Martha J. Taliaferro

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
MARTHA J. TALIAFERRO,
Debtor.
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Case No. 09-00106
(Chapter 7)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER
GRANTING APPLICATION TO WAIVE THE FILING FEE
This court’s practice has been to rule upon a fee waiver
application upon the written application and the other papers on
file. 	The amount of the fee does not warrant putting a debtor,
the debtor’s attorney, and the court to the expense of conducting
an actual hearing except in unusual circumstances. 	For reasons
discussed below, the debtor’s fee application in this case will
be granted.
But at the meeting of creditors, the trustee can conduct an
inquiry probing more deeply into whether the fee waiver is
warranted. 	A fee waiver should be subject to revocation on a
motion of the chapter 7 trustee if circumstances demonstrating
that a waiver was unwarranted are discovered after due diligence
The order below is hereby signed.
Signed: February 27, 2009.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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by the trustee during the administration of the case, and
promptly brought to the court's attention by the trustee’s
motion.
The debtor’s application and the other papers on file show
no unusual circumstances that warrant denying her request for a
fee waiver based on ability to pay. 	(The other requirements for
a waiver are met.) 	With respect to the issue of ability to pay,
three aspects of her application warrant comment.
I
First, the debtor has substantial equity in her home, an
apartment worth $155,000 and subject to liens totaling $23,414.
This raises the issue of whether she could pay the filing fee by
refinancing her home or selling it.
A.
There is no suggestion in the schedules that the debtor has
planned to refinance the property or has a ready ability to do
so. 	The debtor has no disposable income with which to pay any
required pre-closing costs of refinancing the property.
Moreover, her credit rating may make it difficult for her to
obtain financing. 	There would likely be substantial delay in
obtaining refinancing, and no certainty it would be completed by
the 180-day deadline of Rule 1006(b) for completing payment of
the filing fee in installments. 	Finally, the costs of
refinancing would be disproportionate to the filing fee at issue
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here. 	Congress likely intended that a debtor’s ability to pay
the filing fee is to be based on the debtor’s current financial
circumstance of how much the debtor is paying on an existing
mortgage and other necessary expenses, not based on the
possibility that the debtor could embark on the uncertain and
extraordinary path of attempting to raise funds via a refinancing
of the property to enable her to raise funds by day 180 of the
case with which to pay the filing fee.
B.
As to a sale of the property, there is no suggestion in the
debtor’s schedules that she has entered into a contract for the
sale of the property, or a contract to list the property with a
broker. 	The property presumably has not been put on the market.
Moreover, the debtor’s ability to sell the property is
temporarily suspended. 	The property will not technically cease
to be property of the estate and be removed from the estate as
exempt property pursuant to 11 U.S.C. § 522(l) until the deadline
for objecting to exemptions has expired 30 days after the
conclusion of the meeting of creditors, which would be
approximately two months after the case commenced (if the meeting
of creditors is concluded by the date first set for that
meeting). 	Rule 1006(b) provides for a maximum of 180 days for
completing payment of the filing fee in installments. 	Real
estate is an illiquid asset. 	There is no guarantee that the
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debtor would be able to complete a sale of her apartment within
180 days. 	A disposition of a debtor’s residence would entail
substantial transactional delays and costs of disposing of such
property, as well as substantial relocation costs. 	Congress
likely intended that, generally, the fee waiver issue should be
addressed in light of the debtor’s current ordinary living
arrangements, and not by hypothesizing that the debtor could take
the extraordinary and uncertain-to-succeed step of attempting to
sell the debtor’s place of abode in order to pay the filing fee.
See In re Stickney, 370 B.R. 31 (Bankr. D.N.H. 2007). 	This is
not a case of the debtor having a readily saleable exempt asset
(such as an extra car) that is not necessary for the debtor’s
work and living arrangements.
C.
In conclusion, there are no extraordinary circumstances that
warrant denying the application based on the equity in the
debtor’s real property.
II
Second, the debtor has paid her attorney’s fee of $900 in
this case. 	But the debtor presumably did so at great hardship,
as her budget clearly shows no disposable income with which to
make such a payment if she were to maintain a minimal standard of
living.
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III
Finally, the debtor has $250 in cash or bank accounts on
hand, but her monthly budget clearly demonstrates that she will
need that cash in order to meet her reasonable and necessary
living expenses.
IV
Accordingly, it is
ORDERED that the debtor’s application is granted, subject,
however, to reconsideration upon seasonable motion by the trustee
showing that a waiver was unwarranted.
[Signed and dated above.]
Copies to:
Debtor; Debtor’s attorney; Chapter 7 Trustee; Office of the
United States Trustee.
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