In re Toxvard

485 B.R. 423, 2013 WL 122508, 2013 Bankr. LEXIS 82
CourtUnited States Bankruptcy Court, D. Colorado
DecidedJanuary 9, 2013
DocketNo. 11-17876 MER
StatusPublished
Cited by14 cases

This text of 485 B.R. 423 (In re Toxvard) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Toxvard, 485 B.R. 423, 2013 WL 122508, 2013 Bankr. LEXIS 82 (Colo. 2013).

Opinion

ORDER

MICHAEL E. ROMERO, Bankruptcy Judge.

THIS MATTER is before the Court on the following:

1. Second Amended Chapter 13 Plan (the “Plan”) filed by debtor Tammy Lea Toxvard (the “Debtor”) on January 9, 2012;1
2. Objection to Confirmation of the Amended Plan (the “Objection”) filed by the assigned Chapter 13 trustee Sally Zeman (the “Trustee”) on February 8, 2012;2
3. Debtor’s Support Brief: Summary of Debtor’s Position and Relevant Case Law filed by the Debtor on July 9, 2012;3
4. Brief in Support of The Trustee’s Objection to Motion to Confirm Chapter 13 Plan filed by the Trustee on July 9, 2012;4
5. Debtor’s Response to Trustee’s Support Brief filed by the Debtor on July 25, 2012;5
6. Response Brief in Support of The Trustee’s Objection to Motion to Confirm Chapter IS Plan filed by the Trustee on July 26, 2012;6
7. Brief Amicus Curiae by Douglas B. Kiel in Support of Objection to Motion to Confirm Chapter IS Plan filed by unassigned Chapter 13 trus[427]*427tee Douglas B. Kiel (“Kiel”) on July 9, 2012;7 and
8. Debtor’s Response to Brief Amicus Curiae by Douglas B. Kiel in Support of Objection to Motion to Confirm Chapter IS Plan filed by the Debtor on October 1, 2012.8

The Court has considered the evidence and legal arguments presented by the parties, including the parties’ supplemental briefs and the brief amicus curiae submitted by Kiel, and hereby makes the following findings of fact and conclusions of law.9

BACKGROUND FACTS

The Court heard testimony from the Debtor and her non-filing spouse, Ludvig E. Toxvard, II (“Mr. Toxvard”), at the evidentiary hearing held June 25, 2012. At the outset of this opinion, the Court finds both witnesses were credible. The Court believes these witnesses testified truthfully and have asserted genuine issues of dispute in good faith, attempting to obtain a fair and just outcome. The background facts set forth herein are gleaned from testimony and evidence presented at the hearing, the stipulated facts submitted by the parties, and the record in the Debt- or’s bankruptcy case.

A. Debtor’s First Marriage

The Debtor was previously married to Matthew Weese, and together they have three children.10 The Debtor owns certain real property known as 445 Aspen Circle, Frederick, CO 80530 (the “Frederick Property”), and the Frederick Property is titled in the Debtor’s name only. The Debtor’s Schedule A states the value of the Frederick Property is $190,500 and Schedule D lists two liens in the aggregate amount of $190,797 encumbering the Frederick Property.11 There is no equity in the Frederick Property.12

The Debtor’s first marriage deteriorated due to financial disagreements, and the Debtor and Mr. Weese later divorced. The Debtor testified the Frederick Property is vacant, and given the lack of any equity, the property will be surrendered to the lienholders through the foreclosure process.

Prior to the Debtor’s filing for bankruptcy protection, Mr. Weese and his counsel initiated an action to collect attorney’s fees related to the divorce. The Debtor testified she was not represented in the dissolution proceeding, and the resulting issues involving custody, domestic support obligations and the Frederick Property were the cause of her bankruptcy filing.

B. Debtor’s Second Marriage

On July 7, 2007, the Debtor married her second husband, Mr. Toxvard. Like the Debtor, Mr. Toxvard was also previously married and divorced. Mr. Toxvard has two children from his previous marriage. As a result of the financial difficulties and disputes during their previous marriages, [428]*428the Debtor and Mr. Toxvard agreed to keep their income and expenses separate during their marriage to avoid fighting over money. The Debtor and Mr. Toxvard maintain separate checking and savings accounts, and file separate tax returns.13

Prior to their marriage, Mr. Toxvard was the sole owner of certain real property known as 9423 N. 89th Street Longmont, Colorado 80503 (the “Longmont Property”). Mr. Toxvard has maintained sole ownership of the Longmont Property and bears sole responsibility for the mortgage obligations against the Longmont Property. Although the Debtor resides at the Longmont Property, the Longmont Property is not property of the Debtor’s bankruptcy estate because the Debtor has no legal or equitable ownership interest in the Longmont Property.14

C. Debtor’s Bankruptcy Filing

On April 11, 2011 (“Petition Date”), the Debtor filed for relief under Chapter 13 of the Bankruptcy Code. The Debtor filed her petition as a married individual filing alone. The Debtor and Mr. Toxvard reside in the Longmont Property, and their respective children are not dependents. The parties agree the Debtor’s household consists of only two individuals.

The Debtor submitted her Form B22C with her initial bankruptcy filing, which calculates the Debtor’s current monthly income for purposes of determining the plan commitment period and the Debtor’s disposable income.15 The Debtor asserts she completed Form B22C in conformance with her financial arrangement with Mr. Toxvard. The Debtor reports average monthly gross income of $3,500.02 for herself and $6,220.27 for Mr. Toxvard. The Debtor and Mr. Toxvard earn a combined average monthly gross income of $9,720.29, which, when annualized, equals $116,-643.48 — above the median family income in Colorado for a two person household.

The Debtor claimed the Line 19 marital adjustment deduction on her Form B22C in calculating her disposable income (the “Marital Adjustment Deduction”). The Marital Adjustment Deduction reduced the combined average monthly gross income to $5,321.26. When annualized, the adjusted disposable income equals $63,855.12 — an amount just below the same Colorado median income threshold. This Marital Adjustment Deduction is at the center of the dispute between the Debtor and the Trustee.

The Debtor also filed her Schedules I and J on the Petition Date, which calculate the Debtor’s average monthly income and monthly expenses.16 The Debtor did not disclose Mr. Toxvard’s income on her Schedule I, but states “Debtor and spouse keep all income and expenses separate except debtor buys all food, and they file separate taxes.”17 The Debtor lists her average gross monthly income as $2,916.68 and her average monthly expenses as $2,214.00.

D. Second Amended Plan and Trustee’s Objection

On January 9, 2012, the Debtor filed her Plan, providing a payout to Class 4 credi[429]*429tors of $5,654 over 60 months, in the following tiered payments: $1,180.00 total for months 1 through 10, and $185.00 per month for months 11 through 60.

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

Related

Dana Smith
S.D. Illinois, 2025
In Re: Sloane A. Worth
S.D. New York, 2024
Donald Paul Henderson
N.D. Georgia, 2024
Venitia Dawn Moreno
D. New Mexico, 2023
Eric Ray Henry
D. Kansas, 2020
In re Melendez
597 B.R. 647 (D. Colorado, 2019)
In re Moss
591 B.R. 338 (N.D. Illinois, 2018)
In re Vinger
540 B.R. 782 (D. Colorado, 2015)
In re Montalto
537 B.R. 147 (E.D. New York, 2015)
In re Currie
537 B.R. 884 (C.D. Illinois, 2015)
In re Trobiano
532 B.R. 355 (D. Colorado, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
485 B.R. 423, 2013 WL 122508, 2013 Bankr. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-toxvard-cob-2013.