In re Brooks

475 B.R. 343, 2012 WL 3115723, 2012 Bankr. LEXIS 3583
CourtUnited States Bankruptcy Court, W.D. New York
DecidedJuly 19, 2012
DocketNo. 12-10456 B
StatusPublished
Cited by1 cases

This text of 475 B.R. 343 (In re Brooks) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.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 Brooks, 475 B.R. 343, 2012 WL 3115723, 2012 Bankr. LEXIS 3583 (N.Y. 2012).

Opinion

DECISION & ORDER

CARL L. BUCKI, Chief Judge.

Section 1930 of Title 28 of the United States Code sets the fee that a debtor must pay as a condition for filing a bankruptcy petition. In 2005, Congress amended this statute to allow a waiver of the filing fee for certain individuals from households with limited income. See 28 U.S.C. § 1930(f). This court previously granted a partial waiver to the debtor herein. Now at issue is whether sufficient grounds exist to vacate that prior order and to mandate full payment of the filing fee.

Pursuant to 28 U.S.C. § 1930(f)(1), “the bankruptcy court may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line ... applicable to a family of the size involved and is unable to pay that fee in installments.” Thus, to be eligible for a fee waiver, the debtor must satisfy two requirements: that her income be less that 150 percent of the income official poverty line and that she be unable to pay that fee in installments.

On February 17, 2012, Christee L. Brooks filed a petition for relief under Chapter 7 of the Bankruptcy Code. With that petition, she further submitted an application to proceed in forma pauperis (the “IFP Application”). In this application, Ms. Brooks reported a monthly income less than 150 percent of the income official poverty line. Before approving the requested waiver, however, the court followed its usual practice of reviewing the schedules and Statement of Financial Affairs that the debtor had filed with her bankruptcy petition. Finding two areas of concern, the court then set a hearing on the IFP application for March 5, 2012.

The first concern arose from a lack of clarity as to whether the schedules reflected income attributable to all members of the household. At the hearing on March 5, the debtor represented that her household received no income other than what she had acknowledged on her income schedule and on the IFP Application. Based on that reiteration, we accepted the debtor’s assertion of eligibility for a fee waiver. The second concern derived from the fact that despite her claims of poverty, the debtor had sufficient resources to pay a retainer to counsel.

When the debtor submitted her petition for relief, the filing fee for a case in Chapter 7 was $306. Of this sum, $60 is reserved for payment to the case trustee. To the extent that the filing fee is waived in full, the trustee in a “no asset” case will essentially work without compensation. In instances where a pro-bono counsel undertakes the representation of a truly impoverished debtor, case trustees have accepted a waiver of their own compensation without complaint. But when a debtor finds resources sufficient to pay her own [345]*345attorney, case trustees may appropriately question why they alone must assume a personal financial sacrifice. For this reason, on March 13, this court approved an order waiving only that portion of the filing fee that was not dedicated to payment of the trustee.

On April 11, 2012, the Chapter 7 trustee submitted a letter to the court, with copy to debtor’s counsel. In this letter, the trustee advised that the debtor’s schedules and Statement of Financial Affairs had failed to disclose an entitlement to receive income tax refunds for 2011 in the amount of $9,046. Because this information might have been relevant to a consideration of whether to grant the IFP waiver, the court issued an order directing the debtor to show cause why the order granting a partial waiver of the filing fee should not be vacated. In response to that order to show cause, the debtor appeared with her counsel at a hearing on April 30 and submitted a post-hearing affidavit.

Christee L. Brooks now acknowledges that her federal and state income tax returns for 2011 established an entitlement to refunds totaling $9,046. Ms. Brooks states that after completing her tax returns, she obtained a refund anticipation loan from an entity called EG Tax Services. After deducting interest and fees in the amount of $400, EG Tax Services released a check in the approximate amount of $1500 to Brooks on February 1, and a check for the balance of the anticipated refund on February 10. From these advances, the debtor purchased a bed for the approximate sum of $975, made payment of $2,000 on account of moneys owed for automobile insurance, purchased a television for the approximate sum of $800, and paid a retainer of $915 to her bankruptcy attorney. Ms. Brooks represents that she used the remainder of the loan proceeds to pay a variety of household expenses, all presumably prior to the filing of her bankruptcy petition on February 17, 2011.

As filed with her bankruptcy petition, the debtor’s schedules and Statement of Financial Affairs contain several material misrepresentations. In part 6 of the Statement of Financial Affairs, Brooks declares that she made no assignment of property during the 120 days prior to the commencement of her bankruptcy proceeding. Then in part 10 of that same statement, she indicates that she never transferred property for purposes of security at any time during the prior two years. For certain, the refund anticipation loan would have involved either an assignment of the tax refunds or the granting of a security interest in those refunds or both. In addition, because the record does not indicate how EG Tax Services may have structured the transaction, the court can only speculate whether the debtor should have listed her refund as an asset on Schedule B, whether she should have reported the loan as a secured obligation on Schedule D, and whether she should have disclosed the lender’s receipt of the refunds as a pre-petition payment on part 3 of the Statement of Financial Affairs.

The existence of large tax refunds is the kind of new information that will allow this court to revisit its prior order allowing a partial waiver of the filing fee. Moreover, the debtor’s schedules and Statement of Financial Affairs contain false representations that have misled the court. Accordingly, the order of March 13 will be vacated. See Fed. R. Bankr.P. 9024 and Fed. R.Civ.P. 60(a) and (d). Based on a more complete record, the court will now give fresh consideration to the debtor’s request for a fee waiver.

Section 1930(f)(1) of Title 28 grants to the Bankruptcy Court the discretion to waive a filing fee when a debtor demonstrates both that her income is less than [346]*346150 percent of the income official poverty-line and that she is unable to pay the filing fee in installments. Christee Brooks represents that her household unit includes four individuals. As of the date of bankruptcy filing, for a family of that size, a debtor would need a monthly income of $2,881.25, in order to achieve 150 percent of the income official poverty line. On her IFP Application and on her schedule of current income, Brooks declared an average monthly income (after withholdings) of $2,122. However, as calculated by the debtor, this sum included no allocation for tax refunds.

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Cite This Page — Counsel Stack

Bluebook (online)
475 B.R. 343, 2012 WL 3115723, 2012 Bankr. LEXIS 3583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brooks-nywb-2012.