In re Russell, Bankruptcy No. 07-11374.
| Decision Date | 02 June 2008 |
| Docket Number | Adversary No. 07-1098.,Bankruptcy No. 07-11374. |
| Citation | 392 B.R. 315 |
| Parties | In re Marilyn RUSSELL, Debtor. Richard F. Clippard, United States Trustee, Plaintiff, v. Marilyn Russell, Defendant. |
| Court | U.S. Bankruptcy Court — Eastern District of Tennessee |
Richard F. Clippard, U.S. Trustee, William R. Sonnenburg, Assistant U.S. Trustee.
Marilyn Russell, Chattanooga, TN, Pro se.
C. Kenneth Still, Douglas R. Johnson, Johnson & Mulroony, PC, Chattanooga, TN, trustees.
R. THOMAS STINNETT, Bankruptcy Judge.
In this adversary proceeding the United States Trustee contends that the debtor should not receive a discharge of her debts. The U.S. Trustee's objection to discharge relies on several of the grounds set out in § 727 of the bankruptcy code. 11 U.S.C. § 727(a). The complaint is based primarily on the debtor's failure to provide information that the bankruptcy code and rules require her to provide so that the bankruptcy case can be administered. On January 16, 2008, the court held a pre-trial conference in this adversary proceeding. The debtor has now filed a motion for recusal based primarily on events during the pre-trial conference. The motion has not been referred to a different bankruptcy judge because the law does not require it. 28 U.S.C. § 455; United States v. Hatchett, 978 F.2d 1259, 1992 WL 296865 (6th Cir.1992) (Table).
The debtor's arguments can be understood only in light of events before the pre-trial conference. The court will also recount some pleadings from after the pre-trial conference because they reflect on the debtor's previous arguments and attitude. The court can take judicial notice of pleadings and events in the bankruptcy case and adversary proceeding. Fed. R. Bankr.P. 9017; Fed.R.Evid. 201; see, e.g., Rickel & Assoc., Inc. v. Smith (In re Rickel & Assoc., Inc.), 272 B.R. 74 (Bankr.S.D.N.Y. 2002); Northwestern Institute of Psychiatry, Inc. v. Travelers Indemn. Co. (In re Northwestern Institute of Psychiatry, Inc.), 268 B.R. 79 (Bankr.E.D.Pa.2001); In re Blum, 255 B.R. 9 (Bankr.S.D.Ohio 2000); Smith v. Weissfisch (In re Muzquiz), 122 B.R. 56 (Bankr.S.D.Tex. 1990).
The debtor began her pending bankruptcy case in this court by filing a chapter 13 petition. She filed the petition pro se — not represented by an attorney. The petition asked for the debtor's street address, but she listed a post office box in Rossville, Georgia. The debtor's petition revealed the filing of two prior bankruptcy cases, one in Tennessee in 2007 and the other in Maryland in 2000.
Along with the petition, the debtor filed a verification of creditor matrix with 16 addresses. Those included two addresses for the Georgia Department of Revenue and two addresses for the United States Department of Education.
The debtor did not file a number of documents required by the bankruptcy code and rules: (1) a proposed chapter 13 plan, (2) the statement of compliance with the credit counseling requirement, (3) the statement of payment advices, (4) schedules A through J, (5) the summary of the schedules, (6) the statement of financial affairs, (7) the statistical summary of certain liabilities and related data, and (8) the statement of current monthly income and disposable income calculation. 11 U.S.C. § 521(a), (b); Fed. R. Bankr.P. 1007 [Interim] & 3015. The court entered an order requiring the debtor to file these documents by April 26, 2007.
The meeting of creditors was set for May 9, 2007. The order and notice also set July 9, 2007 as the last date for filing a complaint to determine the dischargeability of certain debts. 11 U.S.C. § 523(c) & § 1328(a); Fed. R. Bankr.P. 4007(c) [Interim]. As usual in a chapter 13 case, no deadline was set for filing a complaint to deny the debtor's discharge. 11 U.S.C. 1328; Fed. R. Bankr.P. 4004 [Interim]. The certificate of service indicates that notice of the meeting of creditors and the complaint deadline was sent to the 16 creditors listed in the creditor matrix and to the U.S. Trustee.
The debtor filed a motion to convert the case from chapter 13 to chapter 7. The motion was not accompanied by a certificate of service but did include a list of creditors. This list included two local attorneys who were not included in the original creditor matrix: Jay Ku and B. Stewart Jenkins, c/o Daniel Habenicht.
The deadline for the debtor to file the required schedules and other documents passed without the debtor having filed them.
The court entered an order converting the case to chapter 7. The certificate of service for the conversion order does not include the two local attorneys.
When the case was converted to chapter 7, Douglas R. Johnson became the chapter 7 trustee. A new order and notice set the meeting of creditors in the chapter 7 case on May 25, 2007. It also set July 24, 2007 as the last date for filing complaints to deny discharge or to determine the dischargeability of a particular debt. 11 U.S.C. § 523(c) & 727; Fed. R. Bankr.P. 4004 [Interim] & 4007 [Interim]. This notice was sent to the two local attorneys who were listed with the debtor's motion to convert. In particular, the notice was sent to Daniel Habenicht in the office of attorney B. Stewart Jenkins.
The court entered an order directing the debtor to file the documents required in a chapter 7 case: Schedules A through J, the summary of schedules, the statement of financial affairs, the statistical summary of certain liabilities and related data, the statement of compliance with the credit counseling requirement, and the statement of current monthly income and means test calculation. The debtor was required to file the documents by May 23, 2007, two days before the meeting of creditors.
The court entered an order for the debtor to show cause why her bankruptcy case should not be dismissed for failure to pay the fee for converting to chapter 7. The order set the hearing on June 14, 2007.
The deadline for the debtor to file the required documents passed without filing by the debtor.
The chapter 7 trustee continued the meeting of creditors to July 6, 2007.
The U.S. Trustee filed a motion for a Rule 2004 examination and to prevent dismissal of the debtor's bankruptcy case. The motion alleged that the debtor had filed three pro se bankruptcy cases in the preceding six years, that each case involved a skeleton petition, and the debtor had received a discharge in the first case. A skeleton petition means a petition with the creditor matrix but without the schedules and other documents that a debtor is required to file. The U.S. Trustee's motion also asserted that he needed to examine the debtor to determine her identity and her financial condition, including the existence of assets that might be available to pay creditors. Finally, the motion alleged that creditors, the trustee, and other interested parties were prejudiced by being unable to examine the debtor. The motion asked that the Rule 2004 examination be set for the same time as the continued meeting of creditors on July 6, 2007.
The motion was accompanied by a certificate of service stating that an exact copy of the motion, the proposed order, and the certificate of service were sent by mail properly addressed and with correct postage to the debtor at the address given by the debtor in her bankruptcy petition, a post office box in Rossville, Georgia. The U.S. Trustee also filed a notice of hearing; it certified mailing to the debtor at the same address of notice that a hearing would be held on the motion on June 28, 2007.
The Assistant U.S. Trustee filed a subpoena duces tecum commanding the debtor to produce her social security card, her driver's license, her most recent pay stubs, her bank statements, and the bankruptcy schedules for examination at the meeting of creditors or the Rule 2004 examination both scheduled for the same time on July 6, 2007. The subpoena also commanded the debtor to appear and "testify at the taking of a deposition." The subpoena was sent by certified mail to the post office box that the debtor listed as her address in the bankruptcy petition.
The Assistant U.S. Trustee signed the subpoena on June 5, 2007. The subpoena includes a certificate of service stating that it was mailed to the debtor at the post office box in Rossville, Georgia on June 5, 2007. The certificate of service is signed by a paralegal specialist in the office of the Assistant U.S. Trustee.
A hearing was scheduled for this date on the order for the debtor to show cause why her bankruptcy case should not be dismissed for failure to pay the fee for conversion to chapter 7. The debtor filed a motion to dismiss her bankruptcy case. The court continued the show cause hearing to June 28, 2007 at the same time as the hearing on the U.S. Trustee's motion to prevent dismissal of the case and for a Rule 2004 examination.
The Assistant U.S. Trustee filed another subpoena duces tecum that was issued on June 18, 2007. The subpoena is the same as the earlier subpoena except that it includes a certificate of service by hand delivery to the debtor at the Hamilton County Courthouse. The certificate is signed by the paralegal specialist who mailed the first subpoena.
The court entered an order setting the debtor's motion to dismiss on June 28, 2007, at the same time as the show cause hearing and the hearing on the U.S. Trustee's motion to prevent dismissal of the case and for a 2004 examination.
On June 28, 2007, the court held the scheduled hearing on the debtor's motion to dismiss her case, the U.S. Trustee's motion to prevent dismissal and for a Rule 2004...
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