Memorandum of Decision Re: Waiver of Discharge

FOR THE NORTHERN DISTRICT OF CALIFORNIA In re SAM J. ORR and CAROLE                                         No. 1-84-00026 LEE ORR,      Debtors. ____________________/
Memorandum of Decision re Sale by Trustee
     Although the debtors were discharged long ago, they opposed the Trustee's application to sell real property of their estate on the grounds that they intend to petition the court for vacation of their discharge and dismissal of their case. The court approves the sale on the grounds that the debtors have no right to vacation of the discharge or dismissal of the case.      Discharge matters are governed by section 727 of the Bankruptcy Code. Subsection 727(a)(10) provides that the court shall grant a discharge unless the court approves a written waiver; it does not address revocation after it has been granted. Subsection 727(e) states grounds for revocation of the discharge, but does not give the right to seek it to the debtor. Bankruptcy Rule 4004(c) allows a debtor to seek deferral of the entry of the discharge if he is not sure if he wants it or not. The reasonable inference to be drawn from these statutes is that the debtor has no right to revocation of his discharge once it has been entered.      The case law on the issue supports this court's analysis. In Matter of Calabrett (Bkrtcy.D.Conn.1987) 68 B.R. 861, 863, the court held that the debtor had neither an equitable nor astatutoryright to have her discharge revoked. The court relied on several bankruptcy court cases and on the decision of the Seventh Circuit in Matter of Morgan (7th Cir.1981) 668 F.2d 261, the leading case in the area. The court in Morgan adopted the district court's reasoning that the seriousness of a bankruptcy filing would be undermined if a debtor could undo it at will, and held that bankruptcy courts do not have authority to revoke discharges at the request of the debtor. 668 F.2d at 264.      In In re Fischer (Bkrtcy.D.Minn.1987) 72 B.R. 111, 114, the debtor sought dismissal of his Chapter 7 after discharge was granted. The court found that there could be no dismissal after discharge and then, anticipating the argument of the debtor, found that the debtor could not seek revocation of the discharge. The court explained:
       The grant of discharge in bankruptcy affects multiple        parties, indelibly altering legal rights and duties        previously running between the debtor and his cre-        ditors. By strictly limiting the substantive grounds        for revocation of discharge and the class of parties        who are entitled to petition for it, Congress plainly        intended to protect the remedy of discharge. The        corollary is that Congress did not intend to allow a        debtor to willy-nilly petition for bankruptcy relief,        and then cancel it.
     For the above reasons, the debtors' opposition to the proposed sale is overruled and the Trustee's application for leave to sell is granted. Counsel for the Trustee shall submit an appropriate order.
Dated: November 20, 1987                                                                                  ________________________                                                                                                                            ALAN JAROSLOVSKY                                                                                                                            U.S. BANKRUPTCY