Antonio Delane Storey

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
ANTONIO DELANE STOREY,
Debtor.
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Case No. 08-00198
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER DENYING MOTION TO
REOPEN CASE WITH WAIVER OF FEE AND DIRECTING DEBTOR’S
COUNSEL TO ADDRESS ISSUE OF BEARING THE REOPENING FEE COST
This case was closed without entry of a discharge based upon
the debtor’s failure to file a Certification of Completion of
Postpetition Instructional Course Concerning Personal Financial
Management (Form 23), and the debtor, through counsel, has filed
a motion to reopen the case to permit the filing of the required
certification and for waiver of the reopening fee (Dkt. No. 234).
On December 7, 2009, the court issued a notice of
requirement to complete a course in financial management by March
1, 2010, in compliance with 11 U.S.C. § 727(a)(11) and Fed. R.
Bankr. P. 1007(b)(7) & (c) (Dkt. No. 204). 	On March 16, 2010,
the court issued a Notice That Case May be Closed Without
Discharge based upon the debtor’s failure timely to file Form 23
The document below is hereby signed.
Signed: May 27, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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(Dkt. No. 228). 	In that notice, the court advised that the case
would be closed within 14 days of the entry of the notice unless
the debtor filed Form 23. 	There being no response from the
debtor, on April 8, 2010, the case was closed without entry of a
discharge. 	Although the court finds that cause exists to reopen
the case, the court rejects the request for waiver of the
reopening fee and will thus deny the motion, without prejudice to
the filing of a renewed motion accompanied by the required fee.
I
In his motion, the debtor acknowledges that the court issued
notices to both the debtor and the debtor’s attorney regarding
the requirement to file Form 23. 	The motion further states that
on approximately March 24, 2010, the debtor completed the
required financial management course and sent the applicable
certificate and bankruptcy form to his attorney. 	The attorney,
however, failed to file the documents on the debtor’s behalf
because the attorney mistakenly believed that the debtor had
already filed the form, and because the attorney was occupied
with a personal matter involving the health of his fiancée.
To the extent the debtor seeks to reopen his case to file a
Certification of Completion of Postpetition Instructional Course
Concerning Personal Financial Management (Form 23) and receive a
discharge, the court finds that cause exists to reopen this case.
See 11 U.S.C. § 350(b); In re Knight, 349 B.R. 681, 685 (Bankr.
2
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D. Idaho 2006). 	Whether it is appropriate to waive the fee,
however, presents a different issue.
Pursuant to the miscellaneous fee schedule prescribed by the
Judicial Conference of the United States in accordance with 28
U.S.C. § 1930(b), ”[t]he reopening fee must be charged when a
case has been closed without a discharge being entered,” although
“[t]he court may waive this fee under appropriate circumstances .
. . .” 	The fee schedule does not specify what constitutes
appropriate circumstances. 	In In re Knight, 349 B.R. 681 (Bankr.
D. Idaho 2006), a case cited to by the debtor for the proposition
that the court has the power to waive the reopening fee under
appropriate circumstances, the court offered examples of
circumstances that might justify a waiver of the reopening fee,
including the debtor’s inability to attend a financial management
course within the prescribed time for medical or personal
reasons, or a delay in the agency’s issuance of the certificate.
Id. at 687. 	The In re Knight court also found potentially
relevant whether the debtor was represented by an attorney or if
there was reason to believe that the debtor had not received the
court’s notices regarding the filing deadline. 	Id. 	In that
case, the court concluded that the reopening fee ought not be
waived because, although the debtor alleged that he had
difficulty obtaining his financial management certificate, he was
represented by competent counsel, who conceded that the court’s
3
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notices of the requirement were received by both the attorney and
the debtor, and likewise conceded that he could have, but did
not, promptly alert the court when the debtor encountered
difficulties obtaining the certificate. 1
The debtor in the instant case does not refute that he and
his attorney received multiple notices from the court regarding
the requirement to file Form 23, and by the debtor’s own
admission, the debtor did not actually complete the course until
several weeks after the March 1, 2010 deadline to file Form 23.
Rather than an inability or failure to complete the counseling,
it was a misunderstanding between the debtor and the debtor’s
attorney that ultimately resulted in the non-filing of Form 23.
Although the court accepts the debtor’s representations as true,
and does not doubt that the failure timely to file Form 23 was
the product of inadvertence and not bad faith, the same can
likely be said of most cases involving the closing of a case
without entry of a discharge for failure to file Form 23. 	The
1 	In In re Knight, the court noted that “[t]hese
circumstances and Counsel’s involvement raise the question of
whether Debtor should bear personally the cost of the reopening
fee. 	The Court need not address that issue here. 	Counsel
offered at hearing--to its credit--that in the event the waiver
request was denied, the reopening fee would be borne by Counsel
and not by Debtor.” 	349 B.R. 681, 687 n. 14 (Bankr. D. Ohio
2006). 	The attorney’s failure in this case to file Form 23
raises the same question. 	As the debtor’s attorney, it was Mr.
Barber’s duty to verify that the form was filed, and unless
Barber justifiably relied upon a representation of the debtor
regarding the filing of Form 23, the debtor ought not personally
bear the expense of reopening this case.
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debtor here was represented by counsel, does not claim he was
unable to obtain the counseling or the related certificate, and
but for a misunderstanding with counsel, the debtor had the
ability to satisfy his obligation under 11 U.S.C. § 727(a)(11)
and Fed. R. Bankr. P. 1007(b)(7) prior to the closing of the
case. 	The court finds that under the circumstances, waiver of
the fee is not appropriate.
II
In accordance with the foregoing, it is
ORDERED that the debtor’s Motion to Reopen Case With Waiver
of Fee (Dkt. No. 234) is DENIED without prejudice to the filing
of a renewed motion to reopen accompanied by the required filing
fee. 	It is further
ORDERED that within 21 days after entry of this order, the
debtor’s attorney, Andre P. Barber, shall either (1) have borne
the cost of filing a motion to reopen, and file a statement
certifying that he has done so, or (2) show cause, by a writing
filed with this court, why his fees ought not be disgorged in an
amount equal to the $260 reopening fee that the debtor is
required or will be required to pay incident to filing a motion
to reopen.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 7 Trustee; Office
of United States Trustee.
5	O:\TEEL\LSO\ORDERS\Financial Management Certificate\Order_deny waiver of reopening fee_financial management_Storey_v2.wpd
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