In re Beinhauer

570 B.R. 128, 2017 Bankr. LEXIS 1026
CourtUnited States Bankruptcy Court, E.D. New York
DecidedApril 13, 2017
DocketCase No: 14-74450-las
StatusPublished
Cited by28 cases

This text of 570 B.R. 128 (In re Beinhauer) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Beinhauer, 570 B.R. 128, 2017 Bankr. LEXIS 1026 (N.Y. 2017).

Opinion

MEMORANDUM OPINION AND ORDER

Louis A. Scarcella, United States Bankruptcy Judge

I. Introduction

Marc A. Pergament, as chapter 7 trustee (“Trustee”) of the estate of April Bein-hauer (“debtor”), filed a motion pursuant to 11 U.S.C. § 707(b)(1)1 to dismiss the debtor’s bankruptcy case as an abuse of the provisions of chapter 7 based upon the “totality of the circumstances” under § 707(b)(3)(B) and requested that the Court order debtor’s counsel to reimburse the Trustee for costs, including attorney’s fees, in prosecuting the Motion pursuant to § 707(b)(4) (the “Motion”). [Dkt. Nos. 23, 24]. Debtor did not file opposition to that portion of the Motion seeking dismissal of her chapter 7 case. A hearing on the Motion was held by the Court at which the Trustee and debtor’s counsel, Shawn R. Kassman, Esq. (“Kassman”), appeared. After ■ careful consideration of the parties’ arguments and submissions, the Court granted the Motion to dismiss debtor’s bankruptcy case at the conclusion of the hearing. An order dismissing the chapter 7 case was thereafter entered by the Court. [Dkt. No. 32].

Now, before the Court is the balance of the Motion in which the Trustee seeks costs and attorney’s fees incurred in prosecuting the Motion. Having considered carefully the parties’ arguments and submissions, the relevant law, and the record in this case, and for the reasons set forth below, the Trustee’s request for reimbursement of costs and fees to prosecute the Motion pursuant to § 707(b)(4)(A) is [132]*132granted.2

II. Jurisdiction

The Court has jurisdiction over this matter under 28 U.S.C. § 1334(a) and (b) and the Standing Order of Reference entered by the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. § 157(a), dated August 28, 1986, as amended by Order dated December 5, 2012, effective nunc pro tunc as of June 23, 2011. Consideration of the Motion is a core proceeding under 28 U.S.C. § 157(b)(2) in which final orders or judgment may be entered by this Court pursuant to 28 U.S.C. § 157(b)(1).

III. Background and Procedural History3

On September 30, 2014 (the “Petition Date”), debtor filed her petition (the “Petition”)4 for relief under chapter 7 of the Bankruptcy Code. [Dkt. No, 1]. Debtor retained Kassman as counsel to prepare and file her petition and schedules. Kass-man electronically signed the Petition as “Debtor’s Attorney.” Beneath Kassman’s signature is the following form language contained in every bankruptcy petition: “In a case in which § 707(b)(4)(D) applies, this signature also constitutes a certification that the attorney has no knowledge after an inquiry that the information in the schedules is incorrect.”

Along with her Petition, debtor filed, as she is required to do so, the following: (1) Schedules A through J, (2) Statement of Financial Affairs, and (3) a Form 22A Chapter 7 Statement of Current Monthly Income and Means-Test Calculation, all electronically signed by debtor. Id. Schedule I (Income) reflects that, as of the Petition Date, debtor was employed by “PSEGLI,” also known as PSE & G Long Island or National Grid, and had a monthly gross income of $6,053.84. Schedule I also lists “payroll deductions” of $2,358.59, leaving debtor with a monthly income, after payroll deductions, of $3,695,25. Debt- or’s payroll deductions include $363.22 for “mandatory contributions for retirement plans,” $0 for “voluntary contributions for retirement plans,” and $258.31 for “required repayment of retirement fund loans.” [Dkt. No. 1, Schedule I]. On Schedule J (Expenses), debtor listed monthly expenses of $3,934.31. Subtracting her Schedule J expenses from her Schedule I income, debtor listed a monthly net deficit of $239.06. [Dkt. No. 1, Schedule J]. Debt- or’s Schedule B (Personal Property) lists two bank accounts: (1) a “Checking Account” ending in 2845 with a value of $4,300 (the “Capital One Account”)5; and (2) an account held at “JP Morgan (sic) Chase, 4170 Veterans Memorial Hwy, Bohemia” ending in 8713 with a value of $500 (the “Chase 8713 Account”). [Dkt. No. 1, Schedule B].

[133]*133On November 5, 2014, debtor was examined by the Trustee at the initial § 341 meeting of creditors, which was subsequently adjourned. On December 1, 2014, the Court entered an order approving a stipulation between the Trustee and Kass-man extending the Trustee’s time to object to debtor’s discharge pursuant to § 727 through March 6, 2015. [Dkt. Nos. 12, 14]. Thereafter, on February 23, 2015, the Court entered a second order approving a stipulation between the Trustee and Kass-man extending the Trustee’s time to object to debtor’s discharge through ■ April 30, 2015.6 [Dkt. No. 22]. In the meantime, debtor provided the Trustee with certain financial records, including bank statements and canceled checks, as well as an affidavit dated February 20, 20147 sworn to by debtor and notarized by Kassman providing certain information requested by the Trustee (the “February 20, 2015 Affidavit”).

The Trustee filed the Motion on April 24, 2015 [Dkt. No. 24] seeking dismissal of debtor’s bankruptcy case as an abuse of the provisions of chapter 7 pursuant to §§ 707(b)(1) and (3) based on “the totality of the circumstances.” In his Motion, the Trustee alleges, inter alia, that the Petition inaccurately reflected debtor’s monthly disposable income. Rather than a monthly deficit of $239.06, as set forth in debtor’s Schedule J, the Trustee calculated debtor’s monthly disposable income as $1,636.21. The Trustee arrived at this higher amount by including as part of debtor’s disposable income (i) contributions made monthly to her retirement plan, (ii) the amount applied each month toward repayment of her retirement loan, (iii) contributions received from her husband, a non-debtor8, and (iv) payments made toward her son’s college education expenses. The Trustee asserts that $1,636.21 would be sufficient to pay - debtor’s general unsecured creditors 100% of their claims under a chapter 13 plan over a period of 30 months. In addition, the Trustee seeks reimbursement of his fees and costs pursuant to §§ 707(b)(4)(A).

Debtor did not oppose the Motion. A hearing on the Motion was held before the Court at which Kassman and the Trustee appeared. At the conclusion of the hearing, the Court dismissed debtor’s bankruptcy case and scheduled a further hearing on the Trustee’s request for attorneys’ fees and costs to give Kassman time to file opposition. Kassman filed opposition. [Dkt. No. 28]. The Trustee replied. [Dkt. No. 33]. The Court held a hearing at which Kassman and the Trustee appeared. After oral argument, the Court took the matter under advisement.

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Cite This Page — Counsel Stack

Bluebook (online)
570 B.R. 128, 2017 Bankr. LEXIS 1026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-beinhauer-nyeb-2017.