Andrea R Jymison

1 The Court has subject matter and personal jurisdiction
pursuant to 28 U.S.C. §§1334 and 157(b); this is a core
proceeding pursuant to 28 U.S.C. §157(b)(2)(A), (J) and (O); and
these are findings of fact and conclusions of law as may be
required by Rule 7052 F.R.B.P.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
ANDREA R. JYMISON,
Debtor. 	No. 7-11-15017 SA
MEMORANDUM OPINION AND ORDER REGARDING
EMERGENCY MOTION TO VACATE DISCHARGE
This matter is before the Court on Debtor’s Emergency Motion
to Vacate Discharge (doc 31) filed February 21, 2012. 	Literally
Debtor seeks an order vacating her discharge until the Court
rules on her Motion to Convert to Chapter 13 (doc 30). 	In fact,
Debtor’s goal is to reimpose or revive the automatic stay with
respect to Debtor’s property that ended with her discharge, see
11 U.S.C. § 362(c)(2)(C) (“the stay of [any act other than an act
against property of the estate] continues until the earliest of
... the time a discharge is granted or denied.”), and presumably
keep the automatic stay in effect until the completion of the
Debtor’s hoped for chapter 13 case. 	The Court finds that the
Motion must be denied. 1
FACTS
The docket sheet in this case shows that the Discharge Order
(doc 29) was entered on February 21, 2012 at 5:00 AM MST. 	The
Motion to Convert (doc 30) was filed on February 21, 2012 at
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11:31 AM MST, and the instant motion to vacate the discharge less
than five minutes later.
DISCUSSION
Discharges are governed by 11 U.S.C. § 727. 	The only
method to vacate a discharge is set forth in § 727(d):
On request of the trustee, a creditor, or the United
States trustee, and after notice and a hearing, the
court shall revoke a discharge granted under subsection
(a) of this section if--
(1) such discharge was obtained through the fraud of
the debtor, and the requesting party did not know of
such fraud until after the granting of such discharge;
(2) the debtor acquired property that is property of
the estate, or became entitled to acquire property that
would be property of the estate, and knowingly and
fraudulently failed to report the acquisition of or
entitlement to such property, or to deliver or
surrender such property to the trustee;
(3) the debtor committed an act specified in subsection
(a)(6) of this section; or
(4) the debtor has failed to explain satisfactorily--
(A) a material misstatement in an audit referred
to in section 586(f) of title 28; or
(B) a failure to make available for inspection all
necessary accounts, papers, documents, financial
records, files, and all other papers, things, or
property belonging to the debtor that are
requested for an audit referred to in section
586(f) of title 28.
On its face the statute does not provide for a debtor to set
aside his or her own discharge. 	However, even if this Debtor
were able to convince a creditor or trustee to pursue vacating
the discharge on behalf of the Debtor, the facts alleged in the
Motion do not satisfy any of the statutory requirements to do so.
See In re Kirksey, 433 B.R. 46, 49 (Bankr. D. Colo. 2010). 	See
also In re Engles, 384 B.R. 593, 598 (Bankr. N.D. Okla. 2008)
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2The full text is:
(a) The debtor may convert a case under this chapter to
a case under chapter 11, 12, or 13 of this title at any
time, if the case has not been converted under section
1112, 1208, or 1307 of this title. 	Any waiver of the
right to convert a case under this subsection is
unenforceable.
11 U.S.C. § 706(a)(Emphasis added.)
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(Section 725(d) determines who has standing to revoke a debtor’s
discharge and limits standing to the trustee, a creditor and the
United States Trustee.); In re Stewart, 355 B.R. 636, 638 (Bankr.
N.D. Ohio 2006)(Court may not use section 105 to “vacate” a
debtor’s discharge to allow untimely entry of a reaffirmation
agreement.)
Debtor argues that section 706(a) 2 permits Debtor to
“convert a case under this chapter to a case under chapter 11, 12
or 13 of this title at any time” (with exceptions not relevant in
this case), even after the entry of a discharge. 	While it is
true that the statute seems to anticipate an unlimited right to
convert, the Bankruptcy Rules somewhat qualify that right:
Conversion or dismissal under §§ 706(a), 1112(a),
1208(b), or 1307(b) shall be on motion filed and served
as required by Rule 9013.
Fed.R.Bankr.P. 1017(f)(2). 	Rule 9013 governs motion practice:
A request for an order, except when an application is
authorized by these rules, shall be by written motion,
unless made during a hearing. 	The motion shall state
with particularity the grounds therefor, and shall set
forth the relief or order sought. 	Every written motion
other than one which may be considered ex parte shall
be served by the moving party on the trustee or debtor
in possession and on those entities specified by these
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rules or, if service is not required or the entities to
be served are not specified by these rules, the moving
party shall serve the entities the court directs.
Fed.R.Bankr.P. 9013. 	The Bankruptcy Rules specify the entities
that are to receive notice of a motion to convert from Chapter 7:
[T]he clerk, or some other person as the court may
direct, shall give the debtor, the trustee, all
creditors and indenture trustees at least 21 days'
notice by mail of:
...
(4) in a chapter 7 liquidation, ... the hearing on the
dismissal of the case or the conversion of the case to
another chapter[.]
Fed.R.Bankr.P. 2002(a)(4).
Before 2007, bankruptcy courts disagreed about whether a
Chapter 7 debtor’s right to convert to chapter 13 was really
absolute. 	Compare, e.g. In re Ponzini, 277 B.R. 399, 404 (Bankr.
E.D. Ark. 2002) (The court adopted the reasoning that “at any
time” means that a debtor may seek conversion any time during the
life of the case, but does not mean “at any time regardless of
circumstances,” and found that the use of the word “may”
suggested that the right is presumptive rather than absolute.)
and id. at 405 (The Court further noted that a conversion under
section 706(a) requires a motion and notice to creditors; if the
right to convert were absolute this motion and notice procedure
would be meaningless.) with Mason v. Young (In re Young), 237
F.3d 1168, 1173 (10 th Cir. 2001):
While courts may disallow specific “Chapter 20”
conversions under the peculiar circumstances of a given
case, as a general matter the Bankruptcy Code and most
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courts are clear regarding the permissibility of such
conversions: “The debtor may convert a case under
[chapter 7] to a case under chapter ... 13 of this
title at any time.” 	11 U.S.C. § 706(a); see also In re
Mosby, 244 B.R. 79 (Bankr. E.D. Va. 2000) (collecting
cases and concluding that permitting conversion to
Chapter 13 even after a discharge under Chapter 7 is
proper). 	There is no evidence of congressional intent
to the contrary.
Other courts imposed a “bright-line” rule that conversions from
Chapter 7 to Chapter 13 were prohibited after discharge. 	In re
Lesniak, 208 B.R. 902, 906 (Bankr. N.D. Ill. 1997).
In 2007 the United States Supreme Court addressed the
conversion issue head-on:
An issue that has arisen with disturbing frequency
is whether a debtor who acts in bad faith prior to, or
in the course of, filing a Chapter 13 petition by, for
example, fraudulently concealing significant assets,
thereby forfeits his right to obtain Chapter 13 relief.
The issue may arise at the outset of a Chapter 13 case
in response to a motion by creditors or by the United
States trustee either to dismiss the case or to convert
it to Chapter 7, see § 1307(c). 	It also may arise in a
Chapter 7 case when a debtor files a motion under §
706(a) to convert to Chapter 13. 	In the former
context, despite the absence of any statutory provision
specifically addressing the issue, the federal courts
are virtually unanimous that prepetition bad-faith
conduct may cause a forfeiture of any right to proceed
with a Chapter 13 case. 	In the latter context,
however, some courts have suggested that even a
bad-faith debtor has an absolute right to convert at
least one Chapter 7 proceeding into a Chapter 13 case
even though the case will thereafter be dismissed or
immediately returned to Chapter 7. 	We granted
certiorari to decide whether the Code mandates that
procedural anomaly.
Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 367-68
(2007)(Footnotes omitted.) 	In Marrama, the majority read section
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3That section provides:
Notwithstanding any other provision of this section, a
case may not be converted to a case under another
chapter of this title unless the debtor may be a debtor
under such chapter.
11 U.S.C. § 706(d).
4That section provides:
Except as provided in subsection (f) of this section,
on request of a party in interest or the United States
trustee and after notice and a hearing, the court may
convert a case under this chapter to a case under
chapter 7 of this title, or may dismiss a case under
this chapter, whichever is in the best interests of
creditors and the estate, for cause, including--
[11 different causes.]
11 U.S.C. § 1307(c)(Emphasis added.) 	“Including” is not
limiting. 	11 U.S.C. § 102(3).
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706(a) in conjunction with 706(d) 3 and ruled that the latter
section was an express condition on 706(a) that a debtor must
qualify for chapter 13 relief in order to convert. 	Id. at 372.
The majority then found that section 1307(c) 4 allowed dismissal
or conversion of a chapter 13 case to chapter 7 “for cause.” 	Id.
at 373. 	Because bankruptcy courts routinely dismiss chapter 13
cases if they are found to be filed in bad faith, such bad faith
is “tantamount to a ruling that the individual does not qualify
as a debtor under chapter 13.” 	Id. at 373-74. 	Therefore, under
the broad equitable powers granted to bankruptcy judges, they may
immediately deny a motion to convert if it will be followed by a
reconversion to Chapter 7. 	Id. at 375.
In this Court’s opinion there is no absolute right for a
Chapter 7 debtor to convert to Chapter 13. 	Rather, conversion
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5Section 362(c)(3) may not be available to Debtor if she
does not file another case. 	The Court need not and does not
decide that issue in this decision.
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requires a motion, notice and an opportunity for creditors to
oppose the conversion “for cause,” including bad faith. 	See also
In re Splawn, 2008 WL 1914253 at *3 and *5 (Bankr. D. N.M. 2008)
(Citing Marrama as authority and finding bad faith, the
bankruptcy court denied a motion to convert from Chapter 7 to
Chapter 13.)
The Debtor’s discharge was entered some six or seven hours
before the Motion to Convert. 	Debtor must take the facts as they
are. 	Of course, nothing prohibits a debtor from filing a new
chapter 13 case after receiving a chapter 7 discharge. 	If the
Debtor needs an automatic stay, she can file a new case and take
advantage of section 362(c)(3) and NM LBR 4001-1.1 to continue
the stay beyond the thirty-day time set forth in section
362(c)(3) 5.
Alternatively, Debtor might chose to continue in this case,
provide notice of the Motion to Convert and wait for objections.
If there are no objections, or if Debtor prevails in her motion
over any objections, she could then obtain a conversion order and
file an adversary proceeding to obtain a reinstatement of the
automatic stay in her converted case. 	See Fed.R.Bankr.P. 7001(7)
(injunctive relief.) 	But, a short-term or long-term vacation of
her discharge is not the answer.
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IT IS ORDERED that the Debtor’s Emergency Motion to Vacate
Discharge (doc 31) is denied.
Honorable James S. Starzynski
United States Bankruptcy Judge
Date Entered on Docket: 	March 5, 2012
Copies to:
David R Jordan
PO Box 840
Gallup, NM 87305-0840
Linda S. Bloom
Trustee
PO Box 218
Albuquerque, NM 87103-0218
United States Trustee
PO Box 608
Albuquerque, NM 87103-0608
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