Opinion
Case No. 12-00341
05-16-2012
In re KIMBERLY HOLMES, Debtor.
________________________
, Jr.
United States Bankruptcy Judge
MEMORANDUM DECISION AND ORDER
GRANTING APPLICATION FOR WAIVER OF CHAPTER 7 FILING FEE
The debtor has filed an application for waiver of the chapter 7 filing fee (Dkt. No. 3). Pursuant to 28 U.S.C. § 1930 as amended by § 418 of the Bankruptcy Abuse Prevention & Consumer Protection Act of 2005, Pub. L. 109-8 (effective October 17, 2005), this court:
may waive the filing fee in a case under chapter 7 of title 11 for an individual if the court determines that such individual has income less than 150 percent of the income official poverty line . . . applicable to a family of the size involved and is unable to pay that fee in installments.28 U.S.C. § 1930(f)(1).
The debtor meets the first requirement for a waiver because her monthly income of $907 ($10,884 annualized) is less than 150% of the poverty line established for a family of two living in the District of Columbia under the 2012 Health and Human Services Poverty Guidelines.
The poverty line for a household of two in the District of Columbia is $15,130 and 150% of the poverty line is $22,695.
The debtor's inability to pay the filing fee in installments is the second requirement for waiver of the filing fee. There is a wrinkle in the debtor's application with respect to this second requirement because she states that she has promised to pay an attorney $1,850 in connection with this case. However, according to the Judicial Conference guidelines, "[a] debtor is not disqualified for a waiver of the filing fee solely because the debtor has paid (or promised to pay) a bankruptcy attorney . . . in connection with the filing." Interim Procedures, UNITED STATES COURTS (Aug. 11, 2005), http://www.uscourts.gov/federalcourts/ bankruptcy/BankruptcyResources/JCUSinterrimProcedures.aspx. Rather, the court must consider the totality of the circumstances in determining the debtor's ability to pay in installments. See In re Davis, 372 B.R. 282, 285 (Bankr. W.D. Va. 2007); see also In re Johnson, 2006 WL 2883143, at *1 (Bankr. M.D. Tenn. 2006) (finding that the totality of the circumstances warranted a waiver of the chapter 7 filing fee despite the debtor having paid her lawyer $600).
Even though Kimberly Holmes has promised to pay an attorney, she has demonstrated an inability to pay the filing fee in installments. The debtor's voluntary petition was not filed by an attorney and no attorney has otherwise entered an appearance in this case. This implies that, notwithstanding the assertion in her application for a waiver of the fee, the debtor has not engaged an attorney to represent her. Additionally, the debtor's monthly expenses exceed her monthly income by $243. Moreover, her meager monthly income for a family of two suggests that she will not be able to pay either the chapter 7 filing fee in installments or attorney's fees. Accordingly, it is
ORDERED that the Application for Waiver of the Chapter 7 Filing Fee (Dkt. No. 3) is granted.
[Signed and dated above.] Copies to: Debtor; recipients of e-notification.