Stone v. Stone (In Re Stone) (1996)

But see Stone, supra, 199 B.R. at 779 (unimpressed with this argument; argues, without any apparent basis, that a former spouse is often in as good a position as the debtor to prove the debtor’s ability to pay).

It accords with traditional notions of the prima facie case and affirmative defense, is in line with the rulings of the majority of courts to have considered the issue, see, e.g., In re Custer, 208 B.R. 675, 681-82 (Bankr.N.D.Ohio 1997) (citing cases); In re Stone, 199 B.R. 753, 760-62 (Bankr.N.D.Ala.1996) (collecting, summarizing, and analyzing twenty-eight cases applying the rule), and is completely consistent with the statutory language.

When Congress *774 enacted 11 U.S.C. § 523 (a)(15) to take effect in 1994, "[i]ts decision was based in part on a determination that during divorce negotiations, a divorcing/separating spouse may agree to [ (1) ] pay marital debts and hold the other spouse harmless for such debts or [(2)] increase the amount of the property settlement in exchange for a reduction in alimony.” See Stone, 199 B.R. at 758 (emphasis added) (footnote omitted).

Stone v. Stone (In re Stone), 199 B.R. 753, 780-81 (Bankr.N.D.Ala.1996) (citing Hill v. Smith, 260 U.S. 592, 595 , 43 S.Ct. 219 , 67 L.Ed. 419 (1923)).

Stone v. Stone (In re Stone), 199 B.R. 753, 780-81 (Bankr.N.D.Ala.1996) (citing Hill v. Smith, 260 U.S. 592, 595 , 43 S.Ct. 219 , 67 L.Ed. 419 (1923)).

See Bank-One Rockford, N.A. v. Mayer (In re Mayer), 173 B.R. 373, 377 (N.D.Ill.1994), aff’d, 51 F.3d 670 (7th Cir.1995); Stone v. Stone (In re Stone), 199 B.R. 753, 757 (Bankr.N.D.Ala.1996).

In re Stone, 199 B.R. 753, 783 (Bankr.N.D.Ala.1996).

Once that showing has been established, the burden of proving that he falls within either of the two exceptions to nondischargeability rests with the debtor.” See also, Gamble v. Gamble (In re Gamble), 143 F.3d 223, 226 (5th Cir.1998); Jodoin v. Samayoa (In re Jodoin), 209 B.R. 132, 141 (9th Cir. BAP 1997); Moeder v. Moeder (In re Moeder), 220 B.R. 52, 56 (8th Cir. BAP 1998); Hart v. Molino (In re Molino), 225 B.R. 904 (6th Cir. BAP 1998); Lipira v. Kaczmarski (In re Kaczmar…

See Universal Electronics, Inc. v. United States, 112 F.3d 488, 492 (Fed.Cir.1997); Stone v. Stone (In re Stone), 199 B.R. 753, 759 (Bankr.N.D.Ala.1996) (stating that the burden of proof encompasses both the burden of production and the burden of persuasion).

See also generally In re Marquis, 203 B.R. at 852 nn. 14, 15 (observing the "considerable confusion in the courts” regarding the burden of proof); In re Dressler, 194 B.R. at 301-03 (discussing disagreement); Stone v. Stone (In re Stone), 199 B.R. 753, 759-82 (Bankr.N.D.Ala.1996)(observing disagreement, thorough discussion, collecting cases).

In re Stone, 199 B.R. 753, 757-83 (Bankr.N.D.Ala.1996); Gamble v. Gamble, No. 2-96-CV185 (N.D.Tex.

The plaintiff bears the burden of proving that “ § 523(a)(15) is applicable due to the existence of a debt which (i) is not of the type under § 523(a)(5), and (ii) was incurred in the course of a divorce or separation ...” In re Scigo, 208 B.R. 470 (Bankr.D.Neb.1997) (quoting Stone v. Stone (In re Stone), 199 B.R. 753, 783 (Bankr.N.D.Ala.1996)).

The majority of decisions place the burden of proof for § 523(a)(15)(A) and (B) on the debtor. 1 Stone v. Stone (In re Stone), 199 B.R. 753, 760 (Bankr.N.D.Ala.1996), provides a comprehensive review of the cases which have dealt with the Section 523(a)(15)(A) and (B) issues.

See In re Stone, 199 B.R. 753, 783 (Bankr.N.D.Ala.1996).

Accord In re Stone, 199 B.R. 753, 769 (Bankr.N.D.Ala.1996); In re Bachner, 165 B.R. 875, 881 (Bankr.N.D.Ill.1994); In re Phillips, 161 B.R. 945 (Bankr.N.D.Ohio 1993); In re Ealy, 78 B.R. 897 (Bankr.

See generally Brogan v. Brogan, 31 Va.App. 769 , 525 S.E.2d 618 , 621 n. 5 (2000)(quoting Stone v. Stone, 199 B.R. 753, 758 (Bankr.N.D.Ala.1996)).

However, where the moving party bears the burden of proof at trial — as here on Camp’s affirmative defense of fair use— that party must demonstrate that “on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the nonmoving party.” Irby v. Bittick, 44 F.3d 949, 953 (11th Cir.1995) (cite omitted); see also In re Stone, 199 B.R. 753 , 763 n. 9 (N.D.Ala.1996) (burden shifting for affirmative defense).

See Shellem v. Koons (In re Koons), 206 B.R. 768, 773 (Bankr.E.D.Pa.1997)(citing Stone v. Stone (In re Stone), 199 B.R. 753 (Bankr.N.D.Ala.1996)).

See Shellem v. Koons (In re Koons), 206 B.R. 768, 773 (Bankr.E.D.Pa.1997)(citing Stone v. Stone (In re Stone), 199 B.R. 753 (Bankr.N.D.Ala.1996)).

See also Stone *713 v. Stone (In re Stone), 199 B.R. 753 (Bankr.

See also Stone v. Stone (In re Stone), 199 B.R. 753 (Bankr.N.D.Ala.1996).

See also Stone v. Stone (In re Stone), 199 B.R. 753, 780 (Bankr.N.D.Ala.1996) (“[T]he burdens of proof on the debtor for Ability to Pay and Detriment is the ‘exception within an exception’ principle which has been used in the § 523(a)(8)(B) context to place the burden of undue hardship on the debtor.”).

In re Dressier, 194 B.R. at 303 ; see generally Stone v. Stone (In re Stone), 199 B.R. 753, 759-66 (Bankr.N.D.Ala.1996) (collecting cases within the so-called “majority group,” the “bifurcated group,” and the "minority group”).