In re Miller, BAP No. UT-07-085.

• Decision Date: 18 March 2008
• Docket Number: BAP No. UT-07-085.,Bankruptcy No. 07-20270.
• Citation: 383 B.R. 767
• Parties: In re Brandon L. MILLER and Amy L. Miller, also known as Amy L. Folden, Debtors. Brandon L. Miller, Appellant, v. J. Vincent Cameron, Trustee, Appellee, and United States of America, Intervenor.
• Court: U.S. Bankruptcy Appellate Panel, Tenth Circuit

383 B.R. 767

In re Brandon L. MILLER and Amy L. Miller, also known as Amy L. Folden, Debtors.

Brandon L. Miller, Appellant, v. J. Vincent Cameron, Trustee, Appellee, and United States of America, Intervenor.

BAP No. UT-07-085.

Bankruptcy No. 07-20270.

United States Bankruptcy Appellate Panel of the Tenth Circuit.

March 18, 2008.

Stephen M. Enderton (Sarah L. Mathews with him on the brief), of Stephen M. Enderton Legal Services LLC, Salt Lake City, UT, for Appellant.

Scott T. Blotter, of the Standing Chapter 13 Trustee's Office, Salt Lake City, UT (J. Vincent Cameron, pro se, with him on the brief) for Appellee.

Jeannine R. Lesperance, Trial Attorney, United States Department of Justice, Washington, D.C., (Peter D. Keisler, Assistant Attorney General, Brett L. Tolman, United States Attorney, Daniel Price, Assistant United States Attorney, J. Christopher Kohn, Trial Attorney, and Tracy J. Whitaker, Trial Attorney, with her on the brief) for Intervenor.

Before NUGENT, BROWN, and RASURE¹, Bankruptcy Judges.

OPINION

BROWN, Bankruptcy Judge.

Debtor Brandon Miller appeals the bankruptcy court's memorandum decision finding noncompliance with 11 U.S.C. § 521(a)(1)(B)(iv) and the bankruptcy court's accompanying notice of dismissal of Debtor's bankruptcy case under 11 U.S.C. § 521(i)(1). Central to this appeal is the question of whether a debtor's pay stub containing year-to-date income totals may be considered as "other evidence of payment" sufficient to meet the filing requirements of 11 U.S.C. § 521(a)(1)(B)(iv). The bankruptcy court held that it was not. For the reasons stated below, we REVERSE.

I. Background

Debtor and his wife filed a joint Chapter 7 petition on January 24, 2007. The bankruptcy court subsequently converted the case to Chapter 13, at the request of Debtors. There is no dispute that Debtor and his wife were required to comply with 11 U.S.C. § 521(a)(1)(B)(iv),² which requires an individual debtor to file "copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor." Debtor's wife timely filed all her pay stubs and her case is not at issue in this appeal. Debtor, however, failed to file one of his pay stubs.

The parties agree that the relevant sixty-day period in Debtor's case was November 24, 2006, through January 23, 2007. During this sixty-day period, there were four pay periods at Debtor's place of employment. Debtor timely filed pay stubs for three of the four pay periods — the first, second and fourth pay periods. Debtor was missing and did not file his pay stub for the third pay period. Instead, Debtor's counsel filed a chart which calculated the data on the missing third pay stub, extrapolated from the year-to-date payment information contained on Debtor's fourth pay stub.

On May 7, 2007, the bankruptcy court held a hearing on confirmation of Debtor's Chapter 13 plan. At the hearing, the bankruptcy court sua sponte raised the issue of the missing third pay stub and Debtor's compliance with § 521(a)(1)(B)(iv). The Chapter 13 trustee ("Trustee") had not previously raised the issue, nor had any other party in interest, as permitted under § 521(i)(2). In subsequent briefs submitted at the request of the bankruptcy court, both the Trustee and Debtor took the position that the year-to-date payment information contained in Debtor's fourth pay stub was sufficient "other evidence of payment" to meet the requirements of § 521(a)(1)(B)(iv).

The bankruptcy court disagreed with the parties and instead concluded in its memorandum decision that Debtor had failed to meet the requirements of § 521(a)(1)(B)(iv) by not filing his third pay stub. The court found the year-to-date information summarized by Debtor's counsel did not amount to "other evidence" under the statute because Debtor's employer had not provided that evidence. Because Debtor failed to meet the requirement of § 521(a)(1)(B)(iv), the court concluded that Debtor's bankruptcy case had been automatically dismissed pursuant to § 521(i)(1), effective on the forty-sixth day following Debtor's petition date. The court also rejected other arguments raised by Debtor concerning the court's power to sua sponte consider compliance with § 521(a)(1)(B)(iv) and the constitutionality of automatic dismissal under § 521(i)(1). Concurrent with its memorandum decision, the court issued a notice of dismissal, notifying parties in interest that Debtor's case had been automatically dismissed by operation of statute. This appeal followed.

II. Appellate Jurisdiction

This Court has jurisdiction to hear timely filed appeals from "final judgments, orders, and decrees" of bankruptcy courts within the Tenth Circuit, unless one of the parties elects to have the district court hear the appeal.³ A decision is considered final if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment."⁴

Generally, an order of dismissal is a final, appealable order under 28 U.S.C. § 158(a).⁵ In this case, the bankruptcy court did not directly order the case dismissed but instead issued a memorandum decision which determined that the Debtor's failure to make certain filings triggered the automatic dismissal provision of § 521(i)(1). Because the bankruptcy court's decision finally determined the issue of dismissal, this Court concludes that the bankruptcy court's memorandum decision is a "final order" under 28 U.S.C. § 158(a).⁶

Debtor's notice of appeal was timely filed within ten days of entry of the bankruptcy court's decision. Neither party elected to have the appeal heard by the United States District Court for the District of Utah. Thus, this Court has jurisdiction to review the bankruptcy court's memorandum decision and notice of dismissal.

III. Standard of Review

The pertinent facts in this case are undisputed. The bankruptcy court's interpretation of a statute is a question of law, which we review de novo.⁷

IV. Discussion

In relevant part, § 521 provides that:

(a) The debtor shall —

(1) file —

. . .

(B) unless the court orders otherwise —

. . .

(iv) copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor[.]⁸

At issue in this appeal is what amounts to "other evidence of payment." The bankruptcy court below applied a very technical interpretation of this statutory phrase.

In reaching its decision, the bankruptcy court found it necessary to "parse" the language of the statute and concluded the critical word is the verb "received." The compound subject of the verb "received," according the court, is both the noun "payment advices" and the noun "other evidence." This means that the statute requires a debtor to file either copies of payment advices received directly from an employer, or other evidence of payment received directly from an employer, for each pay period in the sixty days prepetition. Under this interpretation, the bankruptcy court concluded that the year-to-date income information supplied by Debtor did not satisfy the statute because it was not "received" directly from Debtor's employer and was, instead, mere speculation by Debtor's counsel. What the statute required Debtor to file, according to the bankruptcy court, was either "what was received by [Debtor] from his employer, be it the actual payment advice or the actual `other evidence' received by him for that pay period[.]"⁹

We believe this interpretation unnecessarily reads additional requirements into the statute. Under the bankruptcy court's interpretation, a debtor would not only need to provide a separate piece of documentary evidence for each pay period during the sixty days prepetition, he would also have to ensure that each piece of evidence was created by his employer. Moreover, each piece of evidence would need to reflect the employer's separate calculation of pay for that one pay period only. An employer's year-to-date calculations of income would never be sufficient because such calculations necessarily cover more than one pay period. It is difficult to imagine what type of evidence, other than a debtor's payment advices, would satisfy this reading of the statute. In other words, the bankruptcy court's interpretation makes the "other evidence of payment" option effectively non-existent. This stretches the statutory language too far.

The bankruptcy court believed that the "only coherent and consistent reading of the statute, has the verb `received' taking the subject nouns `advices' and `evidence',¹⁰ and therefore the statute required that both payment advices and other evidence had to be "received . . . by the debtor from any employer of the debtor" within the sixty-day period.¹¹ In our view, the statute can easily be read instead to create two independent methods by which a debtor may establish "payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor."¹² The first is by filing "copies of all payment advices . . . of [such] payment received . . . by the debtor from any employer" and the second is by filing "copies of . . . other evidence of payment received . . . by the debtor from any employer."¹³ This interpretation, which does no violence to the language of the statute, allows a court to reasonably conclude that year-to-date payment information may be credible "other evidence of payment received," even though the evidence is not technically in the form of separate payment advices for each relevant pay period.

A majority of courts addressing the issue have similarly concluded that § 521(a)(1)(B)(iv) allows a debtor to. "file either the payment advices or some other evidence of payment."¹⁴ The "other evidence of payment" may include, as in this case, year-to-date payment information, depending on the circumstances.¹⁵ It is the...