good morning may please the court i'm dan press i'm here on behalf of robert moore i want in this case the issue in this case at least what we thought was the issue in this case before the court to ask for supplemental briefing is whether social security benefits social security income and it must be included in the calculation of projected disposable income for a below median debtor in a substantially more relaxed standard than in typical civil litigation where file a complaint nothing's really final nothing really happens until it's the final judge in a bankruptcy case it's it's it's different and the court recognized that in the in the dudley case why the different i'm sorry why is it different what's the policy behind making it different if it is it because  issues are resolved distinct issues are resolved in bankruptcy case the bankruptcy case isn't itself it litigation there are litigations in the bankruptcy case essentially and denial of confirmation resolves the legal issues before the court but in in this case it was a it was a final determination by the court that two things one is that we had to contribute to social security income as part of project the disposable income and and to that the that the plan wasn't feasible and that included the map and that's why is what happens well if it's that sort of saw ok so what happens to this debtor is then apart from this apart from the confirmation order that was entered in this case let's assume that wasn't entered what happens to the debtor is he has a denial is his plan is denied he's free to file on an amended plan that satisfies the court and get it confirmed and we can try to do with the eighth circuit suggested which is you know you have to file a plan object to your own plan h was confronted with one panel decision that said it was not a final order and in light of the bankruptcy appellate panels ruling and then the concurring opinion suggesting that they reconsider that the panel had to do something in the panel can't overrule prior panel precedents so they created this this methodology but i don't think here in this court we don't have you know we do have the massey case the mass if if denial if we have to go get the case dismissed then so is option is either pay more than we think he has to and in many cases you know in this case was we're talking about money that essentially really is there because the social security he might be able to propose a confirmable plan and make the payments feasibly but in most cases where there is a disposable income issue final none of those things happen the court gets to reach the merits and and and and decide the case now i will point out that you know in this case we're not we're not dealing with that pure issue because we do have an order confirming the plan and that order is a final order that is a confirmation order and i think that should cure any jurisdictional defect i would i would like the court to took to reach the issue about a bill delivery of the nile confirmation but i think in this case you don't have to reach th  i think the technically i think the record is i believe the court can look at the entire record by this would be akin to subsequent autumn something make a case move we would look at it just to make it moot but would be something that would be similar to that if it's a subsequent it's a subsequent matter and i think i think it can be made part of the record if it's  after a premature appeal goes here that finality so so i think i think this case is properly before the court and i think the court can reach the the merits and should reach the the trustee and you know the court below refer to all these policy reasons why debtors should be required to pay everything they should into that but this court doesn't look at policy reasons and and construe statutes in light of public policy issues unless there's an ambiguity in the statute i submit defines current monthly income the term current monthly income is a defined term and it expressly xclusive social security all income received by the debtor bob but not county not including social security and then the term disposable income is defined in thirteen twenty five day as with the starting point of of being current monthly income so that income side of the calculation starts with her monthly income the confusion and and you know the trustee actually cited in the brief the the confusion is that we don't refer to the the means test numbers from section seven i was savin on the expense side if you have an but the starting point is still current monthly income the supreme court in hamilton v lanning addressed the issue of what project the disposable income means and if there's no change the store they say the starting point for projected disposable income is disposable disposable income is a defined term project a disposable income is not so they say the starting point is is displayed is disposable income and then they look to see if there is a change change that has occurred or is virtually certain there's no change and there's no change alleged here than just but then disposable income and projected disposable income are exactly the same  change income actually went down so do you and you you know in that case it had already happened between the time the case file here there's no change  you know at the time of confirmation was exactly the same as it was at the time of the confirmation hearing was exactly the same as it was at the time we filed the case when you know allegation and so we're we're we're bound i think by that the statute but if that's not enough then to bolster that we look at section two hundred seven associate curity act and if that wasn't good enough congress went and in one thousand nine hundred three because some judges were saying well it's just still be included congress went back and said it's we really mean it they said a subsequent change to the bankruptcy code does not a fact for seven and eight is not can't be deemed to include social security income in less the amendment makes express reference to for feasibility in sort of i think traditional bankruptcy practice is you know you look at that you look at the disposable income and before two thousand and five that was a pretty easy thing to do the numbers were the same but with the new with that with the amendments feasibility is really you know it's it's not is there disposable income to make the payments and you know it's simply the plan is  to form the plan well if there's nothing that says the debtor can't voluntarily contribute social security benefits exempt assets debtors could fund a plan and make it feasible for example by taking money out of their four one k plan if they had to do that to be able to make the payments necessary to meet the other confirmation requirements  of a chapter thirteen plan they don't have to they could use but they can use exempt assets they can use you know they can liquidate asset they can use and they can use social security benefits when the trustee is arguing is oh well if you exactly exactly he says i'm going to pay x dollars a month and you know the question for feasibility is does he have look looking forward does the court find that he has the ability to make those payments there's nothing to suggest that in reality he doesn't have the ability what the court did is said well but if we're not going to include for security then you don't have the ability well but he can include some of the social security and income toward his top the thirteen plan payment rather this case is about whether a blow median income debt or nay selectively may selectively apply his social security income towards the necessary elements for plan confirmation and direct a bankruptcy court to only consider his social security income for feasibility purposes but not consider his social security income for ability to pay purposes that also doesn't dismiss the case at the same time is not a final order for the purpose of appeal in this court is also found in computer learning centers that  other elements or a motion first stay pending appeal he could still retain the automatic stay in that interim pending appeal and that the whole process is very contribute all of their social security income toward their plan payments that's simply not the case for below median income debtors because often times social security income is necessary to fund a plan  social security benefits are exempt from attachment they're exempt from levy and there's another provision in that section of the social security act that says if that's going if there's going to be an exception to that then congress has to say specifically that it is including social security benefits in order to get around what is otherwise a general exception so that's why i was asking whether the congress it says specifically in the bankruptcy section two zero seven of the social security act is an anti assigning provision of social security benefits and other where is it focuses on the prohibition of third parties somehow either or by other means taking the social security benefits from an individual who is entitled to them whereas chapter thirteen bankruptcy is entirely voluntary and for a below median income debtor there is another option which is chapter seven and in that case it's not a wage it's not a payment plan it's a straight liquidation and thirteen that are not available in chapter seven and in exchange for these additional benefits debtors whether above median or below median agree to a payment plan to  property which is something he would not be able to do in a chapter seven case so in exchange for that benefit the bankruptcy system requires that the starter contributes all his disposable income creditors the best he can and in this case because a large portion of his or significant part of his income is social security benefits because these benefits are necessary to make a plan work position is ok then all of it goes out then all of it is exempt which in that case the plan is not feasible if it is it doesn't make sense to louay of below median income debtor who happens to have significant portion of his income that is that social security benefits be allowed to tell a bankruptcy or i am going to pay x amount of money and because a majority or a significant portion of my income is social security benefits i can essentially choose my own payment and the bankruptcy court is parlous to hold that debtors the same standard of every other debtor that comes before his court  right but when a debtor isn't have to thirteen is entirely voluntary he doesn't have to be into thirteen and thus not contribute his and voluntarily pay his social security income to a chapter thirteen plan he has every right to retain those the majority of his income is also security benefits then presumably he is willing to contribute all types of income including social security and this is not target or social security it just happens to be that this  debtors significant portion of his income is social security benefits however this isn't a requirement of the debtor to contribute all his social security income is just in this case he has to because he chapter thirteen is voluntary and the reason why a blue median income debtor would opt for chapter thirteen is because of the benefits and in exchange for these benefits the bankruptcy system asks the debtor to repay his creditors the best of his abilities and if we were to make an exception for debtors here you have social security income and say that they are allowed to contribute as much as or as little as they wish then it creates an equity across the system where perhaps a similar research similarly situated daughter who happens to receive all his income from wages that same income level that better would be held to the standards of section thirteen twenty five a and b which requires that they are to contribute all of his disposable income toward clan payments whereas in this case simply because people a median income  has social security benefits the bankruptcy court has the public would argue the bankruptcy court has no no power to tell him that he must contribute all his disposal income toward planned payments but in terms of the coring me i'm going to avail myself of the congressionally awarded exemption right so inconsistent is just used in the law as people do and should do should  argument because there is nothing in the social security act or the bankruptcy code that craze a special class a debtors for dares to receive social security income there is no special class of debtors where they are exempt from meeting their crime it's necessary for plant confirmation simply because they have social security income the there's nothing the bankruptcy code that says there's this there's a special class of doctors and i would argue that every doctor regardless of their source of income is held to should be held to the same standard which is you know is the good face and or the honest intention to repay their creditors in chapter  is requesting from say his children those are those funds are from a third party whose in the scope of the bankruptcy is unrelated if these are not the children's that the children is are not responsible in terms of being required to do so they are not in the chapter thirteen contract they are not rich so i use not required to use the social security bit of receivable he volunteered to do so but in the case of this also security benefits the debtor is actually the one who entitle to that income who actually receives this income whereas in in the case of the children he is requesting that a child who is not related to the bankruptcy is earning wages outside of the realm of the the scope of the thirteen case so inside the trustee would ask this court to consider not just the specifics of this case but the fairness aspect across entire that would affect entire bankruptcy system because allowing a below median income debtor to basically pick his plan payment runs afoul of fundamental bankruptcy the fundamental principles of the bankruptcy process median income debtors and there's nothing in the code that phrase a special class of debtors for those who receive social security income and for those reasons the trustee respectfully asked this court to  you instead of congress would make laws in this country the care of congress is as it is it is given that responsibility for your job is to interpret them of course and  who i was counting counsel used the term to the best of their ability the best of his ability or as to the best he can four times and so that that's the requirement in chapter thirteen has to pay to the best of his ability that is not in the code there are all kinds of things in the bankruptcy code that say the debtor doesn't need to pay in even though if you can exempt property if i had to pay all my creditors to the best of my ability i would have to give up all my exemptions i would have to hand over my household goods my car my homestead all of those things that are exempt if i was going to pay my creditors to the best of my ability i would have to give that up and i would have to give up social security but that's not what the code says its exceptions to paying to the best of the dispute if they don't like that first amendment gives them a right to petition congress and and they can feel free to do that as far as it being a voluntary plan you know of course it's it's voluntary the debtor to let his house to foreclose if he elects tap tap or seven is voluntary as well if the debtor elects to to proceed under this chapter then you know we comply with the terms of chapter thirteen and  you know as far as voluntary the hartford underwriters versus union planners case from the supreme court i think shoots down any argument that voluntarily doing something affects the exclusion of social security from from being considered finally counsel talks about how well below median income debtors aren't subject to to the standard what what she's saying is that if you're above median you know we don't count your social security you're already making more money and then we're not going to consider your social security so you can have even more but if you're below media if you're a poor person then not just as a practical matter to make a plan b s a feasible but as a legal matter to pay to the a best of your ability you have to kick in your social security is that even if this court were going to consider policy is that really the kind of policy that the court that's that to consider that we're going to punish poor people that's what she's suggesting and that is wrong and that's not what congress requires the starting point