WILLIAM T. THURMAN, Chief Judge.
The matter before the Court is the Notice of Waiver of Discharge and Request for Dismissal of Consolidated Adversary Proceedings 12-02217 and 12-02218 (the
The Court conducted a hearing on the Debtor's Waiver of Discharge on February 3, 2014, at which hearing George Hofmann and Victor P. Copeland appeared on behalf of the Debtor, Kenneth L. Cannon II appeared on behalf of the Trustee, who was also present, Michael R. Johnson appeared on behalf of HAGE, Sean N. Egan appeared on behalf of Mr. Abbaszadeh, and Vincent Cameron appeared on behalf of the Office of the United States Trustee. The Court heard argument from counsel, received the Debtor's proffered testimony, and then took the matter under advisement.
After carefully considering the evidence properly before it, the parties' briefs and memoranda, statutory authority, and case law, and after conducting its own independent research of applicable law, the Court hereby issues the following Memorandum Decision, which constitutes the Court's findings of fact and conclusions of law under Federal Rule of Civil Procedure 52, made applicable to this matter by Federal Rules of Bankruptcy Procedure 9014 and 7052.
The Court has jurisdiction over this contested matter under 28 U.S.C. §§ 1334 and 157. This is a core proceeding under 28 U.S.C. § 157(b)(2)(J). Venue is appropriately laid in this District under 28 U.S.C. § 1409, and notice of the hearing on the Debtor's Waiver of Discharge was properly given in all respects.
The Debtor filed this case under Chapter 7 on February 16, 2012. A few months later on May 21, 2012, the Trustee filed adversary proceeding 12-2217, which sought to deny the Debtor's discharge and alleged causes of action under 11 U.S.C. § 727(a)(2), (a)(3), (a)(4), and (a)(5).
On February 28, 2013, the Debtor filed her Motion for Order Converting Her Chapter 7 Case to One Under Chapter 11 (the "Motion to Convert").
On September 19, 2013, the Debtor moved to dismiss her case and requested that the Court dispose of all adversary proceedings associated with the main bankruptcy case.
The Debtor filed the present Waiver of Discharge on January 3, 2014, which states: "Debtor acting as her own attorney hereby files this Waiver of Discharge and a Request for Dismissal of Consolidated Adversary Proceedings 12-02217 and 12-02218.
Section 727(a)(10) states: "The court shall grant the debtor a discharge, unless ... the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter." Courts have read the plain language of this section to impose four requirements, namely that a waiver must be: (1) in writing, (2) signed by the debtor, (3) filed post-petition, and (4) approved by the court,
While these requirements are clear, there is a split of authority regarding whether a court should take the interests of creditoi's and other parties in interest into account when deciding whether to approve a waiver of discharge.
As in the Fern case, however, this Court does not need to decide whether creditors and other parties in interest can have a say regarding a debtor's waiver of discharge because the Trustee, HAGE, and Mr. Abbaszadeh have not raised concerns sufficient to deny approval of the Debtor's Waiver of Discharge. Even if they had done so, however, including other parties' objections in the Court's analysis of whether to approve a waiver of discharge appears to rewrite the statute. The Court is persuaded that Justice Scalla's approach to statutory interpretation, which looks at the clear meaning of the statutory text, is correct in this case.
Here, the absence of statutory language that would suggest creditors and other parties in interest may object to a waiver of discharge is significant. First, Congress did not condition a debtor's waiver of discharge on whether it is in the best interests of creditors and the estate. Congress clearly knew how to create such a condition because it is present in other portions of the Bankruptcy Code.
Therefore, the Court concludes that the Debtor has filed a written and signed waiver of discharge after the order for relief. The Court also concludes, after considering the Debtor's proffered testimony, that her Waiver of Discharge is voluntary, knowing, informed, and, through the assistance of counsel, is made with awareness of the consequences of foregoing a discharge in bankruptcy. To the extent that creditors and other parties in interest objected to the Debtor's Waiver of Discharge, the Court overrules those objections. Therefore, the Court approves the Debtor's Waiver of Discharge.
The case law supports the Debtor's position. In Eliscu, the court found that two adversary complaints that alleged causes of action under § 523 and § 727 "were rendered moot by the Debtor's voluntary waiver of discharge."
The Court concludes that the Debtor's Waiver of Discharge satisfies the statutory requirements of § 727(a)(10), and the Court is satisfied that the Waiver of Discharge is voluntary, knowing, informed, and made with awareness of the consequences of foregoing a discharge in bankruptcy.
The Waiver of Discharge is hereby approved and adversary proceedings 12-2217 and 12-2218, which seek denial of the Debtor's discharge, are thereby rendered moot. Therefore, they should be dismissed and closed. The Court declines to treat the Waiver of Discharge as the Debtor's request to withdraw her answers in the Consolidated § 727 Actions and wall not enter a default judgment against the Debtor.
A separate Order will be issued in accordance with this Memorandum Decision.