Skip to main content
Home

Main navigation

  • NC Bankruptcy Cases
    • Eastern District
    • Middle District
    • Western District
  • NC Courts
    • 4th Circuit Court of Appeals
    • NC Court of Appeals
    • NC Business Court
    • NC Supreme Court Cases
  • Federal Cases
  • Law Reviews & Studies
    • Book Reviews
  • NC Legislative History
  • Student Loan Debt
User account menu
  • Log in

Breadcrumb

  1. Home
  2. Blogs

Bankr. E.D.N.C.: In re Boyette- § 707(b)(3) following Conversion

Profile picture for user Ed Boltz
By Ed Boltz, 30 January, 2012
Summary: The Debtor filed Chapter 13 in 2009, subsequently converting to Chapter 7 on May 9, 2011.  This conversion was one day prior to a hearing to determine the status of the claim of the Debtor’s ex-wife, Ms.  Day. Ms.  Day argued that the conversion was only done in an attempt to avoid paying her claim through the Debtor’s Chapter 13 plan, which otherwise only required $21.50 to complete.   Additionally, Ms.  Day alleged that the Debtor self-reported environmental hazards on their property, in an effort to reduce the value.  Accordingly, Ms.  Day sought to have the Debtor’s Chapter 7 dismissed pursuant to 11 U.S.C. § 707(b)(3). Looking at  § 707(b)(3)(a), the Court first found that there was no evidence that the Debtor had filed the bankruptcy case in bad faith, both because he had primarily sought relief from credit card debts and also as her and Ms.  Day had not separated at that time. Whether the conversion was in bad faith could be a factor under the "totality of the circumstances" review in §707(b)(3)(b).  That the Debtor converted to Chapter 7 to discharge Ms.  Day’s claim was not, buy itself, indicative of bad faith.  Furthermore, the Debtor’s self-reporting of environmental hazards on his property (from creosote soaked railroad ties buried 15 years earlier) was done to both make the property marketable, avoid future liabilities for non-disclosure and because failure to disclosure could have subjected him to criminal prosecution. Accordingly, the Motion to Dismiss was denied. Commentary: Given that disclosure is the first rule of bankrupty (with disclosure and disclosure,  rounding out the second and third  rules also),  it would have been rather odd for the Debtor's  disclosure of environment hazards to be a grounds for dismissal. Perhaps Ms.  Day should have argued that his failure to disclose these problems when the case was  initially filed was evidence  that under  § 707(b)(3)(a),  the case was filed in bad faith. Because it was not in issue in this case, the Court declined to address whether the Means Test of §707(b)(1) applies to converted cases.   Boyette- § 707(b)(3) following Conversion.PDF

Blog comments

Blog tags
bad faith
conversion
Category
North Carolina Bankruptcy Cases
Eastern District

About Us

Mountain View The purpose of the NC Bankruptcy Expert blog is to provide legal professionals with a consolidated resource for updates and case summaries about issues and decisions affecting bankruptcy, foreclosures, mortgages, and debt collection.

 
Lawyer Edward Boltz | Top Attorney Chapter 7

NC Bankruptcy Expert FREE Consultation

We Offer A Free Bankruptcy Consultation which has helped over 70,000 North Carolina families. We serve the entire state of North Carolina.

Proud Member of:












Categories

  • 4th Circuit Court of Appeals
  • Book Reviews
  • District Courts
  • Eastern District
  • Ed Boltz: Bankruptcy Attorney
  • Federal Cases
  • Forms
  • Home
  • Law Reviews & Studies
  • Middle District
  • Mortgage Modification Mediation Documents
  • NC Business Court
  • NC Court of Appeals
  • NC Courts
  • NC Supreme Court Cases
  • News
  • North Carolina Bankruptcy Cases
  • North Carolina District Court Cases
  • North Carolina Exemptions Legislative History
  • Student Loan Debt
  • Student Loan Options and Chapter 13 Bankruptcy
  • Western District
RSS feed
v. 1.2.2, © 2013-2025 ncbankruptcyexpert.com, all rights reserved. Follow @edboltz