Susan K. Nolen

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UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	SUSAN K. NOLEN, 	No. 7-07-11621 MA
Debtor.
ORDER DENYING MOTION FOR EXTENSION OF TIME TO
FILE A § 707(b)(3) MOTION TO DISMISS
THIS MATTER is before the Court on the Motion for Extension of Time to File a §
707(b)(3) Motion to Dismiss (“Motion”), filed by the United States Trustee on October 5, 2007.
The United States Trustee requests an extension of the deadline for filing a motion to dismiss
under 11 U.S.C. § 707(b)(3) for period of sixty days so that further investigation can be made
into the Debtor’s pre-petition credit card expenditures totaling approximately $189,000.00. The
Court held a final hearing on the Motion and took the matter under advisement. 	Upon review
of the record of this proceeding, the Court finds that the Motion should be denied. In reaching
this determination, the Court FINDS:
1. 	Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on July 4,
2007.
2. 	Debtor’s schedule F lists unsecured, non-priority claims in the amount of
$118,779.00. 	A majority of the listed claims are identified as “revolving credit purchases.”
3. The creditors’ meeting under 11 U.S.C. § 341 was held on August 10, 2007.
4. On August 20, 2007 the United States Trustee filed a notice determining that the
Debtor’s case is presumed to be an abuse under 11 U.S.C. § 707(b). 	In order to make this
determination, the United States trustee was required to “review all materials filed by the
debtor.” 11 U.S.C. § 704(b)(1).
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5. Pursuant to 11 U.S.C. § 704(b), the United States Trustee has thirty days from the date
of the filing of a statement as to whether a presumption of abuse arises under 11 U.S.C. § 707(b),
within which to file a motion to dismiss or a statement stating why a motion to dismiss is not
appropriate. 	That section provides, in relevant part:
The United States trustee (or bankruptcy administrator, if any) shall, not later than 30
days after the date of filing a statement under paragraph (1), either file a motion to
dismiss or convert under section707(b) or file a statement setting forth the reasons the
United States trustee (or the bankruptcy administrator, if any) does not consider such a
motion to be appropriate, if the United States trustee (or the bankruptcy administrator, if
any) determines that the debtor’s case should be presumed to be an abuse under
section707(b) . . .
11 U.S.C. § 704(b)(2).
6. On September 14, 2007, the United States trustee filed a statement declining to file a
motion to dismiss under 11 U.S.C. § 707(b)(2). See Docket # 12 and Docket # 13.
7. A motion to dismiss a case for abuse must be filed within sixty days after the date first
set for the meeting of creditors under 11 U.S.C. § 341 “unless, on request filed before the time
has expired, the court for cause extends the time for filing the motion to dismiss.” Rule
1017(e)(1), Fed.R.Bankr.P.
8. Sixty days from the date first set for the meeting of creditors was October 9, 2007.
See Docket #2 - setting meeting of creditors on August 10, 2007.
9. The Motion was filed on October 5, 2007, prior to the expiration of the deadline under
Rule 1017(e)(1), Fed.R.Bankr.P.
10. The United States trustee has failed to demonstrate sufficient cause for extending the
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1See In re Chamness, 312 B.R. 421, 424 (Bankr.D.Colo. 2004) (considering the United
States Trustee’s request for extension of time to file a motion to dismiss, and identifying the
following factors relevant to the determination of whether to extend the time for a creditor to file
a complaint objecting to discharge: “a) Whether the creditor had sufficient notice of the deadline
and the information to file an objection; b) The complexity of the case; c) Whether the creditor
exercised diligence; d) Whether the debtor refused in bad faith to cooperate with the creditor;
and
e) The possibility that proceedings pending in another forum will result in collateral estoppel.”)
(citing In re Nowinski, 291 B.R. 302 (Bankr.S.D.N.Y. 2003). See also, In re Stonham, 317 B.R.
544, 547 (Bankr.D.Colo. 2004)(agreeing that the party who seeks an extension of time must
“establish at least a reasonable degree of due diligence to be accorded the requested
extension.”)(citations omitted).
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deadline for filing a motion to dismiss.1 Because the Debtor’s statements and schedules
indicated at the outset that a presumption of abuse arose, the United States trustee was alerted to
the fact that a motion to dismiss might need to be filed, whether proceeding under 11 U.S.C. §
707(b)(2) or 707(b)(3).
WHEREFORE, IT IS HEREBY ORDERED that the Motion is DENIED.
__________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
COPY TO:
Arun Melwani 	Leonard Martinez-Metzgar
Attorney for Debtor 	Office of the United States Trustee
10749 Prospect Ave NE Ste E 	PO Box 608
Albuquerque, NM 87112-3281 	Albuquerque, NM 87103
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