IN RE GLASS, (Bankr.W.D.Pa. 2002)

IN RE: ELAINE GLASS Debtor(s). ELAINE GLASS Movant(s) v. NO RESPONDENT Respondent(s).

Bankruptcy No. 99-24891, Chapter 13 Motion No. MF-2United States Bankruptcy Court, W.D. Pennsylvania
April 23, 2002

Margaret J. Fried, Esquire, Counsel for Debtor.

MEMORANDUM OPINION[1]

[1] The court’s jurisdiction was not at issue. This Memorandum Opinion constitutes our findings of fact and conclusions of law.

JUDITH K. FITZGERALD, United States Bankruptcy Judge.

The matter before the court is Debtor’s motion for reconsideration of this court’s order of January 18, 2002, dismissing the case without prejudice and denying her oral motion to convert to chapter 7.

On March 23, 1995, Debtor filed a chapter 7 petition in this court. She received a discharge on November 29, 1995. The current case was filed as a chapter 7 on June 29, 1999, within six years of her previous discharge and was converted to chapter 13 on June 30, 1999. The chapter 13 plan was confirmed in October of 1999 and in August of 2001 the Chapter 13 Trustee filed a Certificate of Default Requesting Dismissal because Debtor was in material default in plan payments. A hearing was held December 19, 2001. At that hearing Debtor’s counsel made an oral motion to convert to chapter 7. Both matters were continued to January 17, 2002, at which time the Debtor did not appear and the court dismissed the case. Debtor moved for reconsideration, citing inadvertence with respect to failure to appear and a hearing was held on March 21, 2002, on the motion for reconsideration of the January 17, 2002, order.

We will deny the motion to convert to chapter 7 and reaffirm our order dismissing the bankruptcy case inasmuch as at the time Debtor moved to convert to chapter 7 she was not eligible for a chapter 7 discharge. Section § 727 of the Bankruptcy Code provides that

(A) The court shall grant the debtor a discharge, unless —
. . . (8) the debtor has been granted a discharge under this section, under section 1141 of this title . . . in a case commenced within six years before the date of the filing of the petition.

11 U.S.C. § 727(a)(8).

Debtor concedes that she sought relief under chapter 7 within six years of the filing of her previous chapter 7 in which she received a discharge. However, she asserts that, under § 727(c), only a creditor, the trustee, or the United States may object to a discharge on § 727(a) grounds. Debtor cites In re Canganelli, 132 B.R. 369
(Bankr.N.D.Ind. 1991),[2] in support of her argument. The court in Canganelli opined that it did not have the authority to raise § 727(a) grounds sua sponte and that even though § 105 gives the court the power to issue orders that are necessary to carry out the provisions of title 11, the court would have to do so within the 60 day period of F.R.Bankr.P. 4004, “the same as any other party in interest”. We disagree with the court’s analysis. First, the court is not a “party in interest” and judges take an oath to uphold and apply the law. Second, § 727(c) provides that a creditor, the trustee, or the United States may object to a discharge on grounds listed in § 727(a). It does not prohibit the court from enforcing the Bankruptcy Code. Third, § 727(a) provides that a discharge shall be granted unless various circumstances exist. Put another way, the court may not grant a discharge if those circumstances exist.

Debtor also cites In re Burrell, 148 B.R. 820 (Bankr.E.D.Va. 1992),[3]
in support of her position but that case said that Canganelli “ignores the clear mandate of § 727(a) which directs the court to grant a discharge unless the debtor has been granted a discharge” in a chapter 7 in a case commenced within six years of the filing of the current petition. 148 B.R. at 822 (emphasis in original). Although Burrell involved exceptional circumstances of abuse of the bankruptcy process and stated that the court should not assume the role of advocate, we agree with its interpretation of § 727(a) as requiring the court to deny a discharge within six years of the filing of a previous chapter 7 in which a discharge was obtained. See also In re Fallon, 244 B.R. 589, 594
((Bankr.E.D.Pa. 2000) (“Congress has expressly prohibited various forms of serial filing”, citing § 727(a)(8) and quoting Johnson v. Home State Bank, 501 U.S. 78, 87 (1991)).

We note that filing a chapter 13 within six years of the filing of a chapter 7 in which a discharge was received is not prohibited under the Bankruptcy Code and does not implicate § 727(a)(8). See In re Fallon, 244 B.R. at 594. However, when Debtor made her oral motion to convert to chapter 7 she was ineligible to obtain a discharge under § 727(a)(8). Because Debtor was not eligible for another chapter 7 discharge at the time of her motion, conversion to chapter 7 would have been a useless act. The law does not require a useless act. In re Dickey, 214 B.R. 145, 147 (Bankr.W.D.Pa. 1997).[4]

Accordingly, we will not reverse our decision of January 18, 2002, to deny the oral motion to convert and to dismiss the case. We note, however, that on or about March 24, 1991, Debtor became eligible to file a new chapter 7 case and this Memorandum Opinion and accompanying order does not affect any new chapter 7 filing that Debtor may undertake.

ORDER
AND NOW, this 23rd day of April, 2002, for the reasons expressed in the foregoing Memorandum Opinion, it is ORDERED, ADJUDGED, and DECREED that Debtor’s motion for reconsideration of the order of January 17, 2002, is DENIED and this case is DISMISSED without prejudice.

It is FURTHER ORDERED that Debtor’s oral motion to convert to chapter 7 is DENIED.

[2] Debtor cited Canganelli as a district court case but the citation given is a bankruptcy court decision.

[3] Debtor also cites Burrell as a district court case but it is a bankruptcy court decision.

[4] Section 348(a) provides that conversion from one chapter to another does not effect a change in the petition filing date except as provided in subsections (b) and (c). Subsection (b) provides that “Unless the court for cause orders otherwise, . . . `the order for relief . . .’ means the conversion of such case in such chapter.” Debtor has not stated any reason why she should be accorded treatment under § 348(b). Subsection (c) provides that § 342 and § 365(d) apply in a converted case “as if the conversion order were the order for relief” but this is not at issue in this case.