UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ JOHN S. PENFOUND; JILL L. PENFOUND, │ Debtors. │ ___________________________________________ │ JOHN S. PENFOUND; JILL L. PENFOUND, > No. 19-2200 │ Appellants, │ │ v. │ │ │ DAVID W. RUSKIN, Chapter 13 Trustee, │ Appellee. │ ┘

Appeal from the United States District Court for the Eastern District of Michigan at Detroit; No. 2:18-cv-13333—Avern Cohn, District Judge. United States Bankruptcy Court for the Eastern District of Michigan at Detroit; No. 2:18-bk-48940—Marci B. McIvor, Judge.

Decided and Filed: August 10, 2021

Before: GRIFFIN, LARSEN, and NALBANDIAN, Circuit Judges. _________________

COUNSEL ON BRIEF: Aaron J. Scheinfield, GOLDSTEIN, BERSHAD & FRIED, P.C., Southfield, Michigan, for Appellants. Stuart A. Gold, GOLD, LANGE, MAJOROS & SMALARZ, P.C., Southfield, Michigan, for Appellee. _________________

OPINION _________________

LARSEN, Circuit Judge. In Davis v. Helbling (In re Davis), this court held that when a Chapter 13 debtor has regularly contributed to his 401(k) in the months leading up to his petition No. 19-2200 Penfound, et al. v. Ruskin Page 2

for bankruptcy, he may exclude that recurring amount from the calculation of his “projected disposable income.” See 960 F.3d 346, 355–57 (6th Cir. 2020). This case presents a twist to that fact pattern. What if a debtor has historically contributed to a 401(k) plan, but was unable to make further contributions in the months leading up to bankruptcy? John and Jill Penfound claim that such a track record should permit them to shield voluntary post-petition contributions from the reach of their creditors. Because neither the statute nor our caselaw supports the Penfounds’ position, we AFFIRM the judgment below.

I.

Between 1993 and 2017, John Penfound worked for a company that provided its employees with a 401(k) plan. For much of his tenure, Penfound voluntarily contributed a portion of his wages to the plan. In August 2017, Penfound transitioned to a new company, Protodesign, Inc. Unlike his previous employer, Protodesign did not offer a 401(k) plan. So Penfound was unable to make further contributions to his retirement account.

Penfound’s time with Protodesign was short-lived. He left the company in March 2018. And, on May 7, 2018, Penfound started working for a third company, Laird Technologies, Inc. Laird offered a 401(k) plan, and Penfound eventually resumed making contributions to his retirement account. However, the record on appeal is silent as to the exact date on which Penfound began making these payments.

On June 22, 2018, Penfound and his wife, Jill, filed for Chapter 13 bankruptcy. As part of their petition, the Penfounds sought to deduct $1,375.01 per month from their disposable income as voluntary contributions to John’s 401(k) retirem