18 B.R. 88 | Bankr. S.D. Florida | 1982
In re John M. and Marilyn KAPSOS, Debtors.
United States Bankruptcy Court, S.D. Florida.
Margaret Cangilos, Miami, Fla., for trustee.
Mikel D. Greene, West Palm Beach, Fla., for debtors.
ORDER DENYING DEBTORS' MOTION FOR VOLUNTARY DISMISSAL
THOMAS C. BRITTON, Bankruptcy Judge.
The debtors in this chapter 7 case have moved for voluntary dismissal. (C.P. No. *89 17). The trustee has objected. (C.P. No. 19). The motion was heard on February 2.
The debtors' discharge was denied under 11 U.S.C. § 727(a)(2)(A) and (B) [fraudulent transfers both before and after bankruptcy], (4)(A) [false oath], and (5) [failure to explain loss of assets]. Bkrtcy, 16 B.R. 280. Discharge had been opposed by the trustee. The trustee has scheduled a public auction sale of the debtors' non-exempt household furnishings. It was at this point that the debtors, concluding that bankruptcy now offered them no benefit, moved for dismissal.
The matter is governed by § 707, which merely requires notice, a hearing and "cause". Though there is no indication in § 707 that a voluntary dismissal for the debtor's benefit is permissible, I conclude that it is not foreclosed and that B.R. 120(a) insofar as it permits a voluntary dismissal is still applicable. Pub.L. 95-598, § 405(d); 4 Collier on Bankruptcy (15th ed.) § 707.01.
Dismissal, unless this court orders otherwise, would permit the debtors to move to another district, file again and, possibly, obtain the discharge that has been denied here. § 349(a). Dismissal would also block the sale and, therefore, preclude compensation to the trustee for his efforts to date and preclude any present distribution to the creditors. While beneficial to the debtors, these results would clearly be against the creditors' interests.
Neither the Code nor this court exist for the exclusive benefit of either the debtor or his creditors whose interests are inherently opposed. In this instance, the adjustment of those competing interests has been left to the court's discretion. To me, the question is not even close. The motion to dismiss is denied.
