In re Karlingersmith
In re Karlingersmith
Opinion of the Court
MEMORANDUM OPINION
Can wage-earners who have sought refuge from creditors, and a fresh start, by filing a chapter 7 liquidation be forced into a chapter 11 reorganization, and be compelled to repay creditors in a five-year plan? In general, yes. But not here, where the Debtors have made extensive and diligent efforts — over a period of seven years — to repay creditors prior to bankruptcy, only to run into one implacable creditor, and where the Debtors have timely paid their taxes and secured creditors.
I. BACKGROUND AND FACTS
By most measures, Tracy KarlingerSmith and Scott Smith (the “Debtors”) are models of financial responsibility. Despite their above median take-home income, the Debtors maintain a reasonable budget for their family of four that is mostly within the IRS National and Local Standards.
A. The path to bankruptcy begins with Dr. Karlinger-Smith’s failing business.
The Debtors’ schedules of assets and liabilities, with two exceptions,, reflect nothing out of the ordinary for a Texas family in financial difficulty. They own various exempt assets, including a house, three cars, three dogs, and a cat,
Like many new businesses, the veterinary hospital ultimately failed. Shortly
But the Debtors did not cut and run on the business debts. Using the services of a credit counseling group, they continued to pay these creditors, and did so at some sacrifice. Indeed, after using their disposable income to pay their creditors “there was usually nothing left at the end of the month.”
B. The Debtors and Wells Fargo were unable to reach an agreement.
The Debtors continued to make payments to Wells Fargo until 2011, when they turned back to the credit counseling group.
The Debtors then made monthly payments to the credit counseling group. At least some of this money was held in trust by the group while it attempted to negotiate a settlement with Wells Fargo. Although the group proposed several offers to Wells Fargo, and Wells Fargo made at least one counteroffer, no agreement was ever reached.
In January of 2015, Wells Fargo filed a lawsuit in state court seeking to collect its debt against the Debtors.
C. The Debtors file for bankruptcy under chapter 7.
In response to the Wells Fargo lawsuit, the Debtors filed a petition for chapter 7 relief.
The Debtors’ amended schedules reflect $442,245 of total debt.
The Debtors, a veterinarian and a teacher, take home $9,880 each month, and their regular monthly expenses total $7,118, which include $1,849 comprising private school tuition, music lessons, sports fees, and other extracurricular activities for their two children.
D. The U.S. Trustee seeks conversion of the Debtors’ case to chapter 11.
The U.S. Trustee asserts that conversion is appropriate as the debtors have the ability to pay a substantial dividend to their creditors based on their significant disposable income. Further, the U.S. Trustee claims that the debtors are enjoying luxuries that most chapter 7 debtors cannot afford: private school tuition and extracurricular activities for their two children. If these expenses were eliminated, as might be required if the case was converted to chapter 11, the Debtors would be able to pay even more to creditors through a chapter 11 plan. The Debtors contend that the private school tuition, which is paid to Saint Dominic Savio Catholic High School, a school affiliated with the Roman Catholic Diocese of Austin, is a reflection of their deeply held religious beliefs, and therefore not a luxury expense.
The Court held a hearing on the motion on September 2, 2015. The U.S. Trustee introduced the Debtors’ Schedules F, I, and J, and IRS Publication 526
II. ANALYSIS
The U.S. Trustee does not seek dismissal for abuse under section 707(b), which is not available because the Debtors do not have primarily consumer debts.
A. Conversion pursuant to section 706(b) is within the discretion of the Court based on what will inure to the benefit of all parties, including the Debtors.
Unlike the detailed requirements for dismissal under section 707(b), and unlike dismissal under section 707(a), which at least requires “cause,” there are no statutory standards for conversion under section 706. Only two limitations are provided: the court cannot convert to chapter 12 or 13 without the debtor’s consent, and the debtor must qualify to be a debtor under the chapter to which the case is being converted.
The Fifth Circuit’s directive to examine the “benefit to all parties in interest” suggests not an inquiry solely into the best interests of the creditors, or even the best interests of the estate, but rather a broader inquiry into what will collectively benefit the debtor, the creditors, and any other parties with a stake in the case.
Other eases have acknowledged this by looking at the benefits of conversion to the debtor, along with the benefits to others. In In re Gordon,
In following the Fifth Circuit’s instruction to look at the benefit to all parties, the Court declines to follow cases from other circuits that limit the Court’s discretion. Specifically, the Court rejects the In re Graham
The Court also disagrees with the line of cases that hold that the provisions of section 707 limit the permissible application of section 706. In In re Hardigan,
The Court declines to add this limit to section 706. First, section 706 contains no reference to, and is therefore not expressly limited by, section 707(b). Second, section 706 already has two express limits: the debtor must be eligible to be a debtor in the chapter to which conversion is sought, and no debtor can be forced into a chapter 12 or 13 case.
Nor is there any inconsistency between granting conversion under section 706(b) and refusing to dismiss under section 707(b). One governs involuntary conversion of any chapter 7 case to a chapter 11 case; the other governs dismissal of a chapter 7 case involving primarily consumer debt. Although Congress placed additional limits on the availability of chapter 7 relief to debtors with primarily consumer debts through the BAFJA and BAPCPA amendments to 707(b), neither act changed the language of section 706(b) or purported to expand or contract the eligibility of non-consumer debtors for chapter 7 relief.
B. Conversion of this case would yield no benefit to the Debtors, merely transfer value from the Debtors to their creditors, at a cost, and not inure to the collective benefit of all parties in interest.
But here there is no evidence of any benefit to the Debtors or a net benefit to parties in interest considered as a whole. All the Court would accomplish by converting this case is the zero-sum transfer of some portion of the Debtors’ future
The Court could find a benefit to the Debtors if they had tax debt that could be paid out over time under section 1129(a)(9)(C).
The U.S. Trustee asserts two benefits to the Debtors from conversion. First, the U.S. Trustee suggests that the Debtors would have the satisfaction of paying back a portion of their debts. The Court is unconvinced of this benefit in light of the Debtors’ lengthy, diligent, and for the most part successful efforts to satisfy their debts before bankruptcy. Second, the U.S. Trustee argues that chapter 11 would allow the Debtors to resolve their state court litigation with Wells Fargo and prevent litigation by their other creditors.
C. Weighing ability to pay against the likely expenses of chapter 11 litigation, the Court does not find the requisite benefit to conversion.
To be sure, the U.S. Trustee’s focus on the Debtors’ ability to pay makes sense as “an exceedingly relevant, if not necessary, factor and the obvious starting point for any analysis under section 706(b).”
Fortunately, the record here provides some evidence of what would happen in a chapter 11 case. Before the briefing schedule was set in this matter, the Debtors agreed to negotiate with Wells Fargo, and those negotiations failed, just as the credit counseling group failed in its prepetition negotiations with Wells Fargo. It therefore seems likely that Wells Fargo will be an active player in any chapter 11 case, and that litigation in the case will focus on how the Debtors treat Wells Fargo in the plan. The designation of private school tuition as a charitable contribution will be in play, as will the many issues that are unresolved under the relatively undeveloped chapter 11 provisions that apply to individuals.
Wells Fargo helpfully suggests in its reply brief that it would not object to the Debtors’ current budget in a chapter 11 plan and would vote affirmatively for any plan that comports with the Bankruptcy Code.
III. CONCLUSION
These Debtors responsibly, diligently, and successfully paid much of their business debt outside bankruptcy, and at no small personal sacrifice. The Debtors paid their taxes on time and in full. Of all their business creditors, only Wells Fargo remained unsatisfied by the Debtors’ efforts, and only Wells Fargo resorted to the prepetition lawsuit that pushed the Debtors into bankruptcy. And yet, Wells Fargo did not join the U.S. Trustee’s motion and
. These standards are adopted into the "Means Test” of section 707(b)(2). Even where the Bankruptcy Code does not impose these standards on a debtor's budget, the Court finds them informative of whether particular expenses are reasonable for a debtor facing bankruptcy. See In re Croft, 539 B.R. 122, 134 (Bankr.W.D.Tex. 2015).
. In re Karlinger-Smith, No. 15-10214, ECF 1, at 37 (Schedule J).
. Id. at 38.
. Id. at 9-26 (Schedules B, C).
. Id. at 27 (Schedule D); In re Karlinger-Smith, No. 15-10214, ECF 18 (amended Schedule F).
. In re Karlinger-Smith, No. 15-10214, ECF 1, at 28 (Schedule E).
. In re Karlinger-Smith, No. 15-10214, ECF 18, at 2 (amended Schedule F).
. Karlinger-Smith testimony. See also In re Karlinger-Smith, No, 15-10214, ECF 19, Ex. A (Wells Fargo state court complaint).
. Karlinger-Smith testimony.
. Id.
. Karlinger-Smith testimony.
. Dr. Karlinger-Smith testified that there was "hundreds of thousands of dollars" of business debt remaining in 2008.
. Karlinger-Smith testimony. See also In re Karlinger-Smith, No. 15-10214, ECF 18 (amended Schedule F).
. Karlinger-Smith testimony.
. Id.
. Id.
. Karlinger-Smith testimony; In re Karlinger-Smith, No. 15-10214, ECF 19, Ex. A (Wells Fargo state court complaint).
. In re Karlinger-Smith, No. 15-10214, ECF 19, Ex. A (Wells Fargo state court complaint).
. Karlinger-Smith testimony.
. In re Karlinger-Smith, No. 15-10214, ECF 1.
. Karlinger-Smith testimony.
. In re Karlinger-Smith, No. 15-10214, ECF 1 (original Schedules); In re Karlinger-Smith, No. 15-10214, ECF 18 (amended Schedule F).
. See In re Karlinger-Smith, No. 15-10214, ECF 18 (amended Schedule F).
. In re Karlinger-Smith, No. 15-10214, ECF 1, at 27 (Schedule D).
. Id. at 49-51 (Statement of Intention).
. In re Karlinger-Smith, No. 15-10214, ECF 1 (original Schedules); In re Karlinger-Smith, No. 15-10214, ECF 18 (amended Schedule F).
. In re Karlinger-Smith, No. 15-10214, ECF 1, at 33-39 (Schedules I and J).
. Id. at 38.
. In re Karlinger-Smith, No. 15-10214, ECF 19, at ¶ 9 (Debtors’ response to the U.S. Trustee’s Motion).
. IRS Publication 562 covers what the IRS considers charitable expenses. This evidence was tangentially relevant to the classification of the parochial school tuition for the Debtors’ children.
. Mr. Michael Baumer, an attorney who frequently represents debtors in this Court, was in the courtroom for an unrelated matter and sought leave to file an amicus brief in response to the U.S. Trustee. The Court granted his request.
. See 11 U.S.C. § 707(b)(1). For this reason as well, the Debtors were not even required to fill out the majority of the means test.
. 11 U.S.C. § 706(c)-(d).
. Pickens v. Lockheed Corp. (In re Texas Extrusion Corp.), 844 F.2d 1142, 1161 (5th Cir. 1988) (citing H.R. Rep. No. 95-595, at 380 (1977), 1978 U.S.C.C.A.N. 5963, 6336). See also S. Rep. No. 95-989, at 94 (1978), 1978 U.S.C.C.A.N. 5787, 5880 ("The decision whether to convert is left in the sound discretion of the court, based on what will most inure to the benefit of all parties in interest.") (containing the same language as the House Report).
. Cf. In re Baker, 503 B.R. 751, 758 (Bankr.M.D.Fla. 2013); In re Gordon, 465 B.R. 683, 693-94 (Bankr.N.D.Ga. 2012); In re Decker, 535 B.R. 828, 837-38 (Bankr.D.Alaska 2015); In re Graham, 21 B.R. 235, 238 (Bankr.N.D.Iowa 1982),
. In re Gordon, 465 B.R. 683 (Bankr.N.D.Ga. 2012).
. Decker, 535 B.R. at 828.
. Baker, 503 B.R. at 751.
. In re Decker, 535 B.R. 828, 842 (Bankr.D.Alaska 2015); In re Baker, 503 B.R. 751, 758-59 (Bankr.M.D.Fla. 2013).
. In re Graham, 21 B.R. 235, 239 (Bankr.N.D.Iowa 1982).
. Graham, 21 B.R. at 239; In re Brophy, 49 B.R. 483, 484 (Bankr.D.Haw. 1985); In re Freunscht, 53 B.R. 110, 112 (Bankr.D.Vt. 1985) (concluding also that Congress intended section 706(b) to only apply to debtors doing business).
. See S.Rep. No. 95-989, at 94 (1978), 1978 U.S.C.C.A.N. 5787, 5880 ("The decision whether to convert is left in the sound discretion of the court, based on what will most inure to the benefit of all parties in interest.”); H.R. Rep. No. 95-595, at 380 (1977), 1978 U.S.C.C.A.N. 5963, 6336) (same).
. Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, § 321, 119 Stat. 23 (2005). See also U.S.C. § 1115(a)(2).
. In re Hardigan, 490 B.R. 437 (Bankr.S.D.Ga. 2013).
. Id. at 447.
. Id. at 446.
. In re Quinn, 490 B.R. 607 (Bankr.D.N.M. 2012).
. 11 U.S.C. 11 § 706(b)-(c).
. See Bankruptcy Amendments and Federal Judgeship Act of 1984, Pub.L. No, 98-353, § 312, 98 Stat. 333 (1984) (adding subsection (b) to section 707, which provided for dismissal for "substantial abuse” if the debtor had primarily consumer debts); Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub.L. No. 109-8, § 102, 119 Stat 23 (2005) (reducing the standard of section 707(b) from "substantial abuse” to “abuse” and implementing the means test). Section 101 of BAPCPA did alter section 706(c) by making it clear that a court could convert to chapter 13 instead of chapter 11 on the motion of another party in interest if the Debtor consents.
.The various forms of abuse that fill out section 707(b) also might well be relevant to the inquiry of what benefits the parties as a whole, but no abuse has been alleged in this case.
. H. R. Rep. No. 95-595, at 120 (1977).
. See In re Decker, 535 B.R. 828, 842 (Bankr.D.Alaska 2015); In re Baker, 503 B.R. 751, 758 (Bankr.M.D.Fla. 2013).
. Cf. Julapa Jagtiani & Wenli Li, Credit Access After Consumer Bankruptcy, 89 Am.Bankr.L.J. 327, 360 (Spring 2015) (empirical study finding that new lenders treated chapter 13 debtors less favorably than chapter 7 debtors).
. See In re Karlinger-Smith, No. 15-10214, ECF 1, at 49-51 (Statement of Intention).
. See In re Karlinger-Smith, No. 15-10214, ECF 28, at 3 (U.S. Trustee’s brief in support).
. See 11 U.S.C. § 525(a).
. In re Decker, 535 B.R. 828, 839 (Bankr.D.Alaska 2015); accord In re Schlehuber, 489 B.R. 570, 574 (8th Cir. BAP 2013), aff’d, 558 Fed.Appx. 715 (8th Cir. 2014); In re Baker, 503 B.R. 751, 757 (Bankr.M.D.Fla. 2013); In re Gordon, 465 B.R. 683, 692 (Bankr.N.D.Ga. 2012),
. In re Decker, 535 B.R. 828, 840 (Bankr.D.Alaska 2015) (citing In re Gordon, 465 B.R. 683, 692 (Bankr.N.D.Ga. 2012); In re Hardigan, 490 B.R. 437, 446 (Bankr.S.D.Ga. 2013)).
. See In re Watkins, 132 B.R. 781, 782 (Bankr.S.D.Fla. 1991).
. Candice Manyak, Post-BAPCPA Perils of Representing Individual Chapter 11 Debtors, 33 Am. Bankr.Inst. J. at 62 (Mar. 2014); David Jennis, How Disposable Is Your Individual Chapter 11 Debtor’s Income?, 30 Am. Bankr. Inst. J. at 65 (Oct. 2011); Walter W. Theus, Jr., Individual Chapter 11s: Case Closings Reconsidered, 29 Am. Bankr.Inst. J. at 61 (Feb 2010).
. In some jurisdictions, the costs associated with individual chapter 11 cases have been mitigated by uniform plan and disclosure statement forms, similar to the chapter 13 plan form used in this and other courts. See generally, e.g., Chapter 11 Plan, http://www. cacb.uscourts.gov/forms/chapter-ll-plan (form chapter 11 plan for the Central District of California). But no such forms exist for this district or division; indeed, so few individual chapter 11 cases are filed here that the effort may not yet be justified.
. In re Karlinger-Smith, No. 15-10214, ECF 36, at ¶ 4.
. This is not to suggest that the Court discounts the U.S, Trustee’s role as a party in interest, The U.S. Trustee’s voice is one heard keenly by this Court, and this Court appreciates the U.S. Trustee's active role in this and all other cases before the Court.
Reference
- Full Case Name
- IN RE: Tracy Erin KARLINGERSMITH, Scott Davis Smith, Debtors
- Cited By
- 3 cases
- Status
- Published