Schweitzer v. Schweitzer et al

UNITED STATES BANKRUPTCY COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
In re: 	:
: 	Case No. 06-53946
DEBORAH LYNN SCHWEITZER, 	: 	Chapter 7
: 	Judge Hoffman
Debtor. 	:
:
:
Vincent L. Schweitzer, 	:
:
Plaintiff, 	:
:
v. 	: 	Adv. Pro. No. 06-2600
:
Deborah Lynn Schweitzer, 	:
:
Defendant. 	:
MEMORANDUM OPINION ON PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Vincent Schweitzer (“Vincent”) initiated this adversary proceeding against Deborah
Schweitzer, his former spouse and the debtor in this Chapter 7 case (“Deborah” or “Debtor”),
seeking a judgment declaring that (1) Deborah’s obligation under the parties’ separation agreement
This document has been electronically entered in the records of the United
States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: June 04, 2007
____________________________________________________________
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1Deborah Schweitzer filed her Chapter 7 petition on July 31, 2006. Thus, the Bankruptcy
Code as amended by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005
(“BAPCPA”), generally effective October 17, 2005, is applicable to this proceeding. All statutory
provisions cited in this memorandum opinion refer to the Bankruptcy Code as amended by
BAPCPA.
2
to hold him harmless on their joint mortgage indebtedness is nondischargeable under 11 U.S.C.
§ 523(a)(15), 1 and (2) Deborah’s hold harmless obligation with respect to the parties’ joint Chase
Bank (“Chase”) credit card account is nondischargeable under both 11 U.S.C. § 523(a)(2)(A) and
(a)(15). Before the Court are Vincent’s Motion for Summary Judgment (“Motion”) (Doc. 13), filed
on February 22, 2007; Deborah’s response (“Response”) (Doc. 18), filed on March 13, 2007; and
Vincent’s reply (“Reply”) (Doc. 19), filed on March 22, 2007. The Motion was filed for the limited
purpose of obtaining summary judgment on the second and third claims for relief asserted in
Vincent’s complaint—the nondischargeability claims brought under § 523(a)(15). 	Because
Deborah’s hold harmless obligations are debts incurred in connection with a separation agreement
within the meaning of § 523(a)(15), they are excepted from discharge. 	Vincent accordingly is
entitled to summary judgment on his claims for relief based on § 523(a)(15).
I. Jurisdiction
The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and
1334 and the general order of reference entered in this district. This is a core proceeding. 28 U.S.C.
§ 157(b)(2)(I).
II. Factual and Procedural Background
The material facts in this case are not in dispute and are drawn from the Motion, Response
and Reply, the supporting exhibits, and the schedules and other filings made in the Debtor’s
underlying Chapter 7 case.
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2Paragraph 4 of the Separation Agreement provides:
4. Real Estate
. . . .
On or before October 31, 2005, Wife shall remove Husband’s name
from the mortgage and all other financial responsibilities for said real
estate. Within seven days of having his name so removed, Husband
shall, by appropriate quitclaim deed, convey to Wife all of his right,
title and interest in and to the aforesaid real estate. . . .
If Wife does not remove Husband’s name from the mortgage and all
other financial responsibilities by October 31, 2005, the property
shall be listed for sale with a real estate broker acceptable to both
parties. . . .
Wife shall have sole and exclusive use of the real estate and shall
assume all taxes, utilities, insurance and mortgage obligations on
such property and hold Husband harmless thereon.
Separation Agreement (Complaint, Ex. A) ¶ 4.
3
Deborah and Vincent were married in October 1991 and separated in October 2004. At the
time of their separation they jointly owned a home located at 211 Sorensen Drive, Marysville, Ohio.
Wells Fargo Home Mortgage (“Wells Fargo”) and Homecomings Financial (“Homecomings”) held
first and second mortgages, respectively, on the property. Under the Petition for Dissolution of
Marriage and a Separation Agreement (“Separation Agreement”), signed by Vincent and Deborah
on October 14, 2004, Deborah was awarded the marital residence and agreed to hold Vincent
harmless on the parties’ joint mortgage indebtedness.2 In addition, each party agreed to be
responsible for the debts incurred in his/her own name and to hold the other party harmless from
liability on these individual obligations. The Separation Agreement also prohibited each party from
incurring debts or obligations upon the credit of the other and provided that in the event any such
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3Paragraph 15 of the Separation Agreement states:
15. Non-Use of Other’s Credit. Neither Husband nor
Wife may hereafter incur any debts or obligations
upon the credit of the other and each shall indemnify,
defend and save the other absolutely harmless from
any debt or obligation so charged or otherwise
incurred.
Separation Agreement ¶ 15.
4
debt was incurred, the party incurring the debt would indemnify and hold the other party harmless.3
The marriage was dissolved in November 2004.
In July 2005, Deborah obtained cash advances in the aggregate amount of $21,000 by
drawing three checks on the joint Chase credit card account. In addition to the cash advances, she
used the credit card to charge nearly $1,000 in additional purchases during August 2005. Deborah
made monthly payments to Chase on this credit card debt in September, October and November of
2005, but made no payments thereafter. Vincent, although he had never used the Chase account,
made payments on the account in an effort to protect his credit standing.
In violation of the provision in the Separation Agreement requiring her to “remove
[Vincent’s] name from the mortgage[s],” and to take over all other financial responsibilities for the
marital residence, Separation Agreement ¶ 4, Deborah failed to refinance the mortgages. Vincent
therefore remained liable on the mortgage debt. 	In January 2006, Deborah defaulted on her
mortgage payments. On March 24, 2006, Vincent initiated a contempt proceeding in the Franklin
County Court of Common Pleas, Domestic Relations Division, alleging that Deborah had violated
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the terms of the Separation Agreement. 	On June 9, 2006, Wells Fargo initiated foreclosure
proceedings, naming both Deborah and Vincent as defendants.
On July 31, 2006, Deborah filed a petition for relief under Chapter 7 of the Bankruptcy Code.
Vincent commenced this adversary proceeding on September 28, 2006. 	As set forth above,
Vincent’s complaint alleges that Deborah’s marital debts are nondischargeable under 11 U.S.C.
§ 523(a)(2)(A) and (a)(15). He also seeks a money judgment in the amount of $24,128.22, plus
interest on the Chase debt, any deficiency balance resulting from the mortgage foreclosure, and
“$1,000 for each incidence of derogatory information reported on [Vincent’s] credit report.” Compl.
at 3–4.
As previously stated, the Motion seeks summary judgment only as to the second and third
claims for relief stated in Vincent’s complaint—his nondischargeability claims based on
§ 523(a)(15).
III. Legal Analysis
A. 	Summary Judgment Standard
Summary 	judgment 	is 	appropriate 	where 	“the 	pleadings, 	depositions, 	answers 	to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c) (made applicable in this adversary proceeding by Fed. R. Bankr. P.
7056). On motion for summary judgment, the inferences drawn from the underlying facts must be
viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d
506, 511 (6th Cir. 2003); McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 512 (6th Cir.
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2000). The moving party bears the initial burden of demonstrating the absence of a genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986); Leary v. Daeschner,
349 F.3d 888, 897 (6th Cir. 2003); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989). Once the moving party satisfies its burden, the non-moving party must then “come forward
with ‘specific facts showing that there is a genuine issue for trial.’” Matsushita, 475 U.S. at 587
(quoting Fed. R. Civ. P. 56(e)); Lanier v. Bryant, 332 F.3d 999, 1003 (6th Cir. 2003); McKenzie, 219
F.3d at 512. The non-moving party may not meet this burden by resting on mere allegations in the
pleadings. See Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Mounts v. Grand Trunk W.R.R., 198
F.3d 578, 580 (6th Cir. 2000). “Merely alleging the existence of a factual dispute is insufficient to
defeat a summary judgment motion; rather, there must exist in the record a genuine issue of material
fact.” McKenzie, 219 F.3d at 512 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–50
(1986)). 	A material fact is one that has the “potential to affect the outcome of the suit under
applicable law.” 	FDIC v. Anchor Props., 13 F.3d 27, 30 (1st Cir. 1994) (citations and internal
quotation marks omitted). 	“As to materiality, the substantive law will identify which facts are
material. Only disputes over facts that might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment. 	Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson, 477 U.S. at 248. See also Niecko v. Emro Mktg. Co.,
973 F.2d 1296, 1304 (6th Cir. 1992).
B. 	Hold Harmless Agreement—Chase Credit Card Debt
Under the terms of the Separation Agreement, neither spouse was permitted to use the credit
of the other to incur any indebtedness. If either spouse violated this arrangement, the Separation
Agreement provided that the spouse incurring the debt would “save the other absolutely harmless
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from any debt or obligation so charged or otherwise incurred.” Separation Agreement ¶ 15. After
the divorce was final, Deborah used the joint Chase credit card to take the cash advances and incur
additional charges described above. At issue here is whether Deborah’s obligation to hold Vincent
harmless on the Chase debt is nondischargeable under § 523(a)(15).
Section 523 of the Bankruptcy Code provides, in pertinent part, as follows:
(a) 	A discharge under section 727 . . . of this title does not discharge an individual
debtor from any debt—
. . .
(15) 	to a spouse, former spouse, or child of the debtor and not of the kind
described in paragraph (5) that is incurred by the debtor in the course of
a divorce or separation or in connection with a separation agreement,
divorce decree or other order of a court of record, or a determination
made in accordance with State or territorial law by a governmental
unit[.]
11 U.S.C. § 523(a)(15). To be excepted from discharge under this provision, the debt must: (1) be
to a spouse, former spouse, or child of the debtor; (2) not be of the type described in § 523(a)(5), i.e.,
not a domestic support obligation; and (3) have been incurred in the course of a divorce or
separation or in connection with a separation agreement, divorce decree, or other order of a court.
Id. The party contesting the dischargeability of a debt has the burden of proving these elements by
a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 287 (1991); Hart v. Molino (In
re Molino), 225 B.R. 904, 907 (B.A.P. 6th Cir. 1998); Hammermeister v. Hammermeister (In re
Hammermeister), 270 B.R. 863, 876 (Bankr. S.D. Ohio 2001).
Deborah’s obligation to hold Vincent harmless on the Chase credit card debt meets the first
two prongs of the statute. First, Vincent is Deborah’s former spouse. And despite her argument that
the debts are not owed to Vincent, but to Chase, the Separation Agreement’s hold harmless
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provisions require Deborah to indemnify Vincent for the credit card obligation. The hold harmless
provisions contained in the Separation Agreement create a new debt from Deborah to Vincent. See
Owens v. Owens (In re Owens), 191 B.R. 669, 673 (Bankr. E.D. Ky. 1996) (hold harmless
language used in property settlement “creates a new indebtedness” between debtor and former
spouse).
Second, Deborah’s hold harmless obligation with respect to the Chase credit card is not a
debt “for a domestic support obligation” that would be excepted from discharge under § 523(a)(5).
A “domestic support obligation” as defined in § 101(14A) “means a debt that . . . is . . . in the nature
of alimony, maintenance, or support” of the debtor’s spouse, former spouse, or child. 11 U.S.C.
§ 101(14A)(B). The Separation Agreement specifically states that “[n]either party shall pay any
spousal support to the other. . . . This agreement is a property division and no part is to be construed
as alimony[.]” Separation Agreement ¶ 2. Thus, it is clear that the hold harmless provisions of the
Separation Agreement were not intended to create a support obligation.
According to Deborah, the debts in question are not excepted from discharge by § 523(a)(15)
because they were not incurred in the course of a divorce or separation or in connection with a
separation agreement or divorce decree. In support of this position, she advances two arguments.
First, she contends that the phrase “in connection with a separation agreement, divorce decree, or
other order of a court of record” was added to § 523(a)(5) and (a)(15) by the Bankruptcy
Amendments of 1984 (“1984 Amendments”) specifically to address the dischargeability of support
obligations for children born outside of marriage. Because that type of debt—a support obligation
for a child born outside of marriage—is not at issue in this case, Deborah maintains that § 523(a)(15)
is not applicable. Second, Deborah asserts that because she took the cash advances and made the
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charges on the Chase account several months post-dissolution, the debts did not arise during the
course of a divorce or separation and are thus were not incurred “in connection” with a separation
agreement within the meaning of § 523(a)(15).
As support for her first argument, Deborah cites the following language from the bankruptcy
court’s decision in Williams v. Kemp (In re Kemp), 234 B.R. 461, 467 (Bankr. W.D. Mo.), aff’d in
part, rev’d in part, 242 B.R. 178 (B.A.P. 8th Cir. 1999): “The 1984 amendment to § 523(a)(5),
which added the . . . language ‘in connection with a separation agreement, divorce decree, or other
order of a court of record,’ was intended to address the problem of support for children born outside
of marriage.” Id. at 467 (citing In re Seibert, 914 F.2d 102, 107 (7th Cir. 1990)). The court in
Kemp, however, did not include the full quotation from the Seventh Circuit’s decision in Seibert,
which reads:
The 1984 amendment to § 523(a)(5), which added the italicized
language “in connection with a separation agreement, divorce decree,
or other order of a court of record,” was intended to address the
problem of support for children born outside of marriage. 	The
purpose of this amendment was to make the security of support
depend on parentage, rather than the marital status of the biological
parents.
Seibert, 914 F.2d at 107 (emphasis in original). Only the italicized language “or other order of a
court of record” was added by the 1984 Amendments. As the Seibert court noted, the amendment’s
purpose was to link the security of support to “parentage, rather than the marital status of the
biological parents.” Id. Thus, inclusion of this additional language in § 523(a)(5) (which is identical
to the language added to § 523(a)(15)), simply broadened the scope of the exception to discharge
for support obligations by placing state court paternity judgments on equal footing with support
obligations imposed by a divorce decree or separation agreement—after the 1984 Amendments, both
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4As amended by BAPCPA, § 523(a)(15) now excepts from discharge all “domestic support
obligations,” a term that includes debts to a spouse, former spouse or child of the debtor, whether
established by a separation agreement, divorce decree, property settlement or “an order of a court
of record.” 11 U.S.C. § 101(14A). 	Thus, the effect of the 1984 Amendments—to broaden
§ 523(a)(15)’s exception to discharge to include support obligations for children born outside of
marriage—has been carried forward in the post-BAPCPA version of § 523(a)(15).
10
were excepted from discharge by § 523(a)(5).4 Contrary to Deborah’s suggestion, the 1984
Amendments were intended to expand the exceptions to discharge contained in § 523(a)(5) and
(a)(15)—not to confine the exceptions solely to support obligations for children born outside of
marriage.
Here, the Separation Agreement imposed on Deborah the obligation to indemnify Vincent
and hold him harmless for any charges made by her on their joint credit card. This obligation falls
squarely within the exception to discharge set forth in § 523(a)(15)—it is a debt incurred in
connection with a separation agreement. 	See Gibson v. Gibson (In re Gibson), 219 B.R. 195,
202–03 (B.A.P. 6th Cir. 1998) (“A debtor’s obligation as part of a decree or separation
agreement . . . to hold a spouse ‘harmless’ on a third-party obligation [is an example] of incurring
a debt which satisfies the qualifying language of § 523(a)(15)[.]”); Anderson v. Anderson (In re
Anderson), 2001 WL 34652937 at *3 (Bankr. D. Kan. Jan. 11, 2001) (“Many courts have found that
a debtor’s obligation under a divorce decree or separation agreement . . . to hold a spouse ‘harmless’
on a third-party debt qualifies under § 523(a)(15).”); Owens, 191 B.R. at 673–74 (“[T]he hold
harmless language used in [the property settlement agreement] appears to create a new obligation
as contemplated by [§ 523(a)(15)].”); Stegall v. Stegall (In re Stegall), 188 B.R. 597, 598 (Bankr.
W.D. Mo. 1995) (“If . . . the [property settlement] agreement had provided that debtor would
indemnify and hold plaintiff harmless . . . a new obligation might have been incurred.”). Because
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Deborah’s obligation to hold Vincent harmless on the Chase credit card obligation arose directly
from the stated terms of the Separation Agreement, it is a debt incurred in connection with a
separation agreement and is excepted from discharge by § 523(a)(15).
The fact that the credit card charges were incurred after the parties’ divorce became final
does not alter the Court’s conclusion. Several bankruptcy courts have addressed the situation in
which a debtor incurred post-divorce credit card debt to the detriment of a non-filing former spouse.
In Melton v. Melton (In re Melton), 228 B.R. 641 (Bankr. N.D. Ohio 1998), a case decided under
the pre-BAPCPA, “balancing test” version of § 523(a)(15), the divorce decree provided that “[t]he
parties hereto agree to pay all debts incurred by him or her subsequent to the date of their separation,
and to save the other party harmless from any liability thereon.” Id. at 643. After the divorce was
finalized, the debtor reactivated a joint credit card account and made charges on the card. 	The
Melton court found that the debt was “undisputably incurred in connection with the parties’ divorce
decree,” id. at 645, and held that the debtor’s obligation to repay his former wife for the debts
incurred was nondischargeable. Id. at 647. See also Schmitt v. Eubanks (In re Schmitt), 197 B.R.
312, 316–17 (Bankr. W.D. Ark. 1996) (holding that a debtor’s obligation to indemnify her former
husband for credit card debts she incurred post-divorce was nondischargeable under § 523(a)(15),
despite the absence of “hold harmless” language, because the divorce decree had provided that each
party would be responsible for any debts incurred by that party after their divorce); Baker v. Baker
(In re Baker), 274 B.R. 176 (Bankr. D.S.C. 2000) (same).
As in Melton, Schmitt and Baker, the Separation Agreement in this case contains a provision
governing debts incurred post-divorce:
Neither Husband nor Wife may hereafter incur any debts or
obligations upon the credit of the other and each shall indemnify,
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defend and save the other absolutely harmless from any debt or
obligation so charged or otherwise incurred.
Separation Agreement ¶ 15. The Separation Agreement expressly prohibits either spouse from using
the other’s credit. It also provides for indemnification if such debts are incurred in violation of this
provision. 	The situation that gives rise to this adversary proceeding—in which Deborah has
incurred debt for which Vincent may be held jointly liable—is precisely the type of scenario that the
hold harmless provision was intended to address. The fact that the underlying debts were incurred
months after the divorce thus has no bearing on whether Deborah’s obligation to hold Vincent
harmless on those debts is dischargeable.
C. 	Hold Harmless Agreement—the Mortgage Obligations
As stated above, the Separation Agreement granted Deborah exclusive use of the jointly-
owned marital residence. In return, she agreed to be responsible for all taxes, utilities, insurance
and mortgage obligations on the property and to hold Vincent harmless on these liabilities. Deborah
failed to abide by the terms of the Separation Agreement. Instead, she defaulted and Wells Fargo
initiated foreclosure proceedings, naming both Deborah and Vincent as defendants and demanding
judgment in the amount of $104,051 plus interest.
Deborah concedes that the mortgage debt to Wells Fargo “is a marital debt for which she
must hold [Vincent] harmless” (Response at 3), but argues that in Ohio any deficiency judgment on
property that has been used as a residence is only collectible for two years following the
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5Section § 2329.08 of the Ohio Revised Code provides in relevant part:
Any judgment for money rendered in a court of record in this state
upon any indebtedness which is secured or evidenced by a mortgage,
or other instrument in the nature of a mortgage, on real property or
any interest therein, upon which real property there has been located
a dwelling or dwellings for not more than two families which has
been used in whole or in part as a home or farm dwelling or which at
any time was held as a homestead by the person who executed or
assumed such mortgage or other instrument, or which has been held
by such person as a homesite, shall be unenforceable as to any
deficiency remaining due thereon, after the expiration of two years
from the date of the confirmation of any judicial sale of such property
completed subsequent to the rendition of such judgment. 	Any
execution issued upon such judgment, or any action or proceeding in
aid of execution, or in the nature thereof, or to marshal liens,
commenced prior to the expiration of such two year period, shall not
be affected by this section.
Ohio Rev. Code Ann. § 2329.08 (LexisNexis 2005).
13
confirmation of the judicial sale of that property.5 She asserts that Ohio Revised Code § 2329.08
“limit[s] . . . [D]ebtor’s obligation to hold [Vincent] harmless.” Response at 3.
The extent of Deborah and Vincent’s liability to the mortgage holders—Wells Fargo and
Homecomings—is not at issue in this adversary proceeding. Rather, the debt involved in this case
is Deborah’s obligation under the Separation Agreement to indemnify and hold Vincent harmless
for any obligations related to her failure to pay the mortgage or other expenses related to her
occupancy of the residence. And it is clear that “a hold harmless agreement in a divorce decree
imposes liability upon the obligor for all consequences of his failure to pay.” Salerno v. Crawford
(In re Crawford), 236 B.R. 673, 677 (Bankr. E.D. Ark. 1999) (emphasis added). Here, Deborah had
the opportunity to limit her liability under the hold harmless agreement either by refinancing the
mortgage indebtedness or selling the property. Either alternative would have extinguished Vincent’s
liability on the debts owed to Wells Fargo and Homecomings. Having failed to comply with the
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obligations imposed by the Separation Agreement, she may not now avoid a nondischargeability
judgment by asserting that the underlying mortgage obligations are limited by Ohio law.
In sum, Deborah’s obligation to hold Vincent harmless with respect to the Wells Fargo and
Homecomings mortgage indebtedness as well as the other obligations relating to the marital
residence are non-dischargeable. Whether Wells Fargo and/or Homecomings may enforce a
deficiency judgment against Deborah and Vincent, or are precluded from doing so by virtue of the
two-year time limitation imposed by Ohio Revised Code § 2329.08, is an issue that should be
resolved by the state court that issued the judgment in the foreclosure action. Whatever the extent
of Deborah and Vincent’s liability to Wells Fargo and Homecomings may be, Deborah’s obligation
under the Separation Agreement to hold Vincent harmless on the mortgage and related indebtedness
is a debt excepted from discharge by § 523(a)(15).
IV. Conclusion
For these reasons, the Court concludes that Vincent is entitled to judgment as a matter of law
on the second and third claims for relief set forth in his complaint. The Court shall enter a separate
judgment providing that Deborah’s obligation to hold Vincent harmless on the Chase credit card
debt and the mortgage obligations are excepted from discharge by 11 U.S.C. § 523(a)(15).
IT IS SO ORDERED.
Copies to:
Nannette J.B. Dean, Attorney for Plaintiff, 50 West Broad Street, Suite 2250, Columbus, OH 43215
Vincent Schweitzer, Plaintiff, 3561 Brook Spring Drive, Grove City, OH 43123
Michael T. Gunner, Attorney for Defendant/Debtor, 3535 Fishinger Boulevard, Suite 220,
Columbus, OH 43026
Deborah Lynn Schweitzer, Defendant/Debtor, 211 Sorenson Drive, Marysville, OH 43040
Larry J. McClatchey, Chapter 7 Trustee, 65 East State Street, Suite 1800, Columbus, OH 43215
Office of the U.S. Trustee, 170 N. High Street, Suite 200, Columbus, OH 43215
# # #
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