendered, as well as the amount that would be required to cure the mortgage in a Chapter 13 plan, the Chapter 7 debtor was caught by the totality-ofcircumstances test. The surrender of the home before hearing the U.S. Trustee's motion to dismiss caught the debtor who had passed the means test in an abuse finding under § 707(b)(3). The debtor had a stable income and had improved her financial picture by moving back in with her mother--bottom line, the debtor had ability to repay a substantial portion of her debt. In re Goble, __B.R. ___, 2009 WL 383272 (Bankr. S.D. Ohio Feb. 17, 2009). See also In re Castellaw, ___ B.R. ___, 2009 WL 361736 (Bankr. N.D. Tex. Feb. 10, 2009) (Debtors would realize an "unconscionable advantage" amounting to abuse if permitted to remain in Chapter 7, when they had a substantial income and were retaining multiple luxury items, transferring "the cost of an unnecessarily extravagant lifestyle to creditors."); In re Baker, ___ B.R. ___, 2009 WL 267346
©2009 Hon. William Houston Brown
