Harris v. United States Trustee (In Re Harris)

KLEIN, Bankruptcy Judge,

dissenting.

I agree that without findings of fact and conclusions of law this is a difficult record to review. I would nevertheless affirm because the record that we do have enables us to form a complete view of the issues necessary to resolve the appeal. At worst, we should vacate and remand to permit the trial judge to do a better job of explaining himself.

The nub of the matter is that the debtors’ schedules, even without making adjustments for unreasonable expenses, are sufficient to support the conclusion that the debtors have the ability to pay a substantial portion of their debt through a chapter 13 plan.

I

First, the ambiguity about whether there were findings may work more against appellants than appellee.

While the record that was made in the hurly-burly of a busy motion calendar appears to be thin on findings, we know that there was a tentative ruling issued in advance of the hearing, which provided the framework for the colloquy at the hearing. The parties did not make the tentative *263ruling part of the appellate record, and it does not appear on the court’s docket.

We do not know, however, whether that tentative ruling included tentative findings of fact and conclusions of law that may have matured with the court’s ruling at the hearing.

If there were findings in that tentative ruling (as there may well have been), then the omission to include them in the appellate record would be charged to appellants, which would entitle us either to dismiss the appeal or to presume that such findings are not helpful to appellants and thence to affirm because appellants have not carried their appellate burden to demonstrate error. McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 (9th Cir. BAP 1999).

In other words, it is not altogether clear that the problem was, as the majority concludes, that the U.S. trustee, as movant, did not carry its burden in the trial court. Rather, it may be that the debtors, as appellants, have not carried their burden on appeal to demonstrate error. The tentative ruling plainly existed and plainly formed the matrix for conduct of the hearing. While it is disappointing that counsel for the U.S. trustee did not do a better job of making and protecting a trial and appellate record, the appellate litigation risks associated with omission to make the tentative ruling part of the record are more correctly charged to the appellants.

The first lesson from the standpoint of practical judicial procedure is that a trial court that goes to the trouble of issuing tentative decisions does itself a favor if it takes the additional step of formally placing in the record a copy of any tentative decision that figures in a final decision by, for example, attaching a copy to the civil minutes so that the ruling is accessible in circumstances in which there is no ambiguity about whether it is formally part of the record.

The other lesson is that counsel also has a role in helping to fashion a complete record by, for example, suggesting essential findings that the trial judge may have overlooked that would be needed for purposes of assuring a proper record. Here, the court instructed counsel for the U.S. trustee to lodge an appropriate order. In the interest of protecting the record for appeal, a proficient lawyer would have suggested that the court make omitted findings (in a separate document) consistent with the ruling in open court and could even have proposed specific findings by way of post-trial motion. Fed.R.Civ.P. 52(b), incorporated by Fed.R.Bankr.P. 7052.

II

The majority infers that the trial court could only have found an ability to pay by reducing some of the claimed expenses as unreasonable and then concludes that the necessary underlying factual findings must have been clearly erroneous because there was no evidence probative of reasonableness. I do not agree.

The schedules, which are executed by the debtors under penalty of perjury, are non-hearsay admissions when offered by an adverse party and may be considered in support of a § 707(b) dismissal. Fed.R.Evid. 801(d)(2); Torgenrud v. Benson (In re Wolcott), 194 B.R. 477, 483 (Bankr.D.Mont.1996).

Moreover, the debtors’ lawyer made various statements on the record. Everything he said of a factual nature not otherwise supported by evidence that tends to help his clients is, of course, inadmissable and useless as evidence. Conversely, every fact he asserted that could be used to support a finding of “substantial abuse” is a non-hearsay evidentiary admission under *264Rule 801(d)(2). In re Applin, 108 B.R. 253, 259 (Bankr.E.D.Cal.1989).

The evidence of those schedules, without making any deductions for claimed expenses that are not reasonably necessary, indicates that there would be a sufficient ability to pay a substantial portion of the debt through a chapter 13 (or chapter 11) plan and that we should be affirming the trial court. This evidence is bolstered by counsel’s evidentiary admissions.

A

An appellate court may, in the absence of detailed findings, review a trial court’s order if a complete understanding of the issues may be obtained from the record as a whole or if there is no genuine dispute about the facts as to which findings were omitted. Vance v. Am. Hawaii Cruises, Inc., 789 F.2d 790, 792 (9th Cir.1986); Magna Weld Sales Co. v. Magna Alloys & Research Pty., 545 F.2d 668, 671 (9th Cir. 1976); Gardenhire v. IRS (In re Garde-nhire), 220 B.R. 376, 380 (9th Cir. BAP1998), rev’d on other grounds, 209 F.3d 1145 (9th Cir.2000); 9 Jas.Wm. Mooee et al, Moore’s Federal Practice § 52.12[2] (2000); 6A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure: Civil 2d § 2577 (1995).

Moreover, we are entitled to search the evidentiary record for evidence supporting § 707(b) dismissal because we may affirm for any reason supported by the record. Dittman v. California, 191 F.3d 1020, 1027 n. 3 (9th Cir.1999); Polo Bldg. Group v. Rakita (In re Shubov), 253 B.R. 540, 547 (9th Cir. BAP 2000).

The court was explicit that it was relying on the evidence of the debtors’ schedules and declarations provided in support of the debtors’ opposition to the motion to dismiss.5

B

The uncontradicted evidence of the debtors’ schedules, executed under penalty of perjury, rebuts the debtors’ assertion that they could not fund a confirmable chapter 13 plan.

1

One starts with Schedules I (Current Income) and J (Current Expenditures).

The debtors have monthly gross income of $11,200 (including a $300 insurance reimbursement) derived from Mr. Harris’s employment as a trial lawyer and Mrs. Harris’s employment as a legal secretary. That works out to $134,400 per year.

They say their monthly expenses are $7,583, plus $3,778 in payroll deductions for taxes and social security.

Their monthly transportation expenses total $2,018, including $535 for a BMW on a lease expiring in February 2002 (Schedule G) and $654 for a Honda on a lease expiring in August 2002 (Schedule G).6 Both leases were entered amid financial distress. The operating and insurance expenses for these vehicles, and for the debtors’ unencumbered 1990 Mazda pickup truck worth $1,200 (Schedules B and C), are $829 per month.

*2652

The debtors contended it would be impossible to propose a confirmable chapter IS plan, asserting that they would have only $85 of disposable income per month to fund a chapter 13 plan.7 This sum would be insufficient for a confirmable chapter 13 plan because the $8,000 in priority tax debt must, as a matter of law, be paid in full during a life of the plan, which cannot exceed sixty months.

In other words, the debtors say they can fund a chapter 13 plan at $1,260 for thirty-six months and $2,100 for sixty months. I accept their $1,260 and read their schedules to say there is $41,499 (less the cost of one serviceable vehicle) of disposable income to fund a thirty-six month plan.

The extra $40,239 comes from refining the ore in the schedules.

First, one of the listed monthly expenses on Schedule J is $335 to pay the priority taxes that are listed on Schedule E. In order to avoid asymmetrical double counting, $335 per month must, as a matter of law, be added to the debtors’ version of available disposable income.

Second, expiration of the BMW lease (at which point it is time to start driving the fully-owned pickup) adds another $535, effective in March 2002.

Third, expiration of the Honda lease adds another $654 (minus the expense of a substitute vehicle), effective in September 2002.

None of these adjustments entail disallowing an expense as not reasonably necessary for the debtors’ support.

In other words, accepting the debtors’ evidence and argument at face value, they have disposable income of $370 as of the date of filing bankruptcy on April 10, 2001, which would rise to $905 effective March 2002 and to $1,559 (less the cost of a replacement for the Honda) effective September 2002.

' This disposable income would be sufficient to fund a $41,499 chapter 13 plan (less the expense of replacing the Honda) over 36 months. Thus, unsecured creditors would be looking at a dividend on the order of 25 percent if the court accepted all of the debtors’ other expenses as reasonable.

This is ample ability to pay in order to justify a § 707(b) dismissal. Zolg v. Kelly (In re Kelly), 841 F.2d 908, 914 (9th Cir. 1988); Gomes v. U.S. Trustee (In re Gomes), 220 B.R. 84, 87-88 (9th Cir. BAP 1998).

3

It is of no moment that this, analysis entails speculation or that I am making a value judgment by not being offended at the concept of expecting a professional with a penchant for BMWs to stoop to driving the pick-up truck that his schedules indicate is worth $1,200, operable, and paid for once the BMW lease expires. That is the essence of what a trial court does when it goes about exercising § 707(b) discretion.

The court said it was relying on the schedules.8 The fact that those schedules tend to support this speculation and value judgment, which leads to the same conclusion as the trial court reached, ought to be sufficient to preclude a finding of abuse of discretion.

*266The majority’s assertion that there needs to be more evidence about the pickup truck’s condition exposes the flaw in its analysis: it is ignoring the abuse of discretion standard of review and is imposing de novo review by substituting its own judgment for that of the trial court.

When one merely parses the schedules, it is apparent that the debtors are hoist on their own petard.

Ill

Since I submit that the evidentiary record is adequate to support a finding of ability to repay without resort to questions of reasonableness of expenses, I would not reach the issue of what record is necessary in order to support a finding of unreasonableness of expenses, even though the trial court made clear that it regarded some of the debtors’ expenses as not reasonably necessary.

The question of whether it is appropriate for a trial judge merely to rely on the judge’s experience, intuition, and knowledge of local conditions in determining unreasonableness of expenses without making specific findings is not essential to this decision and is better left to another day.

If we must reach reasonable necessity, then I would affirm on the basis that the court’s comments on the record amount to rulings, which are not clearly erroneous, that various expenses, including transportation ($2,108), food ($800), telephone ($200), personal grooming ($100), are at a level that is not reasonably necessary for the support of two adults. Those findings are supported by the evidence of the schedules.

If the majority thinks a more precise determination of the reasonable necessity of particular expenses is essential to a finding of “substantial abuse” in this case and that the admittedly thin record is not adequate to the task of reviewing this question, then we should be remanding so that the trial judge can better explain himself regarding the reasonable necessity of the various expense items.

In short, the evidentiary record sufficiently supports the court’s decision that I do not perceive an abuse of discretion. At worst, we should be remanding for better findings.

Accordingly, I dissent.

. As the court explained to debtors' counsel: However, it brings to issue the question of whether or not this is an abusive file. And the evidence, all the evidence I need on that is the debtors' own schedules and the evidence as presented in the response and — or not present in the response.

Tr., Aug. 8, 2001, at 3.

. The court did make a finding regarding this vehicle: "That must be quite a Honda.” Tr., Aug. 8, 2001, at 2.

. They apparently concede a $ 196/month expense reduction.

. The court said: "And the evidence, all the evidence I need on that [question of substantial abuse] is the debtors’ own schedules and the evidence as presented in the response and — or not presented in the response.” Tr., Aug. 8, 2001, at 3.