Opinion Denying Chapter 7 Trustee's Motion to Dismiss

Detroit Chapter 7 and Chapter 13 Consumer Bankruptcy Filings

 I, Walter Metzen, will provide, free of charge as part of your free initial Bankruptcy Analysis, a means test calculation to determine if you are eligible for Chapter 7 Bankruptcy.  Nearly 90% of the people who walk through my door are eligible to file a Chapter 7 Bankruptcy in Michigan and get a permanent discharge of their debt. With Chapter 13 Bankruptcy in Michigan, we can develop and affordable repayment plan to fit every budget.
 

 Contact me, Michigan bankruptcy attorney Walter Metzen to learn more about how I can help you get a Fresh Financial Start!.

Opinion Denying Chapter 7 Trustee's Motion to Dismiss

UNITED STATES BANKRUPTCY COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION In re: Larry D. Ragsdale, Case No. 04-57903 Chapter 13 Debtor. Hon. Marci B. McIvor 

OPINION DENYING CHAPTER 7 TRUSTEE’S MOTION TO DISMISS This matter is before the Court on the Chapter 7 Trustee’s Motion to Dismiss. The Trustee seeks dismissal of Debtor’s Chapter 13 case because Debtor’s prior Chapter 7 case (No. 02-48493) remains open. The Trustee contends that Debtor cannot have two bankruptcy cases open simultaneously. For the reasons set forth in this Opinion, the Trustee’s Motion is denied. On August 20, 2001, Debtor filed a Chapter 13 petition (case No. 01-55977). That case was dismissed on December 10, 2001 and the case was closed on April 29, 2002. On April 10, 2002, Debtor filed a Chapter 13 petition (case No. 02-48493). That case was converted to a Chapter 7 on June 11, 2002 and Debtor received a discharge on September 19, 2002. The Trustee has not filed a final report and that case remains open.1 On August 5, 2003, Debtor filed a Chapter 13 petition (case No. 03-61633). That case was dismissed on September 18, 2003 and the case was closed on October 8, 2003. On June 24, 2004, Debtor filed a Chapter 13 petition (case No. 04-57903). 2After declining to adopt a per se rule, the Court in Hodurski dismissed the Debtor’s Chapter 13 case on the grounds that the Debtor’s plan was not feasible. 3 The Debtor’s Chapter 13 Plan proposes to fund the Plan with monthly payments of $3,155.00. The source of the payments is Debtor’s wages. That case is still pending and is the subject of the Chapter 7 Trustee’s present Motion to Dismiss. The Chapter 7 Trustee asserts that Debtor’s Chapter 13 estate is attempting to administer assets which belong to the Chapter 7 estate– assets that “were either not declared exempt or are still being administered by the trustee, and have yet to be abandoned by a closing order or a motion for abandonment.” (Trustee’s Motion 2). No other party has objected to confirmation of the Debtor’s Chapter 13 Plan. Analysis The Bankruptcy Code does not expressly prohibit a Chapter 7 debtor from simultaneously seeking relief under Chapter 13. Given the lack of explicit statutory guidance, courts have split on the issue. While a majority of courts have adopted a per se rule prohibiting a debtor from having more than one bankruptcy case open at any time (see, e.g. In re Lord, 295 B.R. 16 (E.D. N.Y. 2003)), other courts permit a debtor to file a Chapter 13 petition after the Chapter 7 discharge has been entered, but before the Chapter 7 case is officially closed. In re Hodurski, 156 B.R. 353 (Bankr. D. Mass. 1993).2 See also, In re Kosenka, 104 B.R. 40 (Bankr. N.D. Ind. 1989); In re Tauscher, 26 B.R. 99 (Bankr. E.D. Wis., 1982); In re Robinson, 18 B.R. 891 (Bankr. D. Conn. 1982); In re Saylor, 869 F.2d 1434 (11th Cir. 1989). The courts which follow the minority rule focus on the rehabilitative purpose behind Chapter 13 filings and reason that “administrative hurdles, including the trustee’s 4 delay in filing the final report after the entry of the discharge, are beyond the debtor’s control and, thus, should not defeat the legislative intent behind Chapter 13.” Id. 156 B.R. at 356. In rejecting a per se prohibition against simultaneous filings, these courts assess the propriety of the Chapter 13 in light of the standards applicable to confirmation of Chapter 13 plans, particularly the debtors good faith. Saving the issue of whether the debtor’s subsequent filing is in good faith for the confirmation hearing preserves the legislative goals of Chapter 13 and safeguards the bankruptcy process from bad faith filings. ‘The good faith requirement of 11 U.S.C. 1325(a)(3) is sufficient to prevent undeserving debtors from using this procedure, yet does not also prevent deserving debtors from using the procedure’. In re Saylors, 869 F.2d 1434, 1436 (emphasis in original). Hodurski, 156 B.R. at 356 (additional citations omitted). While recognizing that simultaneous filings may in some cases be indicative of bad faith, “the Court [can] determine this issue in the context of objections to confirmation of the Chapter 13 plan or at some other appropriate time, such as the hearing on a motion for relief from stay when the likelihood of a successful reorganization is at issue. See 11 U.S.C. 362 (d)(2).” Hodurski, 156 B.R. at 356. Courts which hold that a Chapter 13 case may be filed while a Chapter 7 case is still pending also note that the existence of a Chapter 13 case does not interfere with the Chapter 7 Trustee’s ability to administer the Chapter 7 estate. As the Court stated in In re Tauscher, 28 B.R. at 100: Over the years, there has been a truism in bankruptcy circles that a debtor cannot have two bankruptcy cases pending at the same time, and the court was itself concerned with the fact that Tauscher’s present chapter 13 petition was filed prior to the closing of the earlier chapter 7 case. Aside from the questions of good faith or possibly abuse of process, however, the court has been unable to conceive of any legal or practical reason, and none has been suggested to it, as to why he should be 5 barred from so filing. Under the Bankruptcy Act of 1989 ( 656(a)(3) and 14(c)(5)), his recent bankruptcy discharge would have barred him from obtaining confirmation of this composition plan, but that is not the case under the new Bankruptcy Code. See 1325. Tauscher is in no wise involved in the preceding chapter 7 case anymore. That chapter 7 bankruptcy estate, as to which the trustee is attempting to sort out conflicting security intrests of creditors, is totally distinct and separate from the estate of this Chapter 13 case. In the present case, Debtor’s Chapter 7 discharge was entered on September 19, 2002, more than 1 years before Debtor filed the instant Chapter 13 petition. The Chapter 7 Trustee never filed a complaint objecting to the Debtor’s discharge. The assets (automobiles and trust account) which the Chapter 7 Trustee now contends remain to be administered in the Chapter 7 case were known to, but not pursued by, the Trustee during those two years. The Chapter 7 Trustee offers no explanation for the long delay in either closing the case, or taking action against any remaining assets. Whatever the reason for the delay, the Chapter 7 Trustee’s ability to administer those assets is not affected by the existence of the Chapter 13 case. The Chapter 13 case is funded with Debtor’s wages. If the Chapter 7 Trustee recovers assets, the assets will be distributed to creditors in the Chapter 7 case. Such a distribution will have no impact on the Chapter 13 case. Furthermore, there are no facts to support an argument that Debtor’s present Chapter 13 petition was filed in bad faith. The Plan is fully funded and feasible. Neither the Chapter 13 Trustee or any creditor has objected to confirmation of the Plan. The Debtor made it clear that the purpose of this Chapter 13 is to save his house, and he is now in a financial position to accomplish that goal. There is no evidence of bad faith. While the Court is cognizant of the potential for abuse when more than one bankruptcy case is pending, procedural safeguards are in place to allow both the Court and the parties to ultimately assess the propriety of Debtor’s Chapter 13 petition. The Court declines to adopt a per se rule against filing a Chapter 13 petition when a Chapter 7 is still pending (post-discharge). The Chapter 7 Trustee’s motion is denied. Conclusion For the reasons stated in this Opinion, the Chapter 7 Trustee’s Motion to Dismiss is denied. _/s/_ Marci B. McIvor United States Bankruptcy Judge Date: September 30, 2004   

Contact me, Detroit bankruptcy lawyer Walter Metzen today to schedule your free initial consultation. I also offer clients flexible appointment times and same day appointments if necessary. Get in touch with me today to learn how filing bankruptcy may be beneficial for you and your family. Why should you hire a Board Certified Bankruptcy Specialist? Click Here. My office has handled over 10,000 bankruptcy cases in Michigan and will apply this experience to your case as well. My office prides itself on fast, detailed, personal service. There are many different aspects to a bankruptcy case. Some of the different aspects are listed on the links below for you to explore. If you have any questions while exploring this site or would like a free personal bankruptcy consultation, contact my office at (313) 962-4656 or toll free 888-777-FILE.

 Contact me, bankruptcy attorney Walter Metzen to learn more about how I can help you get a Fresh Financial Start!.

 Be sure to Obtain a copy of your Credit Report after your Michigan Bankruptcy Filing and check it for Mistakes.

Contact me, bankruptcy attorney Walter Metzen to learn more about how the new Chapter 7 bankruptcy law may affect your case. I offer a free initial consultation so we can discuss your case personally.

We are a Debt Relief Agency helping people file for bankruptcy relief under the Bankruptcy Code. Let us help you decide if bankruptcy is right for you.

Bankruptcy attorney Walter Metzen represents clients throughout Southeast Michigan, including the communities of Detroit, Southfield, Warren, Roseville, Farmington Hills, Ann Arbor, Belleville, Canton, Clinton Township, Dearborn, Dearborn Heights, Hamtramck, Highland Park, Holland, Howell, Lincoln Park, Livonia, Macomb, Northville, Plymouth, Port Huron, Redford, Rochester, Saginaw, Southfield, Sterling Heights, Taylor, Trenton, Troy, Westland, Wyandotte, Ypsilanti, Mount Clemens, Howell, Oakland County, Macomb County, Wayne County, Washtenaw County, Livingston County, and all of the surrounding areas.

 


 

Detroit Bankruptcy Lawyer Detroit Bankruptcy Lawyers Walter Metzen Detroit Bankruptcy Lawyer Detroit Bankruptcy Attorney Detroit Bankruptcy Attorneys Filing Bankruptcy in Michigan Lawyer Filing Bankruptcy in Michigan Declare Bankruptcy Detroit Fresh Start Bankruptcy Detroit Southfield Michigan Bankruptcy lawyers Declaring Bankruptcy in Michigan Michigan Credit Counseling Lawyer Board Certified Bankruptcy Lawyers Warren Bankruptcy Lawyer Walter Metzen Bankruptcy Lawyer Attorney for Bankruptcy in Wayne County Bankruptcy Lawyer Oakland County Detroit Chapter 7 Lawyer  Southfield Michigan Bankruptcy Lawyer Michigan Bankruptcy Specialist Macomb County Bankruptcy Lawyer Fresh Start Bankruptcy Lawyers of Michigan Birmingham Michigan Bankruptcy Lawyers Michigan Bankruptcy Helpline Oakland County Michigan Bankruptcy Specialists Michigan Chapter 7 Bankruptcy Lawyers Michigan Fresh Start Bankruptcy Law Office Wayne County Debt Relief Agency Michigan Credit and Debt Counseling Lawyers Detroit Chapter 7 Bankruptcy Board Certified Specialist Walter Metzen Detroit Bankruptcy Attorneys Helping People File Bankruptcy Detroit Credit Counseling and Bankruptcy Services Consumer Bankruptcy Attorney in Michigan Detroit Michigan Bankruptcy Attorney Detroit Michigan Bankruptcy Lawyer Filing a Personal Bankruptcy How to declare personal bankruptcy in michigan How to File Bankruptcy in Detroit Declaring Bankruptcy in Macomb County Michigan Detroit Bankruptcy Court Directory Best Bankruptcy Lawyer in Detroit Michigan Attorney Walter Metzen Online Help Filing Bankruptcy In Detroit Michigan Michigan Chapter 13 Bankruptcy Lawyers Board Certified Specialist Detroit Chapter 13 Bankruptcy Lawyers Stop Foreclosure Repayment Plan Chapter 7 Lawyers In Detroit Wayne County Michigan Detroit Credit Counseling Information Detroit Credit Counseling Debt Settlement and Bankruptcy Lawyers serving Metro Detroit Metroit Detroit Bankruptcy Lawyers Consumer Bankruptcy Specialist Walter Metzen Board Certified by the American Bankruptcy Institute Detroit Debt Relief Agency Helping People File Bankruptcy in Michigan The Law Office of Walter Metzen Michigan Bankruptcy Lawyers Fresh Start Bankruptcy Law Office Metro Detroit Michigan Bankruptcy Law Firm Serving all of Metropolitan Detroit Walter Metzen Consumer Bankruptcy Specialist Certified by the American Bankruptcy Institute Wayne County Bankruptcy Attorneys Southfield Bankruptcy Attorneys Consumer Bankruptcy Specialists Oakland County Chapter 7 and Chapter 13 Bankruptcy Lawyer Certified Specialist File Personal Bankruptcy in Michigan Filing Chapter 13 Bankruptcy in Michigan Declaring Chapter 7 Bankruptcy in Michigan Legal Help Filing Bankruptcy in Michigan Stopping Foreclosure in Michigan Help Filing Michigan Bankruptcy Walter Metzen Bankruptcy Lawyer Michigan Bankruptcy Michigan Bankruptcy Lawyers Michigan Bankruptcy Attorneys Helping Consumers get a FRESH START Macomb County Credit Card Lawyers Bankruptcy and Debt Settlement Michigan Bankruptcy Credit Counseling and Debt Negotiation Attorneys Royal Oak Bankruptcy Lawyers Wyandotte Michigan Bankruptcy Lawyers Fresh Start Bankruptcy Lawyers of Michigan. How to Declare Bankruptcy in Michigan Michigan Bankruptcy and Credit Counseling Lawyers Michigan Credit Card Relief Lawyers Fresh Start Bankruptcy Lawyers of Detroit Michigan Credit and Debt Counseling Bankruptcy Lawyers of Michigan Lawyers Detroit Bankruptcy Bankruptcy Lawyers of Michigan Walter Metzen Board Certified Consumer Bankruptcy Specialist 888-4WALTER Michigan Bankruptcy Centers Michigan Bankruptcy Counselors Michigan Bankruptcy Court Directory Fresh Start Michigan Bankruptcy Law Offices Michigan Bankruptcy Law Center Michigan Bankruptcy Laws Filing Bankruptcy in Michigan Michigan Bankruptcy Attorney Walter Metzen Specialist in Consumer Bankruptcy Laws Board Certified by the American Bankruptcy Institute Michigan Bankruptcy Online Michigan Bankruptcy Services. Michigan Chapter 13 Bankruptcy Attorneys Metro Detroit Chapter 7 Bankruptcy Lawyer Michigan Credit Counseling Credit Counselors of Michigan Michigan Debt Assistance Michigan Debt Relief Agency Fresh Start Bankruptcy Law Center Motor City Bankruptcy Laws Stop Wage Garnishment in Michigan Detroit Bankruptcy Lawyer Walter Metzen Consumer Bankruptcy Attorney Walter Metzen Michigan Fresh Start Lawyers Downriver Bankruptcy Lawyer Michigan Fresh Start Bankruptcy Offices of Detroit Bankruptcy Attorneys Detroit Filing Personal Bankruptcy in Michigan Filing Personal Bankruptcy in Michigan Fresh Start Bankruptcy Lawyers Fresh Start Bankruptcy Law Office of Detroit

 

 Content Footer