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Bankruptcy - Do It Right!
19 Oct 2012 16:47 #1
by Tim_Canty Esq
Bankruptcy - Do It Right! was created by Tim_Canty Esq
[center:1isplqmc]In re Muniz 320 BR 697
Hon. Howard R. Tallman
Chief U.S. Bankruptcy Judge
District of Colorado[/center:1isplqmc]
The Court is not unmindful of the fact that revocation of discharge is a harsh measure. Nonetheless, it is axiomatic that the extraordinary relief of a bankruptcy discharge is reserved for the honest but unfortunate debtor.[3] The Congress could not have expressed its will more clearly than it did in ยง 727. A debtor who does not honor her obligations to turn over estate property is not a debtor to whom this Court is empowered to grant a discharge.
Sadly, this Debtor chose to proceed with the filing of a bankruptcy case without the benefit of bankruptcy counsel. She is one of a growing number of individuals (currently about 15% in this district) who attempt to act as their own attorney. That decision has proven to be extraordinarily unfortunate. This case illustrates a "perfect storm" of bad consequences: the Debtor loses her discharge; she still has a judgment against her in favor of the Trustee for the value of property she failed to surrender to him; and the $21,000 plus of unsecured debt which the Debtor listed in her schedules may not be subject to discharge in any subsequent chapter 7 bankruptcy proceeding. The money that the Debtor saved by not hiring competent counsel is small compared to the amount of debt for which she will continue to be held responsible.
In this Court, as in other federal courts, the pleadings of pro se litigants receive a liberal construction. The submissions of a pro se party are not held to the same technical and procedural requirements as the submissions of licensed attorneys.[4] 703*703 Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). At the same time, the Court does not, and cannot, act as advocate of an unrepresented party. Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991) ("we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant"). It is simply not part of the Court's role to attempt to negotiate a deal with the Trustee on the Debtor's behalf. While the Court can think of several ways the Debtor may have acted at an earlier stage of these proceedings to avoid the result that the Court reaches today, at trial, the Court is charged with considering the evidence and applying the law. The result is regrettable in that it could have been avoided. But it is also the inevitable result of the Debtor's deliberate actions in the face of her knowledge of her obligations under the law.
Got Questions? Get Answers! Free Consultation.
Timothy Canty, Esq.
(303) 670-2185
[url=http://www.timcantylaw.com" onclick="window.open(this.href);return false;]www.timcantylaw.com[/url]
A Federally Designated Debt Relief Agency
Hon. Howard R. Tallman
Chief U.S. Bankruptcy Judge
District of Colorado[/center:1isplqmc]
The Court is not unmindful of the fact that revocation of discharge is a harsh measure. Nonetheless, it is axiomatic that the extraordinary relief of a bankruptcy discharge is reserved for the honest but unfortunate debtor.[3] The Congress could not have expressed its will more clearly than it did in ยง 727. A debtor who does not honor her obligations to turn over estate property is not a debtor to whom this Court is empowered to grant a discharge.
Sadly, this Debtor chose to proceed with the filing of a bankruptcy case without the benefit of bankruptcy counsel. She is one of a growing number of individuals (currently about 15% in this district) who attempt to act as their own attorney. That decision has proven to be extraordinarily unfortunate. This case illustrates a "perfect storm" of bad consequences: the Debtor loses her discharge; she still has a judgment against her in favor of the Trustee for the value of property she failed to surrender to him; and the $21,000 plus of unsecured debt which the Debtor listed in her schedules may not be subject to discharge in any subsequent chapter 7 bankruptcy proceeding. The money that the Debtor saved by not hiring competent counsel is small compared to the amount of debt for which she will continue to be held responsible.
In this Court, as in other federal courts, the pleadings of pro se litigants receive a liberal construction. The submissions of a pro se party are not held to the same technical and procedural requirements as the submissions of licensed attorneys.[4] 703*703 Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972)). At the same time, the Court does not, and cannot, act as advocate of an unrepresented party. Hall v. Bellman, 935 F.2d 1106, 1110 (10th Cir. 1991) ("we do not believe it is the proper function of the district court to assume the role of advocate for the pro se litigant"). It is simply not part of the Court's role to attempt to negotiate a deal with the Trustee on the Debtor's behalf. While the Court can think of several ways the Debtor may have acted at an earlier stage of these proceedings to avoid the result that the Court reaches today, at trial, the Court is charged with considering the evidence and applying the law. The result is regrettable in that it could have been avoided. But it is also the inevitable result of the Debtor's deliberate actions in the face of her knowledge of her obligations under the law.
Got Questions? Get Answers! Free Consultation.
Timothy Canty, Esq.
(303) 670-2185
[url=http://www.timcantylaw.com" onclick="window.open(this.href);return false;]www.timcantylaw.com[/url]
A Federally Designated Debt Relief Agency
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