In re Smith

585 B.R. 168
CourtUnited States Bankruptcy Court, W.D. Oklahoma
DecidedMay 30, 2018
DocketCase No.17–13529–JDL
StatusPublished
Cited by3 cases

This text of 585 B.R. 168 (In re Smith) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Smith, 585 B.R. 168 (Okla. 2018).

Opinion

Janice D. Loyd, U.S. Bankruptcy Judge

I. Introduction

Before the Court is the Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) Based on the Totality of Circumstances Under 11 U.S.C. § 707(b)(3) filed on November 29, 2017 (the "Motion") [Doc. 24] and Debtors' Response to Motion of the United States Trustee to Dismiss Case Pursuant to 11 U.S.C. § 707(b)(1) Based on the Totality of Circumstances Under 11 U.S.C. § 707(b)(3) filed on January 5, 2018 (the "Response") [Doc. 32]. The Motion of the United States Trustee ("UST") is premised *172on the assertion that the "totality of the circumstances" demonstrates abuse of the provisions of the Bankruptcy Code. The Court held the evidentiary trial on the issue of abuse on May 15, 2018. After carefully considering the evidence and arguments, the Court concludes that the Chapter 7 case must be dismissed under § 707(b)(3)1 . In accordance with Fed.R.Bankr.P. 7052 and 9014, the Court sets forth the following findings of fact and conclusions of law in support of its decision.

II. Jurisdiction

The Court has jurisdiction over this contested matter pursuant to 28 U.S.C. § 1334(b). Reference to the Court of this contested matter is proper pursuant to 28 U.S.C. § 157(a). This is a core proceeding as contemplated by 28 U.S.C. § 157(b)(2)(A).

III. The Evidence

Debtors filed for bankruptcy relief under Chapter 7 on August 31, 2017.2 Both Debtors are fifty-one years old. Debtor Michael Smith is employed in information technology, cyber security and call routing (which is the delivery of voice and technology applications to the desktop). He is presently employed at Tinker Air Force Base. Co-Debtor Adriana Smith is employed as a nurse at the Oklahoma Allergy and Asthma Clinic. Debtor Michael Smith testified that the cause of the bankruptcy was him being terminated from his employment with Energy Future Holdings on November 1, 2016. At that time his base salary was $126,800 per year plus a bonus compensation which ranged from $35,000-$100,000. His W-2 for 2016 reflected an income of $180,076.72 (but not quite for the entire year). [Debtors' Ex. 2E]. After having been unemployed for approximately eight months, he was employed by Frontier Communications in Texas at a salary of approximately $106,000 per year. He was then hired at Tinker Air Force Base.

At the time Debtors filed bankruptcy in August 2017 their original Schedule I reflected a total current gross monthly income of $12,225.58, with a take-home monthly pay of $9,398.88 [Doc. 1, Schedule I, pg. 31], living expenses of $9,329, resulting in a monthly disposable income of $69.88. [Doc. 1, Schedule J, pg. 33]. The UST analyst, John McLernon, testified that he computed the Debtors' gross income at $11,076.56, the allowable expenses under IRS and National standards of $7,169.00, resulting in a monthly disposable income of $1,319.62. This analysis would result in a sixty (60) month disposable income of $79,177.20 which, with total unsecured debt of $82,756, would result in a potential payout to unsecured creditors of 95.68%. [UST Ex. 5].

On May 8, 2018, the Debtors filed their Amended Schedules I and J which indicated a gross monthly income of $11,056.91, take-home income of $7,520.52, expenses of $8,387.22, with a resulting monthly disposable income of a negative $866.70. [Doc. 45]. The analysis by the UST of the amended schedules found a gross income of $10,836.95, a take-home pay of $7,609.51, allowable expenses of $6,751.44, with a resulting monthly disposable income of $858.07. This would result in a sixty (60) month disposable income of $51,484.20, making a potential payout to unsecured *173creditors of 62.21%.3 [UST Ex. 13].

The principal difference between the Debtors' and the UST's calculation of expenses was the UST reducing the Debtors': (1) transportation expenses from $1,100 to $430 because the Debtor was no longer working in Texas costing him substantial mileage and gas expense as had been the case pre-petition; (2) reducing by $771.86 the Debtor's voluntary contributions to his Federal Thrift Savings Plan (but allowing the mandatory 4.4% contribution to the Federal Employment Retirement System of $339.62); (3) disallowing the $433 monthly payment on the Debtors' 2017 Keystone travel trailer purchased in April 2017 with an outstanding balance of $50,122 since the same was no longer necessary as living accommodations as had been the case when the Debtor was working in Texas; (4) reducing the allowable monthly payments for vehicle expense by $493.12 from $1,618.56 to $1,125.44 (primarily by capping at $970 per IRS standard vehicle ownership expense for two vehicles); and (5) disallowing the Debtors' $193.13 car payment on one of their son's vehicle. [UST Ex.13]. Debtor Michael Smith testified that he agreed the transportation expenses which he had scheduled at $1,100 was probably no longer appropriate given his change of jobs. The UST also challenged the Debtor on the financial wisdom of his $792 per month payment on his 2017 Ford 1 ton pickup purchased in December 2016 with a balance of $57,983. Debtor testified that he couldn't get a decent truck with a cheaper payment.

The Debtors' Schedules indicated a residence valued at $375,000, a mortgage balance of $369,956 with a monthly mortgage payment of $2,240. [Doc.1]. Debtor testified that there was an arrearage on the monthly payments of approximately $16,000; however, Debtor testified that he paid all mortgage payments through his bank checking account, and that account shows that the last mortgage payment was made on April 4, 2017. [UST Ex. 8, pg. 6]. Thus, the mortgage arrearage is likely to be at least $26,880.

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Cite This Page — Counsel Stack

Bluebook (online)
585 B.R. 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-smith-okwb-2018.