Harris v. United States Trustee (In Re Harris)

279 B.R. 254, 2002 Daily Journal DAR 6823, 2002 Cal. Daily Op. Serv. 5382, 2002 Bankr. LEXIS 612, 2002 WL 1331851
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMay 14, 2002
DocketBAP No. CC-01-1423-BKMo. Bankruptcy No. SA 01-12973-JB
StatusPublished
Cited by25 cases

This text of 279 B.R. 254 (Harris v. United States Trustee (In Re Harris)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harris v. United States Trustee (In Re Harris), 279 B.R. 254, 2002 Daily Journal DAR 6823, 2002 Cal. Daily Op. Serv. 5382, 2002 Bankr. LEXIS 612, 2002 WL 1331851 (bap9 2002).

Opinions

OPINION

BRANDT, Bankruptcy Judge.

Debtors William R. Harris and Anita L. Harris appeal the bankruptcy court’s order dismissing their chapter 71 case for substantial abuse under § 707(b). We REVERSE, as no evidence supports the bankruptcy court’s finding of substantial abuse.

I.FACTS

The Harrises filed for chapter 7 relief on 10 April 2001, seeking discharge of $122,558 of unsecured nonpriority debt, consisting primarily of credit card debt. Mr. Harris is an attorney, and Mrs. Harris a legal secretary. Their combined net monthly income at filing was $7,422. In 1999 and 2000 the couple’s income was $134,000 and $146,000 respectively.

According to Schedule J, the Harrises’ total monthly expenses are $7,583. These expenses include $2,890 for housing, $800 for food, lease payments for a 1998 Honda Accord and a 1997 BMW of $654 and $535 each, and additional transportation expenses of $625, not including auto insurance.

On 29 June 2001 the United States Trustee (“UST”) moved to dismiss the Harrises’ case for substantial abuse under § 707(b), alleging that debtors could fund a 36-month chapter 13 plan paying 87% to unsecured creditors by reducing their expenses to the levels set forth in the Internal Revenue Service’s Financial Collection Standards (the “IRS standards”) (the standards to be used as the “means test” in § 102 of the proposed Bankruptcy Abuse Prevention and Consumer Protection Act of 2001, HR 333, 107th Cong. (2001), the bankruptcy legislation currently pending before Congress).

Debtors opposed, arguing that their expenses were reasonable and necessary for their maintenance and support. In support of their opposition, William R. Harris declared:

1. Debtors began experiencing financial difficulties in the early 1990s when Mrs. Harris quit her job to care for her ill mother. She returned to work after her mother’s death in 1995, but in 1996 Mr. Harris lost his job and, despite several job changes over the next few years, was unable to find employment at his previous salary level.

2. The Harrises refinanced their home in July 1998 and used the money to pay down their debts. They sold the home in March 2001, netting approximately $40,000. Because they could not qualify for conventional financing to purchase another home, they entered into a lease option.2

3. Mr. Harris’ job requires him to drive to court appearances scattered widely across Southern California (for example, in one week, Palm Springs, San Diego, and Van Nuys on successive days, then San [258]*258Diego and Glendale in the same day, and finally Santa Ana on Friday). The couple leased their current vehicles three or four years ago; at the time they believed they could afford the lease payments. After filing their petition, the couple inquired about leasing less expensive vehicles but were told they could not qualify for financing without a one-third down payment.

4. Because Mr. Harris spends so much time on the road, he frequently eats out.

In addition, the Harrises submitted the declaration of their counsel, along with documentation indicating the average price of a home in Orange County, California, to be approximately $350,000.

At the hearing on the UST’s motion, the bankruptcy court rejected the use of the IRS standards as a basis for determining whether the debtors’ expenses were reasonable. The bankruptcy court made no factual findings on the record, but concluded there was substantial abuse:

They’ve chosen their lifestyle and they’ve chosen to expend their money for their automobiles instead of paying their creditors....
... I don’t think I have any proof that [Mr. Harris] does, in fact, incur all of these except the fact that he has them in his schedules and if these are the expenses, then they’re not reasonable for a debtor who is trying to discharge $90,000 of unsecured debt or more....
... the debtor has not proven that these expenses are reasonable for — especially in light of the fact that after all of these car leases were entered into, that’s when all the credit card debt arose. And apparently it arose even after Mrs. Harris was reemployed. And there was no explanation as to why all that massive credit card debt was incurred at all. No explanation at all....

Transcript, 8 August 2001, pages 2-4.

The bankruptcy court entered an order dismissing the case on 15 August 2001. This appeal ensued.

II.JURISDICTION

The bankruptcy court had jurisdiction via 28 U.S.C. § 1334 and § 157(b)(1), (b)(2)(A), and (b)(2)(0), and we do under 28 U.S.C. § 158(c).

III.ISSUE

Whether the bankruptcy court abused its discretion in ordering the dismissal of the Harrises’ chapter 7 case for substantial abuse under § 707(b).

IV.STANDARD OF REVIEW

We review the bankruptcy court’s decision to dismiss a chapter 7 case for substantial abuse under § 707(b) for abuse of discretion. Gomes v. United States Trustee (In re Gomes), 220 B.R. 84, 86 (9th Cir. BAP 1998). A bankruptcy court necessarily abuses its discretion if it bases its decision on an erroneous view of the law or clearly erroneous factual findings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990).

V.DISCUSSION

A. Applicable Law

Pursuant to § 707(b),

[a]fter notice and a hearing, the court, on its own motion or on a motion by the United States trustee, but not at the request or suggestion of any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts if it finds that the granting of relief would be a substantial abuse of the [259]*259provisions of this chapter. There shall be a presumption in favor of granting the relief requested by the debtor....

The UST as moving party must establish (1) that the debtor owes primarily consumer debts; and (2) that granting of chapter 7 relief represents a substantial abuse of that chapter. Gomes, 220 B.R. at 86. Here, the parties do not dispute that the Harrises’ debts are primarily consumer debt; the issue is substantial abuse.

The primary factor to be considered in determining whether granting relief would be a substantial abuse is the debtor’s ability to fund a chapter 13 plan; in the Ninth Circuit, this factor alone will justify a § 707(b) dismissal. Zolg v. Kelly (In re Kelly), 841 F.2d 908, 914 (9th Cir. 1988). In considering this factor, the court may scrutinize the debtor’s scheduled expenses and reject or reduce those items that do not appear to be reasonably necessary for the debtor’s maintenance or support. See Kelly, 841 F.2d at 915 n. 9; In re Lenartz, 263 B.R. 331, 336 (Bankr.D.Idaho 2001).

Even if a debtor does not have the ability to repay his debts, § 707(b) dismissal may be warranted if bad faith is shown. Kelly,

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279 B.R. 254, 2002 Daily Journal DAR 6823, 2002 Cal. Daily Op. Serv. 5382, 2002 Bankr. LEXIS 612, 2002 WL 1331851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-united-states-trustee-in-re-harris-bap9-2002.