James A. Savoie and Jennifer M. Savoie

1 While neither Debtor’s Motion nor its post-hearing memorandum of law in support of its
motion (“Debtor’s Post-Hearing Memorandum”) identify the rule upon which Debtor’s motion is
based, Debtor’s counsel stated at the hearing that “it’s a Rule 59(e) motion.” See Transcript, dated
Nov. 14, 2005 (“Transcript”), at 3.
2 As the Debtors contended, inter alia, in their Motion and at the hearing that this Court
misapprehended the factual evidence which was presented at the hearing on the motion for dismissal
(“Dismissal Motion”), they were given the opportunity to order the transcript from the Dismissal
Motion hearing, and both parties were given time thereafter to file memoranda in support of their
respective positions.
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
JAMES A. SAVOIE and 	: 	Bankruptcy No. 05-13263DWS
JENNIFER M. SAVOIE, 	:
:
Debtors. 	:
MEMORANDUM OPINION
BY: 	DIANE WEISS SIGMUND, Chief Bankruptcy Judge
Before the Court is the Debtors’ motion pursuant to Rule 59(e) of the Federal Rules
of Civil Procedure,1 for reconsideration of this Court’s Order dated October 16, 2005
(the “Motion”) granting the Motion of the United States Trustee to Dismiss this Chapter 13
case for substantial abuse pursuant to § 707(b). See In re Savoie, 2005 WL 2476268 (Bankr.
E.D. Pa. Oct. 6, 2005) (“Savoie I”). A hearing was held on the Motion and post-hearing
memoranda have been filed. Accordingly, the matter is ripe for decision. 2 For the reasons
that follow, the Motion shall be denied.
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BACKGROUND
The facts contained in the Background section of my Memorandum Opinion in
Savoie I are incorporated herein. While Debtors requested the opportunity to supplement
the factual record which they made on the Dismissal Motion and upon which I based my
Opinion in Savoie I, I denied this request from the bench. I provide my reasons for doing so
in Part II of my discussion below.
In support of the Motion, Debtors argue that, to the extent I relied in Savoie I
upon their prepetition conduct as evidence of substantial abuse of the Bankruptcy Code,
I misapprehended the evidence in the record and erred as a matter of law. Debtors contend
that there is nothing in the record concerning their prepetition conduct that distinguishes them
from thousands of other debtors who, in good faith and honesty, have made questionable
economic decisions causing them to need the relief offered by a Chapter 7 discharge.
Rather they contend that the “real issue” in the case is whether, under the “totality of the
circumstances” test, their private school tuition expenditure on behalf of their daughter,
constitutes substantial abuse of the Bankruptcy Code under § 707(b). In short, they assert
that I erred in finding “substantial abuse” under § 707(b) given the particular needs of
their daughter, the educational alternatives, their frugal lifestyle and their good faith in
other respects.
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3 Fed.R.Civ.P. 59(e) provides as follows:
“(e) 	Motion to Alter or Amend a Judgment. 	A motion to alter or amend the
judgment shall be served not later than ten days after entry of the judgment.”
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DISCUSSION
I.
A motion for reconsideration is governed by Federal Rule of Civil Procedure
(“Fed.R.Civ.P.”) 59(e),3 which is applicable in bankruptcy cases pursuant to Federal Rule of
Bankruptcy Procedure 9023. The scope of Rule 59(e) is very narrow. Miller v. USA Waste
Services, Inc. (In re Eagle Enterprises, Inc.), 259 B.R. 73, 77 (Bankr. E.D. Pa. 2001).
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to
present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 908 (3d Cir.
1985), cert. denied, 476 U.S. 1171 (1986). “Federal district courts should grant such motions
sparingly because of their strong interest in finality of judgment.” Seleras v. M/V Cartagena
de Indias, 959 F. Supp. 270, 272 (E.D. Pa. 1997) (quoting Continental Cas. Co. v. Diversified
Indus., Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995)). 	As the district court explained in
Keyes v. National Railroad Passenger Corporation, 766 F. Supp. 277 (E.D. Pa. 1991):
The purpose of a Rule 59(e) motion is to allow the court to
reevaluate 	the 	basis 	of 	its 	decision. 	... 	Motions 	for
reconsideration are not at the disposal of an unsuccessful party
to "rehash" the same arguments and facts previously presented.
Id. at 280 (citations omitted). See also Reich v. Compton 834 F.Supp. 753, 755 (E.D. Pa.
1993), aff’d in part, rev’d in part on other grounds, 57 F.3d 270 (3rd Cir. 1995). The court
in Durkin v. Taylor, 444 F.Supp. 879, 889 (E.D. Va. 1977), stated that "[w]hatever may be
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the purpose of Rule 59(e) it ... 	[was not] ... 	intended to give the unhappy litigant one
additional chance to sway the judge." A party may not submit evidence that is not newly
discovered in support of a motion for reconsideration. Harsco, 779 F.2d at 909.
To constitute newly discovered evidence for which a new trial
may be granted under Rule 59(a), the evidence must pertain to
facts in existence at the time of the trial, and not to facts that
have occurred subsequently. ... 	To warrant a new trial the
evidence must not have been known to the movant at the time of
the trial; and, moreover, the movant must have been excusably
ignorant of the facts, i.e., the evidence must be such that it was
not discoverable by diligent search.
6A Moore, Moore's Federal Practice ¶59.08[3], at 59-101 to 59-102 (2d ed. 1995) (citations
omitted).
II.
Debtors contend that, in Savoie I, I relied too heavily upon their prepetition conduct
in concluding that it would be a “substantial abuse” to grant them relief under Chapter 7 of
the Code. 	As I noted above, Debtors requested the opportunity, which I denied at the
hearing, to supplement the record on the issue of their prepetition conduct. 	Presumably
they made this request based on their view that their additional evidence on this issue,
specifically the additional facts (“Additional Facts”) which they set forth in their Motion and
Post-Hearing Memorandum, would change my impression of their prepetition behavior and,
consequently, my decision to grant the Motion. However, the Additional Facts do not satisfy
the standard for “newly discovered evidence” under Rule 59 because they were known by
the Debtors when I issued my decision in Savoie I, and as noted above, a party may not
submit evidence that is not newly discovered in support of a motion for reconsideration.
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4 The Additional Facts contain examples, which were not provided at the hearing on the
Dismissal Motion, of additional efforts by the Debtors to contain their expenses such as eliminating
all air travel, deferring maintenance on their home and deferring dental work for Mr. Savoie.
See Motion ¶ 14(d). However, as I noted above, these Additional Facts do not affect my view of
the totality of the circumstances or my application of the law under § 707(b).
5 My Memorandum Opinion addressed not merely the tuition but also the additional
expenses incurred for Caroline’s enrichment and care. Debtors state that I erred in focusing on the
additional costs of the Penn Charter after school program and its summer camp because as working
parents, such additional care is required for their daughter. I do not dispute that there is of necessity
a cost associated with child care for working parents. However, I disagree that it follows that the
programs they have selected, just like the school they have selected, are in keeping with their other
financial responsibilities. 	Moreover while James indicated that Penn Charter was not the most
expensive camp they could have chosen, he gave no indication that other, and more economical,
alternatives were investigated, including programs like the YMCA day camp which offers extended
hours to obviate the additional cost of babysitting which they presently incur.
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Moreover, even assuming for the sake of argument that I allowed the record to be
supplemented to include the Additional Facts, my decision to grant the Motion would remain
the same. The Additional Facts do not alter the aspect of Debtors’ pre-petition behavior that
was most relevant to my decision in Savoie I, namely the Debtors’ expenditures for the
education and enrichment of their daughter given the amount of their debt and the limitations
of their income.4 As I concluded in Savoie I, under the totality of circumstances, granting
relief to Debtors under Chapter 7 would be a “substantial abuse” of that chapter’s provisions.
III.
Debtors contend that the “real issue” in this case is whether their expenditure of
private school tuition for their daughter can be deemed “substantial abuse” under § 707(b).5
While this issue is not the sole issue in this case, see Part IV below, it is a major issue.
If I made an error regarding this issue in Savoie I, it was not an error of fact or law, but rather
articulation. Because of my discomfort with stating that parents who want the best education
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for their child have abused the law, I have apparently understated my conclusion that in
a bankruptcy context such a decision is abusive as to creditors and cannot be permitted.
See Educational Credit Management Corporation v. Savage (In re Savage), 311 B.R. 835,
841 n.9 (1st Cir. B.A.P. 2004) (“[P]rivate school tuition is most often considered a
luxury expense that amounts to a debtor requiring his or her creditors to donate toward
his children’s education.”). 	All caring parents desire the best education possible for
their children. 	Regrettably, however, many parents simply cannot afford the cost and,
consequently, are unable to provide it for their children. As the Bankruptcy Court stated in
In re Stout, 336 B.R. 138 (Bankr. N.D. Iowa January 9, 2006):
Debtor is not unusual in wishing to provide everything possible
for his children’s welfare. However, like most parents, Debtor
must make decisions concerning what is affordable and what is
simply financially unattainable.
Id. at 143.
In the bankruptcy context, a parent’s wish for the best education for his child cannot
take priority over, but instead must yield to, the objectives of the Bankruptcy Code, i.e.,
for debtors to pay creditors after satisfying their reasonable needs. 	In the bankruptcy
context, absent a special need (i.e., physical or mental disabilities, religion, etc.), there is no
justification for such a significant expense when a debtor’s creditors will remain unpaid.
Otherwise, the creditors would be in effect, forced to fund a private school education for the
debtor’s child. Watson v. Boyajian (In re Watson), 309 B.R. 652, 662 (1st Cir. B.A.P. 2004).
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6 Asked to explain his “reasons for choosing Penn Charter,” Mr. Savoie testified:
We went on school visits – Caroline went on school visits. And I
watched how she interacted with the teachers and the students. And,
um, to be frank, it was an intuitive reaction that, you know, she – this
is a good place for her. The classes were small, 11 to 14 maximum.
It just seemed like the right place. It also was across the street from
where I work and near, you know, that’s five blocks from our house.
Transcript at 34. Notably absent in this explanation is the mention of any “special need” which
motivated the Debtors to send their daughter to the William Penn Charter School. They liked the
school the best, and it was conveniently located to their home.
-7-
Debtors failed to show that any special need exists to justify their payment of
$15,000 per year for their daughter’s academic education.6 Debtors presented evidence that,
in 2002-2003, many of the students in their neighborhood public school, Mifflin Thomas
School, were not proficient in reading and math, see Transcript at 31; Exhibit D-2 (No Child
Left Behind School Report Card showing that in Grade 5, at Mifflin Thomas School, 50% of
the students are not proficient or advanced in reading and 66.7% of the students are
not proficient or advanced in math). While this evidence explains why the Debtors were
motivated to send their daughter to another school, it does not show that their daughter
cannot be satisfactorily educated in the neighborhood public school. In short, this evidence
does not demonstrate that the allocation of $15,000 of after tax income for private school
tuition is warranted.
The fact that the Debtors enrolled their daughter at the Penn Charter school before
they filed for bankruptcy and that she had a difficult time making the transition to the
school does not constitute a special need justifying the Debtor’s current tuition expenditure.
The record contains no evidence that their daughter could not make a transition to another
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7 Mr. Savoie testified that he and his wife decided against sending their daughter to
St. Bridget’s parochial school in the City because: (i) St. Bridget’s was a “diminishing parish and
so the school was in some trouble;” and (ii) Mr. Savoie “was not real comfortable sending his child
to a Catholic school.” Transcript at 33.
-8-
school. While it would, of course, be preferable for her to remain in the school to which she
is accustomed, that is a luxury that her parents cannot provide while obtaining Chapter 7
bankruptcy relief. 	Many parents must make decisions that are not the “best” ones for
their children because of their financial limitations and situations. The Debtors, in choosing
to seek bankruptcy relief, must do likewise. 	See Educational Credit Management
Corporation v. Savage (In re Savage), 311 B.R. at 841-42 (rejecting debtor’s argument that
private school tuition was a reasonably necessary living expense despite debtor’s testimony
that son woke up every morning crying that he didn’t want to go to school, where debtor had
not demonstrated that public school system could not adequately meet her son’s educational
needs); In re Stout, supra (granting § 707(b) motion where debtor, who had credit card
debt of approximately $96,000, was spending $700 per month on home schooling absent any
special need and $500 on skating per month for his daughter to encourage her self-esteem).
Nor does Mr. Savoie’s preference for a non-Catholic education for his daughter
constitute a “special need” justifying the Debtors’ expenditure for private school tuition.7
His preference in this regard obviously yielded to other priorities when he and his wife sent
their daughter to St. Margaret’s School in Narberth. 	Indeed, they utilized this Catholic
parochial school for a full school year for their daughter even after they moved to
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8 Debtor’s testimony revealed that he and his wife never explored whether it was possible
to send their daughter to a parochial school without having her participate in the religious education
at the school. Mr. Savoie testified, in relevant part:
A. ... I think one percent of the students in Saint Margaret’s were
non-Catholic.
Q. ... What did they do with the kids who are not Catholic vis-a-vis
to use your terms, indoctrination of religion. Do they exempt them?
A. Um, I don’t know.
Q. You did not explore that?
A. Uh, no I did not.
Transcript at 43.
9 The current tuition for Waldron Mercy Academy is $8,550 ($8,400 for tuition and $150
for a technology fee). 	See http://www.waldronmercy.org/tuition.htm. 	Waldron’s tuition, while
substantial in and of itself, is significantly less than Penn Charter’s tuition. 	To the extent that
Debtors contend that I erred in concluding that they selected Penn Charter without regard to cost,
this evidence supports that conclusion.
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Philadelphia in June of 2002.8 Moreover, during the hearing, Debtor testified that they
“looked at several other schools” for their daughter in addition to William Penn Charter
School. Transcript at 33. One of the other two schools which he named was Waldron Mercy
Academy in Merion, Pennsylvania. Id. According to this school’s website of which I take
judicial notice, see http://www.waldronmercy.org/mission.shtml, this school is a private
co-ed Catholic school which means that, when Debtors were considering private schools for
their daughter, they hadn’t ruled out her attendance at a Catholic school.9 Based on these
findings, I do not consider Mr. Savoi’s preference for a non-Catholic school to be a
significant “religious” reason for expending $15,000 for private school tuition when the
Debtors’ unsecured credit card debt will be wholly unpaid if they are given Chapter 7 relief.
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In sum, I remain firm in my holding in Savoie I that Debtors’ expenditure of $15,000
for private school tuition to be a substantial abuse of Chapter 7 of the Bankruptcy Code.
IV.
The Debtors contend that I erred in granting the Dismissal Motion under § 707(b)
given the particular needs of their daughter, the educational alternatives, their frugal lifestyle
and their good faith in other respects. As explained above, Debtors did not provide evidence
that their daughter has special or particular needs which justify their payment of $15,000 per
year for her school tuition. 	They also failed to provide evidence that other educational
alternatives are not available. They offered evidence (limited evidence at that) on only two
other schools, namely the neighborhood public and parochial schools, for the purpose of
showing these schools are not satisfactory. No other educational alternatives were discussed.
However, Debtors also contend that the educational expense, without more, cannot establish
substantial abuse. 	There must be an aggravating factor[s] such as a luxury lifestyle,
nondisclosure of material information or some indicia of bad faith. I respectfully disagree.
While a debtor’s good faith may certainly be considered by a court in deciding
whether to grant a motion under § 707(b), a finding that good faith exists does not mandate
the denial of such a motion. 	See Savoie I, 2005 WL 2476268, at *2 (explaining that a
dismissal under § 707(b) can be predicated upon: (i) bad faith; or (ii) want of need/ability
to pay). See also In re Green, Bankruptcy Case No. 04-10341, Slip op. at 7 (Bankr. E.D. Pa.
Oct. 21, 1995) (Carey, J), (dismissing debtors’ bankruptcy case under § 707(b) based on
conclusion that, even though the debtors had not filed their petition in bad faith and their
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expenses were not excessive or unreasonable, they fell within the category of “non-needy”
debtors.). As I noted in Savoie I, courts have identified various factors that are relevant to
a § 707(b) determination. See Savoie I, supra at *3 (citing In re Krohn, 886 F.2d 123, 126-27
(6th Cir. 1989) and Green v. Staples (In re Green), 934 F.2d 568, 571 (4th Cir. 1991)).
“[I]n each case, the reasonableness of the debtor’s expenditures is a material factor in
the court’s analysis.” 	Savoie I, supra, at *3. 	See also In re Miller, 335 B.R. 335, 341
(Bankr. E.D. Pa. 2005) (quoting In re Attanasio, 218 B.R. 180, 184 (Bankr. N.D. Ala. 1998))
(adopting approach to § 707(b) that permits the court to consider “all of the evidence in
the case, but also allows a court to recognize that ‘[a] vast majority of both courts
and commentators have opined that a debtor’s ability to pay is the sine qua non of
section 707(b).’”).
In Savoie I, I observed, inter alia, that: (i) the Debtors’ bankruptcy case was not the
result of a sudden illness, disability or recent unemployment but rather the consequence of
years of spending beyond their means; (ii) they have had a stable source of income exceeding
$100,000 for the past three years; and (iii) their expenses could be reduced significantly
without depriving them of adequate food, shelter or other necessities. See Savoie I, supra,
at *4. I concluded that Debtors do have the ability to pay their creditors under a Chapter 13
plan and to allow them to circumvent that obligation would be a substantial abuse of the
bankruptcy law in this case.
Finally, I do not agree with Debtors’ argument that given the amount that they are able
to pay, requiring them to do so under a Chapter 13 plan is not justified when the consequence
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10 The Debtors schedule monthly expenses of $1,220 or $14,640 for school tuition and
expenses, somewhat less than the $15,000 referred to above.
-12-
is to deprive their daughter of her private school education. Since the student loan creditor
will be paid in full in any event, they would have me conclude that the funds redirected from
Caroline’s education to repayment of essentially credit card debt is not warranted. I find no
support in the law for the balancing approach they suggest, and rather believe the proper
inquiry is whether Debtors can make a substantial distribution to their unsecured creditors.
Debtors’ Schedule J evidences a monthly payment of $750 for Mr. Savoie’s student loans.
See Exhibit T-1. While nondischargeable, the student loan debt “stands on the same footing
as any other unsecured debt in the context of a § 707(b) analysis of a debtor’s ability to pay.”
In re Schmonsees, 2001 WL 1699664, at *5 (Bankr. M.D. N.C. September 21, 2001).
In a Chapter 13 plan, student loan creditors are limited to the same pro rata distribution
as other unsecured creditors. In re Wessels, 311 B.R. 851, 853 (Bankr. N.D. Iowa 2004).
At the end of the plan, however, any balance due on the student loans would likely be
excepted from discharge. 	Id. 	Consequently, rather than being an expense, the $750 per
month must be included in their income. See In re Schmonsees, 2001 WL 1699664, at *5
(treating $200 monthly expenditure for educational loan as being available for repaying
unsecured debts); In re Lenartz, 263 B.R. 331, 337 (Bankr. D. Idaho 2001) (ruling that it is
inappropriate to consider student loans as a monthly expense since the loans are nonpriority
unsecured debts). Debtors do not dispute this conclusion.
With the monthly savings from private school of $1,22010 plus the above referenced
$750, Debtors’ disposable income for three years could include $71,000 more than their
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11 Debtors’ analysis is more conservative, suggesting (but not proposing) a possible plan
payment of $1,500 per month which would generate a dividend of 34.64%. I recognize that Debtors
would have other costs for Caroline’s care if the Penn Charter expenses were eliminated so that the
funds available for a plan will be somewhat less than I have calculated (i.e., $1,970) although how
much less would require speculation on my part. However, accepting Debtors’ hypothetical 34.64%
as the accurate distribution, it is still substantial enough to require its payment.
12 This is based on a 34.64% dividend. At 45%, the dischargeable claims would be paid
slightly more than $22,000.
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Schedules indicate. Deducting 10% for the trustee’s fees and costs related to a Chapter 13,
a fund of as much as $64,000 could be created for distribution on account of unsecured
claims of $140,303. As such, the Debtors could pay their unsecured creditors a dividend of
approximately 45% pursuant to a 3 years plan. 11 Based on these calculations, the Debtors
have the ability to repay a substantial portion of their unsecured debt.
Debtors argue that this calculation ignores the fact that the student loan creditor which
would be paid in any event on its nondischargeable debt takes almost two thirds of the
distribution under the Chapter 13 plan and the total amount to be paid out to other creditors
is approximately $17,000. 12 Since the student loan must be paid in any event, Debtors
suggest that I “factor out” these claims. Looking at it another way, Debtors would have me
condone zero payment to creditors with dischargeable debts because the Debtors have a large
nondischargeable obligation. While the Code certainly gives special recognition to student
loan obligations by rendering them nondischargeable absent undue hardship, 11 U.S.C.
§ 523(a)(8), the Code does not permit discrimination between classes of claims. Chapter 13
plans that 	treat nondischargeable unsecured claims better than dischargeable ones are
not confirmable. See, e.g., Groves v. LaBarge (In re Groves), 39 F.3d 212, 215 (8th Cir.
1994); McDonald v. Sperna (In re Sperna), 173 B.R. 654, 658 (9th Cir. BAP 1994); In re
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Williams, 253 B.R. 220, 225-26 (Bankr. W.D. Tenn. 2000). The bottom line is that Debtors
have substantial income to pay into a Chapter 13 plan that will provide for creditors
according to applicable provisions of the bankruptcy law.
An Order consistent with the foregoing Memorandum Opinion shall be entered.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
Dated: March 9, 2006
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UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 7
:
JAMES A. SAVOIE and 	: 	Bankruptcy No. 05-13263DWS
JENNIFER M. SAVOIE, 	:
:
Debtors. 	:
ORDER
AND NOW, this 9th day of March, 2006, upon consideration of the Debtor’s motion
(“Motion”) for reconsideration of this Court’s Order dated October 16, 2005 granting
the Motion of the United States Trustee to Dismiss this Chapter 13 case for substantial
abuse pursuant to 11 U.S.C. § 707(b), and after notice and an evidentiary hearing and for
the reasons stated in the accompanying Memorandum Opinion;
It is hereby ORDERED that the Motion is DENIED.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
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Copies to:
Joshua Z. Goldblum
826 Bustleton Pike
Suite 101B
Feasterville, PA 19053
George M. Conway, Esquire
Office of the U.S. Trustee
833 Chestnut Street
Suite 500
Philadelphia, PA 19107
Gary Francis Seitz, Esquire
The Bayard Firm
222 Delaware Avenue
Suite 900
Wilmington, DE 19899
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