In re Woodman, Bankruptcy No. 97-31345.

• Decision Date: 08 October 1997
• Docket Number: Bankruptcy No. 97-31345.
• Court: United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — District of Connecticut
• Parties: In re Patsy E. WOODMAN, Debtor.

213 B.R. 53 (1997)

In re Patsy E. WOODMAN, Debtor.

Bankruptcy No. 97-31345.

United States Bankruptcy Court, D. Connecticut.

October 8, 1997.

Christine M. Bazata, New Haven, CT, for debtor.

Richard Belford, New Haven, CT, trustee.

MEMORANDUM OF OPINION AND ORDER ON DEBTOR'S APPLICATION FOR WAIVER OF FILING FEE

ALBERT S. DABROWSKI, Bankruptcy Judge.

The Debtor, Patsy E. Woodman, by and through her attorney, has filed an Ex Parte Motion to Waive Filing Fee (hereafter "the Motion"), Doc. I.D. No. 3, in which she requests this Court to "waive the Chapter 7 filing fee in the amount of $175." In support thereof the Debtor directs the Court's attention to her Schedules I and J reflecting monthly income and expenses of $757.00 and $720.00, respectively. The Debtor filed this voluntary Chapter 7 petition on April 7, 1997. Upon the favorable resolution of her Motion, or, alternatively, upon the full payment of the $175.00, a discharge would enter in this case.¹

Section 1930(a) of Title 28, United States Code, requires a debtor commencing a case under Chapter 7 of Title 11, United States Code, to pay a "filing fee" of $130.00. In addition, Section 1930(b) authorizes the Judicial Conference of the United States to "prescribe additional fees in cases under title 11 of the same kind as the Judicial Conference prescribes under section 1914(b) of this title."² The Judicial Conference of the United States at its session on March 7-9, 1979, set forth the schedule of fees to be charged in bankruptcy courts pursuant to this Section. That schedule, as currently amended, requires "additional fees," to be paid in all chapter 7 cases filed after December 1, 1992 as follows: Miscellaneous Fee of $30.00 and a Fee for Payment to Trustees of $15.00. It is the sum of the $130.00 Section 1930(a) "filing fee" and the $45.00 Section 1930(b) "additional fees" (also known as the "$45.00 administrative fee"), totaling $175.00, which is the subject of the Debtor's Motion.

Presumably, the Debtor relies on Section 1915(a)(1) of Title 28, United States Code,³ which currently provides that "any court of the United States may authorize the commencement . . . of any . . . proceeding . . . without payment of fees or security therefor, by a person who submits an affidavit,⁴ that includes a statement of all assets such prisoner⁵ possesses that the person is unable to pay such fees or give security therefor." (Emphasis supplied).

The Debtor appears to be truly indigent. Her monthly income, consisting solely of Social Security ($484.00) and Department of Income Maintenance ($263.00) payments plus food stamps($10.00), totals $757.00. After deducting her minimum monthly expenses of $720.00, the debtor is left with $37.00 to pay unforeseen costs and emergency expenses including any medical and dental expenses. This is not a debtor who has lived or now lives the "life of Riley" at the expense of creditors. Indeed, she schedules only three creditors, each one a utility company, holding non-priority claims totaling $3,872.60. It also appears that the Debtor, who is represented by pro bono counsel, does not have a car or use credit cards (no credit card debt is scheduled). She has $10.00 on hand, $10.00 in the bank, and little personal property all of which is exempt. Under any reasonable standard it is clear this Debtor is a pauper and is indigent.

This Court is, of course, fully cognizant that the term court of the United States as defined in Title 28, United States Code, Section 451 does not include a United States Bankruptcy Court, and that the United States Court of Appeals for the Ninth Circuit, In re Perroton, 958 F.2d 889, 896 (9th Cir.1992), as well as other courts have concluded therefore that a United States Bankruptcy Court lacks authority to waive fees under 28 U.S.C. Section 1915(a)(1). Numerous other courts, however, share this Court's view that as a "unit of the district court," see 28 U.S.C. Section 151, authority to consider in forma pauperis motions flows to the bankruptcy court from the district court order of reference. In re Brooks, 175 B.R. 409, 412 (Bankr.S.D.Ala.1994), (and cases cited therein, Id. at 412, fn. 7).

The $130.00 Filing Fee

This Court's determination that it has authority to apply Section 1915(a) is of no benefit to this and other indigent debtors seeking waiver of the $130.00 filing fee assessed pursuant to Section 1930(a)(1), for the Congress of the United States expressly provided that is to be charged and collected "notwithstanding section 1915." Section 1930 was enacted in the wake of United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), in which the United States Supreme Court held that the prerequisite of payment of a filing fee before discharge could be granted in a bankruptcy proceeding was not a denial of due process because the right to discharge in bankruptcy was not a fundamental right entitled to due process under the Constitution and does not deny indigents equal protection of the laws. Id. at 444-46, 93 S.Ct. at 637-38. Clearly, Section 1930(a)(1) prohibits this Court from waiving the $130.00 filing fee.

The $45 "Additional Fees"

Since Section 1930(b) immediately follows Section 1930(a) but contains no reference to Section 1915, arguably, this Court is free to apply Section 1915(a) and, where appropriate, authorize the waiver of the $45.00 in additional fees assessed pursuant to Section 1930(b). Inherent in such application would be a determination that Congress intended the requirement of payment of fees, irrespective of indigent status, to be limited to the $130.00 filing fee assessed pursuant to Section 1930(a)(1). However, a Section 1915(a)based waiver of Section 1930(b) fees would be meaningful only where a debtor paid, in full or by installments, the non-waivable Section 1930(a) filing fee. Applied to the present case, to obtain a discharge without payment of the additional fees the Debtor would have to demonstrate that she cannot pay $45.00 even though she has paid $130.00. It would seem logical to assume that most debtors able to pay approximately 75% ($130.00) of a total of $175.00 can pay the remaining 25% (or $45.00 more), by installments if necessary. The resulting incongruity is apparent.⁶ Logic compels this Court to decline to read the intentional decision to omit from Section 1930(b) the reference to Section 1915 included in Section 1930(a) as indicative of Congress' intent to limit the absolute requirement of fee payment to the $130.00 filing fee. Rather, the intent of Congress, reflected in the plain language of Section 1930(b), was to delegate authority to the Judicial Conference to prescribe additional fees in bankruptcy cases of the same kind it prescribes in non-bankruptcy cases pursuant to 1914(b).

And in prescribing the present Section 1930(b) fees, the Judicial Conference in each case specifically provided for the payment thereof in installments in a manner consistent with Fed.R.Bankr.P. 1006. Rule 1006(a) requires "every petition shall be accompanied by the filing fee except as provided in subsection (b) of this rule."⁷ Subsection (b)(1) requires the clerk to accept for filing a voluntary petition by an individual if accompanied by a signed application "stating that the debtor is unable to pay the filing fee except in installments." Subsection (b)(2) authorizes the Court, upon consideration of the application, to either order the filing fee to be paid or grant leave to pay in installments. Payment by installments, if authorized, must be completed no later than 180 days following the filing of the petition. Rule 1006(b)(2) limits the number of installments to four and requires the final payment be made not later than 120 days after the filing of the petition. For cause shown, however, the Rule permits the Court to extend the time of any installment, "provided that the last installment is paid not later than 180 days after the filing of the petition."

In the final analysis, it is clear to this Court that even thought the Judicial Conference did not exclude the Section 1930(b) additional fees from waiver pursuant to Section 1915(a) by specific language or reference, it was intended that the current additional fees be paid in all bankruptcy cases. Accordingly, the Debtor's Motion must be denied.

The Motion, while not a signed application proposing terms for installment payments pursuant to Rule 1006(b)(1), was filed on April 7, 1997, with the petition.⁸ The Debtor shall have until October 24, 1997, to pay the filing fee in full or to submit a signed application for permission to pay the filing fee in installments pursuant to Rule 1006.⁹ Absent full payment or submission of a signed application as permitted herein, this case shall be dismissed.

ORDER

IT IS HEREBY...