In re Bussey, Case No. 14-32160

In Re: Deirdre Rose Bussey, Debtor.

Case No. 14-32160

UNITED STATES BANKRUPTCY COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION

Dated: June 18, 2014

The court incorporates by reference in this paragraph and adopts as the findings and analysis of this court the document set forth below. This document has been entered electronically in the record of the United States Bankruptcy Court for the Northern District of Ohio.

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John P. Gustafson

United States Bankruptcy Judge

Chapter 7

JUDGE JOHN P. GUSTAFSON

ORDER

This case is before the court on Debtor's Application for Waiver of the Chapter 7 Filing Fee ("Application") due to in forma pauperis ("IFP") status. [Doc. # 5]. The court has the discretion under 28 U.S.C. §1930(f)(1) to waive the filing fee for a Chapter 7 case where the debtor has income less than 150 percent of the income official poverty line applicable to the size of family involved.

In considering Debtor's Application, the Court must be cognizant of certain policy concerns. Bankruptcy filing fees, collected at the time of filing, are divided amongst the Judiciary, the U.S. Trustee System Fund, the general fund of the U.S. Treasury, and the private trustee assigned to a Chapter 7 case. They are a necessity for the effective and continued administration of the bankruptcy courts. Due to the reliance on filing fees to help self-fund the bankruptcy court, which in turn helps to alleviate or greatly reduce the need for taxpayer funding, "strong public policy considerations weigh in favor of requiring that debtors pay filing fees in all instances except when they clearly meet the statutory criteria for a waiver." In re Henretty, 456 B.R. 224, 227 (Bankr. W.D. Pa. 2011).

In filing fee waiver cases, the Debtor bears the burden of proving by a preponderance of the evidencethat his or her circumstances satisfy the requirements of the fee waiver provision. In re Burr, 344 B.R. 234, 236 (Bankr. W.D. N.Y. 2006); In re Nuttall, 334 B.R. 921, 923 (Bankr. W.D. Mo. 2005). In other words, a Debtor must establish that his or her income is below 150% of the poverty line and that he or she is unable to pay the filing fee in installments. In re Kauffman, 354 B.R. 682, 685-86 (Bankr. D. Vt. 2006). See also, Judicial Conference of the United States Interim Procedures Regarding the Chapter 7 Waiver Provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

Here, Debtor's stated net monthly income is $2,712.56 and the identified family size is 2. For a family of this size, 150 percent of the income official poverty guideline is $1,966.25. Debtor's income, therefore, makes this case inappropriate for waiver of the case filing fee on the basis of in forma pauperis status, as the Debtor cannot establish that her income is below 150% of the poverty line.

Although Debtor states in her Application that she expects her family's average monthly net income to decrease by more than 10% during the next six (6) months, as she is scheduled to be laid off on June 20, 2014, her income at the time of filing the petition is above the official poverty guideline. As the Lephew court stated regarding a Debtor's income at the time of filing, "[a] Court is constrained to conclude that if bankruptcy debtors have at the time they file their petitions the means to pay the filing fee, they may not avoid the responsibility for doing so..." In re Lephew, 380 B.R. 171, 178 (Bankr. W.D. Va. 2007). The court went on to conclude that "to waive the filing fee for debtors who had, at the time of filing their Application,...