DeAngelis v. Holmes (In re Holmes)

496 B.R. 765, 2013 WL 4446947, 2013 Bankr. LEXIS 3401
CourtUnited States Bankruptcy Court, M.D. Pennsylvania
DecidedAugust 21, 2013
DocketNo. 1:12-bk-01801-RNO
StatusPublished
Cited by1 cases

This text of 496 B.R. 765 (DeAngelis v. Holmes (In re Holmes)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeAngelis v. Holmes (In re Holmes), 496 B.R. 765, 2013 WL 4446947, 2013 Bankr. LEXIS 3401 (Pa. 2013).

Opinion

OPINION1

ROBERT N. OPEL, II, Bankruptcy Judge.

The U.S. Trustee moved to dismiss the Chapter 7 case of Thad M. Holmes. The Motion avers that the Debtor’s case is presumptively abusive pursuant to § 707(b)(2), or in the alternative, that the totality of circumstances evidence an abuse of the Code’s protections, under § 707(b)(3). For the reasons stated herein, the motion is granted in part and denied in part. .

I. JURISDICTION

The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).

II. FACTS AND PROCEDURAL HISTORY

Thad M. Holmes (“Debtor”) filed his voluntary petition for Chapter 7 relief on March 29, 2012. Accompanying his petition were his original Schedules A through J, Statement of Financial Affairs, Statement of Intention, and Statement of Current Monthly Income and Means-Test Calculation (“Original MTF”).

An individual who is consistently mentioned within these documents, and throughout this matter, is Mr. Bradley T. Jones (“Jones”). Mr. Jones has been the housemate of the Debtor since 2000, and a companion to him for longer than that. See Debtor’s Br. in Opp. to the Mot. of the U.S. Trustee to Dismiss Pursuant to Section 707(b) of the Bankr.Code, Sept. 18, 2012, 2 (stating Mr. Jones is Debtor’s “friend and companion”); Trial Tr. 67:21 (Jones testifies he is a “roommate” of Debtor); Trial Tr. 72:23 (Debtor testified that he and Jones were “together” longer [767]*767than the five years they have lived in the same house). Notwithstanding their living arrangement, the two are not subject to a formal civil union or any other legal relationship. Trial Tr. 67:22-23; 76:5-10.

There are several numerical figures on the Debtor’s schedules which are at issue in this case which should be introduced now to avoid later confusion. On his Schedule H — Codebtors form, the Debtor lists six debts he shares with Jones, which include two credit cards, two car loans, and one home equity loan. On the Schedule I — Current Income of Individual Debtor, Jones’ income is listed in the “spouse” column. Debtor’s counsel represented to the Court, during trial, that he was compelled to put Jones’ data in the spouse column because “that’s all our software allows in a circumstance like this.” Trial Tr. 37:16-17. Nevertheless, the amount listed for Jones’ “Monthly gross wages, salary, and commissions” is $4,766.67, and his “Total Net Monthly Take Home Pay” is $3,846.42. Also listed on Debtor’s Schedule I is the figure for Debtor’s “Payroll taxes and social security,” listed as $602.94.

Debtor’s Schedule J — Current Expenditures of Individual Debtor includes certain expenditures that are also relevant to this case. Besides the rudimentary categories such as “Food” and “Clothing,” the Debtor lists unique, added-in expenses such as $230.00 for “Cellular Phones,” $65.00 for “Parking Expenses,” $350.00 for “Lunches required for work,” and $200.00 for “Pet Maintenance.”

The Original MTF filed with the petition did not include Mr. Jones. Also absent from the form are any numerical figures past line 16. However, on line 14 the Debtor lists a “household size” of two (2) people, without any further explanation.

The U.S. Trustee filed a Statement of Presumed Abuse on May 2, 2012. In an apparent attempt to assuage the presumption of abuse, the Debtor filed an Amended Statement of Current Monthly Income and Means-Test Calculation (“first amended MTF”) on May 21, 2012. In contrast to the previous version, the first amended MTF listed Mr. Jones’ gross income in the “Spouse’s Income” column. This comports with Mr. Jones’ placement in the Debtor’s Schedule I, which lists Jones’ income in the same manner. Furthermore, the main difference between the first and second versions of the MTF was the answer given in line 52, i.e. the “Initial presumption determination”: The Original MTF did not provide an answer while the first amended MTF checked the box indicating that a presumption of abuse arises.

Two weeks after the first amended MTF came onto the docket, the U.S. Trustee filed his Motion to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(2) or (3) (“Motion”). The Motion avers that the Debtor’s case is presumptively abusive under 11 U.S.C. § 707(b)(2)2 because his “Monthly disposable income” listed on line 50 ($428.88) should be increased by $120.00, based on an error in the “National Standards: health care” section of the form. In the alternative, the Motion alleges that the Debtor’s case is an abuse under a § 707(b)(3) totality-of-the-cireumstanees analysis. To support this contention, the U.S. Trustee claims a number of the Debt- or’s scheduled household expenses are unreasonable and unnecessary.

The Debtor filed his Answer to the Motion on June 21, 2012. Along with general answers and denials to the Trustee’s aver-ments, the Answer contained a number of affirmative defenses. The defenses inelud-[768]*768ed that “[t]he monthly income and monthly expenses of Debtor’s companion were provided pursuant to rule or custom of this Court” and “Debtor’s companion has no legal obligation to assist Debtor with any of his debts other than the debts that are joint between them.” Debtor’s Answer 3. Three months later, on September 18, 2012, the Debtor filed his Brief in Opposition to the Trustee’s Motion to Dismiss. The Brief reiterates the Debtor’s argument that Mr. Jones has no legal obligation to contribute his income to pay the Debtor’s creditors. Debtor’s Br. in Opp’n to U.S. Trustee’s Mot. to Dismiss 2-5. It avers the exclusion of Mr. Jones’ income would leave the Debtor in a deficit position, notwithstanding the first amended MTF’s statement to the contrary, and thus the presumption of abuse does not arise. Id. at 3-5. Moreover, in regards to the Trustee’s § 707(b)(3) totality-of-the-circumstances abuse claim, the Debtor rebuts the claim through a methodical discussion of the factors that support such a finding; these factors are commonly known as the Miller factors after the case from which they derive, U.S. Trustee v. Miller (In re Miller), 302 B.R. 495 (Bankr.M.D.Pa.2003).

The first hearing on the Motion was held on September 20, 2012. At that hearing, I was critical of the Debtor stating one set of facts in the first amended MTF (including Mr. Jones’ income) and giving a completely different theory in the Answer and Brief (it would be illegal to compel Mr. Jones to contribute to the Debtor’s case). Debtor’s counsel expressed to the Court that a further amendment had not been filed because there existed no document which proves, explicitly, Mr. Jones’ monthly contribution to household expenses. To help solve this discrepancy, I ordered the Debtor to file a second amended B22A within seven days and continued the hearing.

The Debtor answered the Court’s request and filed a second Form B22A Statement of Current Monthly Income and Means-Test Calculation (“second amended MTF”) on September 27, 2012.

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Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 765, 2013 WL 4446947, 2013 Bankr. LEXIS 3401, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deangelis-v-holmes-in-re-holmes-pamb-2013.