In re Almond

344 B.R. 470, 2006 Bankr. LEXIS 1127, 2006 WL 1679649
CourtUnited States Bankruptcy Court, W.D. Virginia
DecidedApril 3, 2006
DocketNo. 05-70581
StatusPublished
Cited by1 cases

This text of 344 B.R. 470 (In re Almond) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Almond, 344 B.R. 470, 2006 Bankr. LEXIS 1127, 2006 WL 1679649 (Va. 2006).

Opinion

MEMORANDUM DECISION

WILLIAM F. STONE JR., Bankruptcy Judge.

The matter before the Court is the United States Trustee’s Motion to Dismiss Pursuant to 11 U.S.C. § 707(b) filed April 28, 2005 in which the United States Trustee alleges that the Debtor, Robert Hundley Almond, Jr., understated his and his non-filing spouse’s joint income on Schedule I “based upon a comparison of their combined earnings for 2002, 2003 and 2004.” (Mot. Dismiss 5.) Had their income been accurately reported, the Motion asserts, and the couple “contributed most of ... their net income less the expenses listed on Schedule J to a chapter 13 plan, [the [472]*472Debtor] would be able to repay a substantial portion of his unsecured debt in less than 36 months.” (Mot. Dismiss 4.) This Chapter 7 case was filed on February 18, 2005 and therefore this case is controlled by the law in effect prior to the adoption of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPC-PA). This matter was set for trial and heard on January 24, 2006. The matter has been fully briefed by the parties and is now ready for decision. For the reasons stated below, the Court will grant the United States Trustee’s Motion.

FINDINGS OF FACT

Federal Rule of Bankruptcy Procedure 1017(e)(1) requires the United States Trustee with regard to a motion to dismiss for alleged substantial abuse to “set forth in the motion all matters to be submitted to the court for its consideration at the hearing.” The matters relied upon by the United States Trustee may be summarized as follows. The Debtor understated the total household income listed on Schedule I based upon a comparison of such income with his and his wife’s adjusted gross income as reported on their tax returns for 2002, 2003 and 2004. On Schedule I, the Debtor reported a gross monthly income of $3,326.16 and Mrs. Almond’s gross monthly income is reported as $5,715.23, an aggregate sum of $9,041.39. According to their tax returns, the Debtor and his non-filing spouse had adjusted gross income of $126,615 in 2002 ($10,551 per month), $129,075 in 2003 ($10,756 per month), and $141,229 in 2004 ($11,769 per month). It is claimed that the Debtor has the ability to pay “a substantial portion of his unsecured debt in less than 36 months.” (Mot. Dismiss 4.) The Debtor’s bankruptcy filing was not precipitated by any calamity, litigation or repossession. Mr. and Mrs. Almond are asserted to have lived beyond their means as evidenced by the Debtor’s scheduled unsecured debts totaling $48,942.06, comprised primarily of revolving credit through credit cards and charge accounts. The Debtor is alleged to have incurred consumer debt at a time when it was clear that he was not able to service his existing debts.

The Debtor is married and the couple have one elementary school aged child who lives with them. Prior to filing bankruptcy, both the Debtor and his wife deposited their income into a joint account. The Debtor paid all expenses, regardless if joint or separate obligation, out of this joint account. After filing bankruptcy, the Debtor began depositing his paychecks in a separate account in an effort to track his money. However, the separate account is used in the same manner as the joint account. Despite their shared finances, Mrs. Almond chose not to file a joint bankruptcy petition with her husband because she feared she would lose her job and tarnish her reputation in the community.

The Debtor is the Director of Housekeeping at Richfield Recovery and Care Center. Mrs. Almond is a sales consultant for an insurance company and her income has been considerably more than his. Both the Debtor and his spouse have been steadily employed in the past. Mr. Almond has been employed at Richfield since 2001 and Mrs. Almond has been employed by the same company for over twenty years. On the Statement of Financial Affairs, the Debtor reported his 2004 gross wages as $40,909.41 and his 2003 gross wages as $36,298.69. The Debtor and his non-filing spouse had an adjusted gross income of $141,229 per their 2004 federal income tax return and $129,075 reported on their 2003 federal income tax return. On Schedule I the Debtor represented that he had gross monthly income of $3,326.16, which after payroll deductions of $824.28 left a net disposable income of $2,501.88 [473]*473per month. The Debtor reported his spouse had a gross monthly income of $5,715.23, which after payroll deductions of $2,289.611 left a net disposable income of $3,425.62. Against a combined monthly income of $5,927.50, Mr. Almond reported in Schedule J $6,684.00 in average monthly living expenses, including a $1,374.00 monthly first mortgage payment, a $420.00 monthly payment on an automobile, a $400.00 monthly payment on a second mortgage, a combined $933.00 monthly payment on various credit cards in his wife’s name2, $175.00 per month for miscellaneous personal expenses, $1,000.00 per month for groceries3 and $150.00 per month for his wife’s cosmetics, hair and nails.

The schedules reported that the Debtor and his non-filing spouse owned real estate valued at $260,000.00 as joint tenants with a right of survivorship and subject to two mortgages totaling $255,800.00.4 The Debtor reported an interest in personal property totaling $21,361.405, all of which was claimed as exempt except for $762.00 of the Debtor’s interest in savings accounts designated for his child’s education valued at $3,762.00; $19.00 of the Debtor’s interest in a life insurance policy on the life of his daughter valued at $20.00; $1,200.00 of the Debtor’s interest in a 2001 Jeep Cherokee valued at $4,500 and $10,999.00 in a 2002 Honda Accord valued at $11,000.

Aside from the mortgages, the Debtor reported secured debt totaling $12,969.856 on Schedule D, comprised of purchase money security interests in a camera, camcorder, carpet, tile and an air conditioner. Citifinancial’s claim of $8,622.47, secured by a purchase money security interest in carpet and tile, is listed as a joint debt on Schedule D. However, both the Debtor and [474]*474his wife testified that the debt was in Mrs. Almond’s name only and thus was her personal debt. On Schedule J, the Debtor lists as a household expense a $420.00 monthly payment on an automobile, which he testified was for a loan he and his wife had obtained to purchase her Honda Accord which would be paid off in three years. Although this obligation was not originally listed in the Debtor’s schedules, it was subsequently added. The Debtor reported unsecured claims totaling $48, 942.067, all of which is credit card debt. The parties have stipulated that Mr. Almond’s debts are consumer debts within the meaning of 11 U.S.C. 707(b) and that his bankruptcy petition was not filed because of sudden illness, calamity, disability or unemployment.

The United States Trustee urges that this case is one of substantial abuse because he asserts the Debtor understated in Schedule I his spouse’s actual monthly income by $504.03 and that the Debtor has the ability to pay a substantial portion of his unsecured debt in a thirty-six month Chapter 13 plan. To arrive at Mrs.

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Robbins v. Hall (In re Hall)
569 B.R. 58 (W.D. Virginia, 2017)

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Bluebook (online)
344 B.R. 470, 2006 Bankr. LEXIS 1127, 2006 WL 1679649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-almond-vawb-2006.