Free Appellee's Brief - District Court of California - California

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MacCONAGHY & BARNIER, PLC JOHN H. MacCONAGHY, State Bar No. 83684 645 First St. West Sonoma, California 95476 Telephone: (707) 935-3205 Facsimile: (707) 935-7051 Email: [email protected] Attorneys for Appellee ANDREA A. WIRUM, Trustee In Bankruptcy

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

) ) STEWART JAY WARREN ) ) ) Debtor. ) ___________________________________ ) ) STEWART JAY WARREN, ) ) Appellant, ) ) v. ) ) SARA L. KISTLER, Acting United States ) Trustee; ANDREA A. WIRUM, Trustee ) in Bankruptcy; ) Appellees. ) ____________________________________)

In re

Case No. C 07-03244 CRB [USBC, ND.Cal. No. 06-10967]

BRIEF OF APPELLEE ANDREA A. WIRUM, TRUSTEE IN BANKRUPTCY

On appeal from a final "Order Denying Debtor's Motion to Dismiss Under 11 U.S.C. §109(h) and Ex Parte Request for Dismissal under 11 U.S.C. § 521(i)" Entered by the United States Bankruptcy Court for the Northern District of California Honorable Alan Jaroslovsky, United States Bankruptcy Judge

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TABLE OF CONTENTS PAGE(S)

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 C. 20 21 3. 22 23 24 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25 26
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TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii BASIS OF APPELLATE JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF ISSUE PRESENTED ON APPEAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 APPLICABLE STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 1. OVERVIEW OF THE "BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005" ("BAPCPA") AS IT PERTAINS TO THE INSTANT CASE . . . . . . . . . . . . . . . . . . . . . . . . . . 3 THE BANKRUPTCY COURT CORRECTLY DENIED THE DEBTOR'S MOTION TO DISMISS HIS BANKRUPTCY CASE UNDER SECTION 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Lack Of Eligibility Under Section 109 Does Deprive The Bankruptcy Court Of Subject Matter Jurisdiction Over A Debtor's Bankruptcy Case . . . . . . . . . . . . . . . . . . . . 5 There Is No Reported Authority Permitting A Debtor To Dismiss His Own Case Due To His Own Failure To Comply With Mandatory Debtor Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Dismissal Of This Case Would Frustrate The Statutory Protections Provided By BAPCPA To Priority Claims For Unpaid Domestic Support . . . . . . . . . . . . . . . . . . . . 10

2.

B.

THE BANKRUPTCY COURT CORRECTLY DENIED THE DEBTOR'S MOTION TO DISMISS HIS BANKRUPTCY CASE UNDER SECTION 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

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TABLE OF AUTHORITIES

PAGE(S)

Alexander v. Hillman 296 US 222, 241 - 242, 56 S.Ct. 204, 210-211, 80 L.Ed 792 (1935) . . . . . . . . . . . . . . . . 7 In re Barbaran 363 BR 333 (Bankr. D.D.C. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re BCE W., L.P. 319 F.3d 1166, 1170 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 In re Mills 341 BR 106 (Bankr. D.D.C. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 In re Mendez 367 BR 109 (9th Cir. BAP 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 In re Parker 351 BR 790 (Bankr. N.D. Ga. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 In re Sherman 441 F.3d 794, 813 (9th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 In re Wenberg 94 BR 631 (9th Cir. BAP 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

In re Wenberg 902 F.2d 768 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In re Withers 2007 WL 628078 (Bankr. N.D. Cal. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12 Werner v. Werner 267 F.3d 288 (3d Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 PAGE(S)

......................................................2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim ......................................................9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9 ......................................................8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
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Section 524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8 Section 707 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Section 1129 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 1322 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Section 1325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Title 28 Section 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Section 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Federal Rules of Bankruptcy Procedure Rule 1007 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Rule 8010 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Debt Collection Practice In California, 2d ed. ( California CEB 2000) . . . . . . . . . . . . . . . . . . 10 12 PERIODICALS 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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Alexander "`Herstory' Repeats: The Bankruptcy Code Harms Women and Children" 13 Am. Bankr. Inst. L. Rev. 571 (Winter 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Braucher "The Challenge To The Bench And Bar Presented By The 2005 Bankruptcy Act: Resistence Need Not Be Futile" 2007 U.Ill L.Rev. 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Jenner "A Legislative History Of The Bankruptcy Abuse Prevention And Consumer Protection Act of 2005" 79 Am. Bankr. L. J. 485 (Spring 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sommer "Trying To Make Sense Out Of Nonsense: Representing Consumers Under The "Bankruptcy Abuse Prevention And Consumer Protection Act of 2005" 79 Am. Bankr. L. J. 191 (Spring 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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BASIS OF APPELLATE JURISDICTION Pursuant to Federal Rule of Bankruptcy Procedure 8010(a)(2), the Appellee Andrea A. Wirum agrees that this Court has appellate jurisdiction over this case pursuant to 28 U.S.C. § 158(a) and (c)(1)(A), as asserted by the Appellant. STATEMENT OF ISSUE PRESENTED ON APPEAL Did the Bankruptcy Court have jurisdiction to deny the Debtor's motion to

dismiss his bankruptcy case under Bankruptcy Code § 109, even though the Debtor had failed to complete pre-bankruptcy "credit counseling" at the time of his filing ? 2. Did the Bankruptcy Court abuse its discretion in denying the Debtor's motion to

dismiss his bankruptcy case under Bankruptcy Code § 521 after finding that the best interests of creditors were served by permitting the Bankruptcy Trustee to continue to the administer the Estate ? APPLICABLE STANDARD OF REVIEW Questions of statutory construction are reviewed de novo, In re BCE W., L.P. 319 F.3d 1166, 1170 (9th Cir. 2003). A bankruptcy court's decision on whether or not to dismiss a chapter 7 case is reviewed for abuse of discretion, In re Sherman 441 F.3d 794, 813 (9th Cir. 2006). STATEMENT OF THE CASE Stewart Jay Warren is a convicted felon1 who failed to pay years and years of back child support to his ex-wife. In mid- 2006 he came into a significant amount of cash from a source still under investigation. His beleagured ex-wife, or others acting on her behalf, discovered that he was holding these monies. On September 25, 2006, an "Order to Withhold ­ Child Support Collections" in the amount of $93,330.46 was levied against his bank account at the Exchange Bank in Santa Rosa, California by the State of California, Health and Human Services Agency,

See accompanying Request to Take Judicial Notice. Though not part of the record below, this is an adjudicative fact which may properly be considered in the record on appeal, Werner v. Werner 267 F.3d 288 (3d Cir. 2001).
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Department of Child Support Services (ER 51 - 53). Erroneously thinking he could continue to evade his obligation to pay child support, frustrate these collection efforts through the bankruptcy stay, and keep the funds, on October 11, 2006, Mr. Warren filed a pro se Voluntary Petition for Relief under Chapter 7 of the Bankruptcy Code in the U.S. Bankruptcy Court for the Northern District of California (ER 1). The Appellee Andrea A. Wirum was duly appointed as the Chapter 7 Trustee in Bankruptcy of his estate from the "panel" of case trustees established and maintained by the Office of the United States Trustee, a component of the U.S. Department of Justice, see 28 U.S.C. § 586. Mr. Warren filed what is known as a "skeletal" bankruptcy petition, containing only the official form "voluntary petition for relief" and a creditor mailing matrix. Mr. Warren did not include with his bankruptcy petition a certificate that he had completed credit counseling from an approved non profit credit counseling agency, or any documents establishing an exemption from this requirement. As permitted by Bankruptcy Rule 1007(c), he did not file with the petition itself the familiar "Schedules of Assets and Liabilities" and "Statement of Financial Affairs" on Official Form Nos. 6 and 7, which set forth detailed lists and values of ones assets and liabilities, income information, and the nature and extent of pre-bankruptcy financial transactions. These forms and other documents were due 15 days after the petition, id. To remind the debtor of these filing obligations, on October 12, 2006, the Bankruptcy Court issued its "Order for Individuals to File Required Documents and Notice Regarding Automatic Dismissal", noting that "the court MAY DISMISS this case" if there was noncompliance with the 15 day rule (ER 4). When the required documents were not timely filed, on October 30, 2006, the Court entered its "Order for Hearing Re Sanctions", setting a hearing date of November 16, 2006. The Order provided, "The purpose of this hearing is to determine if the court should fine or otherwise sanction you and/or your counsel, or dismiss this case, pursuant to §105(a) for failure to file timely schedules and statement of affairs (ER 6). Prior to the November 16 hearing, the Appellee Wirum filed a response which requested
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that the bankruptcy court not dismiss the case. Wirum advised the Court that she had been contacted by a representative of Exchange Bank advising her that (1) Warren's bank account had been levied before the bankruptcy and that the Bank was prepared to turnover over the $93,330.46 to the Estate and (2) after the bankruptcy filing, Warren withdrew the remaining sum of approximately $90,000 from the Bank (which remains unaccounted for) (ER 49 - 53). With this opposition on file, the bankruptcy court dropped the proposed dismissal from calendar. (Wirum Supp. ER 6, 11/1706 docket entry) In the following months, both the Appellee Wirum and the Office of the U.S. Trustee unsuccessfully sought to obtain Warren's cooperation in the administration of the case. (Wirum Supp ER 6 - 7). On March 6, 2007, Warren filed a Motion to Dismiss his bankruptcy case the ground that he was ineligible to be a Chapter 7 debtor under Bankruptcy Code §109(h) because he had "... failed to obtain credit counsel prior to the commencement of the case and failed to obtain and exemption within the time prescribed by law." (ER 19). Both the Office of the United States Trustee (Appellee Sara L. Kistler) and Ms. Wirum objected (ER 26, 44 ). On April 4, 2007, Warren supplemented his Motion to Dismiss with an ex parte "Request for Entry of Order of Dismissal" based on his failure to timely file the Schedules of Assets and Liabilities, Statement of Financial Affairs, and other papers required by Bankruptcy Code Section 521(ER 54). Both motions were heard on April 6, 2007. Following the issuance of its "Memorandum on Motions to Dismiss" (ER 56), on April 20, 2007, the Bankruptcy Court entered its "Order Denying Debtor's Motion to Dismiss Under 11U.S.C. § 109(h) and Ex Parte Request for Dismissal Under 11 U.S.C. § 521(i)" (ER 59). On April 23, 2007, Warren filed a timely Notice of Appeal (ER 60). ARGUMENT 1. OVERVIEW OF THE "BANKRUPTCY ABUSE PREVENTION AND CONSUMER PROTECTION ACT OF 2005" ("BAPCPA") AS IT PERTAINS TO THE INSTANT CASE

This case involves the interpretation of certain provisions of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, 119 Stat. 23 (2005)
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("BAPCPA"), the most comprehensive overhaul of the Bankruptcy Code in twenty five years. The most dramatic change of BAPCPA to the old bankruptcy system was the enactment of the "means testing" provisions of Section 707(b)2 to restrict the availability of Chapter 7 relief to individuals with income greater than the statewide median. The new law also extends the time between bankruptcy discharges and restricts serial filers. The stated purpose of BAPCPA is to make it harder to file bankruptcy, see Jenner "A Legislative History Of The Bankruptcy Abuse Prevention And Consumer Protection Act of 2005" 79 Am. Bankr. L. J. 485, 566 - 567 (Spring 2005). However, BAPCPA maintains three fundamental "pro-debtor" provisions of the old law: (1) it gives debtors the benefit of the "automatic stay" set forth in Section 362 immediately enjoining most collection actions on the filing of the case; (2) it gives debtors, on certain conditions, a "fresh start", discharge of indebtedness pursuant to Section 524; and (3) it allows debtors to retain "exempt property", such as a homestead or IRA, as set forth in Section 522. It also maintains a fundamental "pro creditor" provision of the old law: it empowers a bankruptcy trustee to investigate the financial affairs of the debtor, collect and sell "non-exempt" assets, and distribute the proceeds to creditors in the order of statutory priority, see Sections 704 and 726. It is this attribute of the bankruptcy process which motivates many debtors, including the Appellant Warren, to attempt to get out of bankruptcy after they have gotten in, preferring to play "cat and mouse" with their creditors outside the system rather than deal with the summary enforcement powers of the bankruptcy court and the bankruptcy trustee to satisfy their creditors' claims. This case involves the new provisions of BAPCPA directing that a consumer debtor (1) receive credit counseling from an approved agency prior to filing a bankruptcy petition (Section 109(h) and (2) file certain other financial information with 45 days thereafter (Section 521(a)(1)(B)). BAPCPA and the reported cases interpreting it are reasonably consistent to the effect that, on motion by a creditor, the bankruptcy court has little or no discretion but to

2

Unless otherwise noted, all references are to Title 11, U.S.C.A.
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dismiss the case if the debtor fails to meet these requirements. BAPCPA is not so clear as to the bankruptcy court's obligations when it is the debtor who seeks to dismiss. 3 As will be shown below, the bankruptcy court's order in the instant case denying Warren's motion to dismiss correctly grafted the new dismissal provisions of BAPCPA onto settled principles of equitable jurisdiction and waiver, and it should be affirmed. 2. THE BANKRUPTCY COURT CORRECTLY DENIED THE DEBTOR'S MOTION TO DISMISS HIS BANKRUPTCY CASE UNDER SECTION 109 A. Lack Of Eligibility Under Section 109 Does Deprive The Bankruptcy Court Of Subject Matter Jurisdiction Over A Debtor's Bankruptcy Case

Bankruptcy Code § 109 is entitled "Who may be a debtor" and sets forth eligibility requirements under the various chapters of the Bankruptcy Code. BACPCA amended Section 109 to add subsection (h), which provides in relevant part: (1) ....notwithstanding any other provision of this section, an individual may not be a debtor under this title unless such individual has, during the 180-day period preceding the date of filing of the petition by such individual, received from an approved nonprofit budget and credit counseling agency described in section 111(a) an individual or group briefing (including a briefing conducted by telephone or on the Internet) that outlined the opportunities for available credit counseling and assisted such individual in performing a related budget analysis." The Appellant Warren argues that Section 109 jurisdictional, but this argument is

The technical deficiencies of BAPCPA have been extensively discussed in the commentaries; e.g., "The problems with the 2005 Act are breathtaking. There are typos, sloppy choices of words, hanging paragraphs, and inconsistencies. Worse, there are largely pointless but burdensome new requirements, overlapping layers of screening, mounds of new paperwork, and structural incoherence" , Braucher "The Challenge To The Bench And Bar Presented By The 2005 Bankruptcy Act: Resistence Need Not Be Futile" 2007 U.Ill L.Rev. 93, 97. "One of the chief problems that will be confronted is atrocious drafting, especially in many of the consumer provisions of the bill. In contrast to the 1978 legislation which was crafted with extensive assistance from many of the finest minds in the bankruptcy world, many of the consumer provisions of the 2005 legislation were largely drafted by lobbyists with limited knowledge of real-life consumer bankruptcy practice." Sommer "Trying To Make Sense Out Of Nonsense: Representing Consumers Under The "Bankruptcy Abuse Prevention And Consumer Protection Act of 2005" 79 Am. Bankr. L. J. 191, 191- 192 (Spring 2005)
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contrary to settled Ninth Circuit authority. The issue was addressed in In re Wenberg 94 BR 631 (9th Cir. BAP 1988), where a debtor attempted to file a Chapter 13 bankruptcy case, even though the amount of his debts exceeded the eligibility limits for Chapter 13 set forth in Section 109(e). A creditor moved for dismissal of the case, which the Bankruptcy Court granted. The Ninth Circuit Bankruptcy Appellate Panel reversed, stating at 94 BR 637: Further support for holding that Section 109(e) eligibility is not jurisdictional in nature may be derived by implication from the language of Section 109 which states nothing of the bankruptcy court's subject matter jurisdiction, but concerns only the "eligibility of debtors for relief" [citation]. In this regard, it is important to note that the Bankruptcy Code defines a "debtor" as a "person or municipality concerning which a case under this title has been commenced." 11 U.S.C. Section 101(12) . Accordingly, this Panel concludes that Section 109 eligibility is not jurisdictional... On further appeal, the Ninth Circuit affirmed in a briefed published opinion, In re

12 Wenberg 902 F.2d 768 (9th Cir. 1990), "We AFFIRM for the reasons stated in the opinion of the 13 Bankruptcy Appellate Panel." 14 Consistent with Wenberg, the Ninth Circuit Bankruptcy Appellate Panel addressed the 15 exact issue presented by this case in In re Mendez 367 BR 109 (9th Cir. BAP 2007), directly 16 controlling authority not cited by Mr. Warren in the Appellant's Opening Brief. Like Warren, 17 the debtor in Mendez filed a Chapter 7 bankruptcy case without complying with the requirements 18 of Section 109(h) to concurrently file a proper certificate of credit counseling. When Mendez's 19 bankruptcy trustee discovered assets available to pay creditors and sought to administer them, 20 Mendez wanted out and filed a Motion to Dismiss her case. Her bankruptcy trustee opposed the 21 motion. It was denied by the bankruptcy court. The Ninth Circuit Bankruptcy Appellate Panel 22 affirmed, framing the question as follows: 23 24 25 26 The record in this case reflects that the Debtor is a person with debt problems who took advice to seek a solution to her financial difficulties through chapter 7 bankruptcy. Once in bankruptcy, when she found that a consequence of her filing might be the sale of her home, she wanted out. The new wrinkle to this commonly encountered scenario is the
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Debtor's attempt to sue the BAPCPA credit counseling requirement offensively, as a ticket to get out of bankruptcy. 367 BR at p. 114. Relying on the case of In re Parker 351 BR 790 (Bankr. N.D. Ga. 2006), the BAP held that the credit counseling requirement was not jurisdictional, and that it could be waived by the debtor: Consistent with the Parker analysis, the bankruptcy court in this case determined that compliance with the requirements of Section 109(h) was a matter of eligibility rather than jurisdiction, and consequently, was waivable. We agree with the Parker court's analysis, and the determination of the bankruptcy court in this case, that strict compliance with the credit counseling requirements of Section 109(h) can be waived by a debtor. Accordingly, we find that the bankruptcy court did not err as a matter of law in denying the Motion to dismiss on Section 109(h) grounds. 367 BR at p. 118. See also In re Withers 2007 WL 628078 (Bankr. N.D. Cal. 2007). This is consistent with

12 longstanding principles of equitable jurisdiction expressed in Alexander v. Hillman 296 US 222, 13 241 - 242, 56 S.Ct. 204, 210-211, 80 L.Ed 792 (1935): 14 15 16 17 18 19 20 21 22 Mr. Warren string cites a number of out-of-circuit bankruptcy court cases at Appellant's 23 Opening Brief, pp. 5 - 8 in support of his claim that it was err for the bankruptcy court to deny 24 his Motion to Dismiss. He argues that there is a "split" as to whether the failure to file the credit 25 counseling certificate is "jurisdictional" or "procedural", but that all of the cases except for 26
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By presenting their claims respondents subjected themselves to all the consequences that attach to an appearance...That requirement is in harmony with the rule generally followed by courts of equity that having jurisdiction over the parties to controversies brought before them, they will decide all matters in dispute and decree complete relief There is no reason for this Court to depart from this common sense, fundamentally fair result in the instant case. B. There Is No Reported Authority Permitting A Debtor To Dismiss His Own Case Due To His Own Failure To Comply With Mandatory Debtor Requirements

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Parker and Withers, supra, hold that dismissal is mandatory. In fact, not a single one of the cases cited by Warren holds that the failure to comply with Section 109(h) is jurisdictional. Not a single one of the cases dealt with a situation where the debtor was trying get his or her own bankruptcy case dismissed, a critical distinguishing factor noted in Mendez, supra, at 367 BR p. 115. One of the cases holding that dismissal was "mandatory", In re Mills 341 BR 106 (Bankr. D.D.C. 2006), was reversed, see In re Barbaran 363 BR 333 (Bankr. D.D.C. 2007). Thus, none of Warren's authority provides any basis to reverse the Bankruptcy Court here. C. Dismissal Of This Case Would Frustrate The Statutory Protections Provided By BAPCPA To Priority Claims For Unpaid Child Support

As is noted above, one of the most important attributes of BAPCPA is the enhanced rights given to the holders of priority claims for unpaid domestic support. This occurred through a number of changes to the Bankruptcy Code. First, the priority statute, Section 507, formerly ranked domestic support claims seventh in the distribution hierarchy, behind administrative expenses, employee wage and benefit claims, and consumer deposits. Under BAPCPA, claims for domestic support obligations have been moved to the first priority in distribution by new Section 507(a)(1), before even general administrative compensation paid to the chapter 7 trustee. Second, the provisions of Section 704, "Duties of trustee" have been modified to add the following: (a) The trustee shall ­ (10) if with respect to the debtor there is a claim for a domestic support obligation, provide the applicable notice specified in subsection (c); (c) (1) In a case described in subsection (a)(10) to which subsection (a)(10) applies, the trustee shall -(A) (i) provide written notice to the holder of the claim described in subsection (a)(10) of such claim and of the right of such holder to use the services of the State child support enforcement agency established under sections 464 and 456 of the Social Security Act for the State in which such holder resides, for assistance in collecting child support during and after the case under this title; (ii) include in the notice provided under clause (i) the address and
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telephone number of such State child support enforcement agencyl and (iii) include in the notice provided under clause (i) an explanation of the rights of such holder to payment of such claim under this chapter; Third, the provisions of the automatic stay have been modified to expand the rights of spouses and children to commence, prosecute, and collect family law judgments and orders without leave of the bankruptcy court, see Section 362(b)(2). Fourth, no individual can confirm a plan of reorganization under Chapter 11 or Chapter 13 unless he or she is current on domestic support obligations, see Sections 1129(a)(14), 1322(a)(4), and 1325(a)(8). All of these protections would be frustrated by a dismissal of this case. One commentator has aptly noted that the domestic support provisions are for the benefit of the unpaid spouse, not the debtor, and has expressed concern over the negative implications of dismissing a case involving child support obligations too quickly: ....alimony, maintenance, support and property settlement debts have been given new status as "domestic support obligations;" ....these obligations will now receive first-priority for repayment among unsecured creditors;...the automatic stay has been modified to permit the continuation of many more domestic relations/domestic support actions. Some of the concerns expressed by the bankruptcy community about the dischargeability of marital debts have been addressed in the new law. In addition, the rules relating to the discharge of alimony, maintenance, support and property settlement obligations have been streamlined. However, in order to take advantage of the new "domestic support obligations" provisions of the Bankruptcy Code one must be able to file bankruptcy in the first place. Alexander "`Herstory' Repeats: The Bankruptcy Code Harms Women and Children" 13 Am. Bankr. Inst. L. Rev. 571, 578 (Winter 2005) The effect of dismissing the instant case would be to make it virtually impossible for the

22 domestic support claimants of Warren to collect the sums due. Pursuant to Section 349(b) the 23 effect of any dismissal is to undo all effects of the bankruptcy. Warren's $93,330.46 would go 24 back into his bank account instead of being paid for his child support obligation. Critically, the 25 funds would not be picked up by the prepetition bank levy ­ that has long since expired. As 26
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noted in 2 Debt Collection Practice in California 2d ed. (CEB 2000) Section 9.33, p. 600: The timing on levying a judgment debtor's bank account is important. The amount reached by garnishing a bank account is what is in the bank at the instant of the levy; any amounts the judgment debtor deposits later in the day are not reached by the levy (Emphasis added). Obviously, the scheme of Mr. Warren's efforts to dismiss his case below and to prosecute his appeal here is to get the seized funds back in his bank account and abscond with them before a new domestic support order can be levied. It is difficult to imagine a more offensive injustice in a civil matter. 3. THE BANKRUPTCY COURT CORRECTLY DENIED THE DEBTOR'S MOTION TO DISMISS HIS BANKRUPTCY CASE UNDER SECTION 521

Bankruptcy Code Section 521(i), another of the new provisions of BAPCPA, states in relevant part: (i)(l) Subject to paragraphs (2) and (4) and notwithstanding section 707(a), if an individual debtor in a voluntary case under chapter 7 or 13 fails to file all of the information required under subsection (a)(1) within 45 days after the date of the filing of the petition, the case shall be automatically dismissed effective on the 46th day after the date of the filing of the petition. (2) Subject to paragraph (4) and with respect to a case described in paragraph (1), any party in interest may request the court to enter an order dismissing the case. If requested, the court shall enter an order of dismissal not later than 5 days after such request. (4) Notwithstanding any other provision of this subsection, on the motion of the trustee filed before the expiration of the applicable period of time specified in paragraph (1), (2), or (3), and after a notice and a hearing, the court may decline to dismiss the case if the court finds that the debtor attempted in good faith to file all the information required by subsection (a)(1)(B)(iv) and that the best interests of creditors would be served by administration of the case. The "information required under subsection [521](a)(1)" is the following:

23 24 25 26 (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 expenditures; (iii) a statement of the debtor's financial affairs.... (iv) copies of all payment advices or other evidence of payment
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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; (Emphasis added). Appellant Warren incorrectly contends that, "there is no dispute that the Appellant did not provide any of the information required by Section 521(a)(1)" (App.Op.Br., p. 7:21 -23) and that "Should the Trustee's Request [not to dismiss the case] be construed to be a motion pursuant to Section 521(i)(4), the Court would have had to find that the Appellant attempted to file the information in good faith in order to grant relief from the automatic dismissal provision." (App.Op.Br., p. 8:21 -27. There are three problems with this argument. First, the only information absolutely required by Section 521(a)(1) is "a list of creditors" pursuant to Section 521(a)(1)(A). Warren did provide this information, see ER 25. All of the other information required by Section 521(a)(1) is subject to the qualifier "unless the court orders otherwise", see Section 521(a)(1)(B). Here, the Court entered an order waiving this requirement, see ER 58. The only way to harmonize the statute is to interpret it so that dismissal is mandatory and "automatic" only if the creditor matrix; i.e., the list of creditors, is not filed with the petition. Second, it is not correct to say that Section 521(i)(4) requires a "good faith" finding regarding the provision of all information required by Section 521(a)(1) before the requirement can be excused. Section 521(i)(4), even if otherwise applicable, refers only to the information required by Section 521(a)(1)(B)(iv); i.e., the debtor's pay stubs covering the 60 days prior to bankruptcy, see the statutory language above. There was nothing in the record below to suggest that the debtor was employed within the 60 days prior to bankruptcy, had pay stubs, or that the information described in Section 521(a)(1)(B)(iv) otherwise existed. The limited "good faith" requirement of a Trustee's motion under Section 521(a)(1)(B)(iv) is inapplicable to the instant
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matter. Finally, as Bankruptcy Judge Tchaikovsky held in In re Withers, supra : An individual who files a chapter 13 petition has the right to dismiss the case at any time. However, traditionally, an individual who files a chapter 7 petition must file a noticed motion to dismiss the case, and his motion may be denied. Construing 11 U.S.C. Section 521(a)(1)(B) and (i) to give a chapter 7 debtor the absolute right to cause the automatic dismissal of the case 45 days after it is filed would represent a dramatic change in the law and would open the door to abuse. The Appellant in the instant case is urging this Court to adopt a rule which would allow

8 him to benefit from his own, direct violation of bankruptcy court orders. That does not present a 9 good reason to reverse the judgment below. 10 CONCLUSION 11 Neither dictates of BAPCPA nor fundamental notions of procedural fair play will be 12 served by reversal of the bankruptcy court. Dismissal of this case would allow the Appellant to 13 continue to evade his responsibility to pay child support and gain an advantage through his own 14 disobedience of lawful bankruptcy court orders. The judgment should be affirmed. 15 Dated: September 4, 2007 16 MacConaghy & Barnier, PLC 17 18 19 20 21 22 23 24 25 26
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Respectfully submitted,

/s/ JohnH. MacConaghy By John H. MacConaghy Attorney for Appellee Andrea A. Wirum, Trustee in Bankruptcy

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DECLARATION OF SERVICE BY MAIL

I am a citizen of the United States, over the age of 18 years and not a party to the within action. My business address is 645 First Street West, Sonoma, California 95476. I served true and correct copies of the BRIEF OF APPELLEE ANDREA A. WIRUM, TRUSTEE IN BANKRUPTCY, by placing said copies through the United States Mail at Sonoma, California on the date shown below, and in a sealed envelope(s) with first-class postage prepaid, addressed to the person(s) below. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at Sonoma, California on September 6, 2007.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 David N. Chandler, Sr. Esq. David N. Chandler, P.C. 1747 Fourth St. Santa Rosa, CA 95404 Office of the U.S. Trustee U.S. Department of Justice 250 Montgomery Street, Suite 1000 San Francisco, CA 94104-3401 Attn: James Shepard, Esq. /S/ ____________________________________ Deena M. York