Memorandum of Decision Re: James and Cynthia Meyer

DO NOT PUBLISH This case disposition has no value as precedent and is not intended for publication. Any publication, either in print or electronically, is contrary to the intent and wishes of the court.

In re

JAMES and CYNTHIA MEYER, No. 98-11163

      Debtors James and Cynthia Meyer filed their Chapter 7 on April 2, 1998. The court set May 12, 1998, for the Meeting of Creditors and July 13, 1998, as the last day to file an objection to discharge.
      On May 12, Cynthia Meyer failed to appear. The trustee continued the Meeting of Creditors to June 9, 1998. On June 9, Cynthia again did not appear and the trustee continued the meeting to July 14, 1998.
      On July 14, Cynthia again did not appear. Two days later, the trustee filed a document called "Report of Trustee of 341(a) Meeting." At the bottom of the "Report," the trustee checked a box requesting the clerk of the court to dismiss the case as to Cynthia only. On July 21, he filed a "Request for Dismissal" which was noticed for hearing on July 31. On July 23, the discharge of both debtors was entered.
      The clerk has suggested that the discharge was entered in error and should be vacated. The court disagrees, and further vacates the July 31 hearing as moot.
      Rule 4004(c) of the Federal Rules of Bankruptcy Procedure provides that the court shall grant a discharge forthwith upon expiration of the time for filing objections unless one of six conditions exists. Attendance at the Meeting of Creditors is not one of them, nor is a pending motion to dismiss the case for failure to appear. The discharge was properly entered.
      Rule 4004(c)(2) provides that the court may defer entry of the discharge for 30 days on motion of the debtor. One of the trustee's "reports" recites that the debtors' attorney agreed to such a delay. However, the debtors made no such motion.
      Dismissal of a Chapter 7 case does not vacate a discharge entered before dismissal. In re Baylies, 114 B.R. 324, 325 (Bkrtcy.D.C.1990). Therefore, dismissal of this case is no sanction at all. The trustee has several avenues open to him to compel the debtor to appear, including obtaining an arrest warrant pursuant to Rule 2005(a) and filing a complaint seeking revocation of the discharge. However, since the trustee did not obtain dismissal of the case before the discharge, the summary procedures established by the court to deal with debtors who fail to appear for examination are no longer appropriate. The hearing set for July 31 will accordingly be vacated.

      Dated: July 28, 1998 _______________________
      Alan Jaroslovsky
      U.S. Bankruptcy Judge

CANB DocumentsNorthern District of California