Robert Maixner v. Kathy Surratt-States ( 2003 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
No. 02-6055EM
In re: *
*
Robert Maixner, *
*
Debtor. *
*
*
Robert Maixner, *
* Appeal from the United
Debtor-Appellant. * States Bankruptcy Court
* for the Eastern District of
v. * Missouri
*
Kathy A. Surratt-States, *
*
Trustee-Appellee. *
*
Submitted: February 3, 2003
Filed: February 19, 2003
Before KRESSEL, Chief Judge, DREHER, and FEDERMAN, Bankruptcy Judges.
DREHER, Bankruptcy Judge.
This is an appeal from an order of the bankruptcy court,1 which denied a
motion by the Debtor, Robert Maixner (“Debtor”), to dismiss his Chapter 7
bankruptcy case. For the reasons given below, we affirm.
Debtor filed his Chapter 7 bankruptcy case on February 22, 2002. On June 5,
2002, Debtor received a discharge. On July 15, 2002, Debtor filed a motion to
dismiss his case and to set aside his discharge, which motion was opposed by the
Chapter 7 Trustee (“Trustee”). The court denied the Debtor's motion by order dated
October 7, 2002. Debtor appealed from this order.2
Concurrently, the trustee was taking steps to administer the estate. On August
8, 2002, the bankruptcy court entered an order approving the Trustee’s motion to
employ a real estate agent. On October 8, 2002, the bankruptcy court entered an
order approving the sale of Debtor's home. No appeal was taken from the order
approving the sale.
The decision of whether to grant a motion to voluntarily dismiss a bankruptcy
petition lies within the discretion of the bankruptcy court and is reviewed only for an
abuse of discretion. Turpen v. Eide (In re Turpen), 244 B.R. 431, 433 (B.A.P. 8th
Cir. 2000); Peterson v. Atlas Supply Corp. (In re Atlas Supply Corp.), 857 F.2d 1061,
1
The Honorable David P. McDonald, United States Bankruptcy Judge for
the Eastern District of Missouri.
2
Because the bankruptcy court issued an order generally denying the
motion, it is not clear whether the bankruptcy court denied both requests for relief.
The parties have not briefed the issue of whether it would have been appropriate to
set aside the discharge. Because we affirm the denial of the motion to dismiss, we
need not address whether it would have been appropriate to set aside the
discharge. See 11 U.S.C. § 349. We do note, however, that Debtor failed to
provide the bankruptcy court or this appellate panel with any statutory basis for
such a request or any argument as to why such relief would have been appropriate.
2
1063 (5th Cir. 1988); Leach v. United States (In re Leach), 130 B.R. 855, 856 (
B.A.P. 9th Cir. 1991).
11 U.S.C. § 707(a) provides that a court may dismiss a case under Chapter 7
only after notice and a hearing and only "for cause." Courts have held that this
provision applies to voluntary dismissals. See In re Turpen, 244 B.R. at 433; In re
Williams, 15 B.R. 655, 658 (E.D. Mo. 1981). Because a debtor does not have an
absolute right to dismiss, the debtor must show cause for the dismissal. In re Haney,
241 B.R. 430, 432 (Bankr. E.D. Ark. 1999). Even if the Debtor can show cause for
the dismissal, the bankruptcy court should deny the motion if there is any showing
of prejudice to creditors. In re Turpen, 244 B.R. at 433; In re Leach, 130 B.R. at 857;
In re Haney, 241 B.R. at 432.
Our decision in Turpen sets forth the factors which should generally govern
consideration of a debtor’s motion to dismiss in a Chapter 7 case. The factors are:
“(1) whether all of the creditors have consented; (2) whether the debtor is acting in
good faith; (3) whether dismissal would result in a prejudicial delay in payment; (4)
whether dismissal would result in a reordering of priorities; (5) whether there is
another proceeding through which the payment of claims can be handled; and (6)
whether an objection to discharge, an objection to exemptions, or a preference claim
is pending.” In re Turpen, 244 B.R. at 434.
Debtor asserts he should have been allowed to dismiss his case, but he
provided the bankruptcy court with no reason for dismissal and, on appeal, has failed
to explain how the bankruptcy court erred. He has also failed to provide this
appellate panel with a transcript of the proceedings below. As a result, we are left
with no basis for finding the bankruptcy court abused its discretion. McCormick v.
Diversified Collection Servs., Inc. (In re McCormick), 259 B.R. 907, 909 (B.A.P. 8th
Cir. 2001); Lopez v. Long (In re Long), 255 B.R. 241, 245 (B.A.P. 10th Cir. 2000).
For this reason alone, we would affirm.
3
As best we can discern, Debtor’s only basis for requesting dismissal was that
Debtor wanted to protect his home from his creditors. A debtor’s desire to save for
himself the equity in his home to the detriment of his creditors is not grounds for a
voluntary dismissal.
Finally, Debtor complains that his attorney failed to convert the case to a
Chapter 13 at his request. He also seems to expect that he can still save his home.
Differences with counsel in the conduct of the case provide no basis for reversal.
And, it is too late to protect the home which was sold pursuant to a court order from
which no appeal was taken.
ACCORDINGLY, we AFFIRM the decision of the bankruptcy court.3
A true copy.
Attest:
CLERK, U.S. BANKRUPTCY APPELLATE PANEL,
EIGHTH CIRCUIT
3
Our decision renders Appellee’s motion to dismiss based on Debtor’s
multiple violations of Bankruptcy Rule 8001 et seq., moot. FED. R. BANKR. P.
8001 et seq.
4