Can a Large Mortgage Payment be the Basis for a Finding of Abuse?

In re Johnson, 399 B.R. 72 (Bankr., S.D. Cal. 2008) (Bowie. J.)

Issue:   Can the debtor’s large mortgage payment be the basis for a finding of abuse even though the debtor has passed the means test?

Holding:      Probably not and not here on these facts.

The debtors own an “approximately 4,000 square foot Residence [they built] in May of 2003.  Unfortunately for Debtors, shortly after the Residence was completed, Mr. Johnson, an airline pilot, had to accept a $60,000 cut in pay.  The Debtors list the value of the Residence at $900,000, and the debt secured by it at nearly $1,100,000.  The monthly mortgage expense for the Residence is $6,060, and total expenses associated with the property are scheduled at $8,286.”  The debtors passed the means test.  The UST moved to dismiss under 707(b)(3) arguing that “Debtors’ expenses to pay their mortgage and to maintain their Residence are unreasonably high.  If they would give up the property they could purchase or rent at substantially lower expense, and in so doing they would free up income for the benefit of unsecured creditors.” Judge Bowie ruled in favor of the debtors.

“[T]he presumption of § 707(b)(2) does not arise in this case.  When the presumption does not arise (or is rebutted), § 707(b)(3) sets forth two alternate considerations for assessing abuse.  Under § 707(b)(3) the Court is to consider whether the petition was filed in bad faith (§ 707(b)(3)(A)), or whether an abuse exists based on the ‘totality of the circumstances … of the debtor’s financial situation.’  No allegations of bad faith have been presented.  Accordingly, the Court must evaluate the Trustee’s motion to dismiss based solely on the ‘totality of the circumstances … of the debtor’s financial situation.’  This brings us to the issue at hand.”

“In a nutshell, the issue is whether Congress, by allowing secured claims to be included without limitation in the Means Test of (b)(2), has limited the courts’ discretion to consider them under the totality of circumstances test of (b)(3).”  “[T]his Court is persuaded there are circumstances that warrant dismissal under § 707(b)(3) although a debtor may have ‘passed’ the Means Test.”  “In the minds of many, including this Court, there is a point at which allowing an individual debtor relief from unsecured debt while sinking most income into maintaining the debt service on such a property seems egregious.”

[But] “If Congress determines that there should be no cap on secured debt obligations on a debtor’s primary residence for purposes of the Means Test, and therefore no presumption of abuse arises under § 707(b)(2), can Congress properly be understood to intend that that same primary residence secured obligation can, by itself, be the basis for a finding of abuse under § 707(b)(3)?”  “[I]t would seem quite ironic if Congress went through all it did to establish the assertedly more objective Means Test in place of individual discretion, only to turn around in § 707(b)(3) and hand the same discretion right back.”

Judge Bowie looked at the Price factors.  Two Price factors appear to be relevant; “whether the debtor has a likelihood of sufficient future income to fund a Chapter 11, 12, or 13 plan which would pay a substantial portion of the unsecured claims….” and “whether the “proposed family budget is excessive or extravagant.”  But the determination of future income in chapter 13 and 11 for an individual comes from 707(b)(2) which permits unlimited mortgages to be deducted.  As to the extravagance, “we are back to the core issue of whether that can be considered under the new § 707(b)(3) given the policy decisions Congress made in § 707(b)(2).”

Bowie concluded, “Assuming that the size of the mortgage payment can be considered notwithstanding § 707(b)(2), the Court is comfortable in concluding that the mortgage payment in this case is neither sufficiently excessive nor extravagant as to warrant dismissal on a totality of the circumstances basis under § 707(b)(3).”