In re Montalto

537 B.R. 147, 2015 Bankr. LEXIS 3139, 2015 WL 5474295
CourtUnited States Bankruptcy Court, E.D. New York
DecidedSeptember 17, 2015
DocketCase No. 8-14-71323-reg
StatusPublished
Cited by9 cases

This text of 537 B.R. 147 (In re Montalto) 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 Montalto, 537 B.R. 147, 2015 Bankr. LEXIS 3139, 2015 WL 5474295 (N.Y. 2015).

Opinion

MEMORANDUM DECISION

(Re: UST’s Motion to Dismiss)

Robert E. Grossman, United States Bankruptcy Judge .

Before the Court is a motion by the Office of the United States Trustee (the “UST”) seeking to dismiss the Debtor’s chapter 7 petition pursuant to 11 U.S.C. §§ 707(b)(1), (2) and (3) (“Motion to Dismiss”). The UST contends that a “presumption of abuse” arises in this case pursuant to § 707(b)(2) because the Debtor utilized improper marital adjustments and other expense deductions in her Means Test calculation. Alternatively, the UST argues that the Debtor’s bad faith and the [149]*149totality of the circumstances of the Debt- or’s financial condition warrant a finding of abuse pursuant to § 707(b)(3). The Debt7 or maintains that the marital adjustments and other expense deductions taken on the Means Test are accurate, appropriate, and substantiated and thus no presumption of abuse, bad faith or actual abuse arises under § 707(b).

An important issue presented in this case — the “marital adjustment” — arises when a married debtor files bankruptcy without his or her spouse. Under §§ 707(b)(2)(A) and 101(10A), the income of a non-filing spouse which is regularly contributed to household expenses of the debtor or the debtor’s dependents must be included in a debtor’s disposable income analysis.1 Thus, a non-filing spouse’s income may only be excluded from a debt- or’s disposable income analysis to the extent that the income is used to pay non-household expenses, i.e., expenses that are purely personal to the non-debtor spouse. This is the so-called “marital adjustment” or “marital deduction.” In this case, the Debtor’s non-filing spouse’s income ($119,-000) far exceeds the Debtor’s ($21,000). The exclusion of a significant portion of the Debtor’s spouse’s income from the monthly disposable income analysis — here, $1,088.62 per month — through the marital adjustment, while attributing all household expenses to the Debtor, results in negative disposable income under the § 707(b)(2)(A) Means Test despite significant combined household income.

Among the myriad of issues presented by the marital adjustment is the burden of proof. That is, does the statute mandate that all of a non-filing spouse’s income is presumed to be dedicated to household expenses except for specific expenditures that can be proven by the debtor to be strictly personal to the non-filing spouse; or is the proper interpretation of the statute that the only non-debtor spouse’s income included in the Means Test income calculation is that which can be shown by the movant, i.e., the UST, to be for household expenses, and all other income of the non-filing spouse should qualify for the marital adjustment. These are two very different interpretations of the statute placing the burdens on opposing sides of the issue.

The Court finds that, except in the situation where spouses maintain separate households, all of a non-filing spouse’s income is presumed to be dedicated to household expenses, and it is ultimately the debtor’s burden to prove which expenses are purely personal to the non-filing spouse. While it is easy to start and end with the proposition that the burden of proof on a motion to dismiss is on the movant, the facts necessary to prove whether certain expenses are household or non-household are almost entirely within the control of the debtor and the non-filing spouse, and they are rarely susceptible to being determined using a bright line test. The Court finds that it is the UST’s burden to present a prima facie case that a debtor is not including all of a non-filing spouse’s income that is paid on a regular basis for household expenses such that a presumption of abuse would arise. The burden then shifts to the debtor to produce evidence to prove that the marital adjustments were for non-household expenses.

The Court is fully cognizant of the evi-dentiary burden this may place on debtors in the event of having to defend a § 707(b) [150]*150motion to dismiss, and recognizes that such a rule may bar certain debtors from obtaining bankruptcy relief. However, the Court is also mindful that many of the statutory changes made by Congress through BAPCPA were intended to urge debtors into repayment plans and away from no-asset liquidations where the mathematical formula created by BAPCPA shows an ability to repay- — real or fictional. To the extent debtors might argue that it is inequitable to exclude from the disposable income analysis a non-filing spouse’s very real obligation to repay debt, the Court believes that these “household expenses” are in fact expenses of the debtor which should be captured elsewhere on the Means Test thus reducing disposable income. Regardless of this Court’s beliefs about BAPCA, it must administer the law as written and not as perhaps we wish it were written.

Applying the standard set forth herein, the Court finds that the UST has sustained its burden of presenting a prima facie case that the Debtor’s marital adjustments were improper, and the Debtor has failed to prove that those adjustments should be attributable to non-household expenses.

FACTS

On March 23, 2014, Laurie Montalto (the “Debtor”) filed a voluntary chapter 7 petition. The Debtor is married to Brian Montalto (“Brian”); however, Brian did not file bankruptcy.2 The Montaltos live with their three-year-old daughter. The Debtor has unsecured non-priority debts of $44,976, consisting solely of consumer credit card debt (Schedule F) which she seeks to discharge in this bankruptcy.

Along with the petition, the Debtor filed a calculation of her income and expenses on the Statement of Current Monthly Income and Means Test Calculation as embodied on Official Form 22A (“Means Test” or “Form 22A”). While Form 22A does not carry the weight of the statute, it was promulgated with an intent to capture the disposable income and “presumption of abuse” analysis set forth in § 707(b)(2)(A).3 According to Form 22A, Brian’s gross monthly income is $9,976.11 and the Debtor’s is $1,745.09, resulting in total household income of $11,721.20 ($9.976.11 + $1,745.09). Annualized, this is $140,654 in gross income which exceeds the state median income of $70,151 for a household of three.

After including all of Brian’s income into her Means Test calculation as required by Form 22A, the Debtor claimed a total downward marital adjustment of $1,088.62, thus reducing her household gross income, or current monthly income (“CMI”), to $10,682.58. Against this CMI as reduced by the marital adjustment, the Debtor applied total expenses of $11,084.70 resulting in a negative monthly disposable income of $452.12. Included among these expenses are $816 per month for childcare, $100 per month for telecommunications expenses other than basic home and cell phone services, and $117.44 per month for repayment of the Debtor’s 401(k) loan. The UST takes exception-to the marital adjustment as well as these specified expenses.4

[151]*151PROCEDURAL HISTORY

On May 22, 2014, the UST filed its Motion to Dismiss challenging certain of the “marital adjustments” taken by the Debtor, as well as other specified expenses which were unsubstantiated. On June 30, 2014, the Debtor filed opposition, and an evidentiary hearing was held October 16, 2014. Neither party offered direct testimony nor were the Montaltos present in the courtroom.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Donald Paul Henderson
N.D. Georgia, 2024
William C Tapply
D. Massachusetts, 2023
Karen R. Andersen
E.D. Michigan, 2020
In re Behne
575 B.R. 893 (D. Nebraska, 2017)
In re Ladieu
548 B.R. 49 (D. Vermont, 2016)
In re Vinger
540 B.R. 782 (D. Colorado, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
537 B.R. 147, 2015 Bankr. LEXIS 3139, 2015 WL 5474295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-montalto-nyeb-2015.