Cite as: [Unpublished]
re Terrence Willmore Boe, Debtor
Bankruptcy Case No. 86-00337-7
United States Bankruptcy Court
W.D. Wisconsin, Eau Claire Division
May 15, 1987
Daniel R. Freund, for the debtor.
Thomas S. Utschig, United States Bankruptcy Judge.
MEMORANDUM OPINION, FINDINGS OF FACT,
AND CONCLUSIONS OF LAW
The debtor, by Daniel R. Freund, who appears for Oltman, Jurgensen, Thorie &
Webster, Ltd., requests that this bankruptcy case be dismissed and that discharge be
revoked. The debtor has provided legal memoranda to the court in support of his motion. It
is the opinion of the court, upon review of the file, the memoranda, the relevant case
law, and the equities in this case that the motion should be denied.
The debtor filed a petition for relief under Chapter 7 of the Bankruptcy Code on
February 12, 1986. A no-asset report was filed by the trustee on April 1, 1986. An order
of discharge pursuant to § 727 of the Bankruptcy Code was issued on June 9, 1986. The
debtor filed a motion to dismiss this bankruptcy case and for revocation of discharge on
November 5, 1986. The motion states:
1. In January, 1986, movant filed for relief under Chapter 7 of the Bankruptcy Code.
2. Movant has no non-exempt assets.
3. Movant has no non-exempt income.
4. Following the filing of the Petition, Movant incurred substantial indebtedness from
unexpected medical needs.
5. Movant does not [intend] to file a new Chapter 7 Petition in the foreseeable future.
6. There is cause to dismiss the above-referenced bankruptcy case.
The debtor, at the request of the court, has submitted legal memoranda in support of
"Under 11 U.S.C. § 707 [a court] may grant a motion for voluntary dismissal only
'for cause.' Cause is not defined in § 707. The determination of cause rests within
the sound discretion of the courts." In re Heatley, 51 B.R. 518, 519 (Bankr.
E.D. Pa. 1985). The debtor has not convinced the court that cause exists for the dismissal
of this bankruptcy case. The fact that the debtor has incurred substantial post-petition
medical indebtedness does not constitute "cause" within the meaning of § 707.
A debtor, of course, is free to choose if and
when to file a petition under Chapter 7 of the Code. Once it is filed, however, the
petition can not be voluntarily dismissed except by court order and then only for cause.
The Debtor's timing of the filing of his
petition was unfortunate. However, the Congress has mandated that a debtor is entitled to
a "fresh start" only once in six years under the Bankruptcy Code. 11 U.S.C. §
727(a)(8). To dismiss this pending case and permit the Debtor to file another petition and
obtain a discharge of debts incurred since its filing would circumvent the Code and
establish a dangerous precedent which could lead to abuses. An important function of the
Bankruptcy Court is to prevent possible abuses of this important legislation.
The status of the Debtor and his creditors is
established as of the date of the filing of his Chapter 7 petition. Creditors who
extended credit or performed services subsequent to the filing of the petition may have
done so in reliance upon the Debtor's "fresh start."
In re Reynolds, 4 B.R. 703, 704 (Bankr. D. Me. 1980).
The debtor voluntarily chose the date of filing his bankruptcy petition and should not
be allowed to now alter that date absent a compelling showing of cause. In re Crenshaw,
65 B.R. 90 (Bankr. W.D. Ky. 1986). The debtor's discharge has already been granted and
there does not appear to be cause for revocation of the discharge or dismissal of this
bankruptcy case. The debtor's motion should be denied.
This opinion shall constitute findings of fact and conclusions of law in accordance
with Bankruptcy Rule 7052.