10th Circuit BAP Rules on Requirement that Debtor File Paycheck Stubs for Past 60 Days

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 totals “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.”