Facebook Account Property of the Estate?

dislikeShould debtors be required to turn over control their social media accounts at the request of a trustee? Section 521 of the Bankruptcy Code states, “(a) [t]he debtor shall…(4) surrender to the trustee all property of the estate and any recorded information, including books, documents, records and papers, relating to property of the bankruptcy estate….” What if a trustee finds evidence of concealed property on a debtor’s public Facebook posts, or sees photos of a recent extravagant vacation? I have heard anecdotal stories of trustees requesting Facebook passwords at §341 meetings. Are social media accounts “property”, or “recorded information relating to property of the estate?” New technology raises new legal issues. Some of these issues are making their way into bankruptcy court and the trend will likely escalate.

In a case of first impression, a bankruptcy court in Texas addressed the issue of whether Facebook and Twitter accounts were property of a Chapter 11 debtor’s bankruptcy estate. See, In re CTLI, LLC, Case No. 14-33564, United States Bankruptcy Court for the Southern District of Texas, Houston Division, Dkt#334, April 3, 2015. The debtor, CTLI, LLC, operated a gun store and shooting range. A dispute arose between the majority and minority owners of the business and a bankruptcy was filed by the majority equity owner to thwart a state court receivership proceeding. A plan of reorganization was confirmed which resulted in the minority owner becoming the 100% owner of the reorganized debtor. The former majority owner refused to turn over the company’s Facebook and Twitter accounts. He asserted that the accounts were personal and were not property of the bankruptcy estate.

The bankruptcy court ruled that social media accounts for a business fall within the Bankruptcy Code’s broad definition of “property of the bankruptcy estate.” The court made a factual determination that the Facebook and Twitter accounts were “business accounts” and ordered administrative control be turned over to the new equity owner. The court found that the nature of the property right was similar to a business customer list which is generally recognized to be property under Texas law. The opinion distinguished between personal social media accounts and business accounts. Without ruling on the issue, the court suggested that personal social media accounts may involve personal liberty rights rather than property rights, but also acknowledged that in cases involving celebrities, or public figures, distinguishing between personal and business accounts may be difficult.

Whether a social media account is considered personal or business related, a trustee may be entitled to administrative access to social medial sites under Section 521. I am not aware of any reported opinions that address the issue. I have found Facebook to have limited value as an investigative tool. On a couple of instances I thought I had “busted” debtors with public posts about boats and vacations homes, only to find out later that they did not actually own the property they bragged about. Imagine that.

7th Circuit-Inherited IRA Not Exempt-Circuit Split

The Seventh Circuit Court of Appeals in In re Clark (12-1241) (April 23, 2013) disagreed with the Fifth Circuit case In re Chilton that held Inherited Individual Retirement Accounts are exempt.  I wrote about Chilton in an earlier post.   The Chilton case was fairly long and relied on highly technical language and definitions from the Internal Revenue Code. The Fifth Circuit held that an inherited IRA contains “retirement funds” within the meaning of §522(d)(12) and can include funds that others had set aside for retirement and are not limited to funds set aside by the debtors.   The Seventh Circuit disagreed and made itself clear in an 8 page opinion.

In Clark, the debtor claimed funds held in an inherited IRA as exempt.  The Bankruptcy Court (W.D. Wisc.) disallowed the exemption claim on the basis that the inherited IRA did not represent “retirement funds” in the hands of the debtor.  The District Court reversed on the basis that the question was “close” and should therefore be decided in favor of the debtor. The Seventh Circuit stated that the case was not close at all and found that the bankruptcy judge got it right.  The Court of Appeals stressed the differences between a regular IRA and in inherited IRA.  No new contributions can be made to an inherited IRA and it cannot be rolled over or merged with another account.  The inherited IRA cannot be used for the beneficiary’s retirement-the funds must be withdrawn in five years in most instances.  In short, the Court found that, “an inherited IRA does not represent ‘retirement funds’ in the hands of the current owner…” and that “money constitutes ‘retirement funds’ (a term that the Bankruptcy Code does not define) only when held for the owner’s retirement. “(Page 3).  Inherited IRAs are not “savings reserved for use after their owners stop working.” (Page 8).

The issue of inherited IRAs as exempt arises periodically in Mississippi.  Although Chilton and Clark construe the federal exemption statute, the same rationales would likely apply under the Mississippi exemption scheme.

Take My House – Please!

What happens when a debtor surrenders real estate in a bankruptcy case and the lender does not foreclose? The recent First Circuit case, In re Canning, III, 2013 WL 388060 (Feb. 1, 2013), expresses the consensus view that a creditor cannot be forced to foreclose or take possession of surrendered property. In Canning, III, the debtors’ bankruptcy schedules reflected that they intended to surrender their house to their mortgage lender. After the debtors received their discharge, they received a letter from the mortgage lender advising that it did not intend to initiate foreclosure proceedings and that it would not advance any payments for insurance or taxes. The letter stated that the debtors would be solely responsible for maintenance of the property. The debtors filed an adversary proceeding against the lender seeking actual and punitive damages for its failure to foreclose on the basis that the lender violated the discharge injunction by its actions. The First Circuit found in favor of the lender:

[The lender’s] chosen course of action, or inaction, did not make things easy for the Cannings. Forces remained at work that could make their continued ownership of the real estate uncomfortable-forces like accruing real estate taxes and the desirability of maintaining liability insurance for the premises. But those forces are incidents of ownership. Though the Code provides debtors with a surrender option, it does not force creditors to assume ownership or take possession of collateral. And although the Code provides a discharge of personal liability for debt, it does not discharge the ongoing burdens of owning property.

Id. (quoting In re Canning, 442 B.R. 165, 172 (Bankr. D. Me. 2011)).

Most courts have ruled similarly using the same rationale. See In re Service, 155 B.R. 512 (Bankr. E.D. Mo.1993) (The Court cannot compel acceptance of the surrendered property); In re White, 282 B.R. 418 (Bankr. N.D. Ohio 2002) (bankruptcy code does not provide for the court or the debtor to direct the means by which the secured creditor deals with the surrendered property); In re Arsenault, 456 B.R. 627 (Bankr.S.D. Ga. 2011)(Chapter 13 debtors’ surrender of property to secured creditor in full satisfaction of debt, pursuant to their confirmed plan, did not obligate creditor to take affirmative action to transfer title to property out of debtors’ names).

I found two cases that held otherwise. See In re Pigg, 453 B.R. 728 (Bankr. M.D. Tenn. 2011)(An equitable remedy  was fashioned to address the attempted surrender of a condominium made uninhabitable by a flood, where a bank had actively taken possession of the property.) and In re Perry, 2012 WL 4795675 (Bankr. E.D. N.C. 2012)(The court allowed a lender 60 days to foreclose, and if a foreclosure proceeding was not commenced, the debtor was authorized to execute, deliver and record a quitclaim deed to the creditor.).

Is this really a widespread problem? I asked a couple of colleagues and confirmed that it is happening in Mississippi; however, they did not believe it was necessarily a problem. The debtors either lived on the property “for free” or they leased it and collected rent. If the surrendered property is a condominium (or located in a neighborhood with an owners’ association), the association dues that accrue post-petition are not discharged in the bankruptcy, and the debtor should understand that he may remain responsible for the fees.

What do you generally advise your debtor clients to do when a lender refuses to take title to surrendered property? When would you advise your bank client NOT to foreclose?

Social Security Income and Chapter 13 Plans

After the enactment of BAPCPA in 2005, there was considerable uncertainty concerning the proper method to calculate a debtor’s “projected disposable income” for purposes of funding a Chapter 13 plan.  Some bankruptcy courts used the Means Test calculation of “disposable income” and other courts used the actual income and expenses as reflected on the debtor’s Schedules I and J.

The case of Hamilton v. Lanning, 130 S. Ct. 2464, 177 L. Ed. 2d 23 (2010) resolved the basic question by holding that “projected disposable income” is determined by using the Means Test formula.  For below median income debtors, “projected disposable income” is calculated by starting with “current monthly income” from the Means Test and deducting the debtor’s actual “reasonably necessary” living expenses taken from Schedule J.  See § 1325(b)(2)(A)(i). For above median income debtors, “projected monthly income” is calculated by using “currently monthly income” from the means test and deducting certain expenses allowed by the Means Test . See §§ 707(b)(2), 1325(b)(3)(A)).  However, the Court ruled that bankruptcy courts have discretion to consider projected changes in income or expenses that are known or virtually certain at the time of confirmation.

The Fifth Circuit followed Lanning and held in In re Ragos, 700 F.3d 220 (5th Cir. 2012), that the Debtor was not required to include Social Security income in the “projected disposable income” calculation because the statutory definition of “current monthly income” explicitly “excludes benefits received under the Social Security Act.” 11 U.S.C. § 101(10A)(B).

Last month, Judge Olack distinguished Ragos and ruled that expenses of a below median income debtor used to calculate “projected disposable income” must still be “reasonably necessary” even if the Debtor included exempt Social Security income in the calculation.  In re Patrick, Case No. 12-03042 NPO (S.D. Miss. 2013).  In Patrick, the debtors’ “current monthly income” for Means Test purposes was below median for the State of Mississippi; therefore, the long form Means Test was not required and the “projected disposable income” was determined by using the debtors’ actual living expenses from Schedule J.     The debtors voluntarily contributed Social Security benefits to fund the Chapter 13 plan, and the debtors acknowledged that the plan was not feasible without the Social Security benefits.  The Trustee objected to confirmation on the basis that the proposed living expenses on Schedule J were unreasonably high which resulted in a lower “projected disposable income” to be distributed to unsecured creditors.  The Trustee argued that the plan was not filed in good faith as required by 11 U.S.C. §1325(a)(3).  The debtors asserted that since they voluntarily contributed exempt Social Security benefits to the plan, their expenses did not have to be “reasonably necessary” in order for the plan to be confirmable.  The debtors urged the Court “to extend the holding in Ragos to embrace Social Security benefits distributed inside a plan.” Patrick,  at Page 6.

The Court held that it has the authority to determine reasonableness of expenses and items in a plan even though Social Security benefits were included in the income necessary to fund the plan.  Id. at Page 9.  The Court found that the expenses were not reasonable and that the plan was not proposed in good faith.   The Court has “to balance the conflicting objectives of Congress “to save ‘men and women from the rigors of the poor house’ and ‘to endure the debtor who can pay creditors do pay them.’” Id. at Page 10 (citations omitted).

[Personal observation: The Court points out that the debtors did not earmark the Social Security benefits toward payment of any particular expense, but argued that the protection applied in toto.  Furthermore, the debtors did not make any arguments whatsoever that the expenses were reasonable under the circumstances.  Perhaps if the Social Security benefits had been earmarked for a specific expense (like a third car), and a decent argument were made as to why the expense is necessary (like the family is large), then the Court might find that the debtors acted in good faith in proposing the plan.]