Case No. 08-62565.United States Bankruptcy Court, E.D. Michigan, Southern Division.
August 1, 2011
ORDER DENYING, WITHOUT PREJUDICE, MOTION FOR HARDSHIP DISCHARGE
THOMAS TUCKER, Bankruptcy Judge
This case is before the Court on a motion for hardship discharge under 11 U.S.C. § 1328(b), filed on June 29, 2011 by Debtor’s attorney of record (Docket # 40, the “Motion”). The Motion seeks a hardship discharge due to the death of the Debtor on August 28, 2010. On July 26, 2011, Debtor’s attorney filed a Certification of Non-Response, indicating that no one has filed an objection to the Motion.
The Court must deny the Motion because the Motion does not show that it was filed by or on behalf of anyone with standing. The Debtor died several months before the Motion was filed, so Debtor’s attorney had no authority to file the Motion on behalf of the Debtor. Only a personal representative duly appointed by the probate court under the laws of the State of Michigan may file a motion for hardship discharge in the case of a deceased debtor. Cf. Mich. Comp. Laws Ann. § 700.3103 (stating, in relevant part, that “[e]xcept as otherwise provided in article IV, to acquire the powers and undertake the duties and liabilities of a decedent’s personal representative, a person must be appointed by the register or by court order, must qualify, and must be issued letters”); Mich. Comp. Laws Ann. § 700.3703(3) (stating that “[e]xcept as to a proceeding that does not survive the decedent’s death, a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of another jurisdiction as the decedent had immediately prior to death”); In re
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Hamilton, 274 B.R. 266, 267 (W.D. Tex. 2001) (citing In re Lucio, 251 B.R. 705, 708-09 (Bankr. W.D. Tex. 2000)) (“[W]hen a debtor dies, the only person who can then appear on the debtor’s behalf is the person so named as the official representative of the probate estate of the debtor.”)
Accordingly,
IT IS ORDERED that the Motion (Docket # 40), is denied, without prejudice to the right of a duly appointed personal representative of the deceased Debtor to file a motion for hardship discharge under 11 U.S.C. § 1328(b). But any such motion must be filed no later than August 22, 2011, or the Court will dismiss this Chapter 13 case under Fed.R.Bankr.P. 1016, without further notice or hearing.