FRANCISCO J DE ARMAS CUBAS and LILIBETH COSTAS SANTIAGO

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IN THE UNITED STATES BANKRUPTCY COURT FOR
THE DISTRICT OF PUERTO RICO
IN RE:
CASE NO. 09-01933 BKT
FRANCISCO J DE ARMAS CUBAS 	Chapter 7
LILIBETH 	COSTAS SANTIAGO
XXX-XX-0897
XXX-XX-0774
FILED & ENTERED ON 10/14/2009
Debtor(s)
OPINION AND ORDER
Before the Court is the Chapter 7 Trustee’s Request for Additional
Findings of Fact and Conclusions of Law [Dkt. No. 27], in support of the
Order 	entered 	denying 	Reconsideration 	of 	Dismissal 	[Dkt. 	No. 	21]. 	In
light of the recently decided First Circuit case of In re Acosta-Rivera,
557 F.3d 8 (1st Cir. 2009), this Court hereby VACATES AND SETS ASIDE the
dismissal order entered on May 5, 2009 [Dkt. No. 18].
I- 	FACTUAL AND PROCEDURAL BACKGROUND
Francisco J. de Armas Cuevas and his wife Lilibeth Costas Santiago,
jointly 	filed 	a 	Chapter 	7 	bankruptcy 	petition 	on 	March 	13, 	2009
(“Debtors”) [Dkt. No. 1]. On May 5, 2009, the court sua sponte dismissed
the case upon Debtors failure to file all documents required by 11 USC §
521(a)(1) [Dkt. No. 18]. 	On even date, the U.S. Trustee and the Chapter
7 Trustee filed an Urgent Motion to Vacate the Order of Dismissal and an
Urgent Motion of Reconsideration of Dismissal, respectively [Dkt. No. 19
and 	20]. 	The 	following 	day, 	the 	court 	entered 	an 	order 	denying 	both
motions [Dkt. No. 21]. On May 11, 2009, the Chapter 7 Trustee requested
that the court make Additional Findings of Fact and Conclusions of Law of
the order denying the request for reconsideration [Dkt. No. 27].
This Court has jurisdiction of the subject matter and the parties
pursuant to 28 U.S.C. §§1334 and 157(a) and the General Order of referral
of 	Title 	11 	Proceedings 	to 	the 	United 	States 	Bankruptcy 	Court 	for 	the
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District of Puerto Rico dated July 19, 1984 (Torruella, C.J.). This is a
core proceeding in accordance with 28 U.S.C. §157(b).
II- 	APPLICABLE LAW AND DISCUSSION:
On May 5, 2009, the Court sua sponte dismissed Debtors’ Chapter 7
petition 	for 	failure 	to 	comply 	with 	section 	11 	USC 	§ 	521(a)(1) 1 .
Specifically, 	Debtors 	failed 	to 	file 	within 	45 	days 	of 	the 	Order 	of
Relief, 	Official 	Form 	B22A 	also 	known 	as 	the 	Means 	Test. 	11 	U.S.C.
521(a)(1)(B)(v).
The Chapter 7 Trustee argues that this being a case with primarily
non-consumer 	debt, 	Form 	B22A 	is 	irrelevant 	and 	extraneous 	to 	the
administration of the case. The Trustee alludes to the recently decided
First Circuit case of In re Acosta-Rivera, 557 F.3d 8 (1st Cir. 2009). In
the 	Acosta 	case, 	the 	First 	Circuit 	Court 	pointed 	that 	11 	U.S.C. 	§
521(a)(1)(B), provides that the debtor "'shall . . . file'" the required
disclosures 	"unless 	the 	court 	orders 	otherwise." 	The 	court 	found 	that
because the bankruptcy court had the flexibility to waive non-disclosure
before 	the 	passage 	of 	BAPCPA 	and 	considering 	that 	BAPCPA 	did 	not
expressly curtail that power, the bankruptcy court can use its discretion
to excuse detailed disclosure and determine when such information becomes
"irrelevant 	or 	extraneous." 	The 	court 	noted 	that 	a 	grant 	of 	judicial
power 	to 	"order 	otherwise" 	predated 	BAPCPA, 	and 	when 	Congress 	updated
section 521, it left that language intact. BAPCPA allows courts to do the
sifting between information that is required and information that is not
without rigid adherence to the 45-day deadline. In re Acosta, supra.
When 	applying 	the 	First 	Circuit’s 	discretionary 	approach 	to 	the
facts of this case we conclude that completing Form B22A would not change
the nature of this case. As the voluntary petition reflects, the Debtors
marked under penalty of perjury, that their debts are primarily business
debts. Debtors submitted the required Statement of Intentions and marked
the portion where it identifies them as non-consumer debtors. Debtor’s
1 ...if an individual debtor in a voluntary case under chapter 7 or 13 [11 USCS §§ 701 et
seq. or 1301 et seq.] fails to file all of the information required under subsection
(a)(1) within 45 days after the date of the filing of the petition, the case shall be
automatically dismissed effective on the 46th day after the date of the filing of the
petition. 	11 U.S.C. 521(i)
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non-consumer status is supported by the majority of the debts included in
the 	bankruptcy 	schedules. 	Therefore, 	it 	is 	undisputed 	that 	Debtor’s
estate consists primarily of non consumer debt. 	With this scenario, in
order to comply with 11 USC § 521(a)(1), Debtors are obliged to complete
Part I. 1B of the Means Test; only a statement under penalty of perjury
that designates debtors as non consumer 2 . Debtors’ failure to file the
Means Test made automatic dismissal an inevitable event.
However, in this particular case, where the facts of the case are
indicative that continuation of the case will be in the best interest of
creditors and where we have no contest on Debtors non-consumer status,
this Court finds that the filing of the Means Test is extraneous to the
continuation of the case. Therefore, the Order of Dismissal [Dkt. No. 18]
is hereby VACATED and SET ASIDE.
SO ORDERED.
Ponce, Puerto Rico, this 14 day of October, 2009.
Brian K. Tester
U.S. Bankruptcy Judge
C: 	DEBTOR
TERESA M LUBE CAPO
WIGBERTO 	LUGO MENDER
2 Part I also provides an exclusion for debtors who do not have primarily consumer debts.
These 	debtors 	are 	not 	subject 	to 	any 	of 	the 	provisions 	of 	§ 	707(b)—including 	the
requirement of § 707(b)(2)(C) for filing a CMI statement— since § 707(b) applies, by its
terms, only to “an individual debtor. . . whose debts are primarily consumer debts.”
However, a debtor may be found to have asserted non-consumer status incorrectly. Unless
such a debtor has filed the CMI form within the 45 days after filing the case, the case
could be subject to automatic dismissal under § 521(i). To avoid this possibility, debtors
asserting principally non-consumer status may complete the appropriate portions of Part I,
claim an exclusion from the balance of the form, and promptly file the form. If it is
subsequently determined that the debtor does have primarily consumer debts, the form will
have been filed within the deadline established by § 521(i), and can be amended to include
the necessary CMI and means test information. 11 Norton Bankr. L. & Prac. 3d Rules Form 22C
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