Matter of Brady, 86 B.R. 616 (W.D. Mo. 1987)

John K. Weilert, Independence, Mo., for debtor.

ELMO B. HUNTER, Senior District Judge.

Before the court is an appeal from an order of the Bankruptcy Court, made January 21, 1987, which dismissed appellant's Chapter 7 bankruptcy petition.

Appellant filed her Chapter 7 petition on May 5, 1986, listing unsecured claims totaling $5,448.36, and no secured or priority claims. Her property was of nominal value; appellant's sole income is a Social Security benefit check in the amount of $448.00 per month. On Schedule B-4 of her petition, appellant claimed her Social Security benefit as exempt property.

*617 On January 21, 1987, after a hearing on the matter, the Bankruptcy Court dismissed the appellant's petition pursuant to 11 U.S.C. § 707(b), stating that appellant's $448.00 per month income would enable her to repay her unsecured creditors through a Chapter 13 Plan in a little over two years at a rate of $200.00 per month.

Appellant points out that her monthly Social Security check is exempt property from her bankruptcy estate. See 11 U.S.C. § 522; 42 U.S.C. § 407(b); Mo.Rev.Stat. §§ 513.427 and 513.430(10) (a) (1986). This court agrees with appellant that it was error to dismiss her Chapter 7 petition on the grounds that she could pay her unsecured creditors with exempt income. See In re Mastroeni, 56 B.R. 456, 458-59 (S.D.N.Y.1985). Accordingly, it is

ORDERED the Bankruptcy Court's order dismissing appellant's Chapter 7 petition is reversed; it is further

ORDERED this matter is remanded to the Bankruptcy Court for further proceedings consistent with this order.