ROBERT H. JACOBVITZ, Bankruptcy Judge
THIS MATTER is before the Court on the Debtor's Motion to Convert Case to One Under Chapter 11 ("Motion to Convert")(Docket No. 21) and Creditor BANK '34's objection thereto. See Docket No. 24. The Debtor seeks to convert her Chapter 7 case to a case under Chapter 11 in accordance with 11 U.S.C. § 706, which provides, in part, that a debtor may convert a Chapter 7 case to Chapter 11 at any time, unless the case has previously been converted. See 11 U.S.C. §706(a). BANK '34 asserts that the Debtor has not acted in good faith and requests the Court to deny the Motion to Convert. The Court held a final, evidentiary hearing on the Motion to Convert on May 26, 2011 and took the matter under advisement.
The parties agree that the Supreme Court's decision in Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 127 S.Ct. 1105, 166 L.Ed.2d 956 (2007) applies to a debtor's request to convert from Chapter 7 to Chapter 11.
Conversion from Chapter 7 to Chapter 11 is governed by 11 U.S.C. § 706(a), which provides:
Conversion under 11 U.S.C. § 706(a) is further limited by 11 U.S.C. § 706(d), which requires that the "debtor may be a debtor" under the converted chapter. 11 U.S.C. § 706(d). The Debtor in this case filed a voluntary petition under Chapter 7 of the Bankruptcy Code on December 2, 2010. She filed her Motion to Convert on January 6, 2011. See Docket No. 21. The case has not previously been converted. She is otherwise eligible to be a debtor under Chapter 11. See 11 U.S.C. § 109(a) ("only a person that resides or has a domicile, a place of business, or property in the United states . . . may be a debtor under this title."). Except for the additional limitations implicated by Marrama, the Debtor would be allowed to convert to Chapter 11.
In Marrama the Supreme Court found that eligibility for conversion from Chapter 7 to Chapter 13 under 11 U.S.C. § 706(a) is dependent on two things: first, whether the debtor is eligible to be a debtor under chapter 13 under 11 U.S.C. § 109(e); and second, whether the case, if converted, would be dismissed under 11 U.S.C. § 1307(c). The Marrama case focused on the latter ground for denying a motion to convert or dismiss. The Court reasoned that a determination that the converted chapter 13 case would be dismissed for cause "is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13." Marrama, 549 U.S. at 374. By denying a request to convert upon a finding of bad faith, "in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors," the bankruptcy court is exercising its broad authority granted under 11 U.S.C. § 105(a) "to take any action that is necessary or appropriate `to prevent an abuse of process.'" Id. at 375. Thus, under Marrama, a debtor can forfeit his or her right to convert under 11 U.S.C. §706(a) when the debtor's bad faith conduct is sufficient to warrant dismissal of a converted chapter 13 case.
Marrama's limitations on a debtor's one-time right to convert under 11 U.S.C. § 706(a) also apply when a debtor seeks to convert a Chapter 7 case to Chapter 11. Like 11 U.S.C. § 1307(c), which permits dismissal of a Chapter 13 case for "cause," 11 U.S.C. § 1112(b) permits dismissal or conversion of a Chapter 11 case for "cause." Although none of the eleven nonexclusive specified causes for the dismissal of a Chapter 13 case under 11 U.S.C. § 1307(c) include bad faith conduct occurring prior to commencement of the Chapter 13 case, dismissal for such bad faith conduct is implicitly authorized by the words "for cause" contained in 11 U.S.C. § 1307(c). Marrama, 549 U.S. at 365. Similarly, although none of the sixteen nonexclusive specified causes for the conversion or dismissal of a Chapter 11 case under 11 U.S.C. § 1112(b) include bad faith conduct occurring prior to commencement of the Chapter 11 case,
In Marrama, the Supreme Court expressly declined to specify what conduct qualifies as "bad faith" sufficient to deny conversion from chapter 7 to chapter 13,
When considering whether to deny a request to convert from Chapter 7 to Chapter 11 under 11 U.S.C. § 706(a), courts often look to the same factors used when considering whether to dismiss or convert a debtor's Chapter 11 case based on bad faith.
To this list, the Court adds whether creditors would receive substantially more in a chapter 11 case than from a liquidation of nonexempt assets of the bankruptcy estate in a chapter 7 case. This factor further balances the overarching policies of the Bankruptcy Code of providing relief to the honest but unfortunate debtor, preserving going concerns, and maximizing value for creditors.
In this case, the evidence at the final hearing demonstrated that the Debtor's Statement of Financial Affairs and Schedules are neither complete nor correct. Within one year of the filing of the Debtor's bankruptcy petition, the Debtor transferred certain unencumbered real property located at 56 Spring Road known as the Waterfall Lodge by quitclaim deed to Jonathan Kwon. The transfer was made without consideration. Jonathan Kwon is the Debtor's stepson. See Exhibit 8. The Debtor estimates that the value of the Waterfall Lodge is between $395,000.00 (as listed on Amended Schedule B) and $895,000.00 (as reported in a Personal Financial Statement prepared by the Debtor in 2008). See Exhibit 4. Post-petition, the Waterfall Lodge was transferred back to the Debtor by quitclaim deed. See Exhibit D. The Debtor failed to disclose the pre-petition transfer of the Waterfall Lodge in her Statement of Financial Affairs.
The Debtor failed to list several items of personal property on Schedule B. For example, the Debtor testified that certain artwork was stolen, but that she recovered some of it about two months ago. Yet her Amended Schedule B, filed March 31, 201, checks "none" in response to Item 5 (books, pictures and other art objects). The Debtor also failed to list in Schedule B certain other personal property that is property of the bankruptcy estate: 1) her wedding ring; and 2) a $30,000 ring that she believed had been stolen but that she later found in her office. She has not filed an Amended Schedule B to list these items; her Amended Schedule B checks "none" in response to Item 7 (Furs and Jewelry).
The Debtor also failed to identify several transfers or other gifts of personal property on her Statement of Financial Affairs. She testified that she transferred jewelry she values at $50,000.00 to her sister who took it to Korea. She did not disclose this transfer of personal property in her Statement of Financial Affairs, either in response to Item 7 — Gifts, or in response to Item 10 — Other Transfers. The Debtor purchased a Ford Explorer in 2010 that she transferred to her business entity, Sonoma Dental, LLC, approximately one month before the filing of her bankruptcy case. The Debtor failed to disclose the transfer of the vehicle on her Statement of Financial Affairs.
The Debtor testified at the final hearing that her secretary stole from her. Her Amended Statement of Financial Affairs discloses a theft of jewelry and electronic devices valued at $23,000.00. She eventually recovered between $6,000.00 and $15,000 from her homeowner's insurance policy to compensate her for her loss, but she did not report in her Schedules the insurance claim or the proceeds received on the claim.
The Debtor's Schedule I is misleading. The Debtor's Schedule I reflects that she is employed by Days Inn & Suite in the field of public relations, earning monthly gross wages of $2,166.66. The Debtor, who was born in Seoul, Korea and moved to the United States in 1980, is a dentist. Because the Days Inn & Suite business was not financially successful, in late 2010 the Debtor started a dental practice, Sonoma Dental, LLC, that focuses on cosmetic dentistry, including implants, surgery, and prosthetics. She testified that, in recent months she has been earning more than $7,500.00 per month from the operation of Sonoma Dental, LLC, which includes $1,500.00 that Sonoma Dental, LLC pays her for renting the office space. The dental practice is the Debtor's principal source of income. Schedule I does not reflect the Debtor's employment as a dentist. The Debtor has not filed an amended Schedule I to reflect her employment as a dentist.
The Debtor's misstatements, omissions, and other pre- and post-petition bad acts, when considered together, are significant. Her testimony regarding these deficiencies indicates that, at the very least, she did not take her responsibility of full, complete, and accurate disclosure seriously. The Court finds that Bank 34 has demonstrated bad faith conduct on the part of the Debtor.
In defense of her request to convert, the Debtor admits that her Statement of Financial Affairs and Schedules contain deficiencies, but points out that she sought to convert her case before her meeting of creditors and before Bank 34 conducted a Rule 2004 exam in which many of the deficiencies were identified.
The Debtor submitted a draft of her proposed Chapter 11 plan of reorganization at the final hearing on the Motion to Convert. The proposed plan falls significantly short of demonstrating that the Debtor should be permitted to convert to Chapter 11 at this time. The draft plan does not contemplate a sale of the Waterfall Lodge, the Debtor's most valuable unencumbered asset. To the contrary, at the final hearing, the Debtor candidly testified that she would prefer to keep the Waterfall Lodge property and use it as a religious retreat center rather than sell it for the purpose of funding a Chapter 11 plan. The plan as now proposed contemplates no sales or surrender of assets and contribution of only the minimum amount of disposable income that would be required to satisfy the best interests of creditors and the projected disposable income requirements contained in 11 U.S.C. § 1129(a).
There is, however, some evidence now before the Court that suggests that the Debtor could propose a plan that pays significantly more than holders of allowed unsecured nonpriority claims could expect to receive if the bankruptcy estate were liquidated under Chapter 7. For example, the Debtor testified that her dental practice has gained significant profitability since the filing of her bankruptcy petition. She could propose to contribute significantly more than the minimum necessary to satisfy the best interest of creditor's requirement by contributing projected disposable income for more than five years. The Waterfall Lodge is unencumbered and has significant value. If the Debtor were willing to sell the Waterfall Lodge, it is possible that the Debtor by using those sale proceeds and contributing disposable income, as necessary, could propose a plan that pays 100% of creditor's claims. The Debtor could also free up additional disposable income if she were to forfeit her larger residence (encumbered by two mortgages requiring monthly debt service of $5,500.00 and 700.00, respectively) and move into the other residential property listed on Amended Schedule B.
Part of the rationale of Marrama is to deny a debtor's request to convert when the end result (liquidation under Chapter 7 or dismissal) would be the same even if the debtor were allowed to convert. But in evaluating a request to dismiss or convert a Chapter 11 proceeding, the Court must also take into account what is in the best interest of creditors and the bankruptcy estate.
The Court will enter an order consistent with this Memorandum.