FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAM J. ORR and CAROLE No. 1-84-00026
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
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
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 ________________________