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Effect on Conversion of Chapter 7 to 11 on Chapter 7 Discharge [1 Attachment]
Steve:
In any case I wanted to convert to chapter 13, after the chapter 7 discharge, I have asked for the revocation of the discharge, so the debtor can proceed in a ch 13.'
I don't know any way someone could have forced the debtor to revoke his/her discharge, the debtor must have asked for the revocation.
Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
> On Dec 15, 2015, at 4:56 PM, 'Steven B. Lever' sblever@leverlaw.com [cdcbaa] wrote:
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> [Attachment(s) from Steven B. Lever included below]
> Dennis:
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> The Motion to Convert to Chapter 11 is just contemplated by the UST for now, as they stated in their recent Motion to Extend the Deadlines to extend deadlines for dischargeability. Case # is 6:15-18685-WJ.
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> They are a little vague on the 707(b) extension under FRBP 1017(e)(1), citing that rule, and then saying that 707(b) may not apply to them, but since they earn a large income figure per month it appears they may be able to fund a Chapter 11 Plan and then requests a delay of the debtors discharge for 90 days so the Court can first consider any motion by the UST to the Debtors Chapter 11 case [sic].>
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> I agree that its a circumvention of the intent of Congress in that there is the 707(b) mechanism, and these clients would be eligible for a Chapter 13 if they chose to file that. However, 706(b) does exist and there are some cases back east that I wanted to weep when I read; In re Clemente 409 BR 288 (2009) Ive attached it to the email, but not sure if it will make it through the list serve system. In re Derrick Dewayne Gordon is a Georgia case from 2012 (that I havent had a cite at the moment) that ruled a constitutional challenge to converting a 7 to an 11 fails under the 13th Amendment and does not constitute involuntary servitude.
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> So Im fighting the extension as you mentioned, and the clients are on board with that.
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> Thank you for your response. I think that this tactic the UST is considering is a major threat to the predictability of debtor representation if the UST or creditors start imposing the burden and expense of Chapter 11s.
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> Im surprised that a discharge remains in effect after a conversion, as Ive converted from a 7 to a 13 before after the discharge was granted and I think it was revoked. If not, why not get a discharge in a Chapter 7 and immediately convert to a 13 to pay off mortgage arrearages instead of doing a Chapter 20? That is aside from the lack of time between discharge and closing.
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> Steve
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> Sent: Monday, December 14, 2015 8:02 PM
> To: cdcbaa@yahoogroups.com
> Subject: [cdcbaa] Re: Effect on Conversion of Chapter 7 to 11 on Chapter 7 Discharge
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> Steven:
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> Can you pleae post the case number?
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> I have filed a number of tax cases and just checked the box that the case was nonconsumer. What is the basis for a motion to convert? Is the UST claiming it can make a 707(b) argument?
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> It would be quite odd for the UST to try to overrule congress. Congress has said nonconsumer cases are not subject to the means test.
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> If the UST has filed such a motion, we will all need to fight it. Let us know, we can go to the CDCBAA board and try to get a group of us to help with the research.
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> Maybe we can get Nacba help on top of CDCBAA.
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> If a discharge is issued, there is no reason to convert, as there wll be not debt to repay. Don't agree to an extension.
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> Take a look at 727(d), a discharge can only be revoked if procured by fraud. Filing a nonconsumer case as a nonconsumer case cannot be fraud.
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In any case I wanted to convert to chapter 13, after the chapter 7 discharge, I have asked for the revocation of the discharge, so the debtor can proceed in a ch 13.'I don't know any way someone could have forced the debtor to revoke his/her discharge, the debtor must have asked for the revocation.Dennis McGoldrick, 350 S. Crenshaw Bl., #A207B, Torrance, Ca 90503 310-328-1001-voice
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