Even if debtors' original monthly expenses are accepted, debtors have little net monthly income by which an adequate pension could be started at this point in their lives. The current situation is distinguishable from that of In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo. 1989), aff'd. on other grounds, 121 B.R. 1015 (W.D.Mo. 1990).
00 vested interest in the Hallmark Profit Sharing Plan as an asset of the bankruptcy estate and that the Debtor's proposed Chapter 13 plan must fail because the unscheduled interest would be available for distribution to unsecured creditors in a Chapter 7 proceeding. The Trustee further argues that the Debtor's interest in the Profit Sharing Plan is not exempt under Mo.Rev.Stat. § 513.427 or 513.430(10)(e) according to this court's recent decision In re Gaines, 106 B.R. 1008 (Bankr.W.D.Mo. 1989). 11 U.S.C. § 1325(a)(4) provides "the court shall confirm a plan if . . . (4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under Chapter 7 of this title on such date;"
In re Scarlett, No. 84-003605-W-7-FWK (Bankr.W.D.Mo. Feb. 16, 1990) (order denying claim of exemption); see also In re Jones, 102 B.R. 730, 732 (Bankr.W.D.Mo. 1989) ("the lender liability cause of action held by Debtors is assignable, and thus, not exempt under Missouri law"); but cf. In re Gaines, 106 B.R. 1008, 1019 (Bankr.W.D.Mo. 1989) ("the assignability of property is not an element in determining whether property may be exempted under Mo.Rev.Stat. § 513.427"). The Court agrees that whether a cause of action is exempt from attachment and execution depends on whether it is assignable.
The debtors filed their Notice of Appeal on October 6, 1989. Thereafter, on November 6, 1989, the Bankruptcy Court filed an "Amended Memorandum Opinion." 106 B.R. 1008. The question is whether the Bankruptcy Court lost jurisdiction to enter any subsequent opinion once the debtors filed their Notice of Appeal on October 6, 1989. The debtors argue that their filing of a timely Notice of Appeal divested the Bankruptcy Court of jurisdiction to amend, alter, or otherwise modify its original September 27, 1989 order.
C.D. Cal. 1992) ; In re Smith , 124 B.R. 787, 791 (Bankr. W.D. Mo. 1991) (distinguishing In re Gaines, 106 B.R. 1008, 1020–21 (Bankr. W.D. Mo. 1989) ); In re Donaghy , 11 B.R. 677 (Bankr. S.D.N.Y. 1981) ("The special needs of retired, elderly, and infirm debtors should be taken into account").
is exempt from attachment and execution. Mo.Rev.Stat. § 513.430(10)(e) (Vernon's Supp. 1991). As one court has noted, ambiguity exists as to whether § 513.430(10)(e)'s "similar plan" language encompasses I.R.A.'s. See In re Gaines, 106 B.R. 1008, 1020 n. 12 (Bankr.W.D.Mo. 1989), quashed by 121 B.R. 1015 (W.D.Mo. 1990). However, given this court's conclusion that the Debtor's I.R.A. in this case is not reasonably necessary for the support of the debtor and his dependents, the question of applicability of the Missouri exemption provisions to an I.R.A. loses relevance.
In support of their second point, appellants cite R.S.Mo. § 513.430(10)(e)(c), which permits the Bankruptcy Court in its discretion to exempt a payment under a pension plan "to the extent reasonably necessary for the support of" the beneficiary and his/her dependents. In In re Gaines, 106 B.R. 1008 (Bkrtcy.W.D.Mo. 1989), the court held that a debtor's pension plan interest cannot be exempted pursuant to R.S.Mo. § 513.430(10)(e)(c) regardless of the debtor's need of support because the Missouri exemptions are preempted by federal ERISA law. Id. at 1017.
This administration includes "determining whether crimes have been committed, whether objections to exemptions should be filed, and whether property should be claimed for the estate or abandoned." In re Gaines, 106 B.R. 1008, 1013 (Bankr.W.D.Mo. 1989), rev'd on other grounds, 121 B.R. 1015 (W.D.Mo. 1990). See also Payne v. Wood, 775 F.2d 202, 206 (7th Cir. 1985) ("The requirement that the debtor list the property serves at least two functions.
11 U.S.C. § 704 (6).See, e.g., In re Gaines, 106 B.R. 1008, 1013 (Bankr.W.D.Mo. 1989), rev'd on other grounds, 121 B.R. 1015 (W.D.Mo. 1990). See also Payne v. Wood, 775 F.2d 202, 206 (7th Cir. 1985) ("The requirement that the debtor list the property serves at least two functions.
The administration of a bankruptcy case, of course, includes "determining whether crimes have been committed, whether objections to exemptions should be filed, and whether property should be claimed for the estate or abandoned." In re Gaines, 106 B.R. 1008, 1013 (Bankr.W.D.Mo. 1989), rev'd on other grounds, 121 B.R. 1015 (W.D.Mo. 1990). "The requirement that the debtor list property serves at least two functions.