Carolyn Deutsch

6:14-bk-21126CacbApr 20, 2015

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
RIVERSIDE DIVISION
In re:
CAROLYN DEUTSCH
Debtor
Case No.: 6:14-bk-21126-SY
Chapter 13
MEMORANDUM DECISION
DENYING CONFIRMATION OF
DEBTOR’S CHAPTER 13 PLAN
Carolyn Deutsch (the “Debtor”) filed her voluntary chapter 71 petition on
September 2, 2014, and later converted her case to chapter 13. The Debtor’s Chapter
13 Plan (the “Plan”) relies on contributions from a nondebtor third party in order to
enable her to make plan payments. Without the contributions, the Debtor’s monthly
take-home income is insufficient to pay all of her expenses, let alone the proposed
Plan payments.
Chapter 13 plans premised on contributions from family or friends are much
too common before the court, and are often proposed by debtors in their impractical
and mostly futile attempts to save homes that are over-encumbered by secured debts.
1 Unless otherwise indicated, all chapter, section, and rule references are to the Bankruptcy
Code, 11 U.S.C. §§ 101–1532, and to the Federal Rules of Bankruptcy Procedure, Rules
1001–9037.
FILED & ENTERED
APR 20 2015
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	jeanmari
FOR PUBLICATION
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Many of these chapter 13 plans not only fail to meet the requirements for
confirmation under § 1325 but also defeat the primary purpose of bankruptcy for
individual debtors—that of the fresh start. See Kenneth N. Klee & Whitman L. Holt,
Bankruptcy and the Supreme Court: 1801-2014, at 316-19 (2015) (quoting Williams
v. United States Fidelity & Guaranty Co., 236 U.S. 549 (1915)). Rather than
providing a discharge and a fresh start, a chapter 13 plan premised on contributions
spreads the burden of satisfying the debtor’s debts and obligations to others (often to
the debtor’s children or parents). The Debtor’s Plan is just such a plan and is the
very antithesis of the fresh start that the Bankruptcy Code intended.
The court now denies confirmation of the Debtor’s Plan because it is not
feasible as required by 11 U.S.C. § 1325(a)(6) and because the Debtor is not an
individual with regular income as defined by 11 U.S.C. § 101(30). Since the Debtor
will be unable to continue under chapter 13, her case will be converted back to
chapter 7.
I. PROCEDURAL BACKGROUND
The Debtor originally filed her bankruptcy case under chapter 7, and the
chapter 7 trustee’s Report of No Distribution was entered on October 9, 2014. Rather
than obtaining a discharge under chapter 7, the Debtor subsequently filed a motion
seeking conversion of her case to chapter 13, which the court granted. Debtor’s Mot.
to Convert Case, ECF No. 14; Order on Debtor’s Mot. to Convert Case, ECF No. 27.
At the same time, she also filed her proposed Chapter 13 Plan and amended
schedules.2 Ch. 13 Plan, ECF No. 17; Amended Schedules, ECF No. 16. The Debtor
subsequently filed the Contribution Declaration of Ben Mayo in support of her
proposed plan on October 28, 2014 (the “Mayo Declaration”). Mayo Decl., ECF No. 20.
2 The Debtor filed her proposed chapter 13 Plan and amended schedules before the order
converting her case was entered. The Debtor did not file a new chapter 13 plan or further
amended schedules after conversion was granted, and the October 22, 2014 documents
remain the operative documents for this determination.
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The hearing on confirmation of the Debtor’s Plan was originally held on
December 30, 2014, and was continued to February 24, 2015. At the February 24,
2015 confirmation hearing, the court raised its concerns regarding the Debtor’s
reliance on a nondebtor contribution to fund her plan payments. The hearing was
then continued to April 7, 2015, and the Debtor’s counsel was afforded the
opportunity in the interim to file whatever supplemental briefing or evidence he
thought appropriate on the contribution issue. The Debtor then filed the
Contribution Declaration of Avelina Valle on March 9, 2015, which was executed by
her mother, (the “Valle Declaration”). Valle Decl., ECF No. 65. No other documents
were filed, and counsel did not offer any further evidence at the continued hearing on
April 7, 2015. He instead argued that the Debtor was current on plan payments, that
the remaining issues with the chapter 13 trustee had been resolved, and that the
“back-up” contributions from the Debtor’s mother were sufficient. The court took this
matter under submission at the conclusion of that hearing.
II. FACTUAL BACKGROUND
The Debtor’s Plan requires her to make payments of $490.00 per month for 57
months, followed by payments of $1,188.00 per month for three months. Ch. 13 Plan,
ECF No. 17. The Debtor’s amended Schedule I reflects that she has $5,000.00 in
combined monthly income, which includes $700.00 per month described as
“[c]ontribution income from boyfriend.” Sch. I: Your Income, ECF No. 16. The
Debtor’s Schedule J reflects $4,510.00 in monthly expenses, leaving $490.00 in net
income per month. Sch. J: Your Expenses, ECF No. 16. Based on her schedules, the
Debtor is incapable of making her proposed Plan payments, or plan payments in any
amount, if she does not receive the nondebtor contribution.
At the February 24, 2015 confirmation hearing, the Debtor’s counsel confirmed
that Ben Mayo (“Mayo”) was the Debtor’s boyfriend and indicated that the
relationship was relatively recent. Mayo testified in his declaration that he lives with
the Debtor, that he intended to begin contributing $700.00 per month to the Debtor
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in November 2014, that his income is regular, and that he intends to contribute
money to the Debtor for as long as he can financially afford to do so. Mayo Decl. ¶¶
1–4. Attached to the declaration are what appear to be two unauthenticated paystubs
for Mayo issued in the month of October 2014. Id. at Ex. A. The paystubs reflect
$864.69 in net income for that month. Id.
Avelina Valle (“Valle”) testified that in the event that Mayo fails to pay part or
all of the $700.00 monthly contribution she will step in and pay it for the duration of
the case. Valle Decl. ¶¶ 3, 5. She stated in her declaration that her income consists of
Supplemental Security Income from Social Security in the amount of $1,182.35 per
month and business income in the approximate amount of $2,795.00 per month
attributable to a partial ownership interest in a hospice in Colorado. Id. at ¶ 4.
Attached to her declaration is a one-page, unauthenticated printout that appears to
reflect transactions in a bank account for the period from February 10 to 24, 2015. Id.
at Ex. A. The printout does show two deposits in the amounts of $1,182.35 and
$2,795.00. Id. However, it also shows that the account balance was only $554.60
before the $1,182.35 deposit, and it had dropped to $52.33 before the $2,795.00
deposit. Id. The balance drops again to $54.33 before another deposit in the amount
of $120.00 is made from an online transfer. Id.
The Debtor did not provide any evidence other than the two declarations in
support of the contribution payments from either Mayo or Valle.
III. DISCUSSION
A. Feasibility
The Debtor’s Plan is only feasible if her income includes the $700.00 monthly
contribution from Mayo or Valle because the Debtor’s own take-home income of
$4,300.00 is insufficient to meet even her regular monthly expenses of $4,510.00. In
order for a chapter 13 plan to be confirmed, a debtor must demonstrate that she “will
be able to make all payments under the plan and to comply with the plan.” 11 U.S.C.
§ 1325(a)(6). Reliance on contributions from family is disfavored, but not prohibited.
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In re Schwalb, 347 B.R. 726, 759 (Bankr. D. Nev. 2006). A debtor’s plan can be
feasible, even though it relies on contributions, where there is a firm commitment by
the family member to make the contributions and a long and undisputed history of
providing for the debtor. Id. at 759–60. However, where no evidence in support of the
contribution is submitted, the plan is not feasible. See In re Khan, 2015 WL 739854,
at *3–4 (Bankr. D. Colo. Feb. 19, 2015) (holding that plan was not feasible where
business income was speculative and “occasional contributions” from wife’s family
were not documented or otherwise supported by evidence); In re Crowder, 179 B.R.
571, 574 (Bankr. E.D. Ark. 1995) (dismissing chapter 13 case where debtor’s father
did not affirm any specific amount or other assistance that would continue for
duration of the plan); In re Norwood, 178 B.R. 683, 691 (Bankr. E.D. Penn. 1995)
(denying confirmation where debtor did not provide any evidence of the amount of
mother or sister’s income or of their other expenses and liabilities). The question of
feasibility is fact-specific and dependent upon evidence submitted by the debtor. In re
Welsh, 2003 WL 25273855, at *3 (Bankr. D. Idaho Feb. 26, 2003). Evidence that
would support the feasibility of nondebtor contributions includes evidence as to the
ability, motivation, and unqualified commitment of the nondebtor to make the
contributions. Id. at *3 n.5.
The court identifies several factors in the cases cited above as commonly
considered in determining the feasibility of chapter 13 plans involving contribution
payments from nondebtors. As a result, this court considers the following factors in
determining whether the Debtor’s Plan is feasible:
(1) the nondebtor’s relationship to the debtor and motivation in making the
contributions;
(2) the nondebtor’s long and undisputed history of making the contributions or
otherwise providing support for the debtor;
(3) the unqualified commitment of the nondebtor to make the contributions in a
specific amount for the duration of the chapter 13 plan; and
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(4) the financial ability of the nondebtor to make the proposed contributions,
including expenses and liabilities of the nondebtor that might take precedence
over the contributions.
“The Debtor, as the chapter 13 plan proponent, has the burden of proof on all
elements of plan confirmation.” Meyer v. Hill (In re Hill), 268 B.R. 548, 552 (B.A.P.
9th Cir. 2001). Therefore, the debtor bears the burden of providing admissible
evidence to support each of the relevant factors and prove that a contribution
payment is sufficiently reliable to render a proposed chapter 13 plan feasible.
1. Contributions by Mayo
In the present case, the Debtor has failed to provide sufficient evidence to
persuade the court that the contributions from Mayo meet the requirements to
establish feasibility. First, the only evidence submitted regarding Mayo’s relationship
to the Debtor and his motivation to make the contributions merely indicates that he
lives with the Debtor. Mayo Decl. ¶ 1. Counsel’s representations at the confirmation
hearing that Mayo is the Debtor’s boyfriend and that the relationship is relatively
recent, while not admissible, actually imply that there is not a reliable relationship
or strong motivation to continue making the contributions over the five-year length of
the Plan.
Similarly, there is no long and undisputed history Mayo of making the
contributions or otherwise supporting the Debtor. Mayo testifies that the
contributions will only begin postpetition in November 2014. Mayo Decl. ¶ 3. At this
time, the contributions have presumably continued for only five or six months, and
this is a far cry from the numerous years that other courts have found persuasive.
The third factor also weighs against finding the contribution payments to be
feasible. Mayo testified that he intends to contribute only for as long as he is
financially able to. Mayo Decl. ¶ 4. This commitment is qualified and conditional,
rather than the “firm commitment” or “unqualified commitment” that other courts
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have required. According to Mayo’s testimony, the contributions could stop this very
month if he feels that they impose a financial burden on him.
Finally, there is insufficient evidence of Mayo’s ability to make the
contributions. He simply states conclusively that his income is regular and attaches
two paystubs for October 2014 totaling $864.69 in net monthly income. Mayo Decl. ¶
4, Ex. A. There is no evidence regarding what type of employment Mayo is engaged in
or whether he is working on an at-will or contract basis. It appears from the paystubs
that he is paid an hourly wage, but there is no evidence regarding the number of
hours expected, guaranteed, or regularly received. There is no evidence of what other
expenses or liabilities Mayo may have that could take precedence over the
contribution payments. Since debtors are required to provide their income for the
past two calendar years in the Statement of Financial Affairs (Official Form 7) and
their average monthly income for the six full months prior to the petition date in the
Chapter 13 Statement of Your Current Monthly Income and Calculation of
Commitment Period (Official Form B 22C1), it seems only reasonable that a
nondebtor contributing to a debtor’s chapter 13 plan provide at least six months of
financial information to support the feasibility of their proposed contributions. Mayo
has not done so in this case. Further, the low amount of income reported by Mayo
and the fact that the amount varies between the two checks ($385.16 on October 3,
2014, and $479.56 on October 24, 2014) indicates that he might not be financially
able to make the $700.00 monthly contributions for long. Mayo Decl. Ex. A.
Substantially all of his income is being pledged to the contribution payments, and a
modest decrease in income or increase in other expenses would render him
financially unable to make the payment for one or more months.
Each factor the court considers to determine whether nondebtor contributions
make a chapter 13 plan feasible is either inadequately supported by evidence or
weighs in favor of a finding that Mayo’s contributions are not sufficiently reliable to
render the Debtor’s Plan feasible as required by § 1325(a)(6).
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2. Contributions by Valle
The evidence is also insufficient for the court to determine that the proposed
“back-up” contributions from the Debtor’s mother are sufficiently reliable to render
the Debtor’s Plan feasible.
The showing under the first factor is stronger because Valle is the Debtor’s
mother and it could be inferred that the familial connection provides her motivation
for supporting the Debtor. Valle Decl. ¶¶ 1–2. However, the Debtor is an adult who
has been employed with the same employer for eight years and there is no evident
legal or moral obligation for Valle to support her adult daughter. Sch. I: Your Income.
There is also no evidence to support the second factor, and this weighs against
a finding of feasibility. There is no indication that Valle has a history of contributing
money to the Debtor or supporting her in any manner as an adult.
The third factor is satisfied because Valle testifies that she will pay any
portion of the $700.00 monthly contribution not paid by Mayo for the duration of the
Plan. Id. at ¶¶ 3, 5. This is the only factor that weighs in favor of a finding of
feasibility.
Finally, the Debtor has failed to provide sufficient evidence to support the
fourth factor, which requires that Valle be financially able to make the contribution
payments she promises. The sparse evidence supplied to support Valle’s ability to
make the contributions, in fact, indicates that she cannot afford to do so. Her own
bank printout reflects that the account balance drops below or well below $700.00
prior to each income deposit. Valle Decl. Ex. A. It may be that Valle has sufficient
savings or funds elsewhere to make the contributions, but the only evidence provided
with her declaration indicates that she is living paycheck to paycheck and cannot
afford to do so.
On balance, the relevant factors indicate that Valle’s proposed contributions
are not sufficiently stable and regular and the Debtor will not be able to make the
payments required under her Plan. Even if Valle is committed to supporting the
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Debtor, she has no demonstrated history or obligation to do so, and has not provided
sufficient evidence to indicate her ability to make the proposed contributions.
3. Conclusion on Feasibility
The contributions from Mayo or, alternatively, Valle are not supported by
sufficient admissible evidence to prove that the contributions are reliable and likely
to continue for the duration of the Plan. Without the contribution income, the
Debtor’s net monthly income drops to ($210.00) and she is unable to meet her own
expenses, much less make the proposed plan payments of $490.00. Therefore, the
court finds that the Debtor has failed to provide sufficient evidence to demonstrate
that her proposed chapter 13 Plan is feasible as required by § 1325(a)(6). As a result,
confirmation must be denied.
B. Eligibility to be a Chapter 13 Debtor
The court also views the contribution issue in the context of eligibility. In order
to be eligible to be a chapter 13 debtor, among other things, the Debtor must be an
“individual with regular income.” 11 U.S.C. § 109(e). An “individual with regular
income” is defined as an “individual whose income is sufficiently stable and regular
to enable such individual to make payments under a plan under chapter 13.” Id. §
101(30). Here, the Debtor has monthly take-home pay of $4,300.00 and expenses of
$4,510.00. While her income appears to be stable and regular, her monthly income is
less than her monthly expenses and it is not sufficient to enable the Debtor to make
chapter 13 plan payments in any amount. Therefore, the income the Debtor relies on
to meet the deficit in her monthly expenses and for her $490.00 monthly payments
under the Plan is the $700.00 contribution from either Mayo or Valle.
Gratuitous payments from family members and other third parties do not
generally constitute regular income for purposes of § 101(30), with some exceptions.
In re Porter, 276 B.R. 32, 38 (Bankr. D. Mass. 2002); In re Jordan, 226 B.R. 117, 119
(Bankr. D. Mont. 1998) (citing In re Antoine, 208 B.R. 17, 19–20 (Bankr. E.D.N.Y.
1997); In re Campbell, 38 B.R. 193, 196 (Bankr. E.D.N.Y. 1984)); see also In re
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Santiago-Monteverde, 512 B.R. 432, 442 (S.D.N.Y. 2014). Contributions may be considered
regular income where the contribution is based upon moral and legal obligations, the
nondebtor is jointly liable for some debts, the contributions have been made in the
past, or where there is direct evidence of the nondebtor’s assent to assume the
responsibility for funding the debtor’s plan. Porter at 38; Jordan at 119.
In the present case, there is insufficient evidence to support any of the
exceptions generally acknowledged by other courts. There is no evident moral or legal
obligation for either Mayo to support his relatively recent girlfriend or for Valle to
support her adult daughter. There is no evidence of joint liability for any of the debts,
or that contributions have been made in the past by Mayo or Valle in any amount.
Mayo has also not agreed to assume the responsibility for funding the Debtor’s Plan.
Mayo Decl. ¶ 4. Valle has consented to make the contributions for the duration of the
Plan but, as discussed above, she has not provided evidence indicating that she is
actually able to do so. Valle Decl. ¶ 5.
More specifically, the contribution from Mayo does not constitute stable and
regular income due to the nature of his relationship with the Debtor. Courts
generally reject contributions made by a live-in boyfriend or girlfriend. Jordan, 226
B.R. at 119–20; In re Heck, 355 B.R. 813, 824–25 (Bankr. D. Kan. 2006); In re
Fischel, 103 B.R. 44, 49 (Bankr. N.D.N.Y. 1989). This is not to say that contributions
from a live-in boyfriend or girlfriend can never be sufficiently stable and regular.
Rather, they must be supported by admissible evidence addressing factors similar to
those discussed above under the feasibility analysis. For example, at least one court
has accepted contributions from a live-in boyfriend where the debtor shared a
household with the nondebtor for eleven years, was supported by him during that
time, and had cared for his children and elderly mother, and the nondebtor had also
executed an affidavit with an unconditional promise to make the contributions until
completion of the plan. In re Murphy, 226 B.R. 601, 604 (Bankr. M.D. Tenn. 1998);
see also In re Andolino, 525 B.R. 588, 591 (Bankr. D.N.J. 2015) (overruling trustee’s
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objection to confirmation based on eligibility, but only to the extent that debtor later
demonstrates his girlfriend’s commitment to fund plan by competent evidence); cf. In
re Loomis, 487 B.R. 296, 301–02 (Bankr. N.D. Okla. 2013) (finding evidence of
contribution by fiancée not convincing where the relationship existed approximately
18 months, debtor had no access or control over fiancée’s accounts, and fiancée was
not legally obligated on the debts and did not assure that contributions would
continue for duration of plan). In this instance, Mayo and the Debtor have failed to
provide sufficient evidence that Mayo’s contributions will be stable and regular due
to the relative newness of the relationship, the lack of prior support, and the lack of a
firm commitment from Mayo to make the contributions for the duration of the Plan.
While more compelling, the contributions by the Debtor’s mother also do not
satisfy § 101(30) because they are inadequately supported by evidence of their stable
and regular nature. Courts are more likely to find contributions to be regular income
where the nondebtor is a family member, particularly one who is obligated on some of
the debts by contract or state law or where there is a lengthy history of stable
payments. See e.g., In re Varian, 91 B.R. 653, 654–55 (Bankr. D. Conn. 1988)
(husband obligated by Connecticut statute for debts incurred during separation); In
re Campbell, 38 B.R. 193, 196 (Bankr. E.D.N.Y. 1984) (relatives jointly obligated on
mortgage and had substantial self-interest in completing the plan); Rowe v. Conners
(In re Rowe), 110 B.R. 712, 718 (Bankr. E.D. Penn. 1990) (son had been making the
payments for five years). However, the court must still make a case-by-case factual
determination that the contributing nondebtor’s income is sufficiently stable and
regular. In re Sigfrid, 161 B.R. 220, 222–23 (Bankr. D. Minn. 1993).
The Debtor has not argued that her mother is obligated on any of her debts by
contract or law. She also has not provided admissible evidence that her mother’s
income is sufficiently stable and regular to allow her to make the required
contribution. Even if the court were to follow these cases and allow contributions
from family members, the Debtor has failed to meet her evidentiary burden to
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demonstrate facts by admissible evidence that satisfy the requirements of §§ 109(e)
and 101(30). For these reasons, confirmation of the Debtor’s Plan is also denied on
the basis that the Debtor is not an individual with regular income as defined by the
Bankruptcy Code and is therefore not eligible to be a debtor under chapter 13.
C. Conversion to Chapter 7
In light of the Debtor’s failure to confirm a chapter 13 plan, the court will
convert the case back to chapter 7. This case started out as a voluntary chapter 7
case, the chapter 7 trustee had already filed a Report of No Distribution, and the
Debtor was just a mere few days away from obtaining her discharge. Discharge is
the essence of federal bankruptcy law, and the centerpiece of the fresh start afforded
by bankruptcy. See Klee & Holt, supra, at 316-19. It is in the Debtor’s, the creditors,
and the estate’s best interests that the case is converted back to chapter 7. 11 U.S.C.
§ 1307(c).
IV. CONCLUSION
Confirmation of the Debtor’s Chapter 13 Plan is denied under 11 U.S.C.
§§ 109(e) and 1325(a)(6). Due to the inability to confirm a plan, the Debtor’s
bankruptcy case shall be converted back to chapter 7 to allow her to obtain a
discharge and her fresh start under the Bankruptcy Code. The court shall enter an
order converting the case in accordance with this memorandum decision.
###
Date: April 20, 2015
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