Opinion
2:05cv1670, Electronic Filing, (Bankruptcy No. 05-27255-MBM).
May 22, 2006
MEMORANDUM ORDER
AND NOW, this 22nd day of May, 2006, upon due consideration of the parties' submissions under the applicable standards of review, IT IS ORDERED that the Bankruptcy Court's order of October 14, 2005, be, and the same hereby is, affirmed. The exemption in the Northwestern Mutual IRA claimed under Section 522(d)(10)(E) clearly met the requirements as set forth in Rousey v. Jacoway, 125 S.Ct. 1561 (2005) and the Court's analysis sufficiently undermines the Trustee's dogmatic reliance on Judge Gibbon's statement in In re Clark, 711 F.2d 21 (3d Cir. 1983). As the Bankruptcy Court explained in In re Bramlette, 333 B.R. 911 (Bkrtcy. N.D. Ga. 2005):
[in light of the Court's analysis in Rousey] we decline the Trustee's invitation to read into [§ 522(d)(10)(E)] a restriction to the right to receive payments presently, to the exclusion of a present right to receive payments in the future. The language of the section does not include words like "presently," "currently," or "immediately." Indeed, to infer such would be to exclude from consideration all deferred compensation and retirement accounts that have not yet ripened to current payment status. Again, that which is exempt is the right to receive payments, whether future or present, not merely the current receipt of payments.Id. at 918. To read the section in a contrary manner would reduce the Supreme Court's opinion to a mere hypothetical exercise. Accord In re Booth, 331 B.R. 233 (Bkrtcy. W.D. Pa. 2005) ("[a]lthough the Supreme Court did not specifically reject (or even consider) . . . [the Clark court's] interpretation of § 522(d)(10)(E) in Rousey v. Jacoway, its opinion [in Rousey] leaves no room for th[e] interpretation [in Clark].") (citation omitted).