10th Circuit BAP Rules on Paycheck Stub Requirement
Posted: Thu Apr 10, 2008 11:13 am
Miller v. Cameron (In re Miller) ---- B.R. ----, 2008 WL 754809
(10th Cir. Mar. 2008)
Issue: Is a debtor's pay stub containing year-to-date
income "other evidence of payment" sufficient to meet the filing
requirements of payment advices for the previous 60 days?
Holding: Yes
Section 521(a)(1)(B)(iv) 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." The
debtor failed to file one stub (of four pay periods in the previous
60 days). Instead he "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." The
bankruptcy court raised the issue sua sponte. The chapter 13
trustee sided with the debtor. The bankruptcy 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 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." The court said the key word in the statute is "received"
and that the chart was not something "received" from the employer.
The BAP reversed. "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." "[T]he
bankruptcy court's interpretation makes the `other evidence of
payment' option effectively non-existent. This stretches the
statutory language too far." "[Y]ear-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." "In reaching this
conclusion, it is important to emphasize that we are not holding
that year-to-date income information per se satisfies the filing
requirements of 521(a)(1)(B)(iv). Whether year-to-date figures or
some `other evidence of payment' presented by a debtor satisfies the
statute will depend on the particular facts and circumstances of any
given case."
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