Austin prides itself on being the Live Music Capital of the World. While many musicians travel to Austin with stars in their eyes, the reality is that it is difficult to earn a living in the music business, either as an artist or an independent record label. For the past eighteen months Bankruptcy Judge Craig Gargotta has received an extensive education on what can go wrong in relationships between record labels and their artists. This education was on full display in a 46 page opinion he wrote in Walser v. Antone’s Records, et al, Adv. No. 09-1010 (Bankr. W.D. Tex. 1/24/11). You can find the opinion here. However, Judge Gargotta was not the only one receiving an education. I represented the debtors and the case was a real eye opener for me. This is the story of Antone’s Records, a tragedy in three acts. Act I: Watermelon Records During the 1980s and 1990s, Antone’s Records and Watermelon Records were hometown competitors in the music business. Watermelon was founded by Heinz Geissler, a German immigrant. Its catalog focused on Americana music. Antone’s Records was founded by nightclub owner Clifford Antone and focused on blues music. At some point during the 1990s, Dallas investor and music lover James Heldt acquired a majority stake in Antone’s. Watermelon Records was the first to fall. Watermelon Records filed for chapter 11 relief in 1998. At the time, many of its artists were unhappy with the label. After a contentious three year case involving competing plans and shifting alliances, Watermelon confirmed a plan in which its assets were sold to Texas Clef Entertainment Group, Inc. Texas Clef was an affiliate of Antone’s Records which was formed to make the acquisition. Few of the artists filed claims in the Watermelon Records bankruptcy case. A group of artists was very active in the case and succeeded in having their records carved out of the sale. The plan of reorganization confusingly provided that artists who filed proofs of claim would be treated as parties to executory contracts and would receive a cure offer. Since most of the artists did not file claims, this provision applied to only a few parties. However, the artists did not receive cure offers. Instead, they received a pro rata share of the funds available to unsecured creditors. Even though the plan was not followed, none of the parties seemed to take notice. Texas Clef re-released many of the Watermelon titles. Act II: The Walser Suit Antone’s, Texas Clef and sister label, Texas Music Group, drew the ire of many of their artists and publishers when they were slow to issue royalty statements and pay royalties.In 2004, Texas yodeler Don Walser, known as the Pavarotti of the Plains, hired a lawyer and demanded that the label provide him with his royalty statements. After three tries, the label rendered an accurate statement and paid most of the royalties. However, this occurred after the expiration of a deadline to cure defaults. Nonetheless, Mr. Walser accepted the payments. Nothing more occurred until March 2005, when Mr. Walser filed a suit against the label timed to coincide with the South by Southwest Music Festival. While many of the artists would dispute this, my belief is that the Antone’s labels were guilty not of malice, but failure to keep up with rapidly changing technology. During the 2000s, the sale of music began to shift from cassettes and compact discs to digital downloads. This new distribution channel multiplied the label’s reporting requirements exponentially. Compact discs are sold as a unit containing all the tracks. The record label generally used one domestic distributor and one or more foreign distributors. With digital downloads, consumers could purchase individual tracks or albums. In the early days of digital downloads, there were many competing digital download sites who often provided their reporting in inconsistent formats. It required many man hours to assemble all of this data into a statement. Having downsized its operation to save costs after Mr. Heldt was unwilling to continue subsidizing the labels’ losses, the labels were simply unable to keep up with reporting for over 100 releases. It was not until 2009, after chapter 11 had been filed, that in-house computer wiz Tristan Ader developed an automated database which synthesized the information received into a statement. Meanwhile, the Walser lawsuit rocked along in Texas state court. The suit metastasized to include six defendants, including the three record labels, James Heldt, Heinz Geissler (now an Antone’s employee) and label president, Randolph Clendenen. Act III: The Antone’s Bankruptcy On November 18, 2008, on the eve of trial in the state court action, the three labels filed for chapter 11 relief. Ironically, it was during the bankruptcy case that the labels first began to generate timely statements and make timely royalty payments. The Walser case was removed to bankruptcy court. The suit remained on hold for a lengthy period while the U.S. District Court considered a Motion to Withdraw Reference. History repeated itself as competing plans were once again filed. The debtors filed a plan based on payments from cash flow and a new capital contribution from James Heldt. The Official Creditors’ Committee filed a plan proposing to sell the debtor’s assets to a new label for $125,000. At the last moment, the Creditors’ Committee sought to move up the auction from after confirmation to the confirmation hearing itself. An auction was held at the confirmation hearing with James Heldt making the high bid. However, the court rejected his bid and accepted the next highest bid, which came from New West Records. During the bidding process, the sale price doubled from the original offer. In a mediated settlement, the Debtors, the Official Creditors’ Committee and James Heldt agreed to allow the New West sale to go forward at a slightly higher price with several other concessions. At this point, it became clear that Antone’s would not continue as an independent label. However, there was still the Walser suit to try. This trial was held in bankruptcy court over three days in May 2010. Although Mr. Walser’s estate had filed a proof of claim for $300,000, the estate’s attorney asked for damages of $1 million in closing argument. On January 24, 2011, the Bankruptcy Court rendered its opinion denying substantially all of the relief requested by the Walser estate. The Court’s opinion methodically analyzed and rejected the claimant’s theories. Among other findings: · The Walser estate could not claim the masters embodying his recordings. When a record company pays for the recording of a musical performance, that recording belongs to the record company. The Court found that any claim for rescission of the recording agreement was pre-empted by the Copyright Act and that the Walsers had failed to meet the high standard for imposing a constructive trust under Texas law. · The record company did not owe a fiduciary duty to the artist. Where Mr. Walser had representation from both an agent and an attorney, he did not rely on the record company to act on his behalf. There was not a relationship of trust and confidence under state law where he affirmatively distrusted the record company. In its ruling, the Court distinguished a case involving Apple Records and the Beatles. · The record company did not commit fraud when it failed to provide royalty statements in a timely manner. As the Court stated, “No evidence exists that demonstrates actual fraud.” · The Walsers could not recover damages for emotional distress or punitive damages on a breach of contract claim. · The Walsers could not pierce the corporate veil to impose liability on the individuals associated with the record labels. Under Texas law, mere failure to observe corporate formalities was not a ground for piercing the corporate veil. On a contract claim, it was necessary to show actual fraud rather than merely constructive fraud to pierce the corporate veil. Where James Heldt had loaned millions of dollars to the company and had never taken a salary, there were no grounds for piercing the corporate veil. The Court’s opinion is a valuable resource for cases involving constructive trusts, rescission, breach of fiduciary duty and piercing the corporate veil. Many of these issues involve routine Texas state law questions. However, there are so many questions addressed in this opinion that there is something for many people. In the end, the Walser estate was awarded an unsecured claim for $28,161.41, an amount conceded by the Debtors and which had been tendered prior to bankruptcy, together with pre-judgment interest of $1,025.15, which was the amount the Debtors conceded was owed. The Court also allowed the Walser estate to apply for an award of attorney’s fees, but cautioned that it must segregate out the time spent on relief which was not granted. This is a case brimming with ironies. The suit which pushed the debtors into bankruptcy was ultimately rebuffed. However, because the artist and publisher creditors did not support the plan proposed by the Debtors, the assets of the Debtors were sold to a new label. Hopefully for the artists, the third time will be the charm.

One of the reforms adopted by BAPCPA was to increase the amount of time a person had to spend in a state before he could take advantage of that state's exemptions. Under 11 U.S.C. Sec. 522(b)(3)(A), a person must live in a state for 730 days to claim that state's exemptions. If the debtor does not satisfy the 730 day requirement, the law of the state where the debtor lived for the greater portion of the 180 days prior to the 730 days applies. This provision was meant to make it harder for a debtor to enhance his exemptions by moving to a new state prior to bankruptcy. However, a new opinion from the Fifth Circuit shows that the statute can have some unintended consequences. Ingalls v. Camp, No. 09-50852 (5th Cir. 1/21/11). You can find the opinion here.The debtor moved from Florida to Texas during the 730 days before bankruptcy. As a result, he was required to use exemptions available under Florida law. The debtor claimed federal exemptions. However, Florida law prohibits "residents" from using federal exemptions. The trustee objected, contending that the court should apply Florida law as if the debtor were still a resident of Florida. The Bankruptcy Court agreed and sustained the objection. In re Camp, 396 B.R. 194 (Bankr. W.D. Tex. 2008).The District Court reversed and was affirmed by the Fifth Circuit. The basis for its reasoning was straightforward. "Residents" of Florida could not use federal exemptions. Camp was not a "resident" of Florida. Therefore, he could select federal exemptions even though his exemptions were determined under Florida law.The Court of Appeals began with the canon that "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Opinion. p. 3. The Court found it to be pretty clear that the Florida legislature did not intend for non-residents to be precluded from using federal exemptions.Therefore, Florida’s opt-out statute, by its own express terms, does not apply to nonresident debtors, who remain eligible to use the federal exemptions because nothing in Florida law specifically disallows them from doing so. (citations omitted). Here, because Camp was not a Florida resident at the time he filed his bankruptcy petition, Florida law does not restrict his access to the federal exemptions.Opinion, p. 5.The Fifth Circuit's analysis appears pretty clear, at least as a matter of Florida law. After all, why would Florida care if non-residents claimed federal exemptions? The difficulty with the opinion is that Sec. 522(b)(3)(A) expresses a federal policy that mobile debtors should receive the same exemptions that they would have received if they had stayed put. States naturally draft their exemption laws to apply to their residents, since that is who they have authority over. It would be simply incomprehensible for Florida to draft an exemption statute to apply to residents of Texas. Florida could have drafted its law to refer to persons to whom Florida law applies, but why would it? Florida is interested in Floridians, while Congress has the responsibility for looking after the broader, national interest.Congress said to look to Florida law to determine the exemptions of the debtor in this case. Congress could have been more clear and said that the debtor's exemptions would be determined under Florida law as though the debtor still resided in Florida. However, it seems pretty clear that that is what they meant.In this particular case, the debtor received exemptions which would not have been available to him if he had remained in Florida. However, it is easy to imagine a case where state exemptions depended on residency of the state so that the peculiar wording of a state exemption law could deprive the debtor of exemptions he would otherwise have been entitled to if he had remained in the prior state.I am a strong proponent of plain meaning analysis. However, this may well be a case where the plain meaning isn't so plain. We know what Congress was trying to accomplish. For those who are not enamored of BAPCPA it is easy to chortle at Congress for shooting for a specific result and falling short through poor drafting. However, in this particular case, the drafting was not particularly obtuse, inelegant or contradictory. This case is somewhat ironic because of the manner in which it resolved a split between bankruptcy judges in the Western District of Texas. Judge Leif Clark articulated the position adopted by the Fifth Circuit in In re Battle, 366 B.R. 635 (Bankr. W.D. Tex. 2006). Judge Craig Gargotta wrote the opinion which was reversed in the Camp case. Judge Clark has a reputation for being a deep thinker who will go out on a limb in support of a contrarian position. Judge Gargotta has a reputation as being a straightforward by the numbers jurist. Thus, it is ironic that Judge Gargotta took the more nuanced, intellectual position, while Judge Clark said plain meaning full speed ahead. This is the nature of BAPCPA. Reasonable minds can and will disagree and sometimes the results will be surprising. Disclosure: I represented the Trustee in this case in the appeal to the Fifth Circuit. I was the attorney who did not prevail.While I am uneasy with the result here, I wish to commend my colleague, Robert W. Berry, who represented the debtor. Mr. Berry has a consumer bankruptcy practice. After receiving an unfavorable ruling from the bankruptcy court, it would have been easy to let the result lie. Instead, Mr. Berry stuck with his client and took the case through two levels of appellate review. That is what good lawyers do.

Once upon a time, I had a client tell me that he loathed bankruptcy because bankruptcy was socialism and he only believed in market solutions. While his use of terminology was imprecise, it is beyond dispute that bankruptcy represents government changing the terms of privately negotiated contracts. If you substitute government action for socialism and substitute private contract for the market, his point is well taken but wrong.Government Intervention in Private Decision Making: It Cuts Both WaysWhile bankruptcy constitutes government interference with private contracts, private contracts would be of limited enforceability without the assistance of government. We are so accustomed to the idea that contracts may be enforced through government action, whether it be through suit on a promissory note or laws governing secured credit, that it is easy to forget that enforceability of contracts depends on the collective agreement that contracts should be enforced against the will of the non-complying party.It is possible to imagine a contract regime which operated entirely without the intervention of government. In that instance, credit would only be extended based on trust or force. If a debtor did not pay, the creditor's recourse would be limited to not extending any more credit in the future, social pressure such as shunning or in the extreme case, violence. Alternatively, credit could be extended based on the creditor taking possession of collateral and not giving it back until the debt was paid.While you can imagine a contract system that functioned without the help of government it would be inefficient. As a result, we have laws allowing enforcement of contracts and recognizing secured transactions because they facilitate the extension of credit, encourage economic growth and avoid violence as a means of contract enforcement. In other words, laws enforcing contracts improve the general welfare. The Social Contract (No, It's Not the Movie About Facebook)Collective action to enforce contracts is an example of the social contract. The framers of the Constitution were inspired by the social contract theories of Hobbes, Locke and Rousseau. According to Hobbes, life would be "nasty, brutish and short" absent political authority. Under social contract theory, people band together and surrender some of their autonomy in return for security, protection of property rights and the general welfare. Because enforcement of contracts is a creature of the social contract, government will not blindly enforce all contracts. You cannot go to court and enforce a contract to put a hit on someone or sell a child. In Texas at least, the courts will not enforce a gambling debt. While we believe generally in freedom of contract, there are some contracts which should not be enforced because they are bad. There are also some methods of enforcing contracts which are not allowed. Shakespeare notwithstanding, you cannot secure a debt with a pound of flesh or other body part. The reason is simple. If you could use a writ of execution to actually execute someone , the state would be implicated in using violence to enforce private contracts. Generally we think that is a bad idea.Bankruptcy Laws and the Social ContractBankruptcy laws are an example of the state saying we will enforce private contractual rights but only so far. The power to enact uniform bankruptcy laws is one of the enumerated powers granted to Congress, but it is not a power which must be utilized or utilized in any particular form. For the first hundred years of the nation, bankruptcy laws were utilized to respond to specific crises and were often focused on punishing debtors rather than helping them. It was not until the Bankruptcy Act of 1898 that we had a permanent law which placed limits on how debts could be enforced. The discharge and fresh start are based on the idea that a person who is faced with crippling levels of debt will not be a productive member of society and will not be able to take care of his or her family. Reorganization laws benefit society by preserving jobs, equitably distributing insufficient assets and minimizing loss of going concern value. Bankruptcy laws are not an example of government interfering with the right of private contract, but a limitation on the extent to which government will facilitate the right of private contract.So, my argument is that bankruptcy is no more socialist than opening the courthouse to breach of contract suits. In either case, the state is lending its power to the enforcement of private agreements within defined limits.That brings us to BAPCPA. How well does BAPCPA fulfill the social contract? I would argue that substantively, BAPCPA is a perfectly appropriate drawing of the boundaries of the social contract. The Means Test, limits on homestead exemptions and treatment of 910 vehicles are all ways in which lines are drawn in favor of more personal responsibility. However, there are many parts of BAPCPA which add burdens on the system with no corresponding benefits. Credit counseling and the Debt Relief Agency rules were intended to serve a consumer protection function, but do not in practice. The means test is so ambiguously worded that even the Supreme Court has difficulty figuring out what it means. It also encourages gamesmanship to arrive at a desired result. Sections 362 and 523 have had so many exceptions and clauses grafted onto them that it is impossible to read through them in one sitting. Trying to Make Sense of An Imperfect EssayI don't think that I have completely succeeded in tying the social contract ideas of Hobbes, Locke and Rousseau to private contracts and bankruptcy. However, I hope that I have at least suggested the following points:1. Enforcement of private contracts does not involve man in a state of nature unhindered by the state, but rather involves the state intervening in the private affairs of men to further the common good.2. Just as the state can act to enforce private contracts, so can the state place limits on the extent to which it will enforce private contracts.3. When the state acts to limit the freedom of private contract, it does so based on improving the general welfare at the expense of some individuals.4. Bankruptcy laws further the social contract when they advance some aspect of the general welfare, such as encouragement of risk taking, support of the family unit, preserving economic value or promoting individual responsibility.5. Bankruptcy laws hinder the social contract when they impose costs without corresponding benefits or reward the use of resources to get around the policies that the laws were intended to promote.

A new opinion from the Third Circuit Court of Appeals could lead to more claims under the Fair Debt Collection Practices Act being filed in Bankruptcy Court. Allen v. LaSalle Bank, N.A., No. 09-1466 (3rd Cir. 1/12/11) held that correspondence from a debt collector to a consumer’s attorney could be actionable under the FDCPA. You can find the opinion here. Although Allen did not arise in a bankruptcy case, it involves a fact pattern likely to be seen in bankruptcies. The Facts The case began when Dorothy Rhue Allen failed to make the final payment on her 30 year mortgage. LaSalle Bank retained Fein, Such, Kahn & Shephard, P.C. (“FSKS”) to file a foreclosure action. At the request of Allen’s attorney, FSKS provided a payoff letter. Less than three weeks later, Allen filed a class action counterclaim and third party complaint asserting that FSKS’s response violated the FDCPA. LaSalle promptly released the mortgage and dismissed the foreclosure action. Not content with this result, Allen filed a class action against FSKS, LaSalle and the servicer for the loan in the U.S. District Court for the District of New Jersey. Although she initially made other arguments, she later conceded that her complaint was based solely on a violation of 15 U.S.C. §1692f(1), which prohibits “the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.” She alleged that the amounts charged to her exceeded the actual charges or the amounts allowed by court rule. For example, she alleged that FSKS demanded $910 in attorney’s fees when a court rule permitted only $15.43, $335 for searches when court rule permits only $75, $160 for recording fees when the actual fee was only $60 and $475 for service of process when statute and court rule limited reimbursement to $175. The defendants moved to dismiss. The District Court, relying on precedent from the Seventh Circuit, held that a communication from a debt collector to a consumer’s attorney should be analyzed under the standard of a competent attorney. Because a competent attorney would have recognized the charges as being excessive and objected to them, the District Court held that the complaint failed to state a cause of action. The Third Circuit’s Opinion The Court of Appeals reversed. It found that §1692f(1) was a strict liability statute which did not depend upon the nature of the recipient (which would be the least sophisticated consumer or competent attorney under other FDCPA provisions). Attorneys who regularly collect debts through litigation are considered to be debt collectors. The FDCPA defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” Thus, the attorneys were debt collectors and the letter to the consumer’s attorney constituted an indirect communication with the consumer herself. The Court wrote: The FDCPA is a strict liability statute to the extent it imposes liability without proof of an intentional violation. If an otherwise improper communication would escape FDCPA liability simply because that communication was directed to a consumer’s attorney, it would undermine the deterrent effect of strict liability. In this case, the District Court sub silentio concluded that a communication from a debt collector to a consumer’s attorney was generally covered by the FDCPA but that it is to be analyzed from the perspective of a competent attorney. The District Court, however, did not have the benefit of Allen’s concession that her claims were predicated only upon § 1692f(1), which defines the collection of an unauthorized debt as a per se “unfair or unconscionable” debt collection method. The only inquiry under § 1692f(1) is whether the amount collected was expressly authorized by the agreement creating the debt or permitted by law, an issue we leave for the District Court. Opinion, pp. 8-9. The Third Circuit’s ruling places it in agreement with the Fourth Circuit, Sayyed v. Wolfpoff & Abramson, 485 F.3d 226, 232-33 (4th Cir. 2007) and in conflict with the Second and Ninth Circuits, Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 934-39 (9th Cir. 2007); Kropelnicki v. Siegel, 290 F.3d 118, 129-31 (2d Cir. 2002). The Third Circuit also rejected a claim that New Jersey’s litigation privilege claim would bar the claim. Nonetheless, the FDCPA does not contain an exemption from liability for common law privileges. “[C]ommon law immunities cannot trump the [FDCPA]‟s clear application to the litigating activities of attorneys,” (citation omitted), and, like the Fourth Circuit, we will not “disregard the statutory text in order to imply some sort of common law privilege.” Opinion, p. 9. Other courts have split over whether there is a litigation privilege defense to FDCPA claims. Newburger & Barron, Fair Debt Collection Practices, ¶1.07[11][k] (A.S. Pratt & Sons 2009). Bankruptcy Implications The Third Circuit’s holding has tremendous implications for bankruptcy cases. Debt collectors regularly communicate information regarding consumer debts in bankruptcy cases. Proofs of claims, motions for relief from the automatic stay and objections to plans all involve as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” It is not unknown for these documents to include charges prohibited for law, such as post-petition interest or attorney’s fees on an unsecured or under secured debt. Under the Allen decision, it is possible that courts could impose strict liability on creditor communications and filings in bankruptcy court. It is important to note that the Second Circuit recently held that “the filing of a proof of claim in bankruptcy court cannot form the basis for an FDCPA claim.” Simmons v. Roundup Funding, LLC, 622 F.3d 93 (2nd Cir. 2010). This is just one facet of the ongoing debate over the relationship between bankruptcy law and the Fair Debt Collection Practices Act. While Allen does not directly address this controversy, it seems likely that it will add fuel to the fire.

In an 8-1 decision authored by Justice Kagan, the Supreme Court ruled today that an ownership expense is not "applicable" under the Means Test unless the Debtor has an actual payment. Ransom v. FIA Card Services, No. 09-907 (1/11/11). You can read the opinion here.Justice Kagan framed the issue in this manner:This case concerns the specified expense for vehicle-ownership costs. We must determine whether a debtor like petitioner Jason Ransom who owns his car outright, and so does not make loan or lease payments, may claim an allowance for car-ownership costs (thereby reducing the amount he will repay creditors). We hold that the text, context, and purpose of the statutory provision at issue preclude this result. A debtor who does not make loan or lease payments may not take the car-ownership deduction. Opinion, pp. 1-2.Justice Kagan described the means as designed to "help ensure that debtors who can pay creditors do pay them." Opinion, p. 2.The Dictionary Approach to Ordinary MeaningJustice Kagan used an ordinary meaning analysis and a dictionary to conclude that the ownership expense was not applicable.The key word in this provision is “applicable”: A debtor may claim not all, but only “applicable” expense amounts listed in the Standards. Whether Ransom may claim the $471 car-ownership deduction accordingly turns on whether that expense amount is “applicable” to him.Because the Code does not define “applicable,” we look to the ordinary meaning of the term. (citation omitted). “Applicable” means “capable of being applied: having relevance” or “fit, suitable, or right to be applied: appropriate.”Webster’s Third New International Dictionary 105 (2002). See also New Oxford American Dictionary 74 (2d ed. 2005) (“relevant or appropriate”); 1 Oxford English Dictionary 575 (2d ed. 1989) (“[c]apable of being applied” or “[f]it or suitable for its purpose, appropriate”). So an expense amount is “applicable” within the plain meaning of the statute when it is appropriate, relevant, suitable, or fit.What makes an expense amount “applicable” in this sense (appropriate, relevant, suitable, or fit) is most naturally understood to be its correspondence to an individual debtor’s financial circumstances. Rather than authorizing all debtors to take deductions in all listed categories, Congress established a filter: A debtor may claim a deduction from a National or Local Standard table (like “[Car]Ownership Costs”) if but only if that deduction is appropriate for him. And a deduction is so appropriate only if the debtor has costs corresponding to the category covered by the table—that is, only if the debtor will incur that kind of expense during the life of the plan. The statute underscores the necessity of making such an individualized determination by referring to “the debtor’s applicable monthly expense amounts,” (citation omitted)—in other words, the expense amounts applicable (appropriate, etc.) to each particular debtor. Identifying these amounts requires looking at the financial situation of the debtor and asking whether a National or Local Standard table is relevant to him.If Congress had not wanted to separate in this way debtors who qualify for an allowance from those who do not, it could have omitted the term “applicable” altogether. Without that word, all debtors would be eligible to claim a deduction for each category listed in the Standards. Congress presumably included “applicable” to achieve a different result.Opinion, pp. 6-8.This passage is the heart of the opinion. One word used according to its ordinary meaning decides the issue.Making Sense of BAPCPA As additional support for her conclusion, Justice Kagan noted that:this interpretation furthered the goals of BAPCPA; andthis interpretation was consistent with the way in which the IRS applied the standards (although she was careful to point out that the "guidelines . . . cannot control if they are at odds with the statutory language")You Have to Decide What Should Be Applicable to Determine What Applicable MeansJustice Kagan rejected the Debtor's argument that "applicable" referred to the applicable number of vehicles which the Debtor had in reference to the standards. Her approach was a functional one.On this approach, the word “applicable” serves a function wholly internal to the tables; rather than filtering out debtors for whom a deduction is not at all suitable, the term merely directs each debtor to the correct box (and associated dollar amount of deduction) within every table.This alternative reading of “applicable” fails to comport with the statute’s text, context, or purpose.Opinion, pp. 11-12.Actual vs. ApplicableJustice Kagan also pointed out that her approach avoided making "actual" and "applicable" mean the same thing. She noted that if a person's actual expense exceeded the standard, it would be capped. However, she refused to opine on whether a person who had less than the standard would be limited to the actual amount. She noted that both the debtor and the United States believed that the debtor received the full standard as long as any amount was incurred, while FIA Card Services contended that the debtor received the lesser of the standard or the actual amount. She said that because the debtor had no ownership expense, it was unnecessary to determine whether the debtor received the full standard or just the actual amount. See Opinion, p. 13, n. 8.Overall, Justice Kagan's approach the statute is a pragmatic one. She ties her conclusion to a plausible reading of the text but shores up her interpretation with the purpose of the statute. She rejected the invitation to incorporate the IRS guidelines into the statute while allowing that they could be consulted so long as they didn't conflict with the text. A Minority of One Says Stop Making SensePredictably, Justice Scalia dissented. In his typical eloquent manner, he did not agree with Justice Kagan's grammar lesson or use of canons of statutory construction. The Court believes, however, that unless the IRS’s Collection Financial Standards are imported into the Local Standards, the word “applicable” would do no work,violating the principle that “‘we must give effect to every word of a statute wherever possible.’” (citation omitted). I disagree. The canon against superfluity is not a canon against verbosity. When a thought could have been expressed more concisely, one does not always have to cast about for some additional meaning to the word or phrase that could have been dispensed with. This has always been understood. A House of Lords opinion holds, for example, that in the phrase “‘in addition to and not in derogation of’” the last part adds nothing but emphasis. (citation omitted).It seems to me that is the situation here. To be sure, one can say “according to the attached table”; but it is acceptable (and indeed I think more common) to say “according to the applicable provisions of the attached table.” That seems to me the fairest reading of “applicable monthly expense amounts specified under the National Standards and Local Standards.” That is especially so for the Ownership Costs portion of the Local Standards,which had no column titled “No Car.” Here the expense amount would be that shown for one car (which is all the debtor here owned) rather than that shown for two cars;and it would be no expense amount if the debtor owned no car, since there is no “applicable” provision for that on the table. For operating and public transportation costs, the“applicable” amount would similarly be the amount provided by the Local Standards for the geographic region in which the debtor resides. (The debtor would not first be required to prove that he actually operates the cars that he owns, or, if does not own a car, that he actually uses public transportation.) The Court claims that the tables “are not self-defining,” and that “[s]ome amount of interpretation” is necessary in choosing whether to claim a deduction at all, for one car, or for two. (citation omitted). But this problem seems to me more metaphysical than practical. The point of the statutory language is to entitle debtors who own cars to an ownership deduction, and I have little doubt that debtors will be able to choose correctly whether to claim a deduction for one car or for two.Dissent, pp. 2-3.Making Sense of BAPCPA Here, Justice Scalia echoes his dissent in Hamilton v. Lanning where he unsuccessfully argued for a literal reading rather than a practical one. The difference here is that the word "applicable" here truly is ambiguous. Where either meaning is persuasive, one that is consistent with the purpose of the statute probably should carry more weight.As with last term's opinions in Milavetz and Lanning, the majority wants to construe BAPCPA in a manner which avoids extreme results. Thus, the Court will not apply the DRA sections to require a creditor's lawyer to say "I am a Debt Relief Agency." Similarly, the Court will neither require a debtor to recognize phantom income or allow a debtor to take a phantom deduction.

As a bankruptcy lawyer and trustee, Ronald Ingalls helped troubled debtors absolve their financial sins. As Father Methodios Ronald Ingalls, he will now be able to deal with sins of a broader nature. Today, on January 6, 2011, Ronald Ingalls was ordained to the Holy Priesthood of the Antiochian Orthodox Church. His story is one that shows that the distance between the sacred and the secular is often smaller than we imagine.For Ron Ingalls, his sacred/legal journey began as he entered law school in 1985. It was at this time that he converted to the Orthodox faith. As a result, there was a strong connection between the law and Orthodoxy in his personal life.He drew a parallel between his legal and priestly studies. He that, "It's not about you. It's about the client. Now I have the most important client of all."He graduated from the University of Texas Law School in 1988, served as a law clerk to Judge Glen Ayers, and became a chapter 7 panel trustee in 1994. As a trustee, he administered cases ranging from the missing atheist Madalyn Murray O'Hair to bankrupt developer Gary Bradley. He also drew parallels between his service as a trustee and a priest. He noted that in both instances, he was commissioned to act on behalf of someone who was not physically present. He also drew the parallel of trying to salvage something for everyone else.Ron's ordination was a moving three hour service. For those not familiar with the Orthodox Church, it involved a lot of solemn ritual. The service took place on Theophany, which means appearance of God. The service remembers the baptism of Jesus by John and the holy spirit appearing in the shape of a dove. The service included hymns in Greek, Romanian and Arabic. It also included the blessing of the holy water. Shortly after the service, the Bishop and clergy went to bless Barton Springs.Ron will return for a final semester in seminary and then will spend a year in a mission congregation in Fredericksburg. Godspeed.

The Diocese of Milwaukee filed a petition for chapter 11 relief on January 4, 2011 after twenty years of dealing with sexual abuse claims and an unfavorable ruling on its insurance coverage. In re Diocese of Milwaukee, Case No. 11-20059 (Bankr. E.D. Wisc. 1/4/11). Milwaukee is the eighth U.S. Catholic Diocese out of 194 to seek bankruptcy protection as the result of sex abuse claims. The Catholic Diocese bankruptcies illustrate how bankruptcy can help to resolve complex social problems as well as mere contractual disputes.The Diocese bankruptcies share several common factors. 1. They are precipitated by overwhelming tort claims involving horrific crimes perpetrated by persons in positions of authority. According to the Diocese of Milwaukee, "A tragedy that runs contrary to every teaching and tradition of the Church has unfolded in the Church as a whole and in the Archdiocese in particular: a small number of clergy and others took advantage of their positions of trust and respect in the community to sexually abuse children. ("The Abuse")." The website of the Archdiocese lists 44 priests who have "substantiated reports of abuse of a minor." Whether this is a "small number" can be debated. 2. Many of these incidents happened a long time ago. Of the 44 priests listed on the website, 17 are deceased. According to the Archdiocese, it took formal steps to address the abuse problem in 1989. According to published reports in other cases, much of the abuse dates back to the 1950s and very little has occurred since the 1980s.3. The financial cost of the tort claims is substantial. According to the Archdiocese, it had incurred costs of $29,564,678 based upon claims resulting from abuse of a minor as of June 30, 2010. There are currently claims from 17 plaintiffs pending with another seven who have given notice. 4. The Catholic Diocese bankruptcies pose a perplexing social problem. Who should pay for the abuse? Almost half of the priests who committed the abuse are deceased. The Diocese itself is an artificial entity. It is dependent upon the 657,519 registered Catholics for its income. It employs 177 persons, many of whom are engaged in good works. How do you apportion the blame for at least 24 persons who may have been wronged among 657,519 registered Catholics and 177 employees, many of whom were not even born when the abuse took place?5. Chapter 11 provides a structure for resolving the claims. Claimants must come forward within a reasonable period of time so that claims do not continue to show up decades later. Assets can be mobilized to pay claims. In the case of the Archdiocese of Milwaukee, the courts have absolved their insurance carriers and the Archdiocese claims that the assets of individual parishes are held in separate corporations. As a result, donations from the faithful are the most likely source of compensation to the victims. On the one hand, it is horribly unfair. Parishioners who had no complicity in the abuse must voluntarily pay for its consequences. On the other hand, it is at least somewhat fair. The faithful take responsibility for their shepherds. If the clergy betray the faithful, the faithful have an obligation to make it right. Therein lies the dilemma. The faithful didn't cause the problem. The faithful don't have unlimited resources. How do you strike a balance between the interest of those who have faced horrific wrongdoing and those have committed no wrong? Chapter 11 provides a framework for answering these questions.

In 2000, Natalie Portman starred in "Where the Heart Is," a movie about a pregnant 17 year old girl who makes her home in a Walmart. Judge Stacey Jernigan recently had to decide a quite different case about home and the heart. The case involved whether a modern day cowpoke's heart was down on the ranch or in town in his wife's bedroom. Fortunately, like a character in a John Wayne movie, the Debtor fended off every attack and saved the ranch. In re Tinsley, No. 09-36036 (Bankr. N.D. Tex. 11/16/10). The opinion can be found here.The StoryOur story goes back to 1979, when the Debtor's father purchased 116 acres located in Kaufman, Texas. In 2004, the Debtor moved into the Kaufman property to take care of his father. From 2004 to 2008, the Debtor stayed at the property full time and operated his own business, which consisted of running cattle and growing hay.On September 24, 2008, the Debtor's father passed away and left the ranch to the Debtor. under his will A few days later on October 14, 2008, the Debtor married. After marriage, he d spent his days at the Kaufman property and his nights at his wife's home. The Debtor generously allowed his adult son and his family to live at the Kaufman property. On September 10, 2009, the Debtor filed bankruptcy. Title to the Kaufman property remained in the name of his deceased father because the probate case had not been concluded. The Debtor used his wife's address as his address on the bankruptcy petition, but claimed the Kaufman property as his homestead.The ObjectionsThe Trustee and a creditor objected to the claimed homestead exemption on the grounds that:a. The Kaufman property was not his homestead under Texas law; andb. The homestead exemption was capped at $136,875 because the Debtor acquired his interest within 1,215 days before bankruptcy.Texas Homestead ExemptionIn order to establish a Texas homestead, a person must show that he has a present possessory interest in the property and must show a combination of both overt acts and intent to make the property his homestead.The objecting parties claimed that the Debtor did not have a present possessory interest in the property because he did not hold legal title. The Court rejected this argument, finding that legal title was not necessary. The Court found that the Debtor was a tenant at will of the probate estate. While his continued possession of the property "depends upon the will and whim of the fee simple owner (i.e., the probate estate of his father)," the fact that he was the devisee under the will made it unlikely that he would lose his possessory interest.The next issue was thornier. The homestead "is a possessory right which inures to the benefit of a family unit." The Debtor and his wife occupied two separate properties. Therefore, the Court had to determine whether the Debtor showed sufficient overt acts and intent to make the Kaufman property his homestead. The Court noted the possibility that the couple could claim both properties as a noncontiguous rural homestead, but found that this theory had not been pled.The court found that in a dual residence scenario, the first step is to determine whether one residence was objectively the only homestead. If the usage is sufficiently ambiguous, then the court may honor the Debtor's subjective intent. While finding that the case was extremely close, the Court found enough ambiguity to take the Debtor's subjective intent into account. 1. The Debtor spent almost every day at the Kaufman property.2. The Debtor intended to move his bride onto the Kaufman property once it was renovated.3. "While his new bride is eight miles down the road, the Debtor's horses, boots, tools, livelihood the past 17 years and now extended family are at the Kaufman property 365 days a year." Judge Jernigan shows real discernment here. The real test of a cowboy's residence is where he keeps his boots.Homestead CapHowever, the ranch was not out danger yet. The creditors argued that because the Debtor acquired his interest in the Kaufman property under his father's will and his father passed away less than 1,215 days before bankruptcy, that the exemption was capped at $136,875.The Court found that the Debtor had acquired a "vested economic interest" under the will. While noting that she "had grave doubts whether section 522(p) should apply at all in the context of a homestead 'acquired' by devise in a will within 1,215 days of the debtor filing for bankruptcy," she found that the Fifth Circuit had assumed without discussion that an inherited property was acquired. She also noted that Black's Law Dictionary defined "acquire" to mean "to gain by any means."While it looked like a bad result, the Court was willing to hold her nose and apply the cap. However, there is an exception to the cap for the principal residence of a family farmer. After an exhaustive analysis, the Court found that: the Kaufman property was the Debtor's principal residence; that the Debtor was engaged in farming operations even though he no longer grew crops and didn't have any cattle on the property at the time of the filing (the Court found it compelling that he had operated a ranching operation on the property since 1993 and had resumed his ranching operation after recovering from a heart attack), the Debtor's debts were less than $3,544,525 and that the Debtor received more than 50% of his gross income from farming during the three years prior to bankruptcy. The end result was that the Debtor got to keep the ranch without being subject to a cap.ConclusionIn conclusion, Judge Jernigan remarked:The court would conclude with the old saying that “home is where the heart is,” and, although the Debtor may have spent his nights with his new bride at the Kemp Property, rather than the Kaufman Property, the facts and circumstances in this case certainly show that the Kaufman Property is the Debtor’s true home and where his “heart” is. This case is certainly unique in that it implicates section 522(p)(1) for reasons not originally contemplated by Congress (i.e., this is hardly a case of letting a debtor get through a “mansion loophole,” in that no non-exempt property was put in a large, luxurious mansion on the eve of bankruptcy). Fortunately, for this Debtor, even though he “acquired” property which he used as his homestead within 1,215 days of filing bankruptcy, Congress anticipated certain situations to which they did not want section 522(p)(1) to apply and drafted section 522(p)(2)(A). Opinion, p. 35. In the final analysis, a bad unintended consequence was avoided due to the fortuitous intervention of an exception that happened to fit the Debtor to a t.

The first case argued before the Supreme Court this term was No. 09-907, Ransom v. FIA Card Services, N.A. You can find the transcript of the oral argument here. This case raises the issue of whether Courts should give the means test a literal interpretation or follow a more functional approach.In the case of In re Ransom, 577 F.3d 1026 (9th Cir. 2009), the Ninth Circuit (in contrast to the Fifth, Seventh and Eighth Circuits) held that a debtor could not claim an ownership expense for a vehicle unless there was an actual loan or lease payment. The problem is that the means test incorporated the Local Standards, which allowed an ownership deduction, while the Internal Revenue Manual clarified that an ownership deduction could only be claimed if there was an actual ownership expense. This raised the question of whether the Court should follow what Congress said (apply the Local Standard = ownership deduction) or what they meant (apply the Local Standards in the same manner as the IRS would have applied them). For more background, you can read my prior article about the subject here.The oral argument shows the Justices getting deep into the weeds of how the Means Test works and how it should work. While Justice Scalia shows a clear preference for the plain meaning approach, the other justices appear to be struggling to make sense of the test. This gives rise to some very thoughtful exchanges. It also gives rise to the justices, in their enthusiasm to ask questions, interrupting and talking over themselves.Why Is That the Crux Of It?Almost immediately, Justice Alito presses debtor's counsel on why the Court shouldn't follow the IRS's interpretation of the standards.MR. BURKE: Now, the crux of this is whether or not courts are allowed to dig in and cut out pieces of the standard aggregate amount. JUSTICE ALITO: Why is that the crux of it? Congress made reference to the local standards, right? MR. BURKE: Yes. JUSTICE ALITO: And were the -- was the commentary in the Collection Financial Standards in existence at the time when Congress enacted this provision? MR. BURKE: There was a Collection Financial Analysis that was in place, and it was noted in 1998 as a prior version of the bill that ultimately wasn't passed. JUSTICE ALITO: And that explains what the IRS understands the local standards to mean; isn't that right? MR. BURKE: I would disagree with that. I would say -- well, it would -- it would explain what the IRS means, but that's where I would end it, because the IRS standards are used to collect taxes. They are discretionary. They -JUSTICE ALITO: Well, I understand that, but Congress decided to make reference to the local standards in this bankruptcy provision, didn't it? MR. BURKE: Standards. JUSTICE ALITO: Yes. MR. BURKE: It didn't go beyond that. JUSTICE ALITO: And this -- and at the time when it did that, there was official IRS commentary regarding the meaning of those standards, correct? MR. BURKE: For the IRS to use in collecting taxes. JUSTICE ALITO: And your argument is that Congress intended to adopt the standards promulgated by the IRS, but not the IRS's interpretation of the standards. MR. BURKE: Correct, not their methodology or interpretation. Transcript, pp. 4-5.First Reference to $1 And Absurd ResultsIn this exchange Justice Ginsberg attempts to argue that to have an ownership "cost," you must have a cost, while Justice Scalia points out the absurdity that even $1 of ownership cost would entitle the debtor to the full allowance.JUSTICE GINSBURG: Doesn't the chart say "ownership costs"?MR. BURKE (counsel for Debtor): Yes.JUSTICE GINSBURG: And you would read that to mean non-costs as well? I mean, if the -- if the table is called ownership costs, then why not use the IRS's definition of what costs are, and that definition says, what, loan payments and lease payments?MR. BURKE: Because you -- we have to look at it as a standard aggregate. And what I mean by that is -- okay, the Bankruptcy Code doesn't define ownership costs. And ownership costs could be the replacement value. It could be buying a new vehicle. It could be the costs associated with making payments on a vehicle.What that -- that average number is, in this case, $471, is a nationwide figure that somebody would spend on average in a month. It doesn't mean that any one individual spends that amount.JUSTICE SCALIA: Mr. Burke, isn't it -isn't it the case that, even on the other side's interpretation of it, it doesn't come down to actual costs anyway? Isn't it the case, or do I misunderstand it, that so long as there is one payment, you get the entire deduction?MR. BURKE: That's their position, or even $1.JUSTICE SCALIA: Even one payment of $1, you get the entire deduction. So to argue this case as though it's a question of whether you actually expend the money that you're getting the credit for is simply -- is simply false. You don't do that under either side's interpretation, right?MR. BURKE: Again, I would perhaps -JUSTICE SCALIA: I'm trying to help you, Mr. Burke. (Laughter).Transcript, pp. 5-7.When Justice Scalia says, "I'm trying to help you," it's time to pay attention.Does Ownership Mean Loan or Lease Costs?In the next exchange, Justice Breyer wants debtor's counsel to concede that ownership costs means lease or loan payments, but he won't go there.JUSTICE BREYER: Of course you have all kinds of costs dealing with ownership, but what the IRS says, what it says in the statute, is you are supposed to take the applicable costs from IRS. And what it has on page 5a is it has something called "ownership costs."MR. BURKE: Correct.JUSTICE BREYER: And it defines those as $471.MR. BURKE: Correct.JUSTICE BREYER: And then on 3a, where it says what ownership costs are, it says the transportation standards consist of nationwide figures for monthly loan or lease payments, referred to as ownership costs. So when I read that, I said ownership costs means monthly loan or lease payments, nothing else.Now, you have all kinds of other things. It's just these words "ownership costs" don't refer to those other things, because of that definition given right there. That's what I thought Justice Ginsburg was initially asking.JUSTICE GINSBURG: Yes, I was.JUSTICE BREYER: And I -- and how -- how do you get out of that what I think of as very, very clear language which says what these standards refer to?MR. BURKE: Because the standards refer to the numbers. It's a chart.JUSTICE BREYER: Yes, but it doesn't -- for example, suppose you buy a dozen apples every month, and they cost you $48 extra. You're not going to say the ownership costs refer to the apples, even if you decorate the car with them.(Laughter.)MR. BURKE: What -- what -JUSTICE BREYER: I mean, ownership costs refers to lease and loan payments. Nothing else.Transcript, pp. 9-10.What's the Language We're Dealing With?At this point, Justice Scalia gets frustrated that everyone, including the debtor's lawyer, is talking about the statute in generalities without quoting the actual language.JUSTICE SCALIA: What's the language we're dealing with, Mr. Burke? Do you want to quote the language to us?Nobody's quoted the language. What does it say is applicable?MR. BURKE: What the statute says is the applicable -- you shall get, mandatory, the applicable amounts specified based on where a debtor resides -JUSTICE SCALIA: Wait. The -- the applicable amounts specified where?MR. BURKE: In the national local standards.JUSTICE SCALIA: Read the text of the statute, would you, please, for me? I couldn't even get it from your brief. You had to refer me back to the petition. Why isn't in an appendix to your brief or printed in the beginning of your brief, instead of kicking me back to dig out your petition?MR. BURKE: "The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national local standards."JUSTICE SCALIA: "Amount specified under" the standard.MR. BURKE: Specific amount, "applicable" modifies "amounts specified."JUSTICE SCALIA: "Applicable amounts specified," not the amounts specified if applicable.MR. BURKE: Correct, based on where a debtor resides.Transcript, pp. 10-12.Deducting Nonexistent CostsA little while later, Justices Breyer, Ginsberg and Kagan all join the conversation asking why a debtor could be allowed to deduct costs that are not incurred. This exchange marks the first time that Justice Kagan has spoken as an associate justice.JUSTICE BREYER: Is there something wrong with the IRS saying what they mean? It says ownership costs means monthly loan or lease payments. Now, is there somethingMR. BURKE: The problemJUSTICE BREYER: That's what it says it means. Now, is there something illegal about it defining ownership costs in that way?MR. BURKE: No, for the collection of taxes, there is not. But if you're going to use -- start digging into the manual, you might as well bring it all into 707(b), and, as we discussed earlier, there was language that said the collection financial analysis should be brought in, but that was deleted in the final version.JUSTICE GINSBURG: Why not just -- it says you are supposed to look at the form; it says ownership costs. So the only thing you'd look at the IRS for is -- the manual -- is to define ownership costs. And they say ownership costs means those two things.MR. BURKE: Well, I don't -- there's no reason to limit it. If you're going to -- the text doesn't say -- it says national local standards. It doesn't discriminate or give disparate treatment to that one item. If you're going to give it to one item, then it can be pulled in, and it should be -- the same treatment should be given to all items, and we should have to prove some type of aJUSTICE GINSBURG: I don't follow that. If the simple thing is to just -- what does the word "costs" mean? And then you look to the IRS manual, and it tells you that "costs" means loan or lease payments.MR. BURKE: To collect taxes, that's how they defined it. But in the statute it says you get "local standard amounts specified." It does not stretch it and say "under the IRS's interpretation." That language was taken out. And if we were to use the IRS's interpretation, here's the whole problem: It's discretionary. It goes up and down. It's based on an IRS revenue agent. It -- let me give you a separate example. NobodyJUSTICE KAGAN: Mr. Burke, if we could stay with this. The $471 is derived by looking at the average loan or lease payments nationwide. Then, in addition to that, we know that the IRS has a separate category for operating costs that is meant to reflect costs of having a car that are not your loan and lease payments. So, between those two things, why wouldn't we say that ownership costs means your loan and lease payments, but operating costs means your other costs of having a car, and that you get the operating costs if you have a car but don't make loan and lease payments, and you get the ownership costs if you do make loan and lease payments?MR. BURKE: Because to reach that, you have to go into the Internal Revenue Manual. It's not in the statute that says you have to owe on it to get it. And if you go into the Internal Revenue Manual -- let's look at operating expenses. What it says, in collecting taxes -- and it's in the Joint Appendix at pages 83 through 88. But what it says, when it comes to local national other expenses, an internal revenue agent has discretion. You only get these expenses -- this is the overall idea -- if they produce income or if it's for health and welfare.And so, when we look at the Joint Appendix page 88, section B, under the local standard transportation expenses, when it talks about operating costs, which is something you just mentioned, it says you only get transportation expenses that are used to produce income or the health and welfare of an individual and their family. Plus, the fact that you own a car, the IRS under its discretion can take away the operating costs if it's on four cinder blocks in your backyard. You're not incurring fuel costs, mileage costs; you are not probably paying registration or any of those other operating costs. The IRS agent, under their manual, can take away that expense.So, why stop and say, well, we're just going to look at the ownership costs? And all they're saying here is if you owe on it, you get it; if you don't owe, you don't get it. Let's not look at anything else in the Internal Revenue Manual, which is a 39-part, 500-page document that in some ways is almost incomprehensible, and direct the -JUSTICE GINSBURG: Mr. Burke, the -- it's unusual to allow a deduction for the purpose of calculating disposable income although you don't have any expense. I understand how you get to that conclusion with respect to car ownership. Is there any other provision that in -- in calculating disposable income, you are allowed a deduction for an expense that you don't incur?MR. BURKE: If the Court understands my view that Congress gave -JUSTICE GINSBURG: No. The question -- is there anything else that works like this? You don't have the expense, nonetheless you have the deduction? Any -- I mean, there are a whole list of deductions, expenses. Is there any other one that works this way?It doesn't matter whether you have the expense, in fact.JUSTICE KAGAN: For example, Mr. Burke, what would happen if you didn't actually have any out-of-pocket medical costs? Could you still claim a deduction for out-of-pocket medical costs?MR. BURKE: I'm saying you get all the deductions, whether you owe on it or not. Is there a specific one besides the car ownership that says you have to owe on it? No.Transcript, pp. 13-18.In this last exchange, Mr. Burke has grasped onto an important point. The Means Test was intended to take away discretion, while the IRS Collection Standards were intended to be used with discretion. Congress's choice of a standard invites ambiguity because it was not meant to be absolute. Justices Breyer, Ginsberg and Kagan all want the statute to make sense, while Justice Scalia and Debtor's counsel want it to mean what it says.What Has to Be Actually Incurred?From here, a number of the Justices get into a revealing discussion about whether other items in the Means Test must be actually incurred to be deducted.JUSTICE SOTOMAYOR: Do they apply -- do the courts apply the housing and utilities listed amount whether or not you pay for a house or not, whether or not you rent?MR. BURKE: There's two published cases I'm aware of, and both allowed it. One, somebody had military housing; one, the house was paid off. Both courts said you get it under the local standards. But the IRS manual would not give that to you, because under the local standards the IRS manual says you get the specific amount or your actual payment, whatever is less.JUSTICE SCALIA: Of course, once again, Mr. Burke, this is -- I don't know why you don't point this out. This is not the difference between your position and the position of the other side. You get the deduction for the other side as well, whether or not you are making the payment. Now, maybe it can be adjusted by the trustee, but as far as the statute is concerned, so long as you make one payment of $1, under their theory you're entitled to claim the deduction; isn't that right?MR. BURKE: That's correct.JUSTICE SCALIA: So.JUSTICE KENNEDY: My question, incidentally, about courts was not with reference to the car expense. It was with reference to the hypothetical or to the issue proposed by one of my colleagues, that said, what if you don't -- Justice Kagan -- suppose you don't have the medical expense. And the answer -- and your -- and I wanted to know if your answer is supported uniformly by the courts that have looked at this, or if there is also a split on that point?MR. BURKE: I apologize for not understanding it. No, every other expense deduction that I have seen besides the car ownership, somebody gets it.CHIEF JUSTICE ROBERTS: And they get it whether or not they incur that expense or not?MR. BURKE: Correct.CHIEF JUSTICE ROBERTS: In other words, food -- you don't have to say, well, he did spend this much money on food, so he gets the standard deduction.MR. BURKE: Correct.CHIEF JUSTICE ROBERTS: If he doesn't eat as much as somebody else, he gets the same deduction, right?MR. BURKE: Correct. Or if he lives at home and mom cooks for him.JUSTICE KAGAN: But, Mr. Burke, even you would say -- is this correct -- that if you don't own a car at all, you can't claim the car costs?MR. BURKE: Yes.JUSTICE SCALIA: Is that -- is that by reason of the Internal Revenue Service--MR. BURKE: No.JUSTICE SCALIA: -- manual, or is it by reason of the Bankruptcy Code itself?MR. BURKE: It's by reason of the Bankruptcy Code that refers to the standards, and the standards specifically say you have one car, no cars, and you get a public transportation, or two cars; pick the one.JUSTICE SCALIA: So it's in the chart -MR. BURKE: It's in the chart.JUSTICE SCALIA: -- that you claim -- okay.JUSTICE ALITO: What if you own a car, but it's completely inoperable and it has no value? You buy it for a dollar. It's a junk car, and you're planning possibly to restore it at some point. Do you get the deduction then?MR. BURKE: Based on a strict reading of the code, you get it. Now, would the IRS allow it? Again, that's a discretionary standard, but any time you have an objective test, there's going to be line-drawing and perceived unfairness on the outskirts.JUSTICE KENNEDY: And would your answer be the same if the allowance was set, the decree was made, and -- and the debtor then went out and bought the junker to put in his driveway just in order to get the 400-plus dollars a month, or would that be deemed an evasion of the law that could be addressed by the Bankruptcy Court?MR. BURKE: It can addressed by the Bankruptcy Court, and that's the beauty of the statute. We don't need to go into the Internal Revenue Manual. We just need their tables, because there's a provision, 1325(a)(3), that deals with good faith. So if it appears somebody is not acting in good faith, then -JUSTICE BREYER: What is -- we've got about half the courts in the country agreeing with you. And so you've read all those arguments, and what in your opinion is the best one on the point, again, where I am stuck, which is Justice Ginsburg's original point? I mean, I can think of millions of examples. You have a form that says -- the employer says entertainment expenses. Then it defines entertainment expenses as food and transport, and they leave out movies, you know. Or you could have vacation expenses, and vacation expenses are defined as transport and hotel, and they leave out meals. And here we have a definition of ownership expenses, and they say leasing and loaning, and they leave out other forms of ownership.MR. BURKE: Because -JUSTICE BREYER: Now, the argument is, well, that's what they mean by it, so that's what applicable. Now, what's the best argument against that in those 50 cases? Why is it trying -- why to try to get an expense which isn't loan or lease? Have you any more right to it than if you tried to get an expense to my totally irrelevant apples? I mean, it doesn't fit within the applicable definition. What's the answer?MR. BURKE: The means test is a form, and if you look at the form -- the means test is a form.JUSTICE BREYER: I've looked at the form.MR. BURKE: If you look at the form -JUSTICE BREYER: Yes.MR. BURKE: It just says -JUSTICE BREYER: Ownership.MR. BURKE: That's it. There's no definition in the form.JUSTICE BREYER: But they -- two pages earlier they say what they mean by the word "ownership."MR. BURKE: Not the -- the IRM does.JUSTICE BREYER: Yes.MR. BURKE: Not the statute and not the B22 form that's filled out by debtors.JUSTICE BREYER: You say half the courts say, oh, you just sort of imagine what ownership expenses are, and anything that they can fall within that general English language word is what they can deduct; is that their approach? Because we -- you say cut off the definition, cut off the definition from the word "ownership"; don't use it. So what do we use to define what ownership is?MR. BURKE: We don't have to. Congress gave standard amounts for -JUSTICE BREYER: No, I know, but it's for ownership; it's not for, for example, whistling. It's for ownership. So -- so how do we define what that $471 attaches to? Do we use a State common law definition or something? How have they done it?MR. BURKE: Because you can take it as a bunch of variables. It's not in the Bankruptcy Code. If -- so it could be replacement costs; it could be major repairs; it could beJUSTICE SCALIA: Is this a problem distinctive to your case? Doesn't the other side have the same problem with ownership? Don't they acknowledge that even if you are leasing the car you get the deduction?MR. BURKE: Yes.JUSTICE SCALIA: I don't see why this is distinctive to your case. It's a problem both sides face. And we don't avoid it by coming out against you, do we?MR. BURKE: No, we don't.JUSTICE BREYER: Why?JUSTICE ALITO: What if -- what if the definition ofJUSTICE BREYER: Why don't we?JUSTICE ALITO: -- ownership costs was moved into the local standards themselves? Would the outcome be different then?MR. BURKE: Are you saying in 707(b)?JUSTICE ALITO: No. It's moved from the CFS to the local standards, which are referred to in the -in the code provision.MR. BURKE: My answer would still be the same because that's not a congressional formula. That's a form that comes off the Department of Justice Website which administers the U.S. Trustee's program and that's their litigation position.JUSTICE KAGAN: But, Mr. Burke, if the table said loan and lease costs, you wouldn't have a case? If it said -- instead of ownership costs, if it said loan and lease costs, then you would sit down and you would say I'm not entitled to that deduction?MR. BURKE: No. I would say an individual who owns a car, whether they owe or not, gets the deduction because it's part of this aggregate standard.JUSTICE KAGAN: Even if it's called loan and lease costs?MR. BURKE: Correct. It's not a breakdown on what any one individual has. It's an aggregate.The exchange is interesting because it shows that Supreme Court justices are not reluctant to talk over each other.Grilling the Creditor's LawyerThe attorney for FIA Card Services didn't get much past may it please the Court when she is pressed on whether costs must be actually incurred. Her position is that for a cost to be "applicable," it must be actually incurred. This would make the standards a ceiling rather than an entitlement. However, she then backed away and drew a distinction between the national and the local standards.MS. MAYNARD: Mr. Chief Justice, and may it lease the Court: The Bankruptcy Code precludes an above median-income debtor like Petitioner from shielding from his creditors $471 a month for a car payment that he does not have. A debtor with -JUSTICE SOTOMAYOR: -- food costs, housing costs, utility costs, by getting his parents to pay for those things and still take this deduction?MS. MAYNARD: The statute allows a debtor to take an applicable monthly expense amount. So if the debtor truly has no food costs, then the food standard would be not applicable to the debtor, soJUSTICE SOTOMAYOR: Your adversary said that only two courts have addressed this issue and have permitted those deductions. So under what reasoning would we apply a different standard to the car costs as opposed to those other costs?MS. MAYNARD: Well, I think, with respect I think the cases he was talking about were housing.JUSTICE SOTOMAYOR: Housing.MS. MAYNARD: Right. So housing and car costs are part of the local standards. Food, clothing, house cleaning supplies, those are part of the national standards. The -- in our view, the text that goes along with -- accompanies the tables, which is not the Internal Revenue Manual -- it's just the pages reprinted at 1a to 3a of our brief. The Collection Financial Standards, the prefatory explanation for what the tables mean. In our view, that is -- goes along with -incorporated into the national local standards.The national standards, Justice Sotomayor, are allowed, as long as you have under the calculations -- as explained in the standards, under the national standards, a debtor would receive the allowance in the table as long as they have any such expense, so regardless of amount. However, if they have no such expense, then they are taken out by the statutory language in the means test, which says that the standard must be applicable to the debtor. AndTranscript, pp. 26-27.Another $1 Hypothetical and Absurd ResultsCHIEF JUSTICE ROBERTS: So if they have pre-purchased their food expenses, so long as they have $1 of food expense they get the entire expense even though they're not incurring it?MS. MAYNARD: If they are -CHIEF JUSTICE ROBERTS: And there are things like, you can pay up, you know, have the grocery deliver your food every month and you can pay in advance, and if you're paid up, you still get the full food expense that is allowed?MS. MAYNARD: No, Your Honor. I think if, over the 60-month period looking forward, you know, that you're going to -- you've already paid up for your food for the next 60 months and you're not going to incur any additional food expenses, no, then in that situation the standard would be inapplicable to you. You would be having no -- in that hypotheticalCHIEF JUSTICE ROBERTS: But if you paid $1 for food, you'd get the full amount for 60 months?MS. MAYNARD: Under the standard. That's the way the standards operate, Your Honor. I haven't seen any cases litigated over food expenseCHIEF JUSTICE ROBERTS: So your argument leads to a result that's just as absurd as your colleague's result on the other side.MS. MAYNARD: I don't believe so, Your HonorCHIEF JUSTICE ROBERTS: I mean, that was a big part of your argument. You said his position leads to an absurd result, and yours is just as absurd.MS. MAYNARD: I don't think so, Your Honor, for this reason, which is that the national standards are food, clothing, house cleaning supplies, things that you expect every debtor to have. You don't see much litigation about those expenses. The local standards, however, operate differently. In our view -- and our view's different from the government's, Justice Scalia. In our view, under the local standards and the way that they apply as explained in the Collection Financial Standards, is that the debtor is allowed their actual expense for the local standard or the amount in the table, whichever is less. So in the hypothetical. Transcript, pp. 27-29.Here the creditor's lawyer appears to have stumbled. Besides having the Chief Justice point out an absurd result, she has undermined the concept of using a mechanical calculation to determine a debtor's ability to pay. If the Local Standards are based on the lesser of the standards or the debtor's actual expense, then it is necessary to do a detailed examination of the debtor's actual expenses.Where Does It Say That?JUSTICE SOTOMAYOR: Where does it say that?MS. MAYNARD: In our -JUSTICE SOTOMAYOR: The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national and local standards. So the national and local standards have amounts listed. Where does it say you take only the actual, not the national or local standard?MS. MAYNARD: I read that text, Your Honor -- again, the Court doesn't need to decide this maximum cap issue to decide this case, because the Petitioner has no expense whatsoever, and so it's not applicable to him.But in our view, Justice Sotomayor -- in our view, you get it from the language of the statute that says the debtor's applicable monthly expense amounts specified under the national standards and local standards. And the way that we understand the national and local standards to work is, if you look at page it's explained on page 1a of the petition to our brief, the red brief. Maximum allowance -- it's the third paragraph down: "Maximum allowances for housing and utilities and transportation, known as the Local Standards, vary by location. Unlike the National Standards, the taxpayer is allowed the amount actually spent or the standard, whichever is less."JUSTICE SOTOMAYOR: But that's -- but that's not what the provision at issue here says. It says you use the amount specified under the national standards, and you use actual for everything else. That's what the statute said. So now you're trying to move the actual into the first half of the text?MS. MAYNARD: No, Your Honor, that's not how I understand the text. The text providesJUSTICE SOTOMAYOR: Why would you even bother? Why don't you -- if -- if what you're arguing is that only actual expenses are -- are what you can claim, you wouldn't need the first half.MS. MAYNARD: Yes, you would, Your Honor, because what the -- what the statute's purpose here is -- I mean, I think it's helpful to step back. Chapter 13 sends one to chapter 7's means test for the purpose of calculating the amounts reasonably necessary for the maintenance and support of the debtor. And Congress chose to import the -- the methodology of the national standards and local standards as a way both to set the categories of expenses that debtors could receive payments for, and, with the case of the national and local standards, to set the amounts. They were worried about capping upper discretion because Congress -- it's quite clear from the text and the legislative history -- was concerned about above-median-income debtors taking luxurious expense amounts.JUSTICE SOTOMAYOR: So what you would have the statute read is: The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified, as a -- as a maximum. You would have to add "maximum" somewhere there.MS. MAYNARD: No, Your Honor, because the amount under the national standards, as the national standards operate, is the -- is an allowance, not an actual, and the amount under the local standards, as they operate, is the amount actually spent or the amount in the table, whichever is less. And, again -Transcript, pp. 29-32.The Creditor Makes a Good PointWhile Chief Justice Roberts wants to talk about debtors who prepay their food expenses, the credit card company's lawyer makes a valid point. If you pay your car off, it means you didn't use that money to pay your credit cards. If you then receive an ownership deduction, you are shielding the same money from creditors twice--once when you used it to pay off the car and twice when you deducted it under the means test.CHIEF JUSTICE ROBERTS: Your -- your position penalizes debtors who pay their expenses in advance, who don't incur additional debt to pay for things like their car. I would have thought the Bankruptcy Code would think that's a good thing, that they're not incurring debt that they can't afford to payoff, but instead, to the extent they can, they're paying expenses in advance. Why should somebody who does that be in a worse position than somebody -- than somebody who takes out a loan they can't afford to pay back?MS. MAYNARD: Money is fungible, Your Honor, so to the extent the debtor has incurred expenses before going into bankruptcy instead of, as here, paying off this more than $85,000 in credit card debt, shouldn't be able to -CHIEF JUSTICE ROBERTS: Well, he hasn't incurred -- he hasn't incurred expenses. It's the whole point, I guess, that he's paid for something.MS. MAYNARD: He used his money, perhaps, to purchase his car outright, instead of to pay down his credit card debt, and so he has a salary of $50,000, and he has a credit card debt of $85,000, and he owns a 2-year car -- 2-year-old car outright. He should not be able to deduct, as a measure of his reasonably necessary expenses for his maintenance and support over the next 50 months, $28,000 that he doesn't need for a car payment that he doesn't make.Transcript, pp. 32-33.Local vs. National Standards and Actual vs. Standard ExpensesAs the justices continue to press about whether expenses must be proven up, Ms. Maynard returns to her distinction between local and national standards. JUSTICE SOTOMAYOR: So what you're proposing is that every debtor has to go to the Bankruptcy Court and show what their monthly food bills have been over what period of time, how much their personal supplies have been over what period of time? How can you calculate forward what they are going to spend on a monthly basis for each of those items? Isn't that the reason the tables are used, so that you don't have to do that?MS. MAYNARD: Yes, Your Honor, and in the national standards, which all the items you just list are national standards, under the national standards you don't do the actuals. On page 1a, it explains: "Allowances for food, clothing and other items, known as the National Standards, apply nationwide except for Alaska and Hawaii.... Taxpayers are allowed the total National Standards amount for their family size and income level, without questioning amounts actually spent."For -- yes, for those hard-to-calculate items, you do -- our position is you do get the amounts in the chart. For local standards -- the local standards, however, which include home, mortgage, lease expenses, utilities, and transportation, which include both ownership costs and operating costs, you get the actual or whichever is less.JUSTICE SCALIA: I must say your position is more logical than the position that you read in some of the instructions applicable to the -- to the chart that's referred to in the Bankruptcy Code, but not others. I mean, it seems to me, if you're going to read in the requirement that have to have made a lease payment, you should also read in the requirement that you're referring to now, which would mean your deduction is limited by the -- by the amount of your lease payment.I don't see why -- is there any reason why one would read in the other one and not read in yours?MS. MAYNARD: Not in our view, Your Honor, because in our view the chart is -- is ambiguous about what the number stands for. And so in the national standards, the text, the prefatory text, explains that the amount is an allowance if you have the expense. In the local standards, the prefatory text explains that the amount operates as a cap.But the important point for this case, Your Honor, is that you don't have to decide anything about the national standards because Petitioner is left at the statutory door. He has no applicable monthly expense amount for operating -Transcript, pp. 33-35.Having to resort to saying the chart is ambiguous when pressed does not help her case. She also has an unfortunate habit of telling the justices that they don't need their questions answered because they are irrelevant.Replacing a VehicleJustice Kagan leads off an interesting discussion about whether the debtor should get the deduction if we know that there will be an ownership expense in the future. This is critical because one of the best arguments for allowing an ownership expense deduction when there is not a current loan or lease payment is that the debtor will likely need to replace the vehicle during a five year chapter 13 plan. The creditor responds that this is something which can be addressed by plan modification or even built into the plan.JUSTICE KAGAN: Ms. Maynard, what would happen if the debtor had a car that was 200,000 miles old -- 200,000 miles, and it was going to break down, you know, within the next 5 years? Would the debtor then be able to take the deduction?MS. MAYNARD: If the debtor owns the car outright at the time they file for bankruptcy, they would not get the deduction. JUSTICE KAGAN: Even though if you look ahead, if you project forward, it's pretty clear that the debtor is going to have to incur those expenses?MS. MAYNARD: They would not get the deduction under this calculation. However, under this Court's decision in Lanning, when one goes to project the disposable income, it's conceivable that the debtor could prove that it's known or virtually certain that they will need a new car and that that could be accounted for.But -- but also the Bankruptcy Code in 1329 allows for modification of a plan, and so when the time arises that their car conks out and they need a new car, they can move to modify their plan. I think it's -JUSTICE KAGAN: Well, the modification works for chapter 13, but it doesn't work for chapter 7; is that right?MS. MAYNARD: Well, they make that statement in their reply brief, Your Honor, but I'm not sure exactly what they mean by that, because in chapter 7 this test is being used for a very different purpose. It's the gateway; it's a presumptive test for abuse. And so, again, our reading makes perfect sense in that context because what you want to know is, does this debtor actually have moneys it can prepay its creditors, should it be -* * *MS. MAYNARD: So, in chapter 7, once you -if you decide it's presumptively --- not presumptively abusive, and you stay in chapter 7, then chapter 7 is a liquidation. There's no ongoing plan. So I -- all of your nonexempt assets are liquidated, your creditors are paid off, and then you are discharged. If 3 years from now your car conks out, you're just like you and me; you are not in bankruptcy, you just -- you try to make do.Transcript, pp. 35-37.We're Really Going to Get Into A MessJUSTICE BREYER: I think it is -- well, I'm trying to work out what was his point. And I don't blame him for this. But trying to figure it out, he says look: This whole thing was written for a different purpose than the IRS, and if we start reading all those things from the beginning into the tables, we're really going to get into a mess. For example, we are going to give people deductions when they have lease payments, even though they're not owners when they have lease payments. The company owns -- not even an ownership expense, but it does say use the lease payment. And then it has all these other things.So forget it; do a simple thing. It says ownership expense. You go to the registry of motor vehicles and you say, is Smith the owner? And they'll tell you, yes or no. And if the answer is yes, he deducts $471. Sometimes that's too little; sometimes that's too much. But once we depart from that, we're really in a nightmare of trying to figure out what all these things mean that were written for other purposes.So, what do you say to that?MS. MAYNARD: I say, Justice Breyer, that there's nothing in the statute or the legislative history that suggests this was meant to be an overall budget for above-median-income debtors. This was about capping upper discretion and limiting the expenses available as reasonably necessary expenses for above-median-income debtors. And I think that point is made perfectly clear by the fact that if you can compare it to what happens now to a below-median-income debtor, a below-median-income debtor in the same situation as Petitioner, who owns his car outright, would be allowed no amount as an expense for his vehicle, because he doesn't have an actual expense that's reasonably necessary.And I think that the 2005 Congress would think it was a senseless result, as they argue here, that Petitioner gets $471, above-median-income debtor, the very class of debtors with whom Congress was concerned in the 2005 amendments, to shield from his creditors over the life of the plan when he has no comparable expense.Transcript, pp. 37-39.Digging Into the RomanettesIn this final exchange, the Justices and Ms. Maynard get into an interesting discussion of the interaction between Romanette ii and Romanette iii of the Means Test. On the one hand, you do not count secured debt as an ownership expense under Romanette ii, while on the other hand, you do get the entire secured debt payment under Romanette iii. This points an interesting distinction between the IRS Collection Standards and the Means Test. By allowing unlimited deductions for secured debt under Romanette iii, the Ownership expense deduction under Romanette ii appears to be meaningless. Ms. Maynard makes an unconvincing argument that the Debtor gets the lesser of the debt payment or the Ownership Expense.JUSTICE KENNEDY: What we are talking about is a paradigm of someone -- we're comparing someone who has a $470-a-month car payment and he gets -- and he gets the deduction. Why is that, in light of the second sentence -- let's see, the third sentence of the statute, which says, "Notwithstanding any other provision of this clause, the monthly expenses of the debtor shall not include any payments for debts." I mean, that would be the car company. And has -- has that point been litigated?MS. MAYNARD: That -- that sentence is somewhat of a conundrum, Your Honor, and I think that the Court doesn't need to decide the meaning here, because whatever it does, it doesn't get Petitioner within the Romanette ii calculation -JUSTICE KENNEDY: No -- no, but it would -MS. MAYNARD: -- because he has no payment.JUSTICE KENNEDY: It would eliminate the anomaly that -- one of the principal anomalies. There are many anomalies in each position. It would eliminate one of the principal asymmetries that seems to concern the counsel and the Court.MS. MAYNARD: Well, my understanding of that provision is that it serves two purposes.JUSTICE KENNEDY: That it?MS. MAYNARD: Serves two purposes. The first is that it makes clear -- in the back of our brief, we have the other necessary expenses from the IRM. And on -- near the back, page 25a, two of the categories of other necessary expenses are secured or legally perfected debts and unsecured debts.So I think the -- the otherwise -- the "notwithstanding" sentence makes clear that Romanette ii should not capture those other unsecured debts and secured debts, that it's the very purpose of this whole calculation to figure out how much money you have to pay those things.The second purpose the sentence serves is to make sure that there is no double-counting, because Romanette iii, the very next provision in the means test, allows the debtor to claim monthly payments for secured debts. Now, many car loans are probably secured debts, and in our view if you actually have a car loan -- now, remember again, he neither has a car loan, nor a car lease payment, nor any kind of ownership payment.But if -- if one actually did have a car loan that was secured by the car, which I think is the vast majority of car loans, in our view the debtor expenses nothing for that under Romanette ii, and only the actual amount of that debt under Romanette iii.JUSTICE GINSBURG: I thought the -- the general position was you get either the actual payment or the 471, of whichever is higher.MS. MAYNARD: Whichever is less. I think that -- that's my understanding of how the local standards work, Your Honor. I think, then, as a practical matter, that really will end up only applying to car leases with respect to transportation ownership costs, because I think that the "notwithstanding" sentence removes secured car loans from Romanette ii and has them calculated under Romanette iii, where there is no comparable cap.And the -- but -- but the point at issue in this case doesn't involve the interaction between Romanette ii and Romanette iii, because no matter how those two things interact, when the debtor has no payment whatsoever, he ought not to be able to claim any car ownership costs, because what we're trying to figure out is what amounts does he reasonably need for his maintenance and support? And this question is a very important question. . . .Transcript, pp. 39-43.The Government Weighs InThe Asst. Solicitor General did a good job of getting to the point before she faced another $1 hypothetical.MS. SAHARSKY: Mr. Chief Justice, and may it please the Court:The only question this Court needs to resolve in this case is whether the vehicle ownership expense is applicable to Petitioner. The answer is no. The ownership cost is for loan and lease payments, the cost to acquiring the vehicle, and he just doesn't have any payments of that type. To allow him to pretend that he does would create absurd results. He'd be able to shield approximately $28,000 from his unsecured creditors, and he'd be better off than lower income chapter 13 debtors. And we just don't think that that's a result that Congress intended. We don't think it -CHIEF JUSTICE ROBERTS: If he paid a dollar, he would be able to shield $27,999, and you're comfortable with that result?MS. SAHARSKY: Well, that goes to the question of whether the amount in the table is the amount to be used or a cap on actual expenses. In our view, it is -CHIEF JUSTICE ROBERTS: And I understood your brief to say it was the amount -- you get the whole amount, not simply as a cap.MS. SAHARSKY: That's right. Now, of course, we haven't seen -- the executive office for U.S. Trustees has not seen any $1 payments. It doesn't know of any such commercially available payments. It suspects the payments would be -CHIEF JUSTICE ROBERTS: If the point of the $1, counsel, is to lead to the extreme hypothetical that would flesh out your position, what if it were $10,000 and the amount would give him $30,000? The trustees have probably seen loans like that.MS. SAHARSKY: What I'm saying, Your Honor, is that there are many circumstances in which an expense amount is a standard amount, but you still need to make a threshold showing that it's applicable to you. And if I could give the Court one example: When an individual does his Federal income tax forms, you can take a deduction for your dependents, but you can't just take a deduction for any child you have. You have to take a deduction -- you can take a deduction if the person lives at home with you for more than 1 year and have you a certain amount of expenses to support them, and that is a standard deduction that you get on your tax forms. The IRS doesn't ask everyone to figure out their actual costs.It is the case in real life that there are allowance amounts that are average amounts that are given to people once they meet the criteria. And that's what we are saying happens here. Now, that is, again, only a disagreement as to what you do with people who actually have vehicle ownership expenses.Transcript, pp. 43-45.Can You Read the Commentary?In an interesting exchange, the attorney for the United States agrees with the Debtor's lawyer that the statutory text refers only to the standards. JUSTICE SCALIA: Why aren't -- why isn't one of the criteria the -- the provision that says maximum allowances for housing and utilities and transportation, known as the local standards, vary by location, and unlike the national standards, the taxpayer is allowed the amount actually spent or the standard, whichever is less? Why doesn't that apply?MS. SAHARSKY: Well, because, Your Honor, in that case it's the IRS commentary we are referring to that's on page 1a of the red brief appendix.JUSTICE SCALIA: Right.MS. SAHARSKY: And that -- what that's referring to is -- it says the amount actually spent or the standard. And that's distinguishing between the amount that's actually spent or the standard, which is the standard -JUSTICE SCALIA: Right.MS. SAHARSKY: -- amount in the table. Right. And of course, we look to what -- the text that Congress enacted in the Bankruptcy Code, and that says that the debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the national standards and local standards.JUSTICE SCALIA: It's not applicable. It's not applicable if, in fact, you haven't spent that much. Just as you claim it's not applicable if you have no payment at all.MS. SAHARSKY: I think that it is -- it would further Congress's purposes to say that you have to -- that you look to the actual costs that the debtor has. But we just don't think the text goes that far, because it says that if the expense amounts -- the category is applicable to the debtor, that then you use the expense amounts specified under the table. But -JUSTICE KENNEDY: No, but the -- but the gravamen of Justice Scalia's question is: Why are you running away from 1a, which is what Respondent's counsel relied on? And if that were clearly relevant to this statute, it would seem to me to answer the question. Are you saying we -- we don't look at this because it's just simply an interpretation; it's not a regulation? What is -- what is -- in your view, what effect do we give to this language that Justice Scalia quoted? Nothing at all?MS. SAHARSKY: It would not be relevant in the bankruptcy context, in our view, and the reason is because the -- the statutory text refers to the standards. And in our view, you can look to the IRS commentary to see what the standards mean, what their scope is, as Justice Breyer was discussing with his apples hypothetical.But this additional language is guidance to IRS agents in tax delinquency cases about how to collect taxes. As Petitioners -JUSTICE KENNEDY: Suppose we -- suppose we think the word "applicable" is ambiguous and difficult to construe. Do we then look at this language at 1a, or do you say it's irrelevant in all instance -- in all respects?MS. SAHARSKY: You -- Your Honor, you could look at this language, but we think that it reflects not the standards, but what -- how the IRS uses the standards in individual cases of tax delinquency. To the extent that the IRS is defining what the standards are, what the scope of the standards are -- for example, that ownership costs are loan and lease payments -- of course, we would think that you would look to that, but this additional guidance to IRS agents we don't think is what Congress meant when it said "expense amounts specified under the standards." But we do think that the text could be read the way you suggest.Transcript, pp. 45-48.A Strange QuestionCHIEF JUSTICE ROBERTS: Ms. Saharsky, I should -- I should probably know this, but if you do have amounts that are excluded from the disposable income because of car ownership, in other words, you actually have, from -- in your point of view, expenses, do they have to go to the -- pay off the car loan or are they available for everybody? All the creditors?MS. SAHARSKY: They're not available for the creditors. The idea behind this calculation is that there, of course, are secured debts that have priority, and then this calculation is used to figure out how much money is left to pay unsecured creditors. And the idea is that the debtor has certain expenses, that he needs to keep money for himself so he can continue with the everyday business of life. For example, the car ownership payment is designed to ensure that a vehicle can still use and have access to a car, and if someone has a loan or lease payment, they need to be able to continue making that payment in bankruptcy, but if they don't have any such payment, then they don't have this need for this additional fund because -CHIEF JUSTICE ROBERTS: But can he decide - let's say he has more food expense than is allowed. Can he decide of the amount that would otherwise go for the car payment that he's going to pay some of that for the food expenses?MS. SAHARSKY: Well, certainly the Bankruptcy Court doesn't scrutinize, you know, what happens to that regard. What it's just trying to do is figure out the disposable income that is available to pay unsecured creditors, that the debtor doesn't need.And I should just note with respect to this question of whether there is an overall budget that the debtor is allowed, you know, that's certainly not the case in any of the other provisions that follow this applicable monthly standards and local standards. You have the actual other necessary expenses, actual continuation of taking care of chronically ill family members. And Petitioner himself acknowledges that he has to show that he has a car. So it's not the case that every debtor is just getting some set amount of money to do what they will with. Congress has referenced the standards. The standards break this out into certain expenses. It says just take the applicable ones. And we just don't think it makes sense to interpret "applicable" in that circumstance to -Transcript, pp. 49-51.Back to the RomanettesJUSTICE KAGAN: Ms. Saharsky, could you explain to me the government's position on when a debtor with loan and lease payments gets to deduct them under Romanette ii? In other words, this goes back to Justice Kennedy's question, the notwithstanding clause and whether the notwithstanding clause effectively excludes all loan and lease payments from Romanette ii?MS. SAHARSKY: It does not have that effect, Your Honor. What it does is to take out the actual debt payments that are part of the other necessary expenses -- these are on page 25a of the red brief - that counsel on our side mentioned. These are other necessary expenses that are actual debt payments, and the local and national standards are expense amounts. We don't think that Congress defined those to be debt payments. So the function of the payments for debts language, we agree with Respondent's counsel, would be twofold. First, it would excise the other necessary expenses that actually are debt payments, which makes complete sense. You know, one of them is an unsecured debt payment, and you wouldn't want to consider that one of your expenses because the whole point of the calculation is to figure out how much money you have left to pay unsecured debts. And then the other function that it serves is in Romanette iii because you were getting secured debt payments there to not double-count them in Romanette ii.JUSTICE KAGAN: But, in other words, the loan and lease payments don't count as debt for purposes of the notwithstanding clause; they count as expense amounts?MS. SAHARSKY: We say that those are expense amounts that are specified. They're not payments for debts. I should note, because Justice Kennedy asked this question, that this was not something that was relied upon by the courts below. I don't believe that there's any definitive court of appeals opinion that goes through in detail what that provision is designed to do. So I would urge this Court that it need not resolve it in this case and instead do what the court of appeals did, which is to say that, just looking at the plain text, the word "applicable" means not everybody can get these amounts in the national and local standards, and it needs to be someone who actually has those payment amounts. The whole point of this part of this statute is to figure out what money is available to pay unsecured creditors, and it's payments that need to be made for expenses that matter. It's not whether the individual debtor has a car.I also note, just because it came up earlier and is a very important point, that to the extent that the Court only wants to look at the tables to figure out what are ownership costs, are they loan and lease payments, just looking at the title of the table, Ownership Costs, you need to have costs. Looking at the fact that there are two different ones -- there's ownership costs as opposed to operating costs -- makes clear that some of the things that Petitioner suggests might be ownership costs are, in fact, operating costs.Transcript, pp. 51-53. The issue of the exclusion of debt payments from the allowable expenses under the local standards really seems to bother the justices. If ownership expense means loan and lease payments, but loan payments don't count, then the standard doesn't seem to cover much.It Turns Out That They Are Really Only Arguing Over $100 Per MonthWhen it comes time for the Debtor's attorney to make his rebuttal, the Justices raise the most interesting question of the argument. Even though the means test said that the Debtor had disposable income of $210 per month, the Debtor's plan proposed to pay $500 per month. If the expense were not included in the means test, the Debtor would have to pay $600 per month. This means that a case went up to the Supreme Court over $100 per month. It also raises the question of why the Debtor would offer to pay more than he had to. JUSTICE GINSBURG: Mr. Burke, would you explain one facet of this case to me? Given the deduction, the $471 deduction, disposable -- projected disposable income comes down to $210?MR. BURKE: Correct.JUSTICE GINSBURG: As opposed to -- it would be 600 some dollars if you didn't count the $471?MR. BURKE: Correct.JUSTICE GINSBURG: Even though the disposable income figure was $210, the debtor was willing -- the debtor proposed paying $500. Why did the debtor come up with a $500 figure when projected disposable income without the car ownership would be -if he gets the car ownership, would only be $210?MR. BURKE: This is exactly why our view of the law works. The means test is a minimum amount. It's a bottom-line quick figure based on standard deductions. It was $200 based on our calculation if he's given his deductions based on age, location, et cetera.We then go back to I and J, and J, which is on page 44 of the Joint Appendix, is his current expenses. And if we look at line 13A, there is no vehicle payment. He's not taking $471. He took his income and expense. The bottom line was 500. He knew he had to pay at least 200. He's willing to pay the 500. He's not getting a $471 deduction because there is no car payment on his Schedule J.And if we look at the formula that way, the means test is a general form to give standard deductions, to give us a quick bottom line, and the debtor is either going to pay that amount or more based on his income and expense, and he would pay more if he really didn't have that expense. So if he didn't have a rent expense of $1,000 a month, it would show up on Schedule J that he didn't have 1,000, so his payment would go to $1,500 a month. That's the good faith that's involved in this case.JUSTICE SCALIA: It would have to go to 1,500 a month, or he, out of the goodness of his heart, would decide to pay that amount?MR. BURKE: He's going to have to pay an amount of at least $200.JUSTICE SCALIA: Right.MR. BURKE: It would be hard to confirm a case if he doesn't pay somewhere in that range.JUSTICE SCALIA: Fine. So why -- why would we assume that he -- I don't know -- your client is an extraordinarily generous fellow. I don't think most people, when they go through bankruptcy, are going to cough up any more than they have to.MR. BURKE: It's the only way for the form and the law to work. The means test is a bottom-line number. If you don't have one of those expenses, it shows up on Schedule J, and it gives you a number. If it's higher, we think you should probably pay it or in that range. If it's lower, Congress isn't saying you get away with it; it says you get out of chapter 13 if you're not going to pay this amount. So the formula is just to come up with a bottom line. Nobody is shielding anything. expenses. you - It's all black and white on his current If he doesn't have it -JUSTICE ALITO: Do you think that the -- doMR. BURKE: -- he's not getting it.Transcript, pp. 54-56. Here, the Debtor's counsel has an interesting take. The Means Test provides the floor, but the Debtor must pay at least the amount of his actual disposable income as stated on Schedules I and J. Thus, the Debtor doesn't really get to deduct the non-existent car payment. By conceding that the Debtor must pay at least the Schedule I & J income, the practical effect of all the mental gymnastics that the justices and attorneys have been wrestling with is negligible. Final ThoughtsThe Justices seemed to grasp that Congress tried to pound a square peg into a round whole when it incorporated the IRS Collection Standards but also allowed actual deductions for secured debt. As the Chief Justice pointed out, you get absurd results under any interpretation. It's hard to read where the Court will come out on this issue. In the early stages of the argument, it looked like the liberal justices were lining up behind the creditor's position, while the conservative justices were taking the debtor's view. However, when it came time for the credit card company's lawyer to argue, the liberal justices seemed unconvinced of her arguments. I think it is a safe bet that Justice Scalia will side with the Debtor and vote to reverse the Ninth Circuit. However, it's anyone's guess where the other eight will come down.

A new report from the Fifth Circuit offers some interesting statistics on the work of the court of appeals. You can find the report here. During Fiscal Year 2010, the Court received 7,337 new appeals, just 1.1% of which were bankruptcy appeals. Nearly 64% of the appeals filed were either criminal or prisoner appeals. Bankruptcy was the second smallest category, beating out only mandamus cases at 0.3%. During Fiscal Year 2010, there were just 82 bankruptcy appeals, down from 130 in 2007. Only 12.5% of the appeals filed resulted in published opinions. I can't verify this, but in blogging about bankruptcy opinions, there seem to be a lot of published bankruptcy opinions. Does that mean that bankruptcy is a small but interesting part of the work of the court of appeals?