The court must determine whether Debtors Wallace and Deborah Shields may exempt under
For the reasons set forth below, the court determines that a portion of each SERP payment is exempt and that SMB has a common law right of sеtoff that it may exercise in the non-exempt portion of each SERP payment.
I. Jurisdiction
The court has jurisdiction over this matter pursuant to
II. Burden of Proof
As the party objecting to the exemption, SMB bears the burden of proving the Shieldses did not properly claim the SERP payments as exempt under (10)(e). Fed. R. Bankr. P. 4003(c). SMB also bears the burden of proving it has a valid and enforceable right of setoff against the SERP payments. Pester Ref. Co. v. Mapco Gas Prods., Inc. (In re Pester Ref. Co.) ,
III. Factual Background
The relevant facts are undisputed. Wallace worked for SMB when the two entered into the SERP in December 2008. Pursuant to the SERP, Wallace deferred until retirement some of the compensation he earned while working for SMB. The SERP required Wallace to work for SMB for a specified number of years and reach one of several specified retirement ages to receive deferred compensation payments. Wallace retired from SMB prior to filing bankruptcy, and SMB began making the SERP payments tо Wallace. According to the Shieldses' Schedule I and Wallace's testimony, Wallace receives $2,285.06 each
SMB made three loans to Wallace and Deborah before they filed bankruptcy. One loan is secured by the Shieldses' home and is not at issue in this matter. SMB filed a proof of secured claim for each of the other two loans and a motion for relief from stay seeking permission to exercise its right of setoff against the SERP payments it owes Wallace. The Shieldses objected to those claims arguing the SERP payments are exempt under (10)(e). SMB objected to the Shieldses' claimed exemption arguing that the SERP payments are not exempt under (10)(e). In its trial brief, SMB contends that it has the right to offset the SERP payments it owes Wallace against the two loans that are not secured by the home until those two loans are satisfied. The aggregate amount SMB owes Wallace in SERP payments exceeds the amount Wallace and Deborah owe SMB on those two loаns.
The parties submitted briefs and exhibits on whether the SERP payments are exempt under (10)(e) and whether SMB has a valid and enforceable right of setoff. On October 26, 2017, the court heard the parties' oral arguments, and Wallace testified. After taking this matter under advisement, the court is ready to rule.
IV. A Portion of Each SERP Payment is Exempt Under
Qualified deferred compensation plans are exempt under
Missouri's (10)(e) exempts payments from certain deferred compensation programs to the extent the payments are reasonably necessary for the support of a debtor and his or her dependents. Determining whether the SERP is exempt under (10)(e) requires two analytical steps. First, the SERP does not qualify for exemption under (10)(e) if:
(1) The plan or contract was established "by or under the auspices of an insider that employed [the debtor] at the time [the debtor's] rights arose" under the plan;
(2) The payment is made "on account of age or length of service"; and
(3) The plan or contract does not qualify under Internal Revenue Code §§ 401(a), 403(a), 403(b), 408, 408A or 409.
The SERP does not meet the first disqualifying criterion. The parties agreed at the hearing that SMB was not Wallace's insider when his rights arose under the SERP. Because it does not meet the first disqualifying criterion, the SERP is not disqualified from exemption under (10)(e), and the court may proceed to the second step of the (10)(e) analysis.
If a deferred compensation plan is not disqualified from the (10)(e) exemption, a debtor may exempt payments under that plan:
(1) if the right to receive payment is from "a stock bonus, pension plan, disability or death benefit plan, profit-sharing plan ... or annuity, or similar plan or contract";
(2) if the right to receive payment is "on account of illness, disability, death, age, or length of service"; and
(3) "to the extent" the payments are "reasonably necessary [for the]
support" of the debtor and his or her dependents.
Rousey v. Jacoway ,
A. "Similar plan or contract"
If a nonqualified deferred compensation plan is not a stock bonus plan, pension plan, profit-sharing plan, or annuity, the plan must share common characteristics with those plans to be exempt.
B. "On account of Illness, Disability, Death, Age, or Length of Service"
The second element, "on account of illness, disability, dеath, age, or length of service," means the employee/debtor receives payments from the deferred compensation plan "because of [an employee/debtor's] illness, disability, death, age, or length of service." Rousey ,
C. Reasonably Necessary
Under the final requirement, a debtor may exempt payments under (10)(e) only to the extent those payments are reasonably necessary for support. For the reasons set forth below, the court concludes that $1,285.06 of each SERP payment is reasonably necessary for the Shieldses' support and, therefore, exempt, but the remaining $1,000 of each SERP payment is not.
Neither the Missouri exemptions statutes nor the Bankruptcy Code sets standards for determining whether payments are reasonably necessary for (10)(e) purposes. As a result, courts must determine whether those payments are reasonably necessary on a case-by-case basis, examining all circumstances surrounding a debtor's present and future needs. See In re Boykin ,
(1) Debtor's present and anticipated living expenses;
(2) Debtor's present and anticipated income from all sources;
(3) Age of the debtor and dependents;
(4) Health of the debtor and dependents;
(5) Debtor's ability to work and earn a living;
(6) Debtor's job skills, training, and education;
(7) Debtor's other assets, including exempt assets;
(8) Liquidity of other assets;
(9) Debtor's ability to save for retirement;
(10) Special needs of the debtor and dependents; and
(11) Debtor's financial obligations, e.g., alimony or support payments.
In re Flygstad ,
In the following sections, the court concludes that while several of these factors weigh in favor of finding that some portion of each SERP payment is reasonably necessary for the Shieldses' support, some do not.
1. Factors Weighing in Favor of Finding the SERP Payments Reasonably Necessary
Together, Flygstad factors (3) age; (4) health; (5) ability to work and earn a living; (6) job skills, education, and training; (9) ability to save for retirement; and (10) special needs reveal whether a debtor possesses the characteristics necessary to provide for his or her current support and replenish retirement assets for future support. Courts routinely distinguish between young, healthy, and highly trained debtors, on the one hand, and elderly, sick, or retired debtors on the other. The former usually have ample present earning capacity and opportunity to save for retirement, while the latter often cannot work and therefore require retirement income tо meet present and future needs. See, e.g. , In re Switzer ,
The Shieldses' advanced ages, inability to work and earn a living, lack of present job skills, inability to save for retirement, and special needs weigh in favor of finding at least a portion of each SERP payment exempt as reasonably necessary for their support. Wallace is 71-yeаrs-old. Though neither party presented evidence concerning Deborah's age, she has worked as a substitute teacher for 34 years, and so the court concludes her age also limits her earning capacity. Though Wallace once worked as a part-time Avis shuttle driver and Deborah currently works as a substitute teacher, Wallace has ceased work entirely and Deborah is retiring in May 2018. As a result, when both Wallace and Deborah fully retire by May 2018, they will rely entirely on their combined Social Security income and Wallace's SERP payments to pay their expеnses. Similarly, while Wallace and Deborah once enjoyed skills sufficient to support themselves as a bank employee
These factors reveal that the Shiеldses are at the point in their lives when they must rely upon the SERP payments, together with their Social Security income, for their support. The Shieldses, therefore, may exempt at least a portion of the SERP payments as reasonably necessary to support their basic needs. The amount of the exemption, however, turns on the final Flygstad factors: the Shieldses' assets and present and anticipated income and expenses.
2. Factors Weighing Against Finding the SERP Payments Reasonably Necessary
The court considers the remaining relevant Flygstad factors-(1) present and anticipated living expenses, (2) present and anticipated income from all sources, (7) other assets, including exempt assets, and (8) asset liquidity-to determine how much supplemental income the Shieldses need to meet their basic needs. Debtors with excess assets and income generally do not reasonably need additional retirement income because excess income allows debtors to save additional sums for retirement. Compare In re Gaines ,
Here, the Shieldses' assets, income, and expenses weigh in favor of finding less than the full amount of each SERP payment exempt. The Shieldses possess substantial assets, many of which they purchased on credit within a short time before filing bankruptcy. For example, according to their schedules and information in proofs of claims filed by several creditors, on the filing date, the Shieldses ownеd several vehicles, including three motor vehicles with a combined value of more than $43,000 (a 2015 Ford Taurus, a 2015 Ford Fiesta, and a 2016 Ford F-150 pickup, all purchased new less than two years before they filed this Chapter 13 case), one 2014 Georgetown Motor Home purchased new in late 2013 for more than $132,000, two 2017 trailers valued at a combined $3,000, and two 2016 Polaris ATVs valued at $4,000 each. Their Chapter 13 Plan indicates they intend to surrender the motor home and the Polaris ATVs, but they propose to retain both trailers and all three motor vehicles. The Shieldses also own a home worth $138,000. Though thеir claimed exemption is somewhat supported by Flygstad factor eight, the illiquid and encumbered nature of the assets (the vehicles appear to be fully encumbered by Ford Motor Company liens), these substantial assets undermine the Shieldses' claim that they reasonably need all of the SERP payments for support.
Similarly, though the Shieldses' present and anticipated living expenses exceed their present and anticipated income, not all of those expenses are reasonably necessary
The Shieldses spend their income on approximately $5,700 in monthly expenses, including three car payments totaling more than $1,060 each month. Those current monthly expenses exceed their combined monthly Social Security income ($3,172.70) plus a SERP payment ($2,285) by approximately $250. Because the Shieldses' monthly expenses exceed their monthly income, the court must determine whether those expenses are reasonably necessary for their support.
Many of the Shieldses' expenses are reasonable and necessary for their support. For example, they spend reasonable amounts on their home mortgage payment, home ownership expenses, and utility expenses. However, some of their other expenses are excessive. In particular, the Shieldses could reduce the following monthly expenses: $750 for food аnd housekeeping supplies, $500 for transportation (fuel and vehicle maintenance), $600 for charitable contributions and religious donations, and $1,060 for three motor vehicle installment payments. See, e.g. , In re Schlee ,
Though the court does not purport to specify by what amount the Shieldses must reduce each unnecessary or excessive monthly expense, it encourages them to reduce those expenses from the amounts listed to levels that are truly necessary to support their basic needs. Because the Shieldses may, and should, reduce their expenses, the court concludes that only $1,285.06 of each SERP payment is reasonably necessary for the Shieldses' support. This amount, when combined with their Social Security income, should adequately serve their basic needs. The remaining $1,000 is not exempt under (10)(e). Having determined that the Shieldses may exempt $1,285.06 of each SERP payment, the court next considers whether SMB has a valid right of setoff that it may exercise against any portion of each SERP payment.
V. SMB's Right of Setoff
Generally, Bankruptcy Code § 553(a) preserves a creditor's right to "offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case ... against a claim of such creditor against the debtor that arose before the commencement of the case."
Possible sources of a party's right of setoff include federal and state statutes, contractual provisions granting and addressing the scope of setoff rights, and common law. 5 Alan N. Resnick & Henry J. Sommer, Collier on Bankruptcy , ¶ 553.04[1]-[3] at 553-56 to -60 (16th ed. 2017). Here, SMB has not cited any statute granting it the right of setoff. Rather, SMB argues it has a common law right to offsеt the SERP payments against the two loans. SMB also argued that it has a contractual right of setoff with respect to the loan evidenced by Claim 4-2. But SMB's contractual right of setoff only becomes enforceable after default and notice, and SMB's counsel confirmed at the hearing that the Shieldses were not in default on that loan prior to the petition date and that SMB did not send any notice of default to the Shieldses. Consequently, SMB has no enforceable contractual right of setoff here.
A creditor has a common law right of setoff if: (1) it owes a prepetition dеbt to the debtor; (2) it has a prepetition claim against the debtor; and (3) the debt and claim are mutual obligations. R.M. Taylor, Inc. v. White (In re R.M. Taylor, Inc.) ,
Given the above, SMB has a valid common law right to offset the SERP payments against the two loans. SMB may exercise its right of setoff by reducing each monthly SERP payment to Wallace by at least the non-exempt portion, i.e. , $1,000. The court, however, must determine whether the exempt portion of each SERP payment is also subject to SMB's right of setoff.
VI. SMB's Right of Setoff Yields to the Shieldses' Exemptiоn in the SERP Payments
Courts seem to disagree about whether a debtor's property exemption claim yields to a creditor's valid right of setoff. Some courts prioritize the debtor's "fresh start" and conclude that the exemption prevails over a competing setoff right, while other courts conclude that a creditor's right of setoff prevails because the text of § 553 does not refer to § 522(c) or a right to claim exemptions as an exception to the preservation of a creditor's right to setoff. See generally U.S., I.R.S. v. White ,
Whether a debtor's exemption yields to a creditor's right of setoff arises in a variety of factual contexts. Recently, a large majority of the cases addressing this issue have arisen in the context of a debtor who wishes to exempt a federal tax refund but who happens to owe a debt to a governmental entity that seeks to offset that debt
The tax refund cases are distinguishable here because in those cases the federal government enjoyed statutory authority, under the Internal Revenue Code, to reduce government claims from any tax overpayments before the taxpayer was entitled to a refund. As this court noted several years ago, "the IRS's nonbankruptcy right to setoff stems from
Unlike the tax refund cases, SMB does not have a statutory right of setoff that is superior to the (10)(e) exemption. Instead, SMB has a common law right of setoff under Missouri law. The Bankruptcy Code neither enhances nor diminishes that right, except to impose the automatic stay under § 362(a)(7) to delay its exercise. This court already recognized in the non-tax refund context that even if a creditor has a valid "right of setoff against nonexempt property of the debtors, it has no right to set off its debt against exempt assets" under Missouri law. In re Arnold ,
Cases in other jurisdictions agree in the non-tax refund context that a creditor's right of setoff yields to the debtor's exemption. See, e.g. , In re Cole ,
Because (1) the Shieldses' exemption arises under Missouri's (10)(e), (2) SMB's right of setoff arises under Missouri common law, and (3) under Missouri law, SMB's right of setoff yields to the exemption, the court concludes that SMB may not exercise its setoff right against the exempt portion of each SERP payment.
VII. Conclusion
For the reasons set forth above, the court concludes that (1) $1,285.06 of each
The court will issue separate orders on the docket consistent with this opinion as follows: The court will sustain the Shieldses' objections to SMB's claims 4-2 and 5-2 [ECF Nos. 45 & 46] in part for the exempt portion of the SERP payments and overrule those оbjections in part for the non-exempt portion of the SERP payments. The court will sustain SMB's objection to the Shieldses' claimed exemption in the SERP payments [ECF No. 53] in part for the non-exempt portion of the SERP payments and overrule that objection for the exempt portion of the SERP payments. The court will grant SMB's motion for relief from the automatic stay [ECF No. 21] only to the extent necessary to allow SMB to set off the non-exempt portion of the SERP payments and deny that motion as to the exempt portion of the SERP payments. The court will also issue a sepаrate order overruling SMB's objection to the Shieldses' Chapter 13 plan [ECF No. 17] as moot because the court already denied confirmation of that plan.
Notes
Any payment under a stock bonus plan, pension plan, disability or death benefit plan, profit-sharing plan, nonpublic retirement plan or any plan described, defined, or established pursuant to section 456.014 [exempting spendthrift trusts], the person's right to a participant account in any deferred compensation program offered by the state of Missouri or any of its political subdivisions, or annuity or similar plan or contract on account of illness, disability, deаth, age or length of service, to the extent reasonably necessary for the support of such person and any dependent of such person unless:
a. Such plan or contract was established by or under the auspices of an insider that employed such person at the time such person's rights under such plan or contract arose;
b. Such payment is on account of age or length of service; and
c. Such plan or contract does not qualify under Section 401(a), 403(a), 403(b), 408, 408A or 409 of the Internal Revenue Code of 1986, as amended, (26 U.S.C. [§§] 401(a), 403(a), 403(b), 408, 408A or 409 );
except that any such payment to any person shall be subject to attachment or execution pursuant to a qualified domestic relations order, as defined by Section 414(p) of the Internal Revenue Code of 1986, as amended, issued by a court in any proceeding for dissolution of marriage or legal separation or a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of marital property at the time of the original judgment of dissolution.