MINNEAPOLIS PERSONAL INJURY ATTORNEY  
attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
   
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
   
 > Contact Us
   :: Contact Us
 

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551
   

 Saint Paul Lawyer
 
 mdouglas@injurylawtwincities.com

 

Fokkena v. Draisey: BANKRUPTCY - conditions precedent for motion to dismiss; error denying motion as untimely; remand

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 08-6016
In re: *
*
Geoff Paul Draisey and *
Kristin Denise Draisey, *
*
Debtors. *
**
Appeal from the United States
Habbo Fokkena, * Bankruptcy Court for the
* District of Minnesota
Plaintiff-Appellant, *
*
v. **
Geoff Paul Draisey and *
Kristin Denise Draisey, *
*
Defendants-Appellees. *
*
Submitted: August 26, 2008
Filed: October 16, 2008
Before Federman, Mahoney and Venters, Bankruptcy Judges.
MAHONEY, Bankruptcy Judge.
2
The United States Trustee (UST) appeals the Bankruptcy Courts order
denying the USTs motion to dismiss pursuant to 11 U.S.C. 707(b)(3)(B). For the
reasons set out below, we reverse.
JURISDICTION
The Bankruptcy Appellate Panel has jurisdiction over this appeal under 28
U.S.C. 158(a), (b) and (c). The Bankruptcy Courts order denying the USTs
707(b) motion is a final, appealable order. See Stuart v. Koch (In re Koch), 109 F.3d
1285, 1287 (8th Cir. 1997) (holding that order denying 707(b) motion to dismiss is
final).
STANDARD OF REVIEW
This Court reviews findings of fact for clear error and conclusions of law de
novo. Green Tree Serv., L.L.C. v. Coleman (In re Coleman), 392 B.R. 767 (B.A.P. 8th
Cir. 2008). This case involves only an issue of statutory construction; no factual
matters are in dispute. Issues of statutory construction are reviewed de novo. Colsen
v. United States (In re Colsen), 446 F.3d 836, 839 (8th Cir. 2006); Coop v. Lasowski
(In re Lasowski), 384 B.R. 205, 207 (B.A.P. 8th Cir. 2008). Thus, our review is de
novo.
BACKGROUND
The statutory provisions involved in this case were added to the Bankruptcy
Code by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005,
Pub. L. No. 109-8, 119 Stat. 23 (2005), commonly referred to as BAPCPA. Prior
to the adoption of BAPCPA, 707(b) permitted the Court, on its own motion or on
motion by the UST, but not on a motion by any other party, to dismiss a case for
substantial abuse. BAPCPA eliminated the requirement that the abuse be substantial
1In pertinent part, 11U.S.C. 707(b) provides:
(1) After notice and a hearing, the court, on its own motion or on
a motion by the United States trustee, trustee (or bankruptcy
administrator, if any), or any party in interest, may dismiss a case filed
by an individual debtor under this chapter whose debts are primarily
consumer debts, or, with the debtors consent, convert such a case to a
case under chapter 11 or 13 of this title, if it finds that the granting of
relief would be an abuse of the provisions of this chapter. . . .
(2)(A)(i) In considering under paragraph (1) whether the granting
of relief would be an abuse of the provisions of this chapter, the court
shall presume abuse exists if the debtors current monthly income
reduced by the amounts determined under clauses (ii), (iii), and (iv), and
multiplied by 60 is not less than the lesser of
(I) 25 percent of the debtors nonpriority unsecured claims
in the case, or ,575, whichever is greater, or
(II) ,950.
. . .
(3) In considering under paragraph (1) whether the granting of
relief would be an abuse of the provisions of this chapter in a case in
which the presumption in subparagraph (A)(i) of such paragraph does
not arise or is rebutted, the court shall consider
(A) whether the debtor filed the petition in bad faith; or
(B) the totality of the circumstances (including whether the
debtor seeks to reject a personal services contract and the financial
need for such rejection as sought by the debtor) of the debtors
financial situation demonstrates abuse.
3
and now permits the Court, on its own motion or a motion by the UST or any party
in interest, to dismiss a case filed by an individual debtor whose debts are primarily
consumer debts if the Court finds that granting relief would be an abuse of the
provisions of Title 11. The Court may determine that such abuse exists under any one
of three standards set out in 707(b).1 First, a presumption of abuse may be found if
the debtors current monthly income reduced by a certain formula contained in
707(b)(2)(A) is greater than an amount specified in that statutory section. Second,
4
the Court may determine that abuse exists if, under 707(b)(3)(A), the presumption
referred to above does not arise or is rebutted, but the Court finds that the petition was
filed in bad faith. Finally, the Court may find abuse after considering the totality of
the circumstances of the debtors financial situation. 707(b)(3)(B).
On April 10, 2007, the Draiseys filed a voluntary Chapter 7 petition. Their
341(a) meeting of creditors was held on May 11, 2007. Ten days later, the UST filed
with the Bankruptcy Court a statement indicating that he was unable to determine
whether the presumption of abuse arose under 707(b)(2) in the case. On June 19,
2007, after the UST had received additional documents from the debtors and
completed a means test review, the UST filed a supplemental statement under
704(b)(1) indicating that the presumption of abuse did not arise.
Despite this determination, the UST concluded, from a review of the materials
provided by the debtors, that the debtors had sufficient disposable income to repay a
portion of their unsecured debts because, shortly before the bankruptcy filing, Mrs.
Draisey had found new employment that significantly increased the familys annual
gross income. Accordingly, on July 9, 2007, the UST filed a motion to dismiss the
Chapter 7 case for abuse under 707(b)(3) based upon the totality of the
circumstances of the debtors financial situation. The Draiseys responded to the
motion and asserted that the motion was untimely because the UST had not filed the
10-day statement and motion to dismiss within the time limits specified in 704(b)(2).
The UST then filed a supplement to his motion, asserting that 704(b) did not
apply because the UST had not determined that the debtors case should be presumed
to be an abuse under 707(b)(2) or that the debtors current monthly income exceeded
the applicable state median. The supplemental motion argued that Interim Bankruptcy
2That section of Interim Bankruptcy Rule 1017, promulgated in the District of
Minnesota on September 27, 2005, to be effective on October 17, 2005, provides:
(e) Dismissal of an Individual Debtor's Chapter 7 Case or Conversion to
a Case under Chapter 11 or 13 for Abuse. The court may dismiss or, with
the debtor's consent, convert an individual debtor's case for abuse under
707(b) only on motion and after a hearing on notice to the debtor, the
trustee, the United States trustee, and any other entities as the court
directs.
(1) Except as otherwise provided in 704(b)(2), a motion to
dismiss a case for abuse under 707(b) or (c) may be filed only within
60 days after the first date set for the meeting of creditors under 341(a),
unless, on request filed before the time has expired, the court for cause
extends the time for filing the motion to dismiss. The party filing the
motion shall set forth in the motion all matters to be considered at the
hearing. A motion to dismiss under 707(b)(1) and (3) shall state with
particularity the circumstances alleged to constitute abuse.
5
Rule 1017(e)(1)2, not 704(b), governs the timeliness of a motion to dismiss for abuse
based upon 707(b)(3)(B) because the shorter deadline for filing a motion to dismiss
is restricted only to 707(b)(2) presumed abuse claims.
The Bankruptcy Court denied the USTs motion to dismiss, concluding that the
motion was time-barred because the UST did not timely file a statement that the
debtors case would be presumed to be an abuse and did not file the motion to dismiss
within the time limit specified in 704(b)(2). The Bankruptcy Court determined that
the language of 704(b)(1) requires the UST to file a 10-day statement in every
individual Chapter 7 case, whether the presumption of abuse arises or not. In addition,
the Court interpreted 704(b)(2) to mean that the UST must file all motions to dismiss
for abuse under any subparagraph of 707(b) within 30 days after the filing of the 10-
day statement, regardless of whether the presumption of abuse arises in the case or
3The courts have used the shorthand term above-median debtor for those
debtors whose income exceeds the applicable state median on the means test form
debtors are required to file.
6
whether the debtors annualized current monthly income exceeds the applicable state
median.3
DISCUSSION
It is the USTs position that the only reason to file a statement required by
704(b)(1) is if the UST determines from a review of the initial materials submitted
by the debtors that the presumption of abuse does arise. If the UST files a statement
which states that the presumption does arise and such statement is filed within 10 days
after the date of the first meeting of creditors, the UST acknowledges that he then has,
under 704(b)(2), 30 days to file a motion to dismiss or convert or a statement setting
forth the reasons he does not consider such a motion to be appropriate. He argues that
704(b)(2) only requires the filing of a motion to dismiss or the statement with
reasons if the UST determines that the presumption of abuse arises and the debtors are
above-median debtors. In this case, the UST determined that he had no basis to file
a motion to dismiss under 707(b)(2), the presumption subsection, but did believe
he had sufficient evidence to support a motion to dismiss under the totality of the
circumstances provision of 707(b)(3).
We agree with the USTs argument. Filing the 704(b)(1) statement is a
condition precedent to filing a motion to dismiss under 707(b)(2), not to filing a
motion to dismiss under 707(b)(3)(B). We reach this conclusion by reading the plain
language of the statute, as the Supreme Court has directed. See Hartford Underwriters
Ins. Co. v. Union Planters Bank, N.A., 520 U.S. 1, 6 (2000) ([W]hen the statutes
language is plain, the sole function of the courts at least where the disposition is not
absurd is to enforce it according to its terms); United States v. Ron Pair Enter., Inc.,
489 U.S. 235, 241 (1989); Caminetti v. United States, 242 U.S. 470, 485 (1917). The
7
30-day requirement of 704(b)(2) applies only by its own terms if the United
States trustee . . . determines that the debtors case should be presumed to be an abuse
under section 707(b) . . . . The words presumed to be an abuse occur only in
707(b)(2), and are irrelevant to, and not included in, 707(b)(3). It follows, then,
that the time limit for filing a motion to dismiss under 707(b)(3)(B) is governed by
Interim Rule 1017(e) which refers to motions to dismiss other than in cases in which
the presumption arises under 704(b)(2).
All of the published cases that deal with this subject, except the present case,
have determined that 704(b)s deadlines are inapplicable when the UST seeks relief
under 707(b)(3). See Turner v. Close (In re Close), 384 B.R. 856, 871 (D. Kan.
2008) (holding that where no presumption of abuse arises, 30-day deadline imposed
by 704(b)(2) does not apply, and 704(b)(1)(A) statement is not prerequisite for
filing), aff'g 353 B.R. 915 (Bankr. D. Kan. 2006); In re Perrotta, 390 B.R.26, 31
(Bankr. D.N.H. 2008) (ruling that where UST is seeking dismissal under 707(b)(1)
or (b)(3) without invoking presumption of abuse, the statement and time limitations
under 704(b) do not apply); In re Ansar, 383 B.R. 344, 348 (Bankr. D. Minn. 2008)
(finding that nothing in 704(b) prevents UST from filing a motion to dismiss under
707(b)(3) when burden of proof will rest on UST); In re Byrne, 376 B.R. 700, 704
(Bankr. W.D. Ark. 2007) (ruling that 704(b)(1) is not applicable to motion to
dismiss under 707(b)(3)); In re Clark, 393 B.R. 578, 584-85 (Bankr. E.D. Tenn.
2008) (holding that the 30-day time limit does not apply to a motion by the UST under
707(b)(3)).
In each of those cases, the debtors argued that filing the statement under
704(b)(1)(A) was a prerequisite for bringing a motion to dismiss under any of the
provisions of 707(b). The court in each of those cases rejected the argument and
interpreted the statutory language to mean that both the statement and the motion to
dismiss referred to in 704(b)(2) relate only to the right of the UST to bring a motion
to dismiss under 707(b)(2) in cases in which the presumption of abuse exists, not in
8
cases where the UST is bringing a motion to dismiss under the totality of the
circumstances test of 707(b)(3). We agree with the logic and the conclusion of those
cases.
CONCLUSION
The decision of the Bankruptcy Court denying the motion to dismiss filed by
the UST under 707(b)(3)(B) is reversed and the case is remanded to the Bankruptcy
Court to consider the motion on the merits.
______________________________
 

 
 
 

  What day were you injured?

  / /


  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall
Other:


  How have your injuries affected

  your life?

 


  What kinds of medical care
  professionals have you seen?

 


  What has your treatment cost?

 

  Is Insurance Involved?
My insurance may cover
        this.

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement
        offer.

I accepted a settlement
        offer.

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report


 

 

          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
 
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.