In re: Paul Richard Cherrett and Colleen Courtney Cherrett , 523 B.R. 660 ( 2014 )

FILED
NOV 07 2014
1
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. CC-14-1056-DKiTa
)
6 PAUL RICHARD CHERRETT AND ) Bk. No. RS 13-24792-SC
COLLEEN COURTNEY CHERRETT, )
7 )
Debtors. )
8 ______________________________)
)
9 ASPEN SKIING COMPANY, )
)
10 Appellant, )
)
11 v. ) O P I N I O N
)
12 PAUL RICHARD CHERRETT; )
COLLEEN COURTNEY CHERRETT; )
13 ART CISNEROS, Chapter 7 )
Trustee, )
14 )
Appellees. )
15 ______________________________)
16 Argued and Submitted on October 23, 2014
at Malibu, CA
17
Filed -November 7, 2014
18
Appeal from the United States Bankruptcy Court
19 for the Central District of California
20 Honorable Scott C. Clarkson, Bankruptcy Judge, Presiding.
21
22 Appearances: Scott H. Talkov of Reid & Hellyer appeared and
argued for appellant Aspen Skiing Co.; Kathleen J.
23 McCarthy of the Law Office of Thomas H. Casey,
Inc. appeared and argued and Leslie Keith Kaufman
24 of Kaufman & Kaufman appeared for the appellees
Paul and Colleen Cherrett.
25
26
27 Before: DUNN, KIRSCHER, and TAYLOR, Bankruptcy Judges.
28
1 DUNN, Bankruptcy Judge:
2
3 Appellant Aspen Skiing Company (“Aspen”) appeals the
4 bankruptcy court’s order denying its motion to dismiss Paul and
5 Colleen Cherretts’ (the “Cherretts”) chapter 7 case under
6 § 707(b)(1) based on its finding and conclusion that the
7 Cherretts’ debts were not primarily consumer debts.1 We AFFIRM.
8 I. FACTUAL BACKGROUND
9 A. Pre-Bankruptcy Events
10 Paul Cherrett (“Paul”)2 works in the hospitality industry and
11 has worked for a number of employers during his career.
12 Apparently, Paul is good at what he does, and his compensation
13 historically has been high.
14 Beginning in 1998, Paul’s employment compensation packages
15 have included loans to assist him in securing housing. On
16 January 16, 1998, Paul’s new employer at that time, Four Seasons
17 Hotel - Austin, provided, through its owner, two interest-free
18 loans totaling $150,000 to the Cherretts to assist them in
19 purchasing a residence in Austin, Texas. The Cherretts
20 subsequently sold their Austin residence on August 9, 2002, for a
21 profit after repaying the senior secured loan and the “employer-
22 sponsored” subordinate loans secured by the property.
23
1
24 Unless otherwise indicated, all chapter and section
references are to the federal Bankruptcy Code, 11 U.S.C. §§ 101-
25 1532, and all “Rule” references are to the Federal Rules of
Bankruptcy Procedure, Rules 1001-9037. All “Civil Rule”
26 references are to the Federal Rules of Civil Procedure.
27 2
We refer to Mr. Cherrett by his first name for
28 convenience. No disrespect is intended.
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1 On August 12, 2002, Paul’s new employer, Four Seasons Hotel
2 - Jackson Hole, provided, through its owner, an interest-free
3 loan to assist the Cherretts in acquiring a residence in Jackson,
4 Wyoming (the “Jackson Residence”). When the Cherretts ultimately
5 sold the Jackson Residence in 2009, they realized a profit of
6 approximately $250,000 after paying all liens on the property,
7 including the employer-sponsored loan.
8 Paul first was contacted by Aspen in December 2006 to
9 consider an employment opportunity, but since the open position
10 was essentially comparable to his current job, he thanked Aspen’s
11 representative but indicated that he was not interested.
12 Approximately three months later, Paul received an e-mail from a
13 “headhunter” about a position with Aspen of substantially greater
14 responsibility. He expressed interest and went through the job
15 interview process.
16 Apparently, Aspen liked what they heard in his interviews,
17 and Paul entered into employment negotiations with Aspen. The
18 initial salary proposed by Aspen, at least from Paul’s
19 perspective, did not cover the high cost of living/housing in the
20 Aspen, Colorado area. Ultimately, Paul accepted a written offer
21 of employment from Aspen that included a $300,000 salary, a
22 “signing bonus” of $75,000, participation in an incentive plan
23 for potential additional compensation annually, and the following
24 provisions for a “housing loan” (“Housing Loan”):
25 Your offer includes a housing loan of up to $500,000,
which would be second to your primary mortgage. This
26 program will include an annual bonus guaranteed to
offset your tax liability for the interest on this
27 loan, calculated at a 35% tax rate. You will receive a
guaranteed annual bonus of up to $33,750 to offset the
28 annual interest on this loan, as well as your tax
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1 liability ($25,000 in interest, $8,750 for taxes,
assuming principal of $500,000). This bonus will be
2 paid simultaneous to the date upon which annual
interest on the loan is due, to ensure you have no
3 annual out of pocket expenses related to the financing
of this loan. You will not be required to repay any
4 additional interest on this loan, if your employment
with [Aspen] continues through 2015.
5
6 In addition, Paul agreed with Aspen that if his employment with
7 Aspen terminated (other than as a result of death or disability)
8 or he ceased to reside at the property purchased with the Housing
9 Loan (either alternative designated as a “Repayment Event”) prior
10 to December 31, 2015, Paul would be required to pay the following
11 amounts in addition to repayment of the Housing Loan:
12 If the Repayment Event occurs in years 1-2, the
reimbursement amount will be $140,000[;] If the
13 Repayment Event occurs in years 3-4, the reimbursement
amount will be $120,000; If the Repayment Event occurs
14 in years 5-6, the reimbursement amount will be
$100,000; If the Repayment Event occurs in years 7-8,
15 the reimbursement amount will be $80,000.
16 An aspect of Paul’s prospective employment with Aspen that
17 particularly interested him was the potential for participating
18 in expanding the “Little Nell Hotel” brand beyond the Aspen,
19 Colorado area. Aspen owned one Little Nell Hotel, but there was
20 a project already under way to build a new Little Nell Hotel in
21 Jackson Hole, Wyoming. One of Paul’s roles with Aspen was “to
22 grow the [Little Nell] brand.”
23 Paul went to work for Aspen in the spring of 2007. When he
24 accepted the job, he realized that he would have to live in the
25 Aspen, Colorado area, at least for a while.
26 In June 2007, the Cherretts purchased a condominium in
27 Basalt, Colorado (“Colorado Residence”) for $995,000, and Paul
28 began living in it. The Cherretts contributed cash, borrowed
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1 $417,000 secured by a first trust deed on the Colorado Residence,
2 and borrowed $500,000, the Housing Loan, from Aspen secured by a
3 second trust deed, to fund the purchase of the Colorado
4 Residence. When he bought the Colorado Residence, Paul hoped
5 that it would appreciate in value so that when it was sold, the
6 Cherretts would realize a profit. Initially, at least, Paul
7 considered the Colorado Residence to be a “place holder until we
8 got settled.” The Cherretts purchased the Colorado Residence at
9 the “very peak of the real estate bubble.”
10 When the Cherretts bought the Colorado Residence, Mrs.
11 Cherrett (“Colleen”)3 continued to reside in the Jackson
12 Residence. The Colorado Residence was a 1400 square feet, two
13 bedroom condominium. The Jackson Residence was a 4,000 square
14 feet, four bedroom house. The Cherretts have two children. At
15 the time that they bought the Colorado Residence, their son was
16 graduating from high school and would be off to college in the
17 fall. However, their daughter had two years more in high school,
18 and Colleen stayed with her at the Jackson Residence until she
19 graduated from high school, by which time, the Jackson Residence
20 was sold. Colleen did not move to the Colorado Residence until
21 June or July 2009.
22 In the meantime, 2008 brought the recession, and Aspen
23 “pulled the plug” on expanding the Little Nell Hotel brand to
24 Jackson Hole. In addition, the value of the Colorado Residence
25 plummeted, and the Cherretts’ hopes of realizing a profit on
26
27 3
Again, we refer to Mrs. Cherrett by her first name for
28 convenience. No disrespect is intended.
-5-
1 resale evaporated. Paul remained with Aspen until 2011, when he
2 resigned from Aspen to go to work for Talisker Mountain Company
3 (“Talisker”) in Park City, Utah, at a higher level of
4 compensation. He worked for Talisker for a year and then
5 attempted to start his own business. In April 2013, he accepted
6 employment with a Hilton company and moved to California.
7 B. The Cherretts’ Bankruptcy Proceedings
8 The Cherretts filed their chapter 7 petition in the
9 bankruptcy court for the Central District of California on August
10 30, 2013. In their petition, the Cherretts stated that their
11 debts were primarily “consumer debts,” as defined in § 101(8).
12 The only real property listed on their Schedule A was the
13 Colorado Residence, and on their Schedule D, the Cherretts valued
14 the Colorado Residence at $420,000 and listed two undisputed
15 debts: a $417,000 fully secured first mortgage debt to Everhome
16 Mortgage, and a $550,000 debt to Aspen, of which $547,000 was
17 listed as unsecured. The only other debts included in the
18 Cherretts’ schedules were two unsecured debts on Schedule F: a
19 $25,444 student loan debt to Sallie Mae, and a $4,200 debt for
20 homeowners association dues. In their schedules, the Cherretts
21 indicated that they intended to surrender the Colorado Residence.
22 On November 27, 2013, Aspen filed a motion to dismiss
23 (“Motion to Dismiss”) the Cherretts’ chapter 7 case as an abuse
24 under § 707(b)(1) and Rule 1017, arguing that the Cherretts had
25 sufficient projected disposable income to pay all or
26 substantially all of their creditors in full through a chapter 13
27 plan. Aspen relied on the Cherretts’ admission in their petition
28 that their debts were primarily consumer debts but also cited the
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1 Ninth Circuit’s decision in Zolg v. Kelly (In re Kelly), 841 F.2d
2 908, 913 (9th Cir. 1988), for the proposition that, “[i]t is
3 difficult to conceive of any expenditure that serves a ‘family
4 . . . or household purpose’ more directly than does the purchase
5 of a home.”
6 On December 4, 2013, the Cherretts amended their bankruptcy
7 petition to state that their debts were primarily business debts.
8 On the same day, the Cherretts filed their opposition to the
9 Motion to Dismiss, arguing that their debts (focusing on the
10 Housing Loan debt) were primarily “Non-Consumer” debts.
11 Consequently, § 707(b)(1) did not apply, and their chapter 7 case
12 was not an “abuse.” They argued that if second mortgage debt,
13 such as the Housing Loan, was incurred for a business purpose or
14 with a profit motive, it was not “consumer debt.”
15 Aspen filed a reply on December 11, 2013, challenging the
16 Cherretts’ credibility and reiterating its position, based on In
17 re Kelly, that debts incurred for the purchase of a personal
18 residence are consumer debts.
19 The bankruptcy court scheduled an evidentiary hearing
20 (“Hearing”) for January 22, 2014 on the Motion to Dismiss,
21 limited to the issue of “whether the debt owed to [Aspen] is a
22 consumer debt or non-consumer debt.” The parties subsequently
23 exchanged discovery; Aspen’s counsel took the deposition of Paul;
24 and the parties filed trial briefs and evidentiary submissions.
25 At the Hearing, Paul testified and was examined at length by
26 counsel for both Aspen and the Cherretts. The bankruptcy court
27 then heard argument and engaged in extensive colloquy with
28 counsel. At the conclusion of the Hearing, the bankruptcy court
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1 announced its findings and conclusions orally. Specifically, the
2 bankruptcy court found that Paul’s purposes in securing the
3 Housing Loan were primarily employment and business purposes.
4 Accordingly, the bankruptcy court determined that the Housing
5 Loan was not consumer debt and denied the Motion to Dismiss.
6 On February 3, 2014, the bankruptcy court entered an order
7 (“Order”) denying the Motion to Dismiss for the reasons stated on
8 the record at the Hearing. Aspen filed a timely Notice of
9 Appeal.
10 II. JURISDICTION
11 The bankruptcy court had jurisdiction under 28 U.S.C.
12 §§ 1334 and 157(b)(2)(A) and (O). However, before we can review
13 this appeal, we must consider our own jurisdiction to hear it.
14 We have jurisdiction to hear bankruptcy appeals from final
15 orders, judgments and decrees. See 28 U.S.C. § 158. Given the
16 unique nature of bankruptcy proceedings, we apply a pragmatic
17 approach to determine the finality of orders. Congrejo Invs.,
18 LLC v. Mann (In re Bender), 586 F.3d 1159, 1163 (9th Cir. 2009).
19 A bankruptcy court order is final and thus appealable “‘where it
20 1) resolves and seriously affects substantive rights and 2)
21 finally determines the discrete issue to which it is addressed.’”
22 SS Farms, LLC v. Sharp (In re SK Foods, L.P.), 676 F.3d 798, 802
23 (9th Cir. 2012)(quoting Dye v. Brown (In re AFI Holding, Inc.),
24 530 F.3d 832, 836 (9th Cir. 2008)).
25 Generally, an order denying a motion to dismiss is
26 interlocutory. Hickman v. Hana (In re Hickman), 384 B.R. 832,
27 836 (9th Cir. BAP 2008)(citing Sherman v. SEC (In re Sherman),
28 491 F.3d 948, 967 n.24 (9th Cir. 2007)(reviewing § 707(a) motion
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1 to dismiss); and Dunkley v. Rega Props., Ltd. (In re Rega Props.,
2 Ltd.), 894 F.2d 1136, 1137-39 (9th Cir. 1990)(reviewing § 1112(b)
3 motion to dismiss)). But the new provisions added to § 707(b)
4 under the Bankruptcy Abuse Prevention and Consumer Protection Act
5 of 2005, Pub. L. 109-8, 119 Stat. 23 (2005)(“BAPCPA”), “manifest
6 a congressional policy to police all Chapter 7 cases for abuse at
7 the outset of a Chapter 7 proceeding, and . . . raise pragmatic
8 considerations that indicate that the denial of a § 707(b) motion
9 to dismiss is different from the denial of other motions to
10 dismiss [e.g., Civil Rule 12(b) or § 1112(b)(1)-(4) motions].”
11 McDow v. Dudley, 662 F.3d 284, 288 (4th Cir. 2011). “Section
12 707(b) creates a statutory gateway based on whether the case is
13 abusive, and an order denying that motion to dismiss as abusive,
14 in effect, finally and conclusively resolves the issue. If the
15 denial of a § 707(b) motion to dismiss cannot be appealed
16 immediately to the district court, the Chapter 7 proceedings
17 would have to be completed before it could be determined whether
18 the proceedings were abusive in the first place.” Id. at 289-90
19 (citation omitted).
20 The Ninth Circuit has not yet specifically addressed the
21 finality of orders denying motions to dismiss chapter 7 cases for
22 abuse under § 707(b) after BAPCPA. However, the First, Third,
23 Fourth, Fifth, Seventh and Eighth Circuits consider such orders
24 to be final based on practicality, judicial efficiency and other
25 pragmatic considerations. See Morse v. Rudler (In re Rudler),
26 576 F.3d 37, 43-44 (1st Cir. 2009)(holding that an order denying
27 a motion to dismiss under § 707(b), “where the dispute at issue
28 turns on a question of law,” is final because delaying
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1 consideration of the legal question in such an order “may
2 frustrate both principles of judicial economy and Congress’s goal
3 of ensuring that debtors allocate as much of their resources as
4 possible toward repaying their debts. . . . [M]otions to dismiss
5 for abuse under section 707(b) are subject to statutory
6 deadlines, presumably foreclosing renewed requests for dismissal
7 as the Chapter 7 case proceeds.”); In re Christian, 804 F.2d 46,
8 48 (3d Cir. 1986)(determining it had jurisdiction to review an
9 order denying a motion to dismiss a chapter 7 case under
10 § 707(b), based on judicial efficiency and practicality, for, if
11 such an order was “not now appealable the entire bankruptcy
12 proceedings must be completed before it can be determined whether
13 they were proper in the first place”); McDow v. Dudley, 662 F.3d
14 at 290 (holding that “pragmatic considerations of preserving
15 resources for creditors in bankruptcy and promoting judicial
16 economy weigh heavily in favor of recognizing the finality of an
17 order denying a § 707(b) motion to dismiss”); U.S. Trustee v.
18 Cortez (In re Cortez), 457 F.3d 448, 453-54 (5th Cir.
19 2006)(determining that a district court’s order remanding a
20 bankruptcy court’s order denying the trustee’s motion to dismiss
21 under § 707(b) is a final order because the remand order left
22 only ministerial tasks for the bankruptcy court); Ross-Tousey v.
23 Neary (In re Ross-Tousey), 549 F.3d 1148, 1152-54 (7th Cir.
24 2008)(determining that the district court’s remand order and the
25 bankruptcy court’s order denying the U.S. Trustee’s motion to
26 dismiss under § 707(b)(2) and (b)(3)(B) were final), abrogated on
27 other grounds by Ransom v. FIA Card Servs., N.A., 562 U.S. 6128 (2011); Stuart v. Koch (In re Koch), 109 F.3d 1285, 1288 (8th
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1 Cir. 1997):
2 If [orders denying dismissal for substantial abuse]
cannot be appealed, bankruptcy proceedings must ‘be
3 completed before it can be determined whether they were
proper in the first place.’ In re Christian, 804 F.2d
4 [46,] 48 [(3rd Cir. 1986)]. Requiring trustees to
complete Chapter 7 proceedings before appealing denial
5 of their § 707(b) motions wastes debtor resources that
should be used to pay creditors, and forces trustees
6 and bankruptcy courts to expend their scarce
institutional resources on abusive Chapter 7
7 petitioners. Thus ‘the policies of judicial efficiency
and finality are best served’ by allowing prompt
8 appellate review of § 707(b) denials. Zolg v. Kelly
(In re Kelly), 841 F.2d at 911.
9
10 We agree with the reasoning of the circuits that have
11 addressed the issue regarding the finality of orders denying
12 § 707(b) motions to dismiss. If such an order is not considered
13 final, the moving party and the debtor will have to wait until
14 the case is completed, which “wastes debtor resources that should
15 be used to pay creditors, and forces trustees and bankruptcy
16 courts to expend their scarce institutional resources on abusive
17 Chapter 7 petitioners.” McDow, 662 F.3d at 290 (quoting Koch,
18 109 F.3d at 1288)(internal quotation marks omitted). Moreover,
19 postponing the appeal until the end of the bankruptcy case could
20 result in the need to unwind various administrative actions,
21 likely with some difficulty (e.g., having to revoke the debtor’s
22 discharge, potentially compelling creditors to disgorge
23 distributions made by the trustee).
24 Alternatively, even if the Order is interlocutory, we have
25 jurisdiction to review it because we earlier granted leave to
26 appeal to the extent necessary under 28 U.S.C. § 158(a)(3) based
27
28
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1 on the pragmatic considerations discussed above.4
2 III. ISSUE
3 When denying the Motion to Dismiss for abuse under
4 § 707(b)(1), did the bankruptcy court err in finding that the
5 Housing Loan was non-consumer debt?
6 IV. STANDARDS OF REVIEW
7 We review de novo issues of statutory construction and
8 conclusions of law, including a bankruptcy court’s interpretation
9 of the Bankruptcy Code. Samson v. W. Capital Partners, LLC (In
10 re Blixseth), 684 F.3d 865, 869 (9th Cir. 2012)(per curiam).
11 We review a bankruptcy court’s findings of fact for clear
12 error. Decker v. Tramiel (In re JTS Corp.), 617 F.3d 1102, 1109
13 (9th Cir. 2010)(quoting Leichty v. Neary (In re Strand), 375 F.3d
14 854, 857 (9th Cir. 2004)). “We will affirm a [bankruptcy
15 court’s] factual finding unless that finding is illogical,
16 implausible, or without support in inferences that may be drawn
17 from the record.” U.S. v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
18 2009) (en banc). See also Anderson v. City of Bessemer City,
19 N.C., 470 U.S. 564, 574 (1985)(“Where there are two permissible
20 views of the evidence, the factfinder’s choice between them
21 cannot be clearly erroneous.”). We must accept a bankruptcy
22
23 4
Aspen filed its opening brief on March 24, 2014. In its
opening brief, Aspen argued that the Order was final.
24
Alternatively, Aspen sought leave to appeal.
25 On March 26, 2014, a clerk’s order was issued (“Clerk’s
Order Re: Finality”), asking the Cherretts to respond to the
26 question of whether the Order was final. After reviewing the
27 Cherretts’ and Aspen’s responses to the Clerk’s Order Re:
Finality, an order was issued on May 12, 2014, granting leave to
28 appeal to the extent necessary under 28 U.S.C. § 158(a)(3).
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1 court’s findings of fact unless we have a definite and firm
2 conviction that a mistake has been committed. In re JTS Corp.,
3 617 F.3d at 1109.
4 We review de novo mixed questions of law and fact. Id.5 V. DISCUSSION
6 Under § 707(b)(1), after notice and a hearing on a motion by
7 a party in interest, the bankruptcy court may dismiss a chapter 7
8 case when an individual debtor has primarily consumer debts and
9 if the bankruptcy court finds that granting relief would be an
10 abuse of the provisions of chapter 7.5 Restated, there are two
11 prerequisites to dismissal under § 707(b)(1): 1) the debtor has
12 primarily consumer debt; and 2) the bankruptcy court finds that
13 granting the debtor’s petition would be an abuse of chapter 7.
14 Price v. U.S. Trustee (In re Price), 353 F.3d 1135, 1138 (9th
15 Cir. 2004). The moving party bears the burden of proof to
16 support a § 707(b)(1) motion by a preponderance of the evidence.
17 In re Baker, 400 B.R. 594, 597 (Bankr. N.D. Ohio 2009).
18 Only the first § 707(b)(1) prerequisite is at issue in this
19 appeal. The bankruptcy court denied the Motion to Dismiss
20
21 5
Section 707(b)(1) provides, in relevant part:
22
After notice and a hearing, the court, on its own
23 motion or on a motion by the United States trustee,
trustee (or bankruptcy administrator, if any), or any
24
party in interest, may dismiss a case filed by an
25 individual debtor under this chapter whose debts are
primarily consumer debts, or, with the debtor’s
26 consent, convert such a case to a case under chapter 11
27 or 13 of this title, if it finds that the granting of
relief would be an abuse of the provisions of this
28 chapter. . . .
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1 because it found that the Cherretts did not have primarily
2 consumer debt, as the Housing Loan, which formed the bulk of
3 their debt, was non-consumer debt. Aspen challenges this fact
4 finding on two grounds: 1) the Housing Loan is consumer debt as a
5 matter of law under § 101(8), as interpreted by Zolg v. Kelly (In
6 re Kelly), 841 F.2d 908 (9th Cir. 1988)(“Kelly”); and 2) the fact
7 that the Housing Loan was employer-sponsored is irrelevant
8 because the determination of whether the Housing Loan qualifies
9 as consumer debt turns on Paul’s purpose. If Paul’s purpose for
10 incurring the Housing Loan was primarily for personal, family or
11 household use, then the Housing Loan would qualify as consumer
12 debt. Aspen contends that Paul obtained the Housing Loan
13 specifically to purchase the Colorado Residence as his personal
14 residence. The Housing Loan thus qualifies as consumer debt.6
15 Given Aspen’s contentions, this appeal turns on whether we
16 agree with the bankruptcy court’s characterization of the Housing
17 Loan as non-consumer debt. We therefore begin our analysis by
18 examining the definition of “consumer debt” under § 101(8).
19 Section 101(8) defines “consumer debt” as “debt incurred by
20 an individual primarily for a personal, family, or household
21 purpose.” Consumer debt includes both unsecured and secured
22
23 6
In its motion to dismiss, Aspen claimed that the
Cherretts had sufficient disposable income to pay their unsecured
24
creditors through a chapter 13 plan. However, the Cherretts’
25 schedules, which were signed under penalty of perjury and were
the sole evidence before the bankruptcy court on this point,
26 indicated that their unsecured debt exceeded the statutory
27 maximum under § 109(e). The Cherretts therefore were potentially
ineligible for relief under chapter 13, as noted by the
28 bankruptcy court at the Hearing.
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1 debt. Kelly, 841 F.2d at 912. Whether a particular secured debt
2 is or is not characterized as consumer debt under § 707(b)
3 depends on the purpose of the debt. Price, 353 F.3d at 1139;
4 Kelly, 841 F.2d at 913. See also Stine v. Flynn (In re Stine),
5 254 B.R. 244, 249 (9th Cir. BAP 2000)(“It is the purpose for
6 which the debt was incurred that determines whether it is a
7 consumer debt.”)(citing Kelly, 841 F.2d at 913)(emphasis added));
8 Cypher Chiropractic Ctr. v. Runski (In re Runski), 102 F.3d 744,
9 747 (4th Cir. 1996)(“[C]ourts have concluded uniformly that debt
10 incurred for a business venture or with a profit motive does not
11 fall into the category of debt incurred for ‘personal, family, or
12 household purposes.’”)(citations omitted); and A.L. Lee Mem’l
13 Hosp. v. McFadyen (In re McFadyen), 192 B.R. 328, 333 (Bankr.
14 N.D.N.Y. 1995)(“The courts generally ascribe a business purpose,
15 rather than a personal, family or household purpose to debts
16 which are incurred ‘with an eye toward profit’ and which are
17 ‘motivated for ongoing business requirements.’”)(citations
18 omitted)(emphasis in original).7
19 Aspen insists that Kelly definitively classified all
20 mortgage debt as consumer debt. It points out that this holding
21 in Kelly was reinforced in Price v. U.S. Trustee (In re Price),
22 353 F.3d 1135, 1139 (9th Cir. 2004). The Kelly holding therefore
23
24 7
In a home loan context, an expectation of profit alone,
25 in our view, does not satisfy the Kelly standard for a non-
consumer debt. It is a truism that every red-blooded American
26 who buys a home expects a profit when it is sold. If that
27 expectation were enough to take home loan debt outside of the
consumer debt category, the exception would swallow the Kelly
28 rule.
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1 is the rule of law in the Ninth Circuit.
2 In Kelly, the debtors filed a petition under chapter 7.
3 They scheduled $181,350 in assets, $147,000 in debt secured by
4 mortgages against their home and $25,000 in unsecured debt owed
5 to certain defendants in a state court action which the debtors
6 lost. Kelly, 841 F.2d at 910. The bankruptcy court sua sponte
7 found that the debtors owed primarily consumer debts and that
8 granting them chapter 7 relief would be a substantial abuse
9 because they could easily pay all of their debts. It accordingly
10 dismissed the debtors’ chapter 7 case. After moving for
11 reconsideration with the bankruptcy court, which was denied, the
12 debtors appealed to the BAP, which reversed the bankruptcy court
13 on the ground that the debtors did not have primarily consumer
14 debts because most of their debts were secured by real estate
15 mortgages. Kelly v. Solot (In re Kelly), 70 B.R. 109, 111-12
16 (9th Cir. BAP 1986).
17 On appeal, the debtors argued that debts secured by real
18 property were never consumer debts. Because 85% of their debts
19 was secured by their home, the debtors maintained that they could
20 not have primarily consumer debts. Dismissal under § 707(b) was
21 inappropriate.
22 The Ninth Circuit disagreed with this contention because a
23 literal reading of § 101(8) and related statutes (i.e., § 101(12)
24 and (5)(A)) “inexorably [led] to the conclusion that consumer
25 debt includes secured debt.”8 Kelly, 841 F.2d at 912. It went on
26
27 8
The Ninth Circuit issued Kelly years before BAPCPA.
28 Kelly cited § 101(7), 101(4)(A) and (11), which, at the time, set
forth the definition of “consumer debt,” “claim” and “debt,”
(continued...)
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1 to note that secured debt neither was excluded from nor included
2 in consumer debt automatically. Id. at 913. The Ninth Circuit
3 concluded that it “must look to the purpose of the debt in
4 determining whether it falls within the statutory definition.”
5 Id.
6 Upon review of the debtors’ mortgage debts, the Ninth
7 Circuit determined that $95,000 consisted of a lien the debtors
8 assumed in purchasing their home and $32,000 represented a home
9 equity line of credit incurred for home improvements and the
10 repayment of credit card debts. Id. It concluded that all of
11 those debts “fit comfortably within the [Bankruptcy] Code’s
12 definition of consumer debt.” Id.
13 We acknowledge that on its facts, Kelly characterized
14 mortgage debt as consumer debt. But Aspen overlooks one of the
15 main points of Kelly: Kelly held that, “[w]hile secured debt is
16 not automatically excluded from consumer debt, it is not
17 automatically included either. We must look to the purpose of
18 the debt in determining whether it falls within the statutory
19 definition.” Id. (Emphasis added.) Notably, though Aspen urges
20 us to apply Kelly to the circumstances here without further
21 analysis, it also zeroes in on Paul’s purpose in obtaining the
22 Housing Loan as an alternative basis for reversing the bankruptcy
23 court.
24 Aspen contends that the Cherretts base their
25
26
8
(...continued)
27 respectively. Section 101(8), (5)(A) and (12) currently set
28 forth these definitions. Although the numbering of these
definitions under § 101 has changed, the definitions themselves
have not since the Ninth Circuit decided Kelly.
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1 characterization of the Housing Loan as non-consumer debt on
2 Aspen’s purpose in providing the Housing Loan. According to
3 Aspen, the Cherretts argue that the purpose of the Housing Loan
4 was to augment Paul’s compensation. In making such an argument,
5 the Cherretts focus on the lender’s motive. But, Aspen asserts,
6 the debtor’s purpose, not the lender’s purpose, is the
7 controlling determinant under § 101(8). Section 101(8)
8 specifically states that consumer debt is debt incurred by an
9 individual debtor for a personal, family or household purpose.
10 The lender’s motive thus is irrelevant to determining whether a
11 secured debt qualifies as a consumer debt. Moreover, Aspen
12 contends, if the lender’s motive was the determining factor,
13 every mortgage loan would be non-consumer debt because every
14 lender has a profit motive when it extends a mortgage loan.
15 Aspen further argues that the Cherretts did not incur the
16 Housing Loan for a business purpose. The Housing Loan did not
17 become a non-consumer debt simply because it was part of Paul’s
18 compensation. Also, Aspen claims, the Housing Loan was not a
19 condition for his employment.
20 At the Hearing, the bankruptcy court found that “[Paul’s]
21 purpose of securing that debt, or incurring that debt, was for
22 employment purposes. The man needed to make money. He wanted to
23 take the job. He knew he – to leave a [secure] position, he
24 wanted to make more money.” Tr. of Jan. 22, 2014 hr’g, 103:15-
25 19. It concluded that Paul incurred the Housing Loan for a
26 business purpose; he “did it so he could work at a very
27 prestigious, top of the line, equal to the Four Seasons, equal to
28 the best hotels in the world [employer] . . . .” Tr. of Jan. 22,
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1 2014 hr’g, 104:5-7. The bankruptcy court therefore ruled that
2 “primarily this loan was incurred for a business purpose.” Tr.
3 of Jan. 22, 2014 hr’g, 103:20. Based on the record before us, we
4 perceive no error in the bankruptcy court’s conclusion that
5 Paul’s primary purpose in obtaining the Housing Loan was for
6 business (i.e., employment).
7 As Aspen recognizes, the key factor in determining whether
8 secured debt is consumer debt lies in the debtor’s purpose in
9 incurring the secured debt. Where the debt was incurred for more
10 than one purpose, the primary purpose of the debt will determine
11 its nature. See, e.g., Price, 353 F.3d at 1139; Swartz v.
12 Strausbaugh (In re Strausbaugh), 376 B.R. 631, 639 (Bankr. S.D.
13 Ohio 2007)(quoting 2 Collier on Bankruptcy ¶ 101.08, at 101-47
14 (Lawrence P. King ed., 15th ed. rev. 2004)(“If a debt is incurred
15 partly for business purposes and partly for personal, family or
16 household purposes, the term ‘primarily’ in the definition
17 suggests that whether the debt is a ‘consumer debt’ should depend
18 upon which purpose predominates. Presumably, this determination
19 would normally turn on the purpose for which most of the funds
20 were obtained.”)). Based on the record before us, the bankruptcy
21 court did not err in finding that Paul’s primary purpose in
22 obtaining the Housing Loan was employment related.
23 Paul repeatedly asserted that he obtained the Housing Loan
24 to purchase the Colorado Residence, not only in hopes of
25 realizing a profit on resale, but also because it was an integral
26 part of his entering into employment with Aspen. He testified at
27 the Hearing that he believed the Housing Loan “was both
28 compensation and [he] certainly expected to profit from
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1 appreciation.” Tr. of Jan. 22, 2014 hr’g, 15:16-18.
2 When he decided to accept employment with Aspen, Paul
3 “look[ed] at everything in totality[.]” Tr. of Jan. 22, 2014
4 hr’g, 53:13. He considered the salary offered by Aspen, along
5 with the Housing Loan; together, the salary and the potential for
6 appreciation in the Colorado Residence “[were] considerably more
7 than [he] was making” with his previous employer. Tr. of Jan.
8 22, 2014 hr’g, 53:14.
9 In his declaration attached to the Cherretts’ opposition to
10 the Motion to Dismiss, Paul asserted that accepting the position
11 with Aspen required that he move from Jackson, Wyoming to Aspen,
12 Colorado. Because real estate was expensive in Aspen, Colorado,
13 and his income with Aspen would not allow him to buy real estate
14 there, Aspen offered to help Paul in the purchase of housing.
15 Specifically, he stated that “in lieu of a higher salary,
16 extended in the offer of employment, [Aspen offered] an interest-
17 free loan tied to [his] employment and to be secured by a trust
18 deed against the [real estate] he was to purchase.” Paul further
19 asserted that, “given the initial salary offered, and in lieu of
20 a higher salary, and specifically to compensate for the higher
21 cost of housing in [Aspen, Colorado], Aspen offered to pay the
22 difference between the purchase price and the amount [he and
23 Colleen] could afford to pay.”
24 At his December 6, 2013 deposition, Paul explained that,
25 when discussing the terms of Aspen’s employment offer, he
26 expressed concern over the cost of living in Aspen, Colorado. He
27 therefore asked Aspen, “[W]hat other ways could [he] be
28 compensated, for instance, to allow [him] to live in the area[?]”
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1 Tr. of Dec. 6, 2013 deposition, 10:14-16. Paul explained that he
2 had received benefits from his prior employer in Jackson,
3 Wyoming, that he was not receiving from Aspen. He then went on
4 to state that Aspen “offered the [Housing Loan] and the potential
5 for appreciation in balance and bonus plan. So, you know, [he]
6 was looking for a greater net return in time, and one of those –
7 part of that was appreciation of the home.” Tr. of Dec. 6, 2013
8 deposition, 37:22-25, 38:1.
9 At the Hearing, Paul testified that the Housing Loan was
10 made part of the negotiations for his employment with Aspen. He
11 stated that he “assume[d] it was because [he] had to weigh the
12 total compensation package, and it either [came] in the form of a
13 salary or other things that convey[ed] with that.” Tr. of Jan.
14 22, 2014 hr’g, 6:3-5. He emphasized later at the Hearing that
15 “the solution to let’s say the income that [he] needed to accept
16 the position in Aspen [Colorado] and live in Aspen [Colorado]
17 required that [Aspen] come up with a compensation package that
18 included salary and something else. So, that’s where the
19 [H]ousing [L]oan came in in the form of a bonus.” Tr. of Jan.
20 22, 2014 hr’g, 9:12-16. Paul testified that the Housing Loan was
21 offered instead of a higher salary. He also testified that Aspen
22 even had characterized the Housing Loan as “a deferred
23 compensation bonus plan.” Tr. of Jan. 22, 2014 hr’g, 40:21-22.
24 The written offer presented by Aspen supports Paul’s view of
25 the Housing Loan as part of his employment with Aspen. The
26 written offer provided that it “include[d] a housing loan of up
27 to $500,000.” It further provided him an annual bonus to offset
28 annual interest on the Housing Loan and his tax liability for the
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1 interest on the Housing Loan.
2 Paul further explained that he felt he had no choice but to
3 purchase the Colorado Residence based on his compensation from
4 Aspen. He testified that if he “wanted that compensation plan
5 and [he] wanted that interest free loan, [he] needed to buy a
6 home with that money.” Tr. of Jan. 22, 2014 hr’g, 11:18-20. He
7 believed that “[Aspen] said if [he] want[ed] to work here [in
8 Aspen, Colorado], here’s [his] compensation plan. This is what
9 [he could] do with the money. So, [he] had to buy a home with
10 it. There was no other way [the offer] was written.” Tr. of
11 Jan. 22, 2014 hr’g, 11:22-24. Paul explained that it “made more
12 economic sense to [Aspen] to give [him] a housing loan and pay
13 [him] a certain wage,” given the high cost of rent and the amount
14 of compensation offered by Aspen. Tr. of Jan. 22, 2014 hr’g,
15 38:25, 39:1-2. He thus purchased the Colorado Residence “because
16 it just seemed like it was the most cost effective and . . . a
17 financially advantageous route to take.” Tr. of Jan. 22, 2014
18 hr’g, 39:2-4.
19 At his deposition, Paul stressed that the “only thing [he]
20 could have benefitted from was the appreciation of the [Colorado
21 Residence].” Tr. of Dec. 6, 2013 deposition, 39:5-6. “[T]he
22 benefit to [him] would have been at the end when the [Colorado
23 Residence] was sold that [he] had some type of appreciation.”
24 Tr. of Dec. 6, 2013 deposition, 39:8-10. He further explained
25 that he had a profit motive in purchasing the Colorado Residence
26 because “at the time housing prices were skyrocketing, and so the
27 opportunity there was to benefit from that increasing market.”
28 Tr. of Dec. 6, 2013 deposition, 91:19-21.
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1 Paul provided ample evidence that he obtained the Housing
2 Loan for a business purpose with respect to his employment with
3 Aspen. Given his testimony at the Hearing, his deposition and
4 his declaration, as well as the written offer of employment from
5 Aspen, the bankruptcy court had sufficient evidence to find that
6 Paul’s purpose in obtaining the Housing Loan was primarily
7 related to his employment. We discern no clear error by the
8 bankruptcy court in making that determination.
9 VI. CONCLUSION
10 To dismiss a chapter 7 case for abuse under § 707(b)(1), the
11 bankruptcy court must find that: 1) the debtor had primarily
12 consumer debt and 2) granting his petition would be an abuse of
13 chapter 7. Only the first prerequisite is at issue on appeal.
14 Here, the Cherretts provided ample evidence through Paul’s
15 testimony at the Hearing, at his deposition and in his
16 declaration, that their purpose in obtaining the Housing Loan was
17 primarily business/employment-oriented. Based on the evidence
18 before it, the bankruptcy court did not clearly err in finding
19 that the Housing Loan was not consumer debt within the meaning of
20 § 101(8). The bankruptcy court properly denied the Motion to
21 Dismiss when it determined that the first prerequisite of
22 § 707(b)(1) was not met. We AFFIRM.
23
24
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26
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28
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