IN RE FOSTER

TOM CORNISH, Bankruptcy JudgePage 2

On the 14th day of November, 2007, there came on for hearing Defendant Donna Foster Washington's Claim for Exemption. Defendant appeared pro se. John Folks appeared on behalf of Plaintiffs/Judgment Creditors. After the hearing, the Court allowed the parties to submit supplemental legal authority regarding the Claim for Exemption. Plaintiffs then filed their Response and Objection to Judgment Debtor's Claim for Exemption. After reviewing the briefs submitted by the parties, the testimony of Defendant, and the arguments of Defendant and counsel, the Court hereby enters its findings and conclusions in conformity with Rule 7052, Fed.R.Bankr.P., in this core proceeding.

Debtor and her ex-husband, Gary C. Foster, filed for relief under Chapter 7 of the Bankruptcy Code on April 9, 2003. Plaintiffs filed this adversary proceeding on September 25, 2003. A default judgment was entered March 23, 2004, in the amount of $51,936.87, plus interest, costs, and attorney fees. Plaintiffs have filed several Garnishment Affidavits and Summons attempting to collect their judgment from Defendants. Most recently, Plaintiffs filed a Continuing Post Judgment Earnings Garnishment Summons and Affidavit regarding the indebtedness of Defendant Donna Foster on September 6, 2007. Ms. Foster filed her Claim of Exemption and Request for Hearing on October 15, 2007. She claims that the funds sought in garnishment are exempt from execution due to undue hardship, pursuant to Okla. Stat. tit 31, § 1.1.

Defendant testified that she is employed by the Hastings Indian Hospital. She was married in June of 2007 to Brian Washington who is not a party to these proceedings. She submitted earnings statements from her employer showing her basic annual salary to be $31,748. Her gross bi-weekly pay is $1,216.80. Her husband is a construction worker. His paycheck is $620 a week, or a gross hourly pay of $16. Defendant also testified that both she and Mr. Washington contribute equally to the monthly mortgage payments of $652.47, although only Mr. Washington is listed on the Home Loan Statements from Washington Mutual Bank. Other exhibits submitted by Defendant included bills for utilities, cell phones, an automobile payment for a 2007 Chevrolet HHR for $516.50 a month, and car insurance for four vehicles. She estimated that her personal monthly expenses, including her share of the bills she submitted to the Court for mortgage payments and car insurance, and the entire monthly payment for the HHR, as well as expenses for gasoline, food, cigarettes, clothes and personal items, total $1,824.00.

Okla. Stat. tit. 31, § 1.1 provides, in part, that a debtor may request an exemption from garnishment by reason of undue hardship. In determining the existence of undue hardship, the Court is to consider the income and expenses of the family and other dependents, and the standard of living created by the income and expenses. Certain income is not exempt from garnishment. Okla. Stat. tit. 31, § 1.3 provides that total gross family income that exceeds one hundred twenty times the federal minimum hourly wage in effect at the time the earnings are payable or the equivalent for pay periods other than one (1) week shall not be subject to exemption due to undue hardship.

As noted by Plaintiffs, one hundred twenty times the federal minimum hourly wage ($5.85) equals $702.00. The remaining amounts in excess of $702.00 are not subject to exemption due to undue hardship under § 1.3. Plaintiffs calculated, conservatively, that Defendant's total gross family income each month is $4,913.60, for an annual gross family income of $58,956.00. This is based upon Defendant's Earnings Statement reflecting biweekly gross income of $1,216.80, which Plaintiffs calculated to be $2,433.60 per month, plus Mr. Washington's gross weekly income of $620.00, or $2,480.00 per month. An annual income of $58,956.00 equates to $1,133.77 each week. After subtracting the federal minimum from this weekly amount, $431.77 is left, which shall not be subject to an exemption due to undue hardship, and is therefore subject to garnishment each week. The Court notes that the Defendant did not object to Plaintiffs' calculations of her family's income nor to the amount calculated as not subject to exemption.

The Court finds that Defendant has failed to demonstrate an undue hardship from Plaintiffs' continuing wage garnishment since her total gross family income exceeds the minimum amount that may be considered for an exemption or modification or stay of garnishment based upon undue hardship. Accordingly, the Defendant's Claim for Exemption must be denied. This decision is consistent with the Court's order denying exemption in In re Wyrick, 2006 WL 4470830 (Bankr. E.D. Okla.).

IT IS THEREFORE ORDERED that Defendant Donna S. Foster's Claim for Exemption is denied.