In re Gourley

549 B.R. 210, 2016 Bankr. LEXIS 1072, 2016 WL 1371064
CourtUnited States Bankruptcy Court, N.D. Iowa
DecidedApril 4, 2016
DocketBankruptcy No. 15-00076
StatusPublished
Cited by5 cases

This text of 549 B.R. 210 (In re Gourley) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Gourley, 549 B.R. 210, 2016 Bankr. LEXIS 1072, 2016 WL 1371064 (Iowa 2016).

Opinion

RULING ON MOTION TO DISMISS FOR ABUSE

THAD J. COLLINS, CHIEF BANKRUPTCY JUDGE

This matter came before the Court for an evidentiary hearing on December 3, 2015 in Dubuque, Iowa. Robert J. Murphy appeared for Debtors Jeff and Susan Gourley (“Debtors”). John Schmillen appeared for the United States Trustee (“UST”). After hearing evidence and arguments, the Court took the matter under advisement. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A).

STATEMENT OF THE CASE

The UST moves to dismiss Debtors’ case for abuse. The UST alleges that the totality of the circumstances demonstrates that a discharge in this case would be an abuse of Chapter 7. The UST argues that Debtors’ income is higher than reported on Schedule I. The UST calculates, using Debtors’ true income, that Debtors have disposable income. The UST also argues that, with some belt-tightening, Debtors can find more disposable income to sup[213]*213port meaningful repayment under a Chapter 13 plan.

Debtors resist. Debtors argue that they have no disposable income due to ongoing unexpected expenses. Debtors argue that they have tightened their belts by no longer running up debt like they were pre-bankruptcy.

The Court finds that the totality of the circumstances demonstrates abuse and will dismiss the case unless Debtors file a motion to covert to Chapter 13 within 21 days of this order.

BACKGROUND AND FINDINGS OF FACT

Debtors filed their Chapter 7 petition on January 22, 2015. As a part of their petition, Debtors filed Schedules I and J. Schedule I sets forth Debtors’ income. Schedule J sets forth Debtors’ expenses. Schedule I shows that Debtors’ combined monthly income after deductions is $5,874.91. Schedule J shows that Debtors’ monthly expenses total $5,714.93. Thus, Debtors’ monthly disposable income as reflected on their original petition was $159.98. Debtors stated on their schedules that they did not anticipate changes in income or expenses during the year after filing.

On May 5, 2015, the UST filed the Motion to Dismiss for Abuse. Attached to that Motion was a summary of Debtors’ income based on their payment advices. This summary showed that Debtors’ combined net monthly income was more than reported on Schedule I. Using this new income figure and Debtors’ Schedule J, the UST argued that Debtors’ monthly disposable income was enough to support substantial payments to creditors under a Chapter 13 plan. The UST also noted that Debtors had reaffirmed a debt secured by a camper, on which Debtors were making payments of $266 a month. The UST argued that this was retention of an unnecessary, if not luxury, item and was further grounds for dismissal.

Debtors resisted the motion. Debtors argued that their monthly expenses were actually higher than they had initially reported in Schedule J. Debtors then filed their Amended Schedule J. According to Amended Schedule J, Debtors monthly expenses total $7,390.57 a month.

Although Debtors asserted in their resistance that the UST incorrectly calculated their income, Debtors did not address this issue at the hearing. Jennifer Cline, a paralegal specialist at the UST’s office, testified that, based on Debtors’ payment advises, Debtors’ net income was $7,685.10. Debtors presented no evidence or argument about why this was wrong. In fact, Mrs. Gourley testified that she had no reason to think that the payment advices, on which Ms. Cline based her calculations, were inaccurate. Mrs. Gourley also testified that both Debtors have stable jobs. Mr. Gourley has worked as a sales executive at Woodward Communications for 7 years. Mrs. Gourley has worked as nursing director for Tri-State Surgery Center for 13 years.

After reviewing the UST calculation of Debtors income, the Court finds that it is accurate based on Debtors’ payment advices. Although Debtors have not amended Schedule I, the Court finds that their net income is $7,685.10.

Ms. Cline also testified about her review of Debtors’ expense schedules. Ms. Cline testified that the line items for life and health insurance on Amended Schedule J appeared to be duplicates of paycheck deductions for life and health insurance. Debtors’ Amended Schedule J has a line item of $37.20 for life insurance. Debtors’ payment advices show a $35.10 deduction from Mr. Gourley’s paycheck and a $6,00 [214]*214deduction from Mrs. Gourley’s paycheck for life insurance. Debtors’ Amended Schedule J also has a line item of $307.00 for health insurance. Mrs. Gourley’s payment advices show deductions for health insurance totaling $308.82. Mrs. Cline testified that, although the dollar amounts were not exactly the same, the Amended Schedule J line items for life and health insurance appeared to be duplicates of the deductions. Debtors did not testify about or otherwise address this issue.

Mr. Gourley testified about Debtors’ expenses. He stated that Debtors’ original Schedule J was inaccurate because it un-derreported their spending. He testified that Debtors Amended Schedule J was based on a review of then.’ actual spending over the last 6 months to a year. He also testified that Debtors had many “unexpected” past and future expenses that were not accounted for in Amended Schedule J. In particular, Mr. Gourley testified that expenses for their children’s braces, their children’s school lunch program, and vehicle and home repairs were not accounted for in Amended Schedule J.

Debtors have three children. Debtors’ daughter has braces. Mr. Gourley testified that Debtors have been paying for her braces out of pocket because her braces are not covered by insurance. During the course of the bankruptcy, there have been seven charges of $150 for her braces. The last charge was July 1, 2015. Averaged out over the course of 2015, her braces cost $87.50 a month. Debtors’ Amended Schedule J has a line item of $225 a month for out-of-pocket medical and dental expenses. Mr. Gourley testified that the braces were not covered by this $225 a month. Mr. Gourley testified that this $225 a month was entirely used up by visits to doctors and physical therapists and medication costs. After further examination, however, Mr. Gourley testified that Debtors have actually been paying for her braces with their Flexible Spending Account, which is funded through regular deductions from Mrs. Gourley’s paycheck. Mr. Gourley testified that their son will likely need braces as well. Mr. Gourley estimates, based on the cost of his daughter’s braces, that this will cost around $5,000. Based on Debtors’ exhibits, this cost would probably be spread over at least five years.

Mr. Gourley testified that Debtors also have expenses related to their children’s school lunch program. An exhibit provided by Debtors indicates that the school lunch program costs Debtors $150 a month. Debtors’ Amended Schedule J has a line item for $350 a month for Child-eare/Education expenses. Mr. Gourley testified that this $350 did not cover the cost of the school lunch program. Mr. Gourley testified that this $350 a month was used up entirely by summer education expenses and “other expenses for getting them prepared for school.”

Mr. Gourley testified that Debtors have had unexpected vehicle repair expenses. Mr. Gourley testified that both of Debtors’ vehicles have required and will continue to require costly repairs. On Debtors’ Amended Schedule J, there is a $500 line item for transportation. Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
549 B.R. 210, 2016 Bankr. LEXIS 1072, 2016 WL 1371064, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-gourley-ianb-2016.