Jesus Reza

UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
In re: 	JESUS REZA, 	No. 7-07-12659 MA
Debtor.
ORDER DENYING MOTION TO RECONSIDER ORDER OF DISMISSAL
THIS MATTER is before the Court on the Motion to Reconsider Order of Dismissal
(“Motion”) filed by the Debtor, pro se. See Docket # 33. The Motion, filed January 10, 2008,
requests the Court to set aside the Default Order on Discharge Ineligibility Under 11 U.S.C. §
727(a)(8) and Dismissal of Case (“Dismissal Order”), entered December 12, 2007. See Docket #
24. 	Upon review of the Motion, and being otherwise sufficiently informed, the Court finds that
it is not appropriate to set aside the Dismissal Order at this stage in the case. Consequently, the
Motion will be denied.
PROCEDURAL HISTORY
Debtor filed a voluntary petition under Chapter 7 of the Bankruptcy Code on October 25,
2007. Debtor did not file all statements and schedules with his petition, nor did he submit a
creditor mailing matrix. The deadline for filing statements and schedules in accordance with
Rule 1007(c), Fed.R.Bankr.P. was November 9, 2007, fifteen days after the petition date. On
November 5, 2007, Debtor filed a motion requesting an additional two weeks within which to
file remaining statements and schedules. See Docket # 7. No order was entered granting the
motion for extension of time to file statements and schedules, but on November 14, 2007, the
Debtor filed a verification of creditor mailing matrix and list of creditors (Docket # 13), the
Statement of Financial Affairs (Docket # 14), Schedules A - J (Docket # 15), the Statement of
Intention (Docket # 16), and the Chapter 7 Statement of Current Monthly Income and Means-
Test Calculation (Docket # 20).
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1That section provides, in relevant part:
The court shall grant the debtor a discharge, unless–
(8) the debtor has been granted a discharge under this section, under
section 1141 of this title, or under section 14, 371, or 476 of the
Bankruptcy Act, in a case commenced within 8 years before the date of
the filing of the petition.
11 U.S.C. § 727(a)(8).
2
The date first set for the meeting of creditors under 11 U.S.C. § 341 was November 26,
2007 at 9:45am. Debtor failed to appear at the meeting of creditors, and the Chapter 7 Trustee
filed a motion to dismiss Debtor’s bankruptcy proceeding based on Debtor’s failure to appear at
the creditors’ meeting, and based on Debtor’s failure to provide the Chapter 7 Trustee with tax
returns and payment advices as required under 11 U.S.C. § 521(e)(2). See Docket # 21. The
United States Trustee also filed and noticed a motion to dismiss Debtor’s bankruptcy case based
on 11 U.S.C. § 727(a)(8) 1 (See Docket #8 and Docket #11), and, no response being filed, the
United States Trustee’s motion was granted by default on December 12, 2007. See Docket # 24.
Debtor objected to the Chapter 7 Trustee’s motion to dismiss on the same day the Dismissal
Order was entered. See Docket # 26. As recited in the Dismissal Order, Debtor’s bankruptcy
case was dismissed “due to Debtor’s ineligibility for discharge by reason of 11 U.S.C. §
727(a)(8).” See Dismissal Order. 	Debtor was identified as the non-filing spouse in Case No. 7-
00-11882 SA filed by Hermila Reza on April 4, 2000, in which a discharge was entered on July
18, 2000. See Case No. 7-00-11882 SA, Docket # 1 and Docket # 10.
DISCUSSION
Debtor’s Motion to set aside the Dismissal Order states that the Debtor petitioned for
divorce from his wife on March 15, 1996 and was legally separated from her when the discharge
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2After the dismissal of the Debtor’s bankruptcy proceeding, the Court issued an Order to
Show Cause Why Bankruptcy Petition Preparer Should Not Have to Reimburse Fee to Debtor
(“Order to Show Cause”) which resulted in the entry of an Order Directing Bankruptcy Petition
Preparer to Reimburse Fee to Debtor. (See Docket # 32).
3Rule 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b); [or] (3) fraud
(whether heretofore denominated intrinsic or extrinsic), misrepresentation, or
other misconduct of an adverse party . . .
3
was entered in Case No. 7-00-11822 SA. 	The Motion also recites that a translator
misinterpreted information to the Debtor, and that he was under the impression that it was not
necessary to appear at the creditors’ meeting. 2
The Motion was filed more than ten days after the entry of the Dismissal Order and is
therefore governed by Rule 60, Fed.R.Civ.P., made applicable to bankruptcy proceedings by
Rule 9024, Fed.R.Bankr.P. 3 Relief under Rule 60(b) is an extraordinary remedy and may be
granted only in exceptional circumstances. Cashner v. Freedom Stores, Inc., 98 F.3d 572,
576-77 (10th Cir. 1996). 	No exceptional circumstances are present upon which relief can be
granted in accordance with Rule 60(b), Fed.R.Civ.P. 	Due to the procedural posture of the
Debtor’s bankruptcy case and a lack of sufficient notice of the bankruptcy to creditors, the
Dismissal Order cannot be set aside.
As provided in Rule 4004(a), Fed.R.Bankr.P. and Rule 4007(c), Fed.R.Bankr.P., the
deadline for filing a complaint objecting to the Debtor’s discharge or objecting to the discharge
of a particular debt is “60 days after the first date set for the meeting of creditors under §
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4That section provides:
The debtor shall provide–
(i) not later than 7 days before the date first set for the first meeting of
creditors, to the trustee a copy of the Federal income tax return required
under applicable law (or at the election of the debtor, a transcript of such
return) for the most recent tax year ending immediately before the
commencement of the case and for which a Federal income tax return was
filed[.]
11 U.S.C. § 521(e)(2)(A)(i).
5That section provides:
The debtor shall –
4
341(a).” In this case, the deadline for filing objections to the debtor’s discharge or to the
dischargeability of a particular debt is January 25, 2007. 	Debtor did not file a complete list of
creditors until after the fifteen-day deadline contained in Rule 1007(c), Fed.R.Bankr.P.
Consequently, the Notice of Chapter 7 Bankruptcy Case, Meeting of Creditors, and Deadlines
issued when the case was filed was sent only to the Debtor, the Chapter 7 Trustee, and the
United States Trustee. 	No notice of the deadlines for filing complaints objecting to discharge or
objection to the discharge of a particular debt has been sent to any creditor in the Debtor’s
bankruptcy proceeding. 	Setting aside the Order of Dismissal at this stage of the proceeding,
when no notice of the bankruptcy filing or the deadlines for filing complaints objecting to the
Debtor’s discharge or objecting to the dischargeability of a particular debt has been provided to
any creditor, is not appropriate.
Moreover, although Debtor objected to the Chapter 7 Trustee’s motion to dismiss, stating
that he was not aware of the date of the creditor’s meeting, there is no evidence that the Debtor
provided the Chapter 7 Trustee with tax returns or payment advices as required under 11 U.S.C.
§ 521(e)(2)(A) 4 and 11 U.S.C. § 521(a)(1)(B)(iv) 5
, and the Court’s standing Order Directing that
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(1) file–
(B) unless the court orders otherwise–
(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[.]
11 U.S.C. § 521(a)(1)(B)(iv).
6The Order on Payment Advices requires the debtor to provide the case trustee not later
than 7 days before the date first set for the meeting of creditors copies of all payment advices as
required under 11 U.S.C. § 521(a)(1)(B)(iv)
7That section provides:
If the debtor fails to comply with clause (i) or (ii) of subparagraph (A), the court
shall dismiss the case unless the debtor demonstrates that the failure to so comply
is due to circumstances beyond the control of the debtor.
11 U.S.C. § 521(e)(2)(B).
5
Payment Advices not be Filed with the Court but Instead be Provided to Trustee and, Upon
Timely Request, to Creditors (“Order on Payment Advices”) 6
, Court Administrative Matters, No.
MP-05-001. Failure to provide the Chapter 7 Trustee with a copy of a tax return for the most
recent tax year for which a Federal income tax return was filed mandates dismissal of the
debtor’s proceeding unless the debtor demonstrates that the failure to comply is due to
circumstances beyond the debtor’s control. See 11 U.S.C. § 521(e)(2)(B).7 Debtor has offered
no explanation for why he failed to provide a copy of the most recent filed tax return to the
Chapter 7 Trustee.
WHEREFORE, IT IS HEREBY ORDERED that the Motion is DENIED.
_________________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
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6
COPY TO:
Jesus Reza
1831 Cool Springs
Albuquerque, NM 87121
Philip J. Montoya
Chapter 7 Trustee
PO Box 159
Albuquerque, NM 87103
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
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