Alex Lobera

1Hereafter, references to the Bankruptcy Code will be
(continued...)
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
ALEX LOBERA,
Debtor. 	No. 7-10-13203 SL
MEMORANDUM OPINION REGARDING
GILA REGIONAL MEDICAL CENTER’S
MOTION TO DISMISS OR CONVERT
CASE TO CHAPTER 11
This matter came before the Court for final hearing on a
Motion 1) to Dismiss under Section 707(a) or 2) to Convert to
Chapter 11 under Section 706(b) (the “Motion”) filed by creditor
Gila Regional Medical Center (“GRMC”)(docs 14, 16) to which
Debtor objected (doc 19). 	GRMC is represented by its attorney
Thuma & Walker, P.C. (David T. Thuma and Merrie Chappell).
Debtor is represented by his attorney the Law Office of George
(“Dave”) Giddens, P.C. 	(Christopher M. Gatton). 	Creditor Barton
and Associates, Inc. (“Barton”) did not formally join in GRMC’s
motions, but filed a brief in support (doc 27). 	Barton is
represented by its attorney Modrall Sperling Roehl Harris and
Sisk, P.A. (Jason C. Bousliman). 	This is a core proceeding. 	28
U.S.C. § 157(b)(2)(A). 	For the reasons set forth below, the
Court finds that both motions should be denied.
INTRODUCTION
The issues in this case involve examining the provisions of
the dismissal (11 U.S.C. § 707) 1 and conversion (Section 706)
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1(...continued)
“Section ___.”
2See Tamecki v. Frank (In re Tamecki), 229 F.3d 205, 207 (3 rd
Cir. 2000)(“Section 707(a) allows a bankruptcy court to dismiss a
petition for cause if the petitioner fails to demonstrate his
good faith in filing.”)(citing Industrial Insurance Services,
Inc. v. Zick (In re Zick), 931 F.2d 1124, 1126-27 (6 th Cir.
1991)). 	See also Perlin v. Hitachi Capital America Corp. (In re
Perlin), 497 F.3d 364, 369 (3 rd Cir. 2007)(“Although a debtor’s
lack of good faith is not mentioned in the statute, in Tamecki,
we held that a debtor’s lack of good faith in filing a bankruptcy
petition is a proper cause for dismissal under section 707(a).)
and at 371 (“[W]e hold that, in deciding a motion to dismiss
under section 707(a), a bankruptcy court may consider a debtor’s
substantial income and expenses together with other factors in
assessing good faith.”)
3See Industrial Insurance Services, Inc. v. Zick (In re
Zick), 931 F.2d 1124, 1127 (6 th Cir. 1991)(“We are persuaded that
there is good authority for the principle that lack of good faith
is a valid basis of decision in a ‘for cause’ dismissal by a
bankruptcy court.”)
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sections of the Bankruptcy Code as applicable to business, non-
consumer, individual chapter 7 debtors. 	Neither the Court of
Appeals for the Tenth Circuit or the Tenth Circuit Bankruptcy
Appellate Panel have addressed the specific issue of whether
there is a good faith filing requirement for business, non-
consumer, individual chapter 7 debtors or, if there is, what the
requirement is or how it would relate to “cause”.
There is currently a split in the circuits on these issues.
The Third 2 and Sixth 3 Circuits have found a good faith filing
requirement for Chapter 7 which failure to meet is a cause for
dismissal. 	Many bankruptcy courts have also so found. 	See In re
Khan, 172 B.R. 613, 620 (Bankr. D. Minn. 1994)(collecting
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4This distinction is made to highlight the difference
between this case and the earlier case of In re Khan, 35 B.R. 718
(Bankr. W.D. Ky. 1984) (“Kentucky Kahn”) discussed below.
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cases)(hereafter “Minnesota Khan 4 ”). 	The consensus of these
cases is either that 1) while excess disposable income alone is
not “cause” under section 707(a) it may be considered as a factor
in determining bad faith, which is “cause” or 2) a debtor’s good
faith (as defined by that case on its particular facts) is a
prerequisite to Chapter 7 bankruptcy relief.
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5See Huckfeldt v. Huckfeldt (In re Huckfeldt), 39 F.3d 829,
832 (8 th Cir. 1994)(The court approved a narrow or cautious
approach to bad faith adopted in Minnesota Khan: “Bad faith under
707(a) [is] limited to extreme misconduct falling outside the
purview of more specific Code provisions, such as using
bankruptcy as a ‘scorched earth’ tactic against a diligent
creditor, or using bankruptcy as a refuge from another court’s
jurisdiction. ... 	As this case illustrates, some conduct
constituting cause to dismiss a Chapter 7 petition may readily be
characterized as bad faith. 	But framing the issue in terms of
bad faith may tend to misdirect the inquiry away from the
fundamental principles and purposes of Chapter 7. 	Thus, we think
the § 707(a) analysis is better conducted under the statutory
standard, ‘for cause.’ 	If the bankruptcy court elects instead to
act under the inherent judicial power to punish a bad faith
litigant, that action should not be taken under § 707(a).” 172
B.R. at 624-26 )
6Neary v. Padilla (In re Padilla), 222 F.3d 1184, 1193 (9 th
Cir. 2000)(“ The Bankruptcy Code's language and the protracted
relationship between reorganization debtors and their creditors
lead us to conclude that bad faith per se can properly constitute
‘cause’ for dismissal of a Chapter 11 or Chapter 13 petition but
not of a Chapter 7 petition under § 707(a).”)(The court also
ruled that the misconduct complained of should be analyzed under
the most specific code section that addresses that type of
conduct; if the behavior is specifically addressed by either
sections 523 or 727, it should be dealt with under those sections
and not section 707.) 	Id. at 1192. 	See also Sherman v.
Securities and Exchange Commission (In re Sherman), 491 F.3d 948,
970 (9 th Cir. 2007)(“Padilla prescribes a two-part inquiry:
First, we must consider whether the circumstances asserted to
constitute ‘cause’ are ‘contemplated by any specific Code
provision applicable to Chapter 7 petitions.’ 	If the asserted
‘cause’ is contemplated by a specific Code provision, then it
does not constitute ‘cause’ under § 707(a). 	If, however, the
asserted ‘cause’ is not contemplated by a specific Code
provision, then we must further consider whether the
circumstances asserted otherwise meet the criteria for ‘cause’
for discharge under § 707(a).”)(Citations omitted.)
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On the other hand, the Eighth 5 and Ninth 6 Circuit have found
no good faith filing requirement for chapter 7 debtors.
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7Consumer debts are defined and discussed below.
8Four of the children are Debtor’s; three are hers. 	Debtor
supports all of them. 	He has not formally adopted any of her
children.
9The Motion also suggests a “reasonable estimate” for each
expense, e.g., Debtor lists a mortgage expense of $4,684 but the
Motion claims that $2,500 would be more reasonable. 	In sum, the
Motion argues that Debtor could save an additional $15,033 per
month if he were to limit himself to reasonable expenses.
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FINDINGS OF FACT
Debtor filed this voluntary Chapter 7 proceeding on June 25,
2010. 	The petition states that Debtor’s debts are not primarily
consumer debts 7. 	Schedule I states that Debtor is a physician.
He is a single person but has lived with his companion since
2007. 	The household also includes seven children 8 ranging in age
from two to eighteen. 	Schedule J lists Debtor’s expenses and
shows that he has $18,579 of excess monthly income. 	Schedule F
lists unsecured debts of over $1.3 million.
The Motion (filed July 21, 2010) states that the case should
be dismissed for “cause” or converted to Chapter 11. 	The “cause”
listed in the Motion is that Debtor’s income exceeds claimed
expenses by $18,579, that the expenses listed are “excessive 9”,
that Debtor’s claimed expenses are inflated, and that Debtor
claims expenses related to an automobile but owns no automobile.
Therefore, under a totality of the circumstances, it would be
contrary to the best interests of creditors to allow Debtor to
obtain a discharge. 	The Motion seeks dismissal with a one year
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10 Debtor also states that he wrecked his car, but pays auto
expenses to use other persons’ cars.
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bar for refiling. 	Alternatively, the Motion seeks conversion to
Chapter 11 because Debtor could “easily” pay creditors $33,000
per month.
Debtor objected to the Motion on August 8, 2010. 	Debtor’s
first argument is that Section 707(a) requires “cause” and none
of the facts alleged by GRMC constitute “cause.” 	Debtor claims
that the facts alleged by GRMC are relevant only to Section
707(b) which requires the Court to dismiss a case for abuse if
there is sufficient excess monthly income. 	However, Section
707(b) applies only to consumer debtors, not to non-consumer
debtors. 	Therefore, Debtor claims that his excess income and
alleged overstated expenses are not relevant 10 . 	Debtor also
claims that since the filing of his bankruptcy, he has learned of
tax debts of approximately $798,000 for which he is liable.
The Court held a preliminary hearing on August 23, 2010,
fixing September 16, 2010 as the date for a final hearing. 	GRMC
deposed Debtor on September 8, 2010.
On September 14, 2010, Barton filed a Memorandum in Support
of the Motion (doc 27). 	Barton argues that “cause” exists to
dismiss the case, citing In re Hammonds, 139 B.R. 535 (Bankr. D.
Colo. 1992) because the filing was done in bad faith and was made
in an effort to deny payment to creditors despite an ability to
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pay. 	Barton also argues that this case is “substantial abuse”
because a debtor’s ability to pay a substantial portion of debt
is grounds for dismissal. 	It further argues that courts have
commonly dismissed non-consumer cases under section 707(a) for
“bad faith” for reasons paralleling the factors of “substantial
abuse” under section 707(b). 	Barton argues that Debtor’s
business status should have no bearing on the Court’s decision.
On September 14, 2010, Debtor also filed a Memorandum in
Support of his objection to the Motion (doc 28). 	Debtor’s
primary argument is that because his debts are primarily
business, the “means test” and his ability to pay are explicitly
not relevant and cannot be grounds for dismissal or conversion.
Debtor quotes section 707(a)’s examples of “cause” that justify
dismissal as including: 1) unreasonable delay prejudicial to
creditors, 2) nonpayment of fees or charges required, and 3)
failure of debtor to file required information (but only on
motion by the United States Trustee). 	Debtor argues that ability
to pay is fundamentally different from the items specified and
should not be included as a ground. 	Debtor then states that when
courts look to the legislative history of section 707 to
determine what is “cause”, they find that the legislative history
specifically states that ability to repay debts in whole or in
part does not constitute cause for dismissal (quoting H.R. No.
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95-595, 95 th Cong., 1 st Sess. 380 (1977) and S.R. No. 95-989, 95 th
Cong., 2d Sess. 94 (1978)).
Debtor does concede, doc 28 p. 4, that some courts hold that
while ability to pay alone is not cause, it can be a factor
considered in a totality of circumstances (citing McDow v. Smith,
295 B.R. 69, 79 (E.D. Va. 2003)). 	However, Debtor argues that
the only ground listed in the Motion is Debtor’s ability to repay
debt.
Regarding conversion to Chapter 11, Debtor argues that the
same factors should be considered to deny GRMC’s motion to
convert. 	Ordering conversion would allow a creditor to
circumvent the consumer debtor element necessary to find abuse.
On September 15, 2010, GRMC filed its Brief in Support of
the Motion (doc 32). 	By this date, GRMC had a transcript of the
Debtor’s deposition. 	The Motion focused on Debtor’s income and
expenses. 	The Brief, however, changes the primary focus away
from Debtor’s income to “the Debtor’s petition, schedules,
statement of affairs, and anticipated amendments” and asks the
Court to conclude that Debtor’s “antics” are cause for dismissal.
GRMC argues that the papers on file contain inconsistencies and
are incomplete. 	For example, the petition failed to disclose
Debtor’s full name, the Debtor failed to list cash transferred to
his companion’s account, he failed to list a watch, he failed to
list an Army pension, he failed to list stock in Lobera Imaging,
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Inc. or Microsoft stock, he failed to list an interest in his
father’s estate, he failed to list four vehicles, and he failed
to list an $18,000 bonus. 	The Brief does reiterate the fact that
Debtor makes a “ton” of money and informs the Court that Debtor
testified at his deposition that he has not curbed his lifestyle.
GRMC claims that the most telling evidence of bad faith was
Debtor’s failure to list his 2008, 2009 and year to date 2010
income on the Statement of Financial Affairs, or to disclose
payments, gifts and transfers to insiders, or to disclose his
involvement with a business.
GRMC argues that the Court must engage in a case-by-case
analysis to determine what constitutes “cause” to warrant
dismissal. 	Citing several cases, GRMC also argues that lack of
good faith in commencing a Chapter 7 case is cause for dismissal
under section 707(a). 	GRMC also argues that all of these factors
permit conversion to Chapter 11.
On September 15, 2010, Debtor also filed an Amended
Statement of Financial Affairs (“SFA”), doc 33, and Amended
Schedules B, D, E and F, doc 34. 	The Amended SFA discloses
Debtor’s income for 2008, 2009, and 2010 year to date; it
discloses on question 9 [sic, should be question 10] a transfer
of a house valued at $100,000.00 on Mary Stewart Street in El
Paso, Texas to his father Alejandro Lobera; discloses Debtor’s
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involvement with a business, Lobera Imaging; and lists a former
spouse on question 16.
The Amended Schedule B adds Debtor’s interest in stock of
Lobera Imaging, Inc. (value $0.00), and Microsoft (value $0.00);
his interest in a retirement account (value $1,331.81); his
interest in a 401-K account (value $11,000.00) and an Ameritrade
account (value $400.00).
The Amended Schedule D transfers the debt owed to Barton
from Schedule F (unsecured) to Schedule D (secured). 	The Amended
Schedule E adds $733,945.00 of priority tax debt owed to the IRS
and State of New Mexico. 	Amended Schedule F deletes the Barton
debt.
THE FINAL HEARING
The Motion came on for hearing on September 16, 2010. 	As
the first item of business the Court raised the issue of the
change in focus from the Motion, which had focused only on excess
income, to the Brief, which raised the new allegations of bad
faith and intentional mischief of filing false and misleading
bankruptcy papers. 	Debtor’s counsel agreed that, although raised
rather late, GRMC could introduce testimony on bad faith. 	The
parties then stipulated that excess income alone is not cause to
convert, and Debtor’s counsel stipulated that Debtor did have
income to fund a plan.
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Debtor testified first. 	The first subject of examination
was his name. 	His 2008 and 2009 tax returns (ex. 22) show his
name as “Alex Lobera Rodriguez”, but the petition lists his name
as “Alex Lobera.” 	Debtor testified that he was originally from
Puerto Rico and in Puerto Rico one customarily uses both parents’
last names. 	He originally filed tax returns in Puerto Rico, and
used that convention. 	When he moved to the mainland United
States he dropped his mother’s name. 	However, the Internal
Revenue Service continues to list him with both last names. 	He
further testified that there was not a single debt on his
bankruptcy schedules that was incurred in a name other than Alex
Lobera or Lobera Imaging, Inc. (except, obviously, IRS debt which
was not included on the original petition.)
Debtor admitted he signed the Schedules (ex. 16). 	He
admitted that a property listed on Schedule A as “281 Mariposa
Drive” was actually “281 Maricopa Drive.”
Debtor listed one wristwatch on his Schedule B valued at
$500.00 	He testified that he actually owns two, but one is
broken. 	He paid $500.00 for the one that still works.
Debtor listed his household goods on Schedule B at
$15,000.00. 	He testified that he really did not know for sure
the current values of the used goods, but sat down in his
attorney’s office and attempted to estimate what things were
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worth, e.g., a seven year old television. 	He also stated that
maybe one-half of it belonged to his companion.
Debtor listed $2000.00 of firearms on Schedule B. 	Again, he
estimated the values and explained to the Chapter 7 Trustee at
the first meeting of creditors how he had arrived at the values.
Debtor’s original Schedule B listed no retirement plans. 	At
Debtor’s deposition he was asked about retirement plans and
recalled he did have an IRA or 401(k) when he was in the Army.
He had lost track of it and had not received any statements for
years, and forgot to list it on Schedule B.
Debtor’s original Schedule B did not list his interest in
Lobera Imaging, P.C. 	Lobera Imaging, P.C. is a debtor in Case
No. 7-10-12751-SL, currently pending in the Bankruptcy Court for
the District of New Mexico. 	The SFA in that case, question 16,
states that Debtor is the 100% owner of Lobera Imaging, P.C. 	At
the time of the hearing, Lobera Imaging was not operating, had no
income, and its only assets were old accounts receivable. 	Debtor
testified that he had not understood that information regarding
Lobera Imaging, P.C. had to be duplicated on his personal
schedules, particularly in light of the fact that it was
worthless and he had no intention of having anything more to do
with it. 	He had listed it as a co-debtor where appropriate and
included all its debts on his schedules.
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Debtor’s original Schedule B also omitted some small amount
of Microsoft stock. 	His amended Schedule B lists the stock but
places no value on it.
Debtor admitted to giving a Mini Cooper to his companion and
a 1994 Mercedes to his eighteen year old son. 	He was not asked
when these transfers were made. 	Debtor pays insurance on all the
vehicles. 	Debtor also pays ongoing health insurance for himself,
his companion, all the children and his ex-wife. 	Debtor
purchased a laptop computer and paid the tuition for his 18 year
old son to attend college. 	He did not consider these to be
gifts, but rather in the nature of support. 	Debtor also pays the
tuition for a 19 year old to attend college.
Exhibit 1 is Debtor’s contract (“Contract”) with Virtual
Radiologic Professionals, L.L.C. (“Practice”). 	It recites that:
1) Debtor is an independent medical practitioner specializing in
radiology, 2) Practice is a professional medical practice that
provides radiology interpretation and consulting services, and 3)
Practice desires to engage Debtor as an independent contractor in
accordance with the terms and conditions of this Contract and
Debtor is agreeable to such engagement. 	The term of the contract
is five years, but is terminable without cause by either party
upon one hundred eighty days notice. 	Debtor’s Schedule G listed
no executory contracts. 	Debtor testified he had not understood
the Contract needed to be listed separately; he believed he had
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listed his relationship by disclosing his income on Schedule I
which discloses the Practice, its address, and his compensation.
Under the terms of the Contract, if Debtor performs additional
work above that required, he will receive bonuses based on the
amount and type of work he performed. 	He had been employed by
Practice for three months when he filed his case, see Ex. 16,
Schedule I, and did not receive a bonus until after the filing.
At the time of filing he hoped he would receive a bonus, but was
not expecting it and did not know what amount it would be. 	He
also testified that the bonus was for an unusual three month
period when he was the only radiologist at the facility, which
has since hired a new person. 	He did not expect a bonus for the
next three month period.
At the hearing there was a great deal of questioning about
the Mary Stewart Street property that Debtor disclosed as a
transfer on the Amended SFA. 	Despite the questioning, no clear
picture emerged as to what actually took place or when. 	Debtor
purchased the house years ago for his father, to repay a previous
loan. 	The house was in Debtor’s name. 	Debtor’s father is
currently 94 years old. 	There were two mortgages on the
property. 	Debtor made the mortgage payments, but fell behind on
the second mortgage because he could not pay it. 	The second
mortgagee foreclosed and the property was sold. 	Debtor (or
perhaps his companion) employed an attorney for the father, who
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dealt with the purchaser at the foreclosure, and eventually the
father purchased the property in his own name with his own funds
from that purchaser. 	Debtor still pays the first mortgage.
Debtor testified that this subject never came up in his
deposition.
Because Debtor’s father is alive, there was no improper
omission of Debtor’s interest in the father’s estate because
there is no such estate.
The original SFA Question 1 did not list Debtor’s previous
income. 	In response to questioning, he testified that when he
filed the petition his taxes had not been done for several years.
He made a mental note to ask the attorney how he should handle
this and simply forgot. 	The attorney apparently did not catch
it, and the SFA was filed with Question 1 unanswered. 	Debtor
finally received his tax returns from the preparer on the date of
his deposition. 	He amended the SFA to include the prior years
income and he calculated current year income from Lobera Imaging,
P.C. from January to March, and Practice from March forward.
Barton obtained a judgment against Debtor and Lobera Imaging
and recorded a transcript of judgment. 	Debtor did not learn of
the transcript until after the bankruptcy, which is why he
originally listed Barton as unsecured. 	Barton also obtained a
writ of garnishment against Debtor and Lobera Imaging on which it
collected between $30,000 and $40,000 before the bankruptcy
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11 To the extent this is true - the Court finds it is - the
Debtor cannot be viewed as unloading assets before bankruptcy by
making fraudulent or preferential transfers.
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filing. 	Barton also attempted to collect from Lobera Imaging’s
account receivables. 	Debtor’s bank then froze the account and
closed it.
Debtor received $400,000 from Lobera Imaging in April, 2010.
This transaction is reported on the Lobera Imaging SFA as a draw.
Debtor testified that he did not use any of it to pay Barton. 	He
stated that he had offered a payment plan to Barton but Barton
would not agree to it unless Debtor granted a mortgage on his
house. 	He refused. 	He testified that he used the funds for
various things including becoming current on the mortgage on
Maricopa, bringing the first mortgage current on his residence,
paying a debt owed to his father, paying an attorney in Utah for
child custody matters for his companion, performing house and
pool repairs and landscaping, taking the children to Puerto Rico
for a family visit, paying about $33,000 to Memorial, etc. 	He
testified emphatically that he was not contemplating personal
bankruptcy at the time of this payment 11 . 	He also believed at
this time that Lobera Imaging had about $4 million of accounts
receivable, of which at least $1.2 to $1.3 million should have
been collectible. 	Debtor anticipated that all the creditors
would be paid.
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Debtor testified that the arrangement he has with his
companion involves her being the billpayer. 	He transfers money
into her account every month, then they confer during the month
to discuss additional funds needed and where they are
financially. 	He testified that usually by the end of the month
they are bouncing checks for their expenses. 	Debtor also
testified that due to this arrangement, he was not sure exactly
what the monthly bills were, but felt he had a good estimate.
When asked why he filed the bankruptcy, Debtor testified
that he could not pay his bills. 	He owed too much, there was a
judgment against him and he knew he owed taxes. 	He could not
support his family. 	He also testified that he thought he had
carefully reviewed all schedules and statements and that they
were correct. 	He was not trying to conceal anything;
furthermore, he did not have anything left to conceal. 	He also
testified that any omissions or failures to disclose were
unintentional. 	Certain items, e.g. the Mini Cooper, were not
listed because they were in his companion’s name and she in fact
owned them. 	During the hearings, creditors suggested that Debtor
should have listed himself as being in a common law marriage and
therefore should have listed all of his companion’s assets and
liabilities. 	Debtor testified that although they live as
married, there was never any intention to actually be married and
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that his attorneys had advised him to file as an unmarried
person.
Debtor testified that he forgot to list on Schedule J a
yearly contribution he makes to a medical school in Puerto Rico.
On re-examination, counsel for both creditors pressed Debtor
on specific amounts paid with the $400,000 draw. 	While Debtor
had some general ideas, it became clear that he really did not
know the specifics. 	Debtor’s counsel attempted to call Ms.
Lorina Quiroz, Debtor’s companion, as a witness to answer these
questions. 	She had not been listed on the witness list, however,
and the creditors objected. 	Initially the Court sustained the
creditors’ objections, then recessed to review the situation.
The Court reviewed the pleadings and realized that until the day
before trial, the only issue was that of excess income and relief
under Section 707(a). 	There would have been no need for Ms.
Quiroz to testify regarding expenses, thus reasonable that she
had not been on the witness list. 	The Court went back into
session and announced that it had reconsidered and would allow
Ms. Quiroz to testify. 	The parties all agreed to continue the
hearing to allow her to be deposed, and allowed the scope to be
anything relevant to bad faith as well as the disposition of the
$400,000. 	The final hearing was continued to October 14, 2010.
On October 14, 2010 the Court resumed the final hearing.
The first matter of business was a stipulated admission of
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deposition exhibits 26 through 32. 	Ms. Lorina Quiroz then
testified. 	She does not consider herself married to Debtor,
although in certain social circumstances they refer to each other
as spouses. 	Debtor has filed tax returns as a single person.
Ms. Quiroz pays all bills and takes care of everything related to
the “account.” 	Neither Debtor nor Ms. Quiroz may sign each
other’s checks. 	Every month Debtor deposits an amount into her
account, usually $20,000, and she pays the bills, mortgages,
utilities, etc. 	Sometimes she writes a check to cash and gives
it to one of the children to cash and buy groceries and return
the excess cash to her. 	She keeps all of her receipts. 	She has
a savings account attached to her checking account that has about
$100 in it. 	She has no other accounts. 	Neither she nor Debtor
gamble. 	Sometimes Debtor will transfer additional amounts, as
needed, during the month. 	On cross-examination Ms. Quiroz was
asked if she knew if Debtor filed gift tax returns for his gifts
to her. 	She responded that she did not know, but assumed not
because the transfers were not gifts, they were to pay “his
household expenses, our household expenses.”
Ms. Quiroz had prepared a schedule that listed all
disbursements from the $400,000. 	It was admitted as Exhibit A.
The schedule totaled $407,000. 	She testified that, even with
these payments, Debtor was still behind on a vehicle with GMAC
and with Heritage, the second mortgage on Debtor’s house.
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She testified that Debtor had not transferred any assets to
her, other than the money into her account, before his Chapter 7.
She also testified that he had not transferred anything to her to
“hide” assets from the Court or creditors.
The Court found Ms. Quiroz to be completely credible and
forthright in her testimony. 	She is intelligent, well organized,
and very capable in dealing with ordinary financial matters. 	The
Court also found Debtor to be completely credible, although
confused on some matters, particularly his own financial affairs.
He no doubt relies on Ms. Quiroz to handle things, and this
appears to have worked out sufficiently in the past for him to
have a continuing reasonable basis that things are being dealt
with financially. 	Although normally a debtor would usually keep
track of his or her own affairs, he relied on her and she appears
to have done the job. 	The Court had no sense that Debtor, or for
that matter Ms. Quiroz, had attempted to hide assets from the
Court or creditors, or had attempted to hide transactions that
would result in recoveries by a trustee. 	Both seemed completely
honest. 	The Court also finds that Debtor appeared, and actually
admitted, that the financial matters over the last year have
caused him great stress and embarrassment, and this may have
impeded his ability to be more effective in the preparation of
his bankruptcy. 	It is also apparent that he relied on his
counsel, perhaps more than he should have, but in a way which was
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12 The Court will use the term “business debtor” as
interchangeable with “non-consumer debtor.”
Page -21-
not unreasonable under the circumstances. 	In sum, the Court
found Debtor to be an honest debtor deserving of bankruptcy
relief.
In addition, the Court finds that Debtor has been an
employee or independent contractor at all relevant times, first
for Lobera Imaging and now for his current employer. 	He himself
is not a “business.” 	Debtor does not have business assets, other
than some small amount of used office equipment. 	He has an
employment contract which is obviously not assignable under
Section 365(c)(1)(A), and no other business contracts or leases.
He has no business to reorganize. 	He chose to liquidate.
DISCUSSION
Before launching into the details, the Court will review
some basic bankruptcy definitions and processes. 	“The term
‘consumer debt’ means debt incurred by an individual primarily
for a personal, family, or household purpose.” 	11 U.S.C. 101(8).
A debtor’s debts are “primarily consumer debts” if they exceed
fifty percent of the total debt. 	Stewart v. United States
Trustee (In re Stewart), 175 F.3d 796, 808 (10 th Cir. 1999).
Consequently, the entire universe of debtors consists of consumer
debtors and non-consumer debtors 12 . 	In this case Debtor’s debts
are not primarily consumer debts.
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13 Debtor is not a farmer or a municipality and is therefore
not eligible to file a Chapter 9 or 12 case. 	Sections 109(c),
(f). 	Debtor has too much unsecured debt for Chapter 13. 	Section
109(e).
Page -22-
Section 301(a) describes how a voluntary case is initiated:
“A voluntary case under a chapter of this title is commenced by
the filing with the bankruptcy court of a petition under such
chapter by an entity that may be a debtor under such chapter.”
The term “entity” includes a “person.” 	Section 101(15). 	The
term “person” includes an “individual.” 	Section 101(41). 	A
“petition” is the document filed with the court to commence the
case. 	Section 101(42).
Section 109 determines what entities may file under what
chapters. 	Section 109(b) states that “A person may be a debtor
under chapter 7 of this title only if such person is not–
[certain things not relevant to this case, e.g., a foreign bank].
Section 109(d) states that “Only a railroad, [or] a person that
may be a debtor under chapter 7 of this title (except a
stockbroker or a commodity broker) ... may be a debtor under
chapter 11 of this title.” 	Sections 109(b) and 109(d) have no
additional requirements to file a chapter 7 or 11. 13 	See Toibb
v. Radloff, 501 U.S. 157, 159-60 (1991)(The Supreme Court
resolved a conflict between the Courts of Appeals on whether an
individual debtor not engaged in business was eligible to
reorganize under Chapter 11, citing In re Toibb, 902 F.2d 14 (8 th
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14 But, a chapter 11 plan must be proposed in good faith to
(continued...)
Page -23-
Cir. 1990)(which upheld dismissal of nonbusiness debtor) as
conflicting with In re Moog, 774 F.2d 1073 (11 th Cir. 1985)(which
allowed nonbusiness debtor to pursue Chapter 11)). 	The Supreme
Court applied the Bankruptcy Code as written:
In our view, the plain language of the Bankruptcy
Code disposes of the question before us. 	Section 109,
11 U.S.C. § 109, defines who may be a debtor under the
various chapters of the Code. ...
The Code contains no ongoing business requirement
for reorganization under Chapter 11, and we are loath
to infer the exclusion of certain classes of debtors
from the protections of Chapter 11, because Congress
took care in § 109 to specify who qualifies-and who
does not qualify-as a debtor under the various chapters
of the Code. 	Section 109(b) expressly excludes from
the coverage of Chapter 7 railroads and various
financial and insurance institutions. 	Only
municipalities are eligible for the protection of
Chapter 9. § 109(c). 	Most significantly, § 109(d)
makes stockbrokers and commodities brokers ineligible
for Chapter 11 relief, but otherwise leaves that
Chapter available to any other entity eligible for the
protection of Chapter 7. 	Congress knew how to restrict
recourse to the avenues of bankruptcy relief; it did
not place Chapter 11 reorganization beyond the reach of
a nonbusiness individual debtor.
Toibb, 501 U.S. at 160-61.
Furthermore, a chapter 7 or 11 debtor need not allege
insolvency. 	Green v. Staples (In re Green), 934 F.2d 568, 572
(4 th Cir. 1991). 	Compare Section 109(c)(3) (A municipality may
be a chapter 9 debtor if and only if insolvent.) 	Similarly, a
chapter 7 or 11 debtor need not allege that the filing of the
petition 14 was in good faith. 	Compare Section 1325(a)(7) (The
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14 (...continued)
be confirmable. 	Section 1129(a)(3).
15 As discussed below, a consumer debtor must also satisfy
section 707(b) which requires the court to examine a debtor’s
good faith in certain circumstances.
Page -24-
Court confirms a chapter 13 plan if “the action of the debtor in
filing the petition was in good faith.”). 	See also Green, 934
F.2d at 572 (Section 109 has no reference to anticipated income).
The Court therefore finds that there is no express requirement in
the Bankruptcy Code of insolvency or good faith to file a non-
consumer 15 chapter 7 case and a bankruptcy court should not
impose these requirements when Congress did not.
Debtor has elected to file a petition under chapter 7. 	GRMC
and Barton have moved to dismiss the case for cause under section
707(a), which provides:
The court may dismiss a case under this chapter only
after notice and a hearing and only for cause,
including--
(1) unreasonable delay by the debtor that is
prejudicial to creditors;
(2) nonpayment of any fees or charges required under
chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case to file,
within fifteen days or such additional time as the
court may allow after the filing of the petition
commencing such case, the information required by
paragraph (1) of section 521(a), but only on a motion
by the United States trustee.
“Cause” is not defined by the bankruptcy code. 	And, the word
“including” is not limiting. 	Section 102(3) (“In this title
‘includes’ and ‘including’ are not limiting.); see also Padilla,
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16 The 1984 statute did not define “substantial abuse.” 	This
omission left the definition up to the courts, which resulted in
hundreds of attempts to define it, usually by complicated many-
part tests. 	One common element to all the tests, however, was
the debtor’s ability to repay debts through a plan.
Page -25-
222 F.3d at 1191. 	Therefore, the first task for the Court is to
determine what constitutes “cause” for dismissal. 	The Court will
first discuss things which are not “cause” under section 707(a).
Then the Court will suggest what is “cause” under section 707(a).
A. 	Things which are not “cause.”
1. 	Excess disposable income is not “cause.”
Barton, in its joinder brief, argues that despite Debtor’s
status as a non-consumer debtor, he is abusing the bankruptcy
system and process by filing chapter 7 when he has considerable
excess income from which he could repay creditors. 	GRMC’s Motion
made the same argument.
In 1984, Congress amended the Bankruptcy Code and added a
new section 707(b) to address concerns that consumer debtors were
abusing the system. 	Comment, The Case Against “Bad Faith”
Dismissals of Bankruptcy Petitions under Section 707(a), 59 Am.
U. L. Rev. 685, 693-94 (2010). 	It specifically applied only to
consumer debtors whose filing of a chapter 7 was viewed as a
“substantial abuse 16 ” of the system. 	Id. at 694. 	It allowed the
court to dismiss or allow conversion to a Chapter 11 or 13 case
if it found substantial abuse. 	Id.
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Page -26-
In 2005, Congress passed the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005 (“BAPCPA”), Pub. L. No. 109-8,
119 Stat. 23 (2005) which further amended section 707(b). 	That
section now reads, in part:
(b)(1) After notice and a hearing, the court, on its
own motion or on a motion by the United States trustee,
trustee (or bankruptcy administrator, if any), or any
party in interest, may dismiss a case filed by an
individual debtor under this chapter whose debts are
primarily consumer debts, or, with the debtor's
consent, convert such a case to a case under chapter 11
or 13 of this title, if it finds that the granting of
relief would be an abuse of the provisions of this
chapter. 	In making a determination whether to dismiss
a case under this section, the court may not take into
consideration whether a debtor has made, or continues
to make, charitable contributions (that meet the
definition of “charitable contribution” under section
548(d)(3)) to any qualified religious or charitable
entity or organization (as that term is defined in
section 548(d)(4)).
(2)(A)(I) In considering under paragraph (1) whether
the granting of relief would be an abuse of the
provisions of this chapter, the court shall presume
abuse exists if the debtor's current monthly income
reduced by [certain expenses and payments of priority
claims and secured debts], and multiplied by 60 is not
less than the lesser of--
(I) 25 percent of the debtor's nonpriority
unsecured claims in the case, or $7,025, whichever
is greater; or
(II) $11,725.
...
(3) In considering under paragraph (1) whether the
granting of relief would be an abuse of the provisions
of this chapter in a case in which the presumption in
paragraph (2)(A)(I) does not arise or is rebutted, the
court shall consider--
(A) whether the debtor filed the petition in bad
faith; or
(B) the totality of the circumstances (including
whether the debtor seeks to reject a personal
services contract and the financial need for such
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17 The statute then allows the debtor to attempt to rebut the
presumption, but those provisions are irrelevant for this
opinion.
Page -27-
rejection as sought by the debtor) of the debtor's
financial situation demonstrates abuse.
The current Section 707(b) allows the Court to dismiss for
“abuse” instead of “substantial abuse.” 	And, the current statute
sets out a mechanical test (“means test”) for abuse: if current
monthly income less certain current items that are specifically
allowed exceeds a certain dollar amount or percentage of
unsecured debt, the Court must presume abuse 17 . 	By its literal
terms, however, Section 707(b) applies to consumer debtors only.
In fact, the Supreme Court referred to Section 707(b) as the
“heart of [BAPCPA’s] consumer bankruptcy reforms.” 	Ransom v. FIA
Card Services, ___ U.S. ___, 131 S.Ct. 716, 721 (2011)(citing
H.R. Rep. No. 109-31, pt. 1, p.2 (2005)).
This Court finds that the language of Section 707 is plain,
clear and unambiguous. 	Section 707(a) applies to all Chapter 7
debtors and allows the court to dismiss for “cause.” 	Section
707(b) applies only to consumer debtors and allows the court to
dismiss for “abuse.” 	A non-consumer debtor’s case can only be
dismissed for “cause” while a consumer debtor’s case can be
dismissed for “cause” or “abuse.” 	See In re Adolph, 441 B.R.
909, 913 (Bankr. N.D. Ill. 2011)(After BAPCPA this is the most
reasonable interpretation of Section 707). 	This interpretation
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Page -28-
of the statute also comports with Congress’ intent to stop
consumer abuse.
[I]n interpreting a statute a court should always turn
first to one, cardinal canon before all others. 	We
have stated time and again that courts must presume
that a legislature says in a statute what it means and
means in a statute what it says there. 	See, e.g.,
United States v. Ron Pair Enterprises, Inc., 489 U.S.
235, 241-242, 109 S.Ct. 1026, 1030-1031, 103 L.Ed.2d
290 (1989); United States v. Goldenberg, 168 U.S. 95,
102-103, 18 S.Ct. 3, 4, 42 L.Ed. 394 (1897); Oneale v.
Thornton, 6 Cranch 53, 68, 3 L.Ed. 150 (1810). 	When
the words of a statute are unambiguous, then, this
first canon is also the last: “judicial inquiry is
complete.” 	Rubin v. United States, 449 U.S. 424, 430,
101 S.Ct. 698, 701, 66 L.Ed.2d 633 (1981); see also Ron
Pair Enterprises, supra, 489 U.S., at 241, 109 S.Ct.,
at 1030.
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
See also Lamie v. United States Trustee, 540 U.S. 526, 534
(2004):
It is well established that “when the statute's
language is plain, the sole function of the courts-at
least where the disposition required by the text is not
absurd-is to enforce it according to its terms.”
Hartford Underwriters Ins. Co. v. Union Planters Bank,
N. A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1
(2000) (internal quotation marks omitted) (quoting
United States v. Ron Pair Enterprises, Inc., 489 U.S.
235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), in
turn quoting Caminetti v. United States, 242 U.S. 470,
485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)).
In this case, the Court believes the inquiry is complete.
Section 707(b) does not apply to non-consumer debtors.
If the Court were to apply 707(b) to non-consumer debtors it
would have to rewrite the statute to omit the term “whose debts
are primarily consumer debts” found in Section 707(b)(1). 	Courts
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Page -29-
may not rewrite or ignore the plain text of a statute even if
they believe the statute is susceptible to improvement.
Commissioner v. Lundy, 516 U.S. 235, 252 (1996). 	Furthermore, it
is a fundamental rule that a court should give effect to every
clause and word in a statute. 	Duncan v. Walker, 533 U.S. 167,
174 (2001)(citing United States v. Menasche, 348 U.S. 528, 538-39
(1955)). 	And, the court should be especially unwilling to ignore
a term that occupies a pivotal place in the statutory scheme.
Id. 	BAPCPA was designed to prevent consumer abuse and the heart
of that scheme was Section 707. 	This Court should be especially
unwilling to ignore the term “whose debts are primarily consumer
debts” in Section 707(b) because that would defeat the purpose of
the statute.
Furthermore, a court should not expand application of a
statute beyond the range where Congress indicated it would stop.
62 Cases, More or Less, Each Containing Six Jars of Jam v. United
States, 340 U.S. 593, 600 (1951). 	Nor should a court distort the
ordinary meaning of a statute. 	Id. 	The ordinary meaning of
Section 707(b) involves consumer debtors only. 	The Court should
not expand application to non-consumer debtors.
Finally, if Congress intended 707(b) to apply to non-
consumer debtors it would have said so. 	And, if that had been
Congress’ intention, there would not even be a need for section
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Page -30-
707(b); section 707(a) could simply say that a case could be
dismissed for cause or abuse. 	It did not.
2. 	Bad faith is not “cause.”
A. 	Bad faith is not listed as a cause in Section 707(a).
The only mention of “bad faith” in all of Chapter 7 is in
Section 707(b)(3)(A). 	Its location indicates that the analysis
for bad faith arises only in a consumer debtor case when the
presumption of abuse does not arise or is rebutted. 	If Congress
intended “bad faith” to be a reason for dismissal of any Chapter
7 case, it would have added that term to section 707(a) which
applies to all chapter 7 cases. 	It did not. 	When Congress uses
a term in one place in a statute and not in another, the omission
is deemed to be intentional.
It is well settled that “ ‘[w]here Congress includes
particular language in one section of a statute but
omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.’ ”
Bates v. United States, 522 U.S. 23, 29-30, 118 S.Ct.
285, 139 L.Ed.2d 215 (1997) (quoting Russello v. United
States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17
(1983)).
Duncan, 533 U.S. at 173. 	See also Stephens v. Holbrook (In re
Stephens), 402 B.R. 1, 7 (10th Cir. BAP 2009):
One basic principle of statutory construction is that,
where the legislature includes specific language in one
provision and omits it another, it is presumed that it
acted intentionally with respect to the omission. 	See,
e.g., In re Ballard, 526 F.3d 634, 640 (10th Cir. 2008)
(citing Russello v. United States, 464 U.S. 16, 23, 104
S.Ct. 296, 78 L.Ed.2d 17 (1983)). 	Thus, the Iowa
legislature's inclusion of a residency requirement in
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Page -31-
its personal property exemption statute, while making
no reference to residency in its homestead statute, is
presumed to be intentional. 	In re Francisco, 390 B.R.
700, 703 (10th Cir. BAP 2008).
The entire Bankruptcy Code uses the term “bad faith” in only
three places: 1) involuntary petitions filed in bad faith
(Section 303(i)(2)), 2) bad faith conversions from Chapter 13
(Section 348(f)(2)), and 3) bad faith dismissals of chapter 7
consumer debtors (Section 707(b)(3)(A)). 	Because Congress used
the term “bad faith” elsewhere, the Court must presume that
Congress did not intend it to apply in Section 707(a) where the
term was not used.
B. 	Historically bad faith has not been “cause” to dismiss
a chapter 7 case.
On July 1, 1898, Congress passed Chapter 541, 30 Stat. 544,
“An Act To establish a uniform system of bankruptcy throughout
the United States.” 	(“Act”). 	With various amendments, this was
the law until passage of the Bankruptcy Reform Act of 1978 (Pub.
L. No. 95-598, 92 Stat. 2549 (November 6, 1978)). 	Act Section 4
provided that “Any person who owes debts, except a corporation,
shall be entitled to the benefits of this Act as a voluntary
bankrupt.” 	The statute made no reference to the good or bad
faith of the person filing. 	The only reference to good faith was
in Section 12(d), which allowed the judge to confirm a
composition only if “the offer and its acceptance are in good
faith and have not been made or procured except as herein
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18 The Act did not contain a provision parallel to Code
Section 541(a)(5)(A), which includes bequests received within 180
days of filing as property of the estate.
Page -32-
provided, or by any means, promises, or acts herein forbidden.”
Therefore, good faith was simply not an issue for a liquidating
debtor. 	See Bank of Elberton v. Swift, 268 F. 305, 305-06 (5th
Cir. 1920)(Act case). 	In Swift the Bank moved to set aside an
adjudication of Swift as a voluntary bankrupt. 	“At the time the
bankrupt filed his petition his mother was 98 years old and at
the point of death, and that she actually died shortly
thereafter.” 	Id. at 306. 	The bankrupt knew that he would be
left a legacy of about $20,000. 18 	Id. 	His total assets were a
watch and wearing apparel worth less than $100. 	Id. 	The
District Court denied the motion to dismiss. 	Id. 	The Fifth
Circuit affirmed. 	Id. 	Citing the Act, the court stated that the
statute provided that “any qualified person may file a petition
to be adjudged a voluntary bankrupt,” and once the case is filed,
the bankrupt is entitled to be discharged except for acts
specifically set forth in the Act. 	Id.
It was practically admitted in the oral argument
that there was no remedy within the letter of the act,
but it was earnestly insisted that appellant's petition
showed an attempt to violate its spirit and to use the
process of the court to perpetrate a fraud. 	It was not
denied that a party might take advantage of a voluntary
proceeding in bankruptcy for the very purpose of having
any property he might accumulate thereafter relieved
from his debts, but it was said that there must be a
line drawn between a general purpose of that kind and a
specific intent, such as is alleged to exist here,
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Page -33-
where the acquisition of the property by appellee
followed so closely in time upon the filing of his
petition. 	To that argument it need only be replied
that the law authorizes the petition to be filed and
adjudication made, and a discharge granted. The act
fixes the rights of the parties. 	It has carefully
enumerated the things that can be done and the things
that cannot be done, and it is not for the courts to
add to the one or to the other. 	Congress enacted the
bankruptcy statute in the exercise of a public policy,
for the benefit, not of debtors and creditors, but of
society at large. 	It realized, of course, that
unscrupulous and dishonest men would take advantage
wherever they could of its provisions. Equally of
course, it was not intended to enable a debtor to rush
into bankruptcy just in time to prevent his creditors
from satisfying their claims out of property he was
about to come into possession of. 	But the difficulty
in any law upon so complicated a subject as business
relations is to make it cover every particular case
that may possibly arise. It does not seem to us that
the act takes into account the motives of creditors in
involuntary proceedings, or of debtors in voluntary
proceedings; but instead of that, in view of the fact
that such a practical subject as business relations
between debtor and creditor is being dealt with, it
concerns itself rather with conditions as they exist,
and undertakes to fix definitely the obligations of the
debtor and the rights and remedies of the creditor. In
our judgment, it was thought best by Congress to
prescribe general rules, which would usually promote
satisfactory results, notwithstanding the fact that in
isolated instances it would be difficult, if not
impossible, to attain to the high standards of exact
justice.
Id. at 307-08. 	See also Alabama v. Montevallo Mining Co. (In re
Montevallo Mining Co.), 278 F. 989, 990 (M.D. Ala. 1922):
The Montevallo Company had the undoubted right
under the Bankruptcy Law to file its petition in
bankruptcy and to be adjudged a bankrupt, whether
solvent or insolvent, and whether its purpose was pure
or impure, fraudulent or honest. The motive with which
a lawful act is done is of no controlling importance,
for it is fundamentally sound to say that a lawful act
cannot be rendered unlawful, although prompted by an
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Page -34-
unworthy motive. Numerous authorities sustain this
proposition. In this case, if the bankrupt, however
solvent, or however impure its motive may have been, or
whatever may have been the actuating purpose, saw fit
to surrender its assets into the custody and
jurisdiction of the court for the benefit of its
creditors, the creditors as a matter of law have no
cause for complaint.
Cf. Green, 934 F.2d at 570:
Courts have been grappling with the issue of what
constitutes “substantial abuse” for purposes of Section
707(b) of the Bankruptcy Code since 1984. 	In that year
Congress amended the 1978 Bankruptcy Code to add, inter
alia, Section 707(b) to the preexisting Section 707(a)
on dismissal of Chapter 7 petitions. 	Bankruptcy
Amendments and Federal Judgeship Act of 1984, Pub.L.
No. 98-353, 98 Stat. 355 (1984) (codified as amended in
scattered sections of 11 U.S.C. and 28 U.S.C. (1982)).
Section 707(b) reads as follows:
(b) After notice and a hearing, the court, on its own
motion or on a motion by the United States trustee, but
not at the request or suggestion of any party in
interest, may dismiss a case filed by an individual
debtor under this chapter whose debts are primarily
consumer debts if it finds that the granting of relief
would be a substantial abuse of the provisions of this
chapter. 	There shall be a presumption in favor of
granting the relief requested by the debtor.
11 U.S.C.A. § 707(b) (West Supp.1990).
Section 707(b) is one of several consumer credit
amendments Congress added to the Code in response to
pressure from retailers and consumer lenders who
complained of an increasing number of Chapter 7
bankruptcies being filed by non-needy debtors. Prior to
1984, debtors enjoyed a virtually unfettered right to a
“fresh start” under Chapter 7, in exchange for
liquidating their nonexempt assets for the benefit of
their creditors. 	Section 707(b) introduced an
additional restraint upon a debtor's ability to gain
Chapter 7 relief, by allowing a bankruptcy court to
deal equitably with the situation in which an
unscrupulous debtor seeks to gain the court's
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Page -35-
assistance in a scheme to take unfair advantage of his
creditors.
(Footnote omitted.) 	And compare In re Victory Const. Co., Inc.,
9 B.R. 549, 551-52 (Bankr. C.D. Cal. 1981), vacated as moot, 37
B.R. 222 (9 th Cir. BAP 1984):
“Good faith” as a standard of confirmation in
debtor rehabilitation or reorganization proceedings, or
as a condition to the debtor's right to file and
maintain proceedings aimed at rehabilitation or
reorganization, has appeared in many provisions of the
Bankruptcy Act of 1898; and the courts have explored
the meaning of the term in a wide variety of fact
situations and circumstances. While many of the cases
merely use the term or refer to “good faith” provisions
of the statutes without contributing to an
understanding of its meaning, a large number of cases
attempt and make a meaningful analysis and contribute
to an understanding of the concept. ...
As the cases disclose, however, judicial analysis
of the meaning, scope, and dimension of “good faith” in
rehabilitation or reorganization cases has not
differentiated between the “good faith” required to
confirm a plan of arrangement, and the “good faith”
required at the outset as a condition of the right to
file and maintain the proceeding. 	Moreover, an
understanding of the cases requires some knowledge of
the provisions of the statutes to which they refer and
an appreciation of the purposes and philosophies
embodied in these laws.
In conclusion, historically, good faith was required only in
reorganization cases, and then in 1984 Congress added a good
faith requirement for consumer debtors in liquidation
proceedings.
C. 	Statutory interpretation suggests that bad faith is not
“cause”.
Section 707(a) provides:
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Page -36-
The court may dismiss a case under this chapter only
after notice and a hearing and only for cause,
including--
(1) unreasonable delay by the debtor that is
prejudicial to creditors;
(2) nonpayment of any fees or charges required under
chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case to file,
within fifteen days or such additional time as the
court may allow after the filing of the petition
commencing such case, the information required by
paragraph (1) of section 521(a), but only on a motion
by the United States trustee.
Congress defined “cause” by listing three examples of cause.
This suggests that “cause” is a class of things or items that
have some relationship to each other. 	If this were not the
intent of Congress, the statute could simply state “The court may
dismiss a case under this chapter only after notice and a hearing
for any reason.” 	Because the statute was not written this way,
Congress must have had an idea of what “cause” was.
One approach to analyze this statute is application of the
statutory construction tool of ejusdem generis.
Meaning literally, “of the same kind”, the doctrine,
often called Lord Tenterden's Rule, is of ancient
vintage, going back to Archbishop of Canterbury's Case,
2 Co Rep 46a, 76 Eng Repr 519 (1596). 	Where general
words follow specific words in a statutory enumeration,
the general words are construed to embrace only objects
similar in nature to those objects enumerated by the
preceding specific words. 	Where the opposite sequence
is found, i.e., specific words following general ones,
the doctrine is equally applicable, and restricts
application of the general term to things that are
similar to those enumerated. 	Ejusdem generis has been
called a common drafting technique designed to save the
legislature from spelling out in advance every
contingency in which the statute could apply.
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Page -37-
Norman J. Singer and J.D. Shambie Singer, Sutherland Statutory
Construction § 47:17 (7th ed.)(footnotes omitted).
The doctrine of ejusdem generis applies when the
following conditions exist: (1) the statute contains an
enumeration by specific words; (2) the members of the
enumeration suggest a class; (3) the class is not
exhausted by the enumeration; (4) a general reference
supplementing the enumeration, usually following it;
and (5) there is not clearly manifested an intent that
the general term be given a broader meaning than the
doctrine requires. ...
A “class” is a conceptual creation encompassing
numerous items with similar characteristics. 	Thus “a
class” is a generalization which associates items for a
particular purpose. 	Without some objective
relationship, classification is arbitrary and
meaningless. 	The purpose for defining the class by
illustrative particularization's accompanied by a
general catchall reference is to determine how
extensively the act was intended or should reasonably
be understood to apply. 	The criterion deemed
applicable for deciding questions of statutory
construction, legislative intent or meaning to others,
is therefore useful as a more precise standard of
judgment for determining what if any other applications
an act should have than those identified in the
enumeration of particulars.
The doctrine of ejusdem generis calls for more
than merely an abstract exercise in semantics and
formal logic. 	It rests on practical insights about
everyday language usage. 	When people list a number of
particulars and add a general reference like “and so
forth” they mean to include by use of the general
reference not everything else but only others of like
kind. 	The problem is to determine what unmentioned
particulars are sufficiently like those mentioned to be
made subject to the act's provisions by force of the
general reference. 	In most instances there is a wide
range of ways in which classes could be defined, any
one of which would embrace all of the members in an
enumeration. 	Germaneness to the subject and purpose of
the statute, viewed in terms of legislative intent or
meaning to others, is the basis for determining which
among various semantically correct definitions of the
class should be given effect.
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19 Section 521(a)(1) states:
(a) The debtor shall--
(1) file--
(A) a list of creditors; and
(B) unless the court orders otherwise--
(i) a schedule of assets and liabilities;
(ii) a schedule of current income and current expenditures;
(iii) a statement of the debtor's financial affairs and, if
section 342(b) applies, a certificate--
(I) of an attorney whose name is indicated on the
petition as the attorney for the debtor, or a
bankruptcy petition preparer signing the petition under
section 110(b)(1), indicating that such attorney or the
bankruptcy petition preparer delivered to the debtor
the notice required by section 342(b); or
(II) if no attorney is so indicated, and no bankruptcy
petition preparer signed the petition, of the debtor
that such notice was received and read by the debtor;
(iv) copies of all payment advices or other evidence of
payment received within 60 days before the date of the
filing of the petition, by the debtor from any employer of
the debtor;
(v) a statement of the amount of monthly net income,
itemized to show how the amount is calculated; and
(vi) a statement disclosing any reasonably anticipated
increase in income or expenditures over the 12-month period
following the date of the filing of the petition[.]
Page -38-
Id. at § 47:18 (footnotes omitted.)
The words Congress used in Section 707(a) are: 1)
unreasonable delay, 2) nonpayment of required court fees, and 3)
failure to file documents required by Section 521(a)(1) 19 . 	The
most obvious common traits of these things is that they all are
post-petition technical and procedural violations that prevent a
prompt presentation of the chapter 7 liquidation case to the
court. 	They also directly impact the court or the creditors in
general. 	Because pre-petition bad acts or intentions by a debtor
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Page -39-
have nothing to do with post-petition technical and procedural
violations they should not be considered cause. 	Any unlisted
ground for “cause” must be consistent with the examples given.
See Kimlinger and Wassweiler, The Good Faith Fable of 11 U.S.C. §
707(a); How Bankruptcy Courts Have Invented a Good Faith Filing
Requirement for Chapter 7 Debtors, 13 Bankr. Dev. J. 61, 97
(1996).
D. 	Cases finding that bad faith is “cause” are not
persuasive.
The cases that find a good faith filing requirement for
Chapter 7 all assume that only a poor, honest and deserving
debtor is entitled to bankruptcy relief. 	Typical language
includes:
[t]he Bankruptcy Code is intended to serve those
persons who, despite their best efforts, find
themselves hopelessly adrift in a sea of debt.
Bankruptcy protection was not intended to assist those
who, despite their own misconduct, are attempting to
preserve a comfortable standard of living at the
expense of their creditors. 	Good faith and candor are
necessary prerequisites to obtaining a fresh start.
The bankruptcy laws are grounded on the fresh start
concept. 	There is no right, however, to a head start.
Zick, 931 F.2d 1124, 1129-30 (citing In re Jones, 114 B.R. 917,
926 (Bankr. N.D. Ohio 1990)(in turn citing Local Loan Co. v.
Hunt, 292 U.S. 234, 244 (1934)). 	These cases also apparently
(and groundlessly) assume that unless the poor debtor is left
destitute he or she is receiving a “head start.” 	Because
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20 Difficult, but not impossible. 	If a debtor were to load
up on exempt assets with an intent to discharge the related
debts, a debtor could receive a head start if the creditors did
not pursue discharge or dischargeability actions.
21 Accord Minnesota Khan, 173 B.R. at 620:
At least as evidenced by the reported caselaw, one sort
of alternative, extra-statutory “cause” is recognized
by many courts: “bad faith” on the part of a debtor
that so taints a filing for Chapter 7 relief that the
debtor is judicially deemed unworthy of receiving any
part of that relief.
(Citations omitted.)
22 Hammonds, 139 B.R. 535 (Bankr. D. Colo. 1992), cited by
Barton, is an example. 	As discussed in more detail below,
Hammonds found an “implicit jurisdictional prerequisite” for
filing any case under the Bankruptcy Code. 	Id. 541. 	The court
cited transfers of property, a “continuing comfortable life-
style”, a deliberate pattern of avoiding a creditor, less than
(continued...)
Page -40-
exemption laws limit the amount of property the debtor carries
into his or her new life, it is difficult 20 to see how anyone
could receive a head start by filing a chapter 7; a debtor ends
up with precisely those assets the legislature declared he or she
was entitled to keep. 	If creditors believe that exemptions are
too generous, they should approach Congress (or their respective
state legislatures), not the courts. 	And, the courts should not
utilize non-statutory barriers to weed out debtors they
personally feel are not deserving of bankruptcy relief. 21 	These
cases also often find that high-income individuals are not poor,
honest and deserving bankruptcy candidates despite difficult
financial situations. 	This Court disagrees with their
conclusions 22 .
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22 (...continued)
full disclosure, and “prior procedural gymnastics in Bankruptcy
Court” as evidence of bad faith. 	Id. 	The Court did not mention
the fact that any of these reasons would have been grounds for
denial of discharge, denying discharge of a debt or terminating
the automatic stay.
23 Zick has been cited by 206 courts as of March 1, 2011.
24 In fact, the opening paragraph of the opinion alone makes
one wonder if the Sixth Circuit understood the concepts involved
in this case. 	931 F.2d at 1125-26. 	First, the court states that
the suit is based on a creditor’s motion to dismiss a chapter 11
bankruptcy under Section 707(a). 	Then, it states that the
creditor objected to the dischargeability of its debt and filed a
motion to dismiss for bad faith. 	The bankruptcy court granted
the motion and the district court affirmed. 	“This appeal from
denial of dischargeability of the debt ensued.” 	Id. (Emphasis
added.) 	It is clear from the rest of the opinion that the Debtor
filed a chapter 7 case that was dismissed. 	Dismissal would have
precluded the need for a determination of dischargeability.
Page -41-
Zick is one of the leading cases cited 23 for the proposition
that there is a good faith filing requirement in Chapter 7.
Zick, however, is not persuasive 24 . 	Zick cites six cases for its
proposition. 	The Court will examine each in turn.
First, Zick cites In re Sky Group Int’l, Inc., 108 B.R. 86
(Bankr. W.D. Pa. 1989) for the proposition that “a showing of bad
faith can result in dismissal under 11 U.S.C. § 707(a).” 	In
fact, Sky Group was an involuntary case and the issue before the
Court was whether the involuntary petition had been filed in bad
faith. 	Id. at 90. 	The Court found that it was not brought in
bad faith, and the case was not dismissed. 	Id. 	Sky Group also
cites In re Khan, 35 B.R. 718 (Bankr. W.D. Ky. 1984)(hereafter
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25 As distinguished from Minnesota Khan. 	Kentucky Khan is
discussed in detail below.
Page -42-
“Kentucky Khan 25 ”) for the proposition that “good faith is an
implicit jurisdictional requirement for the bringing of a chapter
7 case.” 	In sum, Zick relied on dicta.
Second, Zick cites In re Maide, 103 B.R. 696 (Bankr. W.D.
Pa. 1989). 	Mr. Maide was a non-consumer debtor that could not be
dismissed under Section 707(b). 	Id. at 697 n.4. 	The court noted
that Mr. Maide earned over $5,050 per month and that it did not
approve of the way he spent his money. 	Id. at 697-98. 	The court
also found that he had not cooperated with the trustee and failed
to obey a court order directing him to amend schedules. 	Id. at
699. 	“This Debtor who has acted in bad faith and is able to meet
his obligations cannot use this court as an escape hatch simply
because he has primarily business debts.” 	Id. at 700. 	The Maide
court could have properly dismissed for delay or failure to obey
a court order. 	This case is not very authoritative for Zick.
Third, Zick cites In re Brown, 88 B.R. 280 (Bankr. D. Hi.
1988) for the proposition that good faith is an “implicit
jurisdictional requirement.” 	Brown, in turn, cites Kentucky Khan
for this statement. 	The court then stated, without any
authority, that “Congress never intended that bankruptcy be a
refuge for the unscrupulous and cunning individual.” 	Id. at 284.
The Court found that Dr. Brown was not a poor, unfortunate debtor
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26 Others view bankruptcy as an appropriate remedy for
negligence. 	See, e.g., In re Khan, 172 B.R. 613, 627 (Bankr. D.
Minn. 1994)(“Under American law, bankruptcy has always been a
haven from the financial consequences of negligence.”)
27 It is not clear to this Court how this evidentiary matter
is relevant to the issue of a good faith filing requirement.
Page -43-
in need of a “fresh start.” 	Id. 	Rather, he was a capable doctor
able to earn substantial income and if only he would adjust his
life style he could pay a portion of his debt to his primary
creditor, the “unfortunate victim” of his negligence 26 . 	Id. 	In
sum, Brown adds nothing to Zick’s persuasiveness.
Fourth, Zick cites In re Bingham, 68 B.R. 933 (Bankr. M.D.
Pa. 1987) for the proposition that once debtor’s good faith is
questioned, the debtor bears the burden of proving good faith 27 .
Bingham, like Brown, cites Kentucky Khan for the “implicit
jurisdictional requirement” of a chapter 7 case, id. at 935 n.2,
but does not otherwise address a good faith filing requirement.
Interestingly, Bingham specifically finds that timing a
bankruptcy filing to avoid application of an amendment to the
code did not amount to bad faith. 	Id. at 936.
Fifth, Zick cites In re Kragness, 63 B.R. 459 (Bankr. D. Or.
1986) for the proposition that the concept of good faith is not
open to serious debate. 	Kragness does state that. 	Id. at 465.
However, it continues:
“Good faith” must, however, be defined in the context
of a Chapter 7 proceeding such as the instant case. A
different level of conduct may be required for debtors
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Page -44-
in a Chapter 7 liquidation where all non-exempt assets
are surrendered to a trustee for liquidation as opposed
to Chapter 11 and Chapter 13 cases where the debtor
normally remains in possession of non-exempt assets.
11 U.S.C. 727 sets forth certain acts, conduct or
omissions, by a debtor, which may result in the total
denial of discharge in a Chapter 7 case. 	Arguably, any
of these acts might be considered cause for dismissal
of a bankruptcy case under 11 U.S.C. 707. 	In addition,
11 U.S.C. 521 prescribes certain duties that a debtor
must perform. 	The failure, on the part of the debtor,
to perform any of the duties enumerated in Section 521
may be grounds for dismissal of a Chapter 7 bankruptcy.
The majority of the cases cited by plaintiff
appear to be Chapter 11 or Chapter 13 cases. 	In
addition, many of the cases cited by plaintiff can be
classified by factual patterns. 	In some of the cases
where the court dismissed the proceedings on a finding
of bad faith, it appeared that the debtor was merely
stalling or attempting to obstruct judicial process.
Furness v. Lilienfield, 35 B.R. 1006 (D. Md. 1983), In
re St. Matthew Lutheran Church, 1 C.B.C.2d 682 (Bankr.
C.D. Cal. 1986), In re Erickson, 26 B.R. 973 (Bankr.
C.D. Cal. 1983). 	In other cases, there was some
evidence of fraudulent conduct on the part of the
debtor in concealing assets or in forming a new “debtor
entity” on the eve of bankruptcy to be the bankruptcy
debtor thereby frustrating the attempts of creditors to
reach the principals of the debtor entity or the real
debtors. 	In re O'Loughlin, 40 B.R. 707 (Bankr. D.
Mass. 1984), In re American Property Corp., 44 B.R. 180
(Bankr. M.D. Fla. 1984), In re Herndon Executive
Center, Inc., 36 B.R. 803 (Bankr. M.D. Fla. 1984).
In this case, plaintiff's sole ground for
dismissal is that defendants filed their petition to
take advantage of the protection provided by 11 U.S.C.
541(a)(5)(A) and 11 U.S.C. 541(c)(2) to protect the
interests of Aileen R. Kragness in Hawaiian
testamentary trusts. 	There are no allegations that the
debtors have failed to perform their duties under
Section 521 or that they have acted to conceal or
transfer assets, that they have made false oaths, that
they have formed corporate shells or other entities to
frustrate their creditors, etc.
Id. at 465. 	The court then commented that it “has failed to
uncover any cases where a bankruptcy case was dismissed where the
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28 In Kragness, 63 B.R. at 465-66, the court stated that
“[Kentucky] Khan is of questionable precedential value since it
was remanded by the Sixth Circuit Court of Appeals.” 	“Since we
are unable to discern from the bankruptcy court's opinion the
factors that the court relied on in dismissing Khan's Chapter 7
petitions, we remand the case to the district court with
instructions to remand to the bankruptcy court for
clarification.” 	751 F.2d at 164. 	And, after the Sixth Circuit’s
remand there are no further published opinions.
Page -45-
debtors' sole motivation was to avail themselves of legitimate
protection afforded by the Bankruptcy Code.” 	Therefore, the
court did not find bad faith in this case, and Zick’s reliance
was on dicta. 	The Kragness court also refused to dismiss the
case because the debtors’ debts were not primarily consumer debts
and it believed that Section 707(b) was the sole remedy for
dismissal for ability to pay debts. 	Id. at 466.
Sixth, and finally, Zick cites Kentucky Khan, 35 B.R. 718
(W.D. Ky.) [sic, should be (Bankr. W.D. Ky. 1984)], remanded for
clarification 28 , 751 F.2d 162 (6th Cir. 1984) for the proposition
that although Chapter 7 does not expressly require good faith,
there is an “implicit jurisdictional requirement.” 	Dr. Khan and
his professional corporation were dismissed from a Chapter 11
case on November 10, 1983 for “bad faith” and “abuse of process.”
35 B.R. at 718. 	He and the corporation refiled a Chapter 7 case
shortly thereafter. 	On December 5, 1983, the court, sua sponte,
entered orders to show cause why the cases should not be
dismissed, “act[ing] unilaterally to protect [the court’s]
jurisdictional integrity.” 	Id. 	The Court then, by reference,
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Page -46-
incorporated all of its findings of fact and conclusions of law
from the Chapter 11 dismissal. 	Id. 	At the show cause hearing,
Khan argued that the good faith requirement for Chapter 11 did
not transfer into Chapter 7, or, if it did, it should be some
lesser standard. 	Id. at 719. 	The court rejected this argument
outright, stating that “[i]t is at odds with a long line of
Supreme Court pronouncements regarding the scope and purpose of
bankruptcy relief, and would make a mockery of the Code.” 	Id.
The court cited six United States Supreme Court cases in support
of its statement. 	Id. 	The court then acknowledged that the Code
does not expressly require “good faith” but declared that it was
an implicit jurisdictional requirement. 	Id.
First, Kentucky Khan cites Brown v. Felsen, 442 U.S. 127
(1979). 	In that case, the Supreme Court explained:
Through discharge, the Bankruptcy Act provides “a new
opportunity in life and a clear field for future
effort, unhampered by the pressure and discouragement
of preexisting debt,” Local Loan Co. v. Hunt, 292 U.S.
234, 244, 54 S.Ct. 695, 699, 78 L.Ed. 1230 (1934). 	By
seeking discharge, however, respondent placed the
rectitude of his prior dealings squarely in issue, for,
as the Court has noted, the Act limits that opportunity
to the “honest but unfortunate debtor.” 	Ibid. 	Section
14 of the Act, 11 U.S.C. § 32, specifies that a debtor
may not obtain a discharge if he has committed certain
crimes or offenses. 	Section 17a, the focus of this
case, provides that certain types of debts are not
affected by a discharge. 	These include, under §
17a(2), “liabilities for obtaining money or property by
false pretenses or false representations . . . or for
willful and malicious conversion of the property of
another” and, under § 17a(4), debts that “were created
by his fraud, embezzlement, misappropriation, or
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Page -47-
defalcation while acting as an officer or in any
fiduciary capacity.”
442 U.S. at 128-29. (Footnote omitted.) 	Basically, the Supreme
Court is stating the obvious: if a debtor has committed acts
before bankruptcy that result in nondischargeable debts, then the
bankruptcy will not discharge them. 	Despite Khan’s
characterization, this case does not discuss eligibility to file,
good faith, or the court’s jurisdiction. 	And, it does not end up
dismissing the case.
Second, Kentucky Khan cites Bruning v. United States, 376
U.S. 358 (1964). 	In Bruning the parties were arguing over
whether interest should accrue on nondischargeable tax debts.
Id. at 361. 	The Supreme Court ruled in favor of the government:
We find no indication in the wording or history of s
6873(a) that the section was meant to limit the
Government's right to continuing interest on an
undischarged and unpaid tax liability. 	Nor is
petitioner aided by the now-familiar principle that one
main purpose of the Bankruptcy Act is to let the honest
debtor begin his financial life anew. 	As the Court of
Appeals noted, s 17 is not a compassionate section for
debtors. Rather, it demonstrates congressional judgment
that certain problems-e.g., those of financing
government-override the value of giving the debtor a
wholly fresh start. 	Congress clearly intended that
personal liability for unpaid tax debts survive
bankruptcy. 	The general humanitarian purpose of the
Bankruptcy Act provides no reason to believe that
Congress had a different intention with regard to
personal liability for the interest on such debts.
Id. at 361. (Footnote omitted.) 	Despite Khan’s characterization,
this case does not discuss eligibility to file, good faith, or
the court’s jurisdiction. 	Nor does it dismiss a debtor’s case.
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Third, Kentucky Khan cites the famous case of Local Loan Co.
v. Hunt, 292 U.S. 234 (1933). 	Virtually all of the good faith
filing requirement cases quote Local Loan’s statement “One of the
primary purposes of the Bankruptcy Act is to ‘relieve the honest
debtor from the weight of oppressive indebtedness, and permit him
to start afresh...’”. 	Id. at 244. 	However, this snippet is
taken out of context. 	The whole passage states:
One of the primary purposes of the Bankruptcy Act
is to ‘relieve the honest debtor from the weight of
oppressive indebtedness, and permit him to start afresh
free from the obligations and responsibilities
consequent upon business misfortunes.’ 	This purpose of
the act has been again and again emphasized by the
courts as being of public as well as private interest,
in that it gives to the honest but unfortunate debtor
who surrenders for distribution the property which he
owns at the time of bankruptcy, a new opportunity in
life and a clear field for future effort, unhampered by
the pressure and discouragement of pre-existing debt.
The various provisions of the Bankruptcy Act were
adopted in the light of that view and are to be
construed when reasonably possible in harmony with it
so as to effectuate the general purpose and policy of
the act. 	Local rules subversive of that result cannot
be accepted as controlling the action of a federal
court.
When a person assigns future wages, he, in effect,
pledges his future earning power. 	The power of the
individual to earn a living for himself and those
dependent upon him is in the nature of a personal
liberty quite as much if not more than it is a property
right. 	To preserve its free exercise is of the utmost
importance, not only because it is a fundamental
private necessity, but because it is a matter of great
public concern. 	From the viewpoint of the wage-earner
there is little difference between not earning at all
and earning wholly for a creditor. 	Pauperism may be
the necessary result of either. 	The amount of the
indebtedness, or the proportion of wages assigned, may
here be small, but the principle, once established,
will equally apply where both are very great. The new
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Page -49-
opportunity in life and the clear field for future
effort, which it is the purpose of the Bankruptcy Act
to afford the emancipated debtor, would be of little
value to the wage-earner if he were obliged to face the
necessity of devoting the whole or a considerable
portion of his earnings for an indefinite time in the
future to the payment of indebtedness incurred prior to
his bankruptcy.
Id. at 244-45. (Emphasis added; citations omitted.) 	Despite
Khan’s characterization, Local Loan does not discuss eligibility
to file, good faith, or the court’s jurisdiction. 	Rather, the
case stands for, among others, the proposition that an honest
business debtor, willing to surrender his property, should have a
new opportunity in life.
Fourth, Kentucky Khan cites Shapiro v. Wilgus, 287 U.S. 348
(1932). 	In that case Mr. Robinson was a dealer in lumber in
Philadelphia. 	Id. at 143. 	He was having trouble paying debts
when due, but estimated his equity as over $100,000 after paying
his debts in full, which he could do only if the creditors
cooperated. 	Id. 	Two creditors refused and threatened suit. 	Id.
Pennsylvania law did not allow the appointment of a receiver for
an individual. 	Id. 	Therefore, Robinson incorporated a Delaware
corporation and transferred all assets to it and it assumed all
debts. 	Id. 	Three days later, Robinson brought suit in Delaware
federal court asking for a receiver for the corporation and an
injunction against creditors. 	Id. 	The court appointed receivers
and enjoined all creditors unless permitted by the court. 	Id.
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Shapiro then filed suit against Robinson and obtained a
judgment. 	Id. 	Shapiro took this judgment to the Delaware court
claiming that the conveyance by Robinson to the corporation was a
scheme to hinder and delay creditors, and asked that as a
judgment creditor he be allowed to seize property in the
receiver’s possession and to sell it to satisfy his debt. 	Id. at
143-44. 	The request was denied, and the denial affirmed on
appeal. 	Id. at 144.
The Supreme Court found that the original transfer was
fraudulent. 	Id. 	It remanded the case to the District Court to
enter an order in the alternative either 1) for payment of the
judgment out of the funds in the hands of the receivers or 2) an
order allowing execution against the assets. 	Id. 	The Supreme
Court did not dismiss the case as filed in bad faith. 	It
basically granted stay relief. 	It did not discuss eligibility to
file or jurisdiction.
Fifth, Kentucky Khan cites Stellwagen v. Clum, 245 U.S. 605
(1918). 	This case does not discuss good faith, eligibility to
file, or jurisdiction. 	Rather, in dicta it states the policy of
bankruptcy:
The federal system of bankruptcy is designed not
only to distribute the property of the debtor, not by
law exempted, fairly and equally among his creditors,
but as a main purpose of the act, intends to aid the
unfortunate debtor by giving him a fresh start in life,
free from debts, except of a certain character, after
the property which he owned at the time of bankruptcy
has been administered for the benefit of creditors. Our
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Page -51-
decisions lay great stress upon this feature of the
law-as one not only of private but of great public
interest in that it secures to the unfortunate debtor,
who surrenders his property for distribution, a new
opportunity in life.
Id. at 617. 	In fact, this case reinforces the concepts behind
the language omitted by most courts when quoting Local Loan.
That is, an honest debtor who surrenders property gets a new
start in life. 	It did not dismiss the case.
Sixth, Kentucky Khan cites Williams v. United States
Fidelity & Guaranty Co., 236 U.S. 549 (1915). 	Despite Khan’s
characterization, this case does not discuss good faith,
eligibility to file, or jurisdiction. 	One relevant paragraph
states:
It is the purpose of the bankrupt act to convert the
assets of the bankrupt into cash for distribution among
creditors, and then to relieve the honest debtor from
the weight of oppressive indebtedness, and permit him
to start afresh free from the obligations and
responsibilities consequent upon business misfortunes.
And nothing is better settled than that statutes should
be sensibly construed, with a view to effectuating the
legislative intent.
Id. at 554-55. (Citations omitted). 	Again, this case reinforces
the concepts behind the language omitted by most courts when
quoting Local Loan. 	That is, an honest debtor, especially one
with “business misfortunes,” who surrenders property gets a new
start in life.
Seventh, and finally, Kentucky Khan cites Whetmore v.
Markoe, 196 U.S. 68 (1904). 	Despite Khan’s characterization,
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29 This Court also agrees with the Minnesota Khan case’s
comment on the use of the term “jurisdictional.”
[T]he analysis in many of these opinions [finding
a good faith filing requirement for chapter 7] opens
with a sweeping pronouncement that good faith in the
filing of a Chapter 7 petition is “an implicit
jurisdictional requirement.” 	This sentiment sounds all
(continued...)
Page -52-
this case does not discuss good faith, eligibility to file, or
jurisdiction. 	It is an alimony/dischargeability case. 	The Court
did not dismiss the case, it declared a debt nondischargeable.
Id. at 76. 	It reinforces the concept that business debtors
should be able to find relief from business misfortunes:
Systems of bankruptcy are designed to relieve the
honest debtor from the weight of indebtedness which has
become oppressive, and to permit him to have a fresh
start in business or commercial life, freed from the
obligation and responsibilities which may have resulted
from business misfortunes. 	Unless positively required
by direct enactment the courts should not presume a
design upon the part of Congress, in relieving the
unfortunate debtor, to make the law a means of avoiding
enforcement of the obligation, moral and legal,
devolved upon the husband to support his wife and to
maintain and educate his children.
Id.
In sum, most of these Supreme Court cases discuss the
honest, unfortunate debtor afloat in a sea of indebtedness.
None, however, specifically discuss a good faith filing
requirement for Chapter 7 or jurisdiction of the courts.
Zick and Kentucky Khan both read between the lines of these cases
and make a leap to find a good faith filing requirement that is
“implicitly jurisdictional” 29 but explicitly absent. 	This Court
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29 (...continued)
very noble, but it has more resonance for a layperson's
perception of the judicial process than for a
professional's understanding of it. 	Such
pronouncements are never accompanied by a statutory
citation, and for a good reason: there is none.
Minnesota Khan, 172 B.R. at 621.
In the bankruptcy context, “jurisdiction” is the
basic ability of the United States District Court to
exercise the power of the federal government over a
debtor and its pre-bankruptcy legal relationships with
its creditors. 	Jurisdiction over bankruptcy cases and
proceedings is conferred by 28 U.S.C. §§ 1334(a)-(b).
These provisions empower the District Court to
automatically assume jurisdiction in a voluntary
bankruptcy case once a debtor performs the simple,
ministerial act of filing a petition for relief under
Title 11, pursuant to 11 U.S.C. §§ 301 and 302.
Id. (footnotes omitted.)
Nowhere do any of these statutes, by their terms,
require a debtor in a voluntary case to plead or attest
to his or her good faith on the face of a petition, as
a prerequisite to the opening of a case file in the
bankruptcy court or as a preliminary to the assumption
by that court of judicial authority over the debtor and
its creditors. 	Zick and the other cases that posit
good faith as a looming “jurisdictional requirement,”
then, position the issue at a level far too basic in
the legal superstructure of the bankruptcy process.
Id. at 622.
Page -53-
is not convinced. 	Furthermore, if good faith were an implicit
jurisdictional requirement, Congress would not have needed to
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30 The term “good faith” is made applicable to debtors
seventeen times in the following: Section 109(c) (eligibility of
Chapter 9 debtors), Section 362(c)(3)(B) (repeat filer must prove
latter filing is in good faith to extend the stay past thirty
days), Section 362(c)(3)(C) (repeat filer is deemed not to be in
good faith if certain conditions met), Section 362(c)(4)(B)
(repeat filer must prove latter filing is in good faith to extend
the stay past thirty days), Section 362(c)(4)(D) (repeat filer is
deemed not to be in good faith if certain conditions met),
Section 362(i) (if a case is dismissed due to the creation of a
debt repayment plan, a subsequent filing “shall not be presumed
to be filed not in good faith.”), Section 521(i)(4) (a trustee
may request that a case not be dismissed for the debtor’s failure
to file documents if the debtor attempted in good faith to
comply), Section 727(a)(9) (after a chapter 12 or 13 discharge, a
debtor that files a chapter 7 within certain time period may not
receive discharge unless the prior case was proposed in good
faith and was the debtor’s best effort), Section 901(a) (chapter
9 debtor must propose plan in good faith), Section 921(c) (Court
may dismiss chapter 9 if not filed in good faith), Section
1113(b)(2) (debtor must meet with representative in good faith
before rejecting collective bargaining agreement), Section
1114(f)(2) (debtor must meet with representative in good faith
before modifying retiree benefits), Section 1129(a)(3) (to be
confirmable, plan must be proposed in good faith), Section
1173(a)(1) (railroad plan must be proposed in good faith),
Section 1225(a)(3) (to be confirmable, plan must be proposed in
good faith), Section 1325(a)(3) (to be confirmable, plan must be
proposed in good faith), and Section 1325(a)(7) (to be
confirmable, debtor must have filed the petition in good faith).
The term “good faith” is made applicable to creditors eight
times. 	The term “good faith” is made applicable to transferees
or good faith purchasers six times. 	And, it applies once each to
debtors to the debtor, a debtor’s insurer, and to plan
proponents.
Page -54-
specify “good faith” thirty-four times 30 and “bad faith” three
times in the Code.
3. 	The evils addressed by other, more specific statutes are not
“cause.”
The bankruptcy code contains many sections that provide
specific remedies for specific actions. 	For example, section 523
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Page -55-
contains a list of nineteen different categories of debts that
are not discharged in chapter 7. 	Section 727 contains a list of
behaviors that will prevent a debtor’s discharge altogether.
Section 362(b) prevents the automatic stay from applying to
criminal or police power matters and to certain, defined, actions
that commence or continue matters against a debtor. 	Section
362(d)(1) allows a court to terminate the automatic stay for
“cause,” which can include things such as prejudice to a creditor
that was ready for trial in a nonbankruptcy forum. 	In re SCO
Group, Inc., 395 B.R. 852, 860 (Bankr. D. Del. 2007). 	Sections
362(c)(3) and (4) severely limit automatic stay protections for
repeat filers. 	Section 522(g) prevents a debtor from exempting
property voluntarily transferred before the bankruptcy filing.
Sections 547 and 548 allow a trustee to recover money or other
property transferred preferentially or fraudulently. 	Section 549
allows a trustee to recover property transferred post-petition
that was not authorized by the court.
If any of the evils addressed by these statutes were “cause”
to dismiss a chapter 7 case all of these statutes would be
meaningless. 	For example, if a debtor incurred a debt by fraud
or failed to keep business records, instead of having the debt
declared nondischargeable or having the discharge denied, the
creditor could simply have the case dismissed. 	There would be no
need for the remedial statute, rendering all of them superfluous.
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Page -56-
This conclusion derives from the rule of statutory
construction that a court should not read a statute in a way that
makes other parts of the same statute nugatory. 	Kawaauhau v.
Geiger, 523 U.S. 57, 62 (1998):
“[W]e are hesitant to adopt an interpretation of a
congressional enactment which renders superfluous
another portion of that same law.” 	Mackey v. Lanier
Collection Agency & Service, Inc., 486 U.S. 825, 837,
108 S.Ct. 2182, 2189, 100 L.Ed.2d 836 (1988). 	Reading
§ 523(a)(6) as the Kawaauhaus urge [i.e., damages from
an intentional act that necessarily lead to injury, as
opposed to a deliberate or intentional injury] would
obviate the need for § 523(a)(9), which specifically
exempts debts “for death or personal injury caused by
the debtor's operation of a motor vehicle if such
operation was unlawful because the debtor was
intoxicated from using alcohol, a drug, or another
substance.” 11 U.S.C. § 523(a)(9)[.]
See also TRW, Inc. v. Andrews, 534 U.S. 19, 31 (2001):
It is “a cardinal principle of statutory
construction” that “a statute ought, upon the whole, to
be so construed that, if it can be prevented, no
clause, sentence, or word shall be superfluous, void,
or insignificant.” 	Duncan v. Walker, 533 U.S. 167,
174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (internal
quotation marks omitted); see United States v.
Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed.
615 (1955) (“It is our duty ‘to give effect, if
possible, to every clause and word of a statute.’ ”
(quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2
S.Ct. 391, 27 L.Ed. 431 (1883))). 	“[W]ere we to adopt
[Andrews'] construction of the statute,” the express
exception would be rendered “insignificant, if not
wholly superfluous.” 	Duncan, 533 U.S., at 174, 121
S.Ct. 2120. 	We are “reluctant to treat statutory terms
as surplusage in any setting,” ibid. (internal
alteration and quotation marks omitted), and we decline
to do so here.
(Footnote omitted).
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Page -57-
This conclusion also derives from the rule of statutory
construction that if both a specific and a general statute apply
to the same set of facts, the specific statute is applicable and
the general is not. 	Bulova Watch Co., Inc. v. United States, 365
U.S. 753, 758 (1961); Padilla, 222 F.3d at 1192; Minnesota Khan,
172 B.R. at 624; Kimlinger and Wassweiler, 13 Bankr. Dev. J. at
72:
By constructing a variety of remedies and
safeguards which correspond to particular categories of
debtor misconduct, Congress developed a methodology for
determining what types of remedies should be available
for prohibited conduct. Courts must construe the
provisions contained in the methodology to be
consistent with one another and to be nonsuperfluous.
See In re Khan, 172 B.R. 613, 624 (Bankr. D. Minn.
1994) (citing Helvering v. Credit Alliance Corp., 316
U.S. 107 (1942); Koenigsberger v. Richmond Silver
Mining Co., 158 U.S. 41 (1895)). 	In light of the rule
of statutory construction that a specific provision
takes precedence over a general one, see United States
v. Cihal, 336 F. Supp. 261, 267 (W.D. Pa. 1972), aff'd,
497 F.2d 922 (3d Cir. 1974), debtor misconduct should
be analyzed under the provision which specifically
corresponds to that type of misconduct, and should not
be analyzed under a more general provision which
penalizes the debtor for “cause.” 	In the Khan
decision, Judge Kishel noted:
To do full justice to the canons of (statutory)
construction . . . (cause for dismissal under S
707(a)) should not consist solely of anything
that, in isolation, would merit a more limited
form of punitive sanction; Congress must be deemed
to have spoken to those evils by already setting
up the other remedies. . . . In creating these
more circumscribed remedies, Congress clearly
contemplated that a bankruptcy case could proceed
to dispense remedies to creditors, notwithstanding
the debtor's past commission of certain proscribed
acts that contravened public policy. Individual
creditors or the trustee can seek more
particularized redress under SS 522, 523, or 727,
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Page -58-
without the detriment of losing the centralized
remedy of administration of assets that dismissal
would otherwise cause.
172 B.R. at 624 (citing In re Lang, 5 B.R. 371, 375
(Bankr. S.D. N.Y. 1980)).
Provisions of the Bankruptcy Code provide specific remedies for
specific problems. 	Treating any of them as grounds to dismiss a
case under the guise of “cause” is a misapplication. 	In re
Motaharnia, 215 B.R. 63, 68-69 (Bankr. C.D. Cal. 1997):
In determining whether bad faith constitutes cause
under § 707(a), courts should adopt a narrow
construction of the Code. 	Otherwise, it is possible
that such an “inquiry will be ‘employed as a loose
cannon which is to be pointed in the direction of a
debtor whose values do not coincide precisely with
those of the court.’ ” Huckfeldt, 39 F.3d at 832,
citing In re Latimer, 82 B.R. 354, 364 (Bankr. E.D. Pa.
1988). 	Additionally, an underlying policy of the
Bankruptcy Code, providing debtors with a fresh start
while ensuring there is no abuse of the system,
mandates such a strict interpretation of § 707(a)'s
“cause” analysis. 	As such, bad faith as grounds for
“cause” under § 707(a) should apply only to egregious
cases where the debtor's motives are clearly
inconsistent with the established purpose of the
Bankruptcy Code.
...
The debtors' motivations in filing bankruptcy and
their actions as debtors throughout the bankruptcy
process have been consistent with the underlying
policies of our bankruptcy system. The Debtors seek a
discharge of all of their dischargeable debts under
chapter 7. 	They have filed all schedules and
statements of affairs, have apparently disclosed all
their assets and liabilities, have provided the
trustees with the appropriate financial records to
support their schedules, and are not attempting to use
the bankruptcy process for any ulterior motives such as
to intentionally and selectively injure a specific
creditor. 	Therefore, because they have been acting
within the purview of chapter 7, this Court finds that
the particular facts ... do not amount to cause for
dismissal under § 707(a).
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Page -59-
B. 	Things that are “cause”.
Although arguably slightly outdated after BAPCPA, the
Minnesota Khan case provides a thoughtful analysis of what
demonstrates cause for Section 707(a) relief.
“Good faith” and its absence necessarily being
subjective factors, the Court should look first at the
debtor's manifested attitude toward the integrity of
the bankruptcy process. 	The real question should be
whether the debtor is in bankruptcy with an intent to
receive the sort of relief that Congress made available
to petitioners under the chapter in question-subject,
of course, to any statutory limitations on the extent
of that relief-and is willing to responsibly carry out
the duties that Congress imposes on debtors as the cost
of receiving such relief.
With the subject so identified, bad faith in the
filing of a Chapter 7 petition would be evidenced by a
pervasive and orchestrated effort on the part of the
debtor to obtain the benefits of a bankruptcy filing
while at the same time intentionally and fraudulently
taking action to avoid any of the detriments. Such an
effort might involve an intention to file solely to
interpose the automatic stay of 11 U.S.C. § 362(a)
against pending litigation or foreclosure, without a
concomitant acceptance of the statutory duties of
financial disclosure, cooperation with the trustee, and
surrender of non-exempt assets. 	It might also be
prompted by a vindictive motivation to use bankruptcy
solely as a “scorched-earth” tactic against a pressing
creditor or opponent in litigation.
Of necessity, a “bad faith filing” would involve
manifested dishonesty toward a legal tribunal. That
tribunal, of course, could be the forum Bankruptcy
Court. 	However, it could be another court that had
jurisdiction over the debtor in a pre-petition
proceeding, and from whose jurisdiction the debtor is
seeking refuge in bankruptcy. Credible evidence that
the debtor is seeking to use the Bankruptcy Court's
jurisdiction to hide from an adjudication of contempt
in a nonbankruptcy court, without justification in the
form of true financial distress, would support a
finding of bad faith in filing.
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31 Debtor did not attempt to disprove or explain some of the
evidence offered, nor did he have to. 	Much of it was not
relevant to the issue of dismissal or conversion; this was not an
adversary proceeding seeking to recover transfers.
Page -60-
Khan, 172 B.R. at 625-26 (citations and footnote omitted), and at
625 n.23:
Pre- or post-filing actions in connection with the
bankruptcy case that could support the finding would
consist of systemic and deliberate misstatements or
omissions on bankruptcy schedules; knowingly false
testimony at a meeting of creditors or a court hearing;
and intentional acts to hinder the trustee in the
administration of the estate and the investigation in
connection with it. To taint the whole filing, there
should be something more than an isolated instance or
two of such conduct. A single such infraction, or even
scattered ones, might merit one of the more limited
sanctions, but they probably would not compel an
inference of the sort of permeating animus that “bad
faith” entails.
DECISION ON DISMISSAL
The Court finds that there is not a good faith requirement
for a non-consumer business debtor to file a Chapter 7 case. Even
if there were such a requirement, GRMC and Barton have failed to
prove by a preponderance of the evidence that Debtor initiated
this Chapter 7 case in bad faith. 	To the extent only an honest
and deserving debtor is eligible to file a Chapter 7 petition,
the Court finds that the Debtor is eligible. 	The facts
elucidated and arguments made by GRMC and Barton are addressable
by less drastic remedies than dismissal. 	For example, to the
extent they established facts 31 which could suggest that a
trustee could recover preferences or fraudulent transfers, the
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Page -61-
case trustee is fully competent to investigate those transfers
and recover them if proper. 	The Court therefore finds that the
transactions alleged do not constitute cause. 	Finally, the Court
finds Debtor’s testimony regarding omitted items credible, and
finds no evidence that Debtor attempted to hide assets or hinder
their discovery.
CONVERSION
Section 706(b) provides: “On request of a party in interest
and after notice and a hearing, the court may convert a case
under this chapter to a case under chapter 11 of this title at
any time.” 	This section is not mandatory; the Court should use
its discretion in any decision to convert. 	See H.R. Rep. No.
595, 95 th Cong., 1 st Sess. at 380 (1977)(“The decision whether to
convert is left in the sound discretion of the court, based on
what will most insure [sic] to the benefit of all parties in
interest.”); S.Rep. No. 95-989, 95 th Cong., 2d Sess. at 94 (1978)
(“The decision whether to convert is left in the sound discretion
of the court, based on what will most inure to the benefit of all
parties in interest.”)
“[T]he policy of Chapter 11 is to permit successful
rehabilitation of debtors[.]” 	Nat’l Labor Relations Board v.
Bildisco and Bildisco, 465 U.S. 513, 527 (1984). 	“Determining
what would constitute a successful rehabilitation involves
balancing the interests of the affected parties–the debtor,
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Page -62-
creditors, and employees.” 	Id. 	“Chapter 11 also embodies the
general Code policy of maximizing the value of the bankruptcy
estate.” 	Toibb, 501 U.S. at 163 (citing Commodity Future Trading
Comm’n v. Weintraub, 471 U.S. 343, 351-54 (1985)).
Section 706(b) does not identify any specific grounds to
order conversion. 	Therefore, a Court should consider anything
relevant that would further the goals of the Bankruptcy Code.
In this case GRMC and Barton do not suggest any additional
reasons for converting the case to Chapter 11 than they do for
dismissing it under Section 707(a). 	Obviously, dismissal of the
case would allow them to pursue Debtor in state court and might
result in direct garnishments of his salary. 	Absent a dismissal,
they seek conversion to increase their returns over that they
will receive in liquidation by capturing Debtor’s post-petition
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32 See Section 1115(a), added by BAPCPA:
In a case in which the debtor is an individual,
property of the estate includes, in addition to the
property specified in section 541--
(1) all property of the kind specified in section 541
that the debtor acquires after the commencement of the
case but before the case is closed, dismissed, or
converted to a case under chapter 7, 12, or 13,
whichever occurs first; and
(2) earnings from services performed by the debtor
after the commencement of the case but before the case
is closed, dismissed, or converted to a case under
chapter 7, 12, or 13, whichever occurs first.
(Emphasis added.) 	Compare Section 541(a):
The commencement of a case under section 301, 302, or
303 of this title creates an estate. 	Such estate is
comprised of all the following property, wherever
located and by whomever held:
(1) Except as provided in subsections (b) and (c)(2) of
this section, all legal or equitable interests of the
debtor in property as of the commencement of the case.
...
(6) Proceeds, product, offspring, rents, or profits of
or from property of the estate, except such as are
earnings from services performed by an individual
debtor after the commencement of the case.
(Emphasis added.)
Page -63-
personal service income 32 . 	Therefore, conversion would further
the policy of maximization of the estate set out in Toibb.
However, conversion to Chapter 11 would not further the
interests of the Debtor or those that depend on him for support.
The obviously apparent reasons for the existence of a bankruptcy
law available to individuals is to discharge debt and provide a
fresh start. 	If the Court were to order conversion of this case
to Chapter 11, the Debtor would be unable to automatically
reconvert it to Chapter 7. 	See Section 1112(a)(3) (“The debtor
may convert a case under this chapter to a case under chapter 7
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33 The parties did not raise, and the Court makes no ruling
on whether there are Constitutional issues involved in this
situation. 	See Toibb, 501 U.S. at 165-66:
[T]he argument [of amicus] overlooks Congress' primary
concern about a debtor's being forced into bankruptcy
under Chapter 13: that such a debtor, whose future
wages are not exempt from the bankruptcy estate, §
1322(a)(1), would be compelled to toil for the benefit
of creditors in violation of the Thirteenth Amendment's
involuntary servitude prohibition. 	See H.R.Rep. No.
95-595, at 120. 	Because there is no comparable
provision in Chapter 11 requiring a debtor to pay
future wages to a creditor, Congress' concern about
imposing involuntary servitude on a Chapter 13 debtor
is not relevant to a Chapter 11 reorganization.
BAPCPA changed this. 	After BAPCPA consumer debtors that fail the
means test have the choice of dismissal or conversion to Chapter
11 or 13. 	See Section 707(b). 	And, BAPCPA expanded the Chapter
11 estate to include post-petition personal service income as
does the Chapter 13 estate. 	Previously Congress was worried
about imposing involuntary servitude on Chapter 13 debtors. 	Now,
however, by allowing creditors to force conversion of a Chapter 7
debtor’s case to Chapter 11, coupled with an inability of the
debtor to voluntarily reconvert or dismiss and the inclusion of
the debtor’s post-petition income, Congress may have created the
setting for a constitutional challenge. 	Compare Fitzsimmons v.
Walsh (In re Fitzsimmons), 20 B.R. 237, 240 (9 th Cir. BAP 1982),
aff’d. and remanded, 725 F.2d 1208 (9 th Cir. 1984)(pre-BAPCPA
case)(Section 706(c) does not permit involuntary conversion to
chapter 13 because of concern that post-bankruptcy earnings may
not be involuntarily impounded)(Remanded for a determination of
amount of income attributable to personal services income). 	See
also Misuraca v. U.S. Trustee, 2009 WL 1212471 (D. Ariz.
2009)(Bankruptcy court found 707(b) abuse and ordered dismissal.
Debtor sought a stay pending appeal because he would be forced to
convert to chapter 11, being ineligible for a chapter 13, and
argued a violation of the Thirteenth Amendment. 	The District
Court denied the stay and dismissed as not ripe, because the
Debtor had the choice of dismissing and was not in fact in a
Chapter 11.)
Page -64-
of this title unless– ... (3) the case was converted to a case
under this chapter other than on the debtor's request.”)
Instead, he would be trapped 33 in a Chapter 11 proceeding that he
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Page -65-
does not need and does not want. 	There is no business to
reorganize. 	This is not the fresh start than Congress
envisioned. 	Balancing this consideration against the increased
estate, the Court finds that the case should not be converted to
Chapter 11.
At least one case has ruled that one element a creditor must
establish to convert a case to Chapter 11 is to demonstrate the
probability of a confirmable plan of reorganization. 	In re Wet-
Jet Int’l, Inc., 235 B.R. 142, 153 (Bankr. D. Mass. 1999). 	To
the extent this is true, GRMC and Barton have failed to prove the
probability of a confirmable plan. 	On the other hand, while
Debtor suggested that no plan would be confirmable based on his
tax debt and other expenses, he also failed to prove his
contention to any degree.
DECISION ON CONVERSION
For the reasons stated, the Court will deny the motion to
convert the case under Section 706(b).
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	March 16, 2011
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Page -66-
Copies to:
Christopher M Gatton
Law Office of George Dave Giddens, PC
10400 Academy Rd., #350
Albuquerque, NM 87111
David T Thuma
500 Marquette Ave NW Ste 650
Albuquerque, NM 87102-5309
Jason C Bousliman
PO Box 2168
Albuquerque, NM 87103-2168
Kieran F. Ryan
Trustee
PO Box 26
Las Cruces, NM 88004-0026
Office of the United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
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