In re Guerriero

383 B.R. 841, 2008 Bankr. LEXIS 289, 2008 WL 321303
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedFebruary 4, 2008
DocketNo. 07-14648-JNF
StatusPublished
Cited by3 cases

This text of 383 B.R. 841 (In re Guerriero) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Guerriero, 383 B.R. 841, 2008 Bankr. LEXIS 289, 2008 WL 321303 (Mass. 2008).

Opinion

MEMORANDUM

JOAN N. FEENEY, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the Motion of United States Trustee (“UST”) for Order Dismissing Case under 11 U.S.C. § 707(b)(1) Based on Presumption of Abuse Arising under 11 U.S.C. § 707(b)(2). Anthony and Maria Guerriero (the “Debtors”) oppose the Motion.

The Court conducted a hearing on the Motion and the Debtors’ opposition on November 21, 2007 at which counsel to the parties represented that the facts were undisputed. On December 6, 2007, the parties filed a “Stipulation of Facts.” The legal issue presented is whether, in applying the means test and determining whether the presumption of abuse arises, the Debtors are entitled to reduce their “current monthly income” (“CMI”) by payments to their mortgagee pursuant to 11 U.S.C. § 707(b)(2)(A)(iii) where they have indicated their intention to surrender the real property subject to the mortgage.1 The issue before the Court is not new and is representative of the interpretative challenges engendered by passage of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). See generally, Hon. Thomas F. Waldron and Neil M. Berman, Principled Principles of Statutory Interpretation: A Judicial Perspective after Two Years of BAPCPA, 81 Amer. Bankr.L.J. 195 (2007). Bankruptcy courts are divided on the issue, and it remains unresolved. Within the First Circuit, two bankruptcy judges have answered the question presented in the affirmative. See In re Hayes, 376 B.R. 55 (Bankr.D.Mass.2007), and In re Hartwick, 359 B.R. 16 (Bankr.D.N.H.2007), but courts in other jurisdictions have concluded that debtors may not deduct payments for secured debt if the collateral securing the debt has been or will be surrendered. See, e.g., In re Skaggs, 349 B.R. 594 (Bankr.D.Mo.2006).

[842]*842II. STIPULATED FACTS

The Debtors, a married couple, filed a Chapter 7 petition on July 27, 2007. Mr. Guerriero is a driver for Kamco Services, and Mrs. Guerriero is an office manager for Burnham Associates. The Debtors’ CMI, the definition of which is set forth at 101 U.S.C. § 101(10A), exceeds the applicable median income for a household size of two in the Commonwealth of Massachusetts. Moreover, the debts owed by the Debtors are primarily consumer obligations. Because the Debtors’ income is above the median income for their family size and location, they were required to calculate and deduct their expenses pursuant to 11 U.S.C. § 707(b)(2)(A)(i)-(iv) and to complete Part V of Form 22A.

The Debtors reside in an apartment located at 1304 Village Road East, Norwood, Massachusetts. They moved there prior to filing their bankruptcy petition. At the time they filed their Chapter 7 petition, the Debtors held an interest in residential real property located at 25 Cross Street, Salem, Massachusetts (“the Cross Street property”). On Schedule A-Real Property, they listed the current value of the Cross Street property as $250,000, subject to a secured claim in the sum of $358,706 held by Saxon Mortgage Services, Inc. (“Saxon”). On Schedule A, they noted that the “property is being surrendered.”2

The Debtors have two mortgages with Saxon which encumber the Cross Street property. They testified at their section 341(a) meeting of creditors that they had not made a mortgage payment on either the first or second mortgage since the Spring of 2007. In their Statement of Financial Affairs, they disclosed that Saxon had commenced a foreclosure proceeding.

The Debtors occupied the Cross Street property through June 15, 2007, at which time they entered into a one-year residential lease for an apartment at Windsor Gardens and moved to Norwood, Massachusetts. Their monthly rental expense, as listed on Schedule J-Current Expenditures of Individual Debtor(s) is $1,510. On their Amended Official Form 22A in Part V, “Calculation of Deduction allowed under § 707(b)(2),” Subpart C, “Deductions for Debt Payments,” on line 42, the Debtors listed “[fluture payments on secured claims” totaling $2,442, although they have made no post-petition payments to Saxon.3 They did not deduct any expense on line 20B under the IRS Local Standards for “housing and utilities; mortgage/rent expense.”

Saxon filed a Motion for Relief from the Automatic Stay on August 22, 2007 seeking authority to foreclose its first mortgage on the Cross Street property. On September 5, 2007, in the absence of objections, this Court granted Saxon’s Motion. As of December 6, 2007, when the parties filed their Stipulation of Facts, Saxon had not conducted a foreclosure sale and a mortgage discharge had not been recorded in the Essex County Registry of Deeds.

The section 341(a) meeting of creditors was held on August 23, 2007 and continued [843]*843to September 19, 2007. On August 31, 2007, the UST filed a Statement that she was currently unable to determine whether the Debtors’ case would be presumed to abusive. On October 1, 2007, the UST filed the Motion to Dismiss now before the Court. See 11 U.S.C. § 704(b).

III. THE STATUTE

Section 707(b) provides in relevant part the following:

(b) (1) After noticé and a hearing, the court, on its own motion or on a motion by the United States trustee, trustee (or bankruptcy administrator, if any), or any party in interest, may dismiss a case filed by an individual debtor under this chapter whose debts are primarily consumer debts, or, with the debtor’s consent, convert such a case to a case under chapter 11 or 13 of this title, if it finds that the granting of relief would be an abuse of the provisions of this chapter. In making a determination whether to dismiss a case under this section, the court may not take into consideration whether a debtor has made, or continues to make, charitable contributions (that meet the definition of “charitable contribution” under section 548(d)(3)) to any qualified religious or charitable entity or organization (as that term is defined in section 548(d)(4)).
(2) (A)(i) In considering under paragraph (1) whether the granting of relief would be an abuse of the provisions of this chapter, the court shall presume abuse exists if the debtor’s current monthly income reduced by the amounts determined under clauses (ii), (iii), and (iv), and multiplied by 60 is not less than the lesser of—
(I)25 percent of the debtor’s nonp-riority unsecured claims in the case, or $6,575, whichever is greater; or
$10,950.

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Related

In Re Marshall
407 B.R. 1 (D. Massachusetts, 2009)
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388 B.R. 433 (First Circuit, 2008)
In Re Phillips
382 B.R. 153 (D. Massachusetts, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
383 B.R. 841, 2008 Bankr. LEXIS 289, 2008 WL 321303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-guerriero-mab-2008.