Philip George Butler

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
PHILIP GEORGE BUTLER and
DESPY MAY BUTLER,
Debtors.
)
)
)
)
)
)
Case No. 10-00317
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
MEMORANDUM DECISION AND ORDER GRANTING MOTION TO SEVER
The debtors have filed a motion to sever this joint chapter
13 case in apparent anticipation of a trustee’s motion to dismiss
based upon the debtors’ failure to meet the debt limitations of
§ 109(e). 	The debtors concede that their aggregate debt exceeds
the debt limitations of § 109(e), and explain that if the cases
are severed, Mrs. Butler will likely convert her case to a case
under chapter 7, whereas Mr. Butler will likely remain a chapter
13 debtor. 	As explained in more detail below, the court will
grant the debtors’ motion.
I
The filing of a joint bankruptcy petition gives rise to two
separate estates, and those estates retain their separate
identity unless and until the estates are consolidated. 	See 11
The document below is hereby signed.
Signed: May 21, 2010.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
Case 10-00317 Doc 39 Filed 05/21/10 Entered 05/21/10 16:49:42 Desc Main
Document Page 1 of 5

U.S.C. § 302(b) (“After the commencement of a joint case, the
court shall determine the extent, if any, to which the debtors’
estates shall be consolidated.”); In re Shjeflo, 383 B.R. 192,
196 (Bankr. N.D. Okla. 2008) (rejecting argument that severance
is impermissible because the filing of a joint case commences
only one case); In re Gale, 177 B.R. 531, 534 (Bankr. E.D. Mich.
1995) (“Many courts have recognized that a voluntary joint
petition entails two separate legal entities and, at least until
consolidation is ordered, two separate estates.”). 	Although
filed as a joint case, the court has not consolidated the
debtors’ estates, and the debtors remain free to sever their
cases to pursue the relief most suitable to each debtor
individually.
By the debtors’ own admission, they are not eligible to
remain joint chapter 13 debtors, and if their cases are not
severed to cure the ineligibility defect, it will likely be
necessary to either dismiss or convert this joint chapter 13
case. 	To the extent Mrs. Butler wishes to convert her case to a
case under Chapter 7 of the Bankruptcy Code, she ought not be
barred from exercising her absolute right to convert her case.
See In re Seligman, 417 B.R. 171 (Bankr. E.D.N.Y. 2009)
(permitting severance to allow one joint debtor to convert to
chapter 7); 11 U.S.C. § 1307 (“The debtor may convert a case
under this chapter to a case under chapter 7 of this title at any
2
Case 10-00317 Doc 39 Filed 05/21/10 Entered 05/21/10 16:49:42 Desc Main
Document Page 2 of 5

time.”). 	Cf. In re Tabor, 232 B.R. 85 (Bankr. N.D. Ohio 1999)
(appropriate to dismiss ineligible joint debtor whose debts
exceeded the § 109(e) limits, while giving the remaining debtor
the option to remain in chapter 13). 	As observed in In re
Seligman, “[b]ecause Congress did not restrict the right of
conversion under Section 1307(a) to a request made by both
debtors in a joint chapter 13 case, Congress is presumed to have
intended to allow either Chapter 13 debtor to seek to convert to
Chapter 7, even if they commenced a joint case.” 	In re Seligman,
417 B.R. at 174. 	Likewise, to the extent Mr. Butler
independently meets the eligibility requirements of Chapter 13,
he ought not be compelled to follow Mrs. Butler into Chapter 7
simply because the debtors initially sought relief jointly. 	See
In re Tabor, 232 B.R. 85 (Bankr. N.D. Ohio 1999) (appropriate to
dismiss ineligible joint debtor whose debts exceeded the § 109(e)
limits, while giving the remaining debtor the option to remain in
chapter 13). 1
II
As other courts have observed, permitting severance of joint
cases is not only consistent with the provisions of the Code, the
Bankruptcy Fee Compendium expressly contemplates the severing of
1 	In disposing of this motion, the court assumes without
deciding that Mr. Butler is eligible to be a chapter 13 debtor.
As in any chapter 13 case, the chapter 13 trustee remains free to
raise any appropriate challenges to Mr. Butler’s eligibility.
3
Case 10-00317 Doc 39 Filed 05/21/10 Entered 05/21/10 16:49:42 Desc Main
Document Page 3 of 5

joint cases, and sets forth a procedure for collecting the
appropriate fee in such cases. 	Specifically, the fee compendium
provides that “[w]hen a debtor moves the court to split a joint
case, the clerk must charge a fee equal to the current filing fee
for the chapter under which the joint case is pending,” and the
fee compendium specifically references the fee that is to be
charged when the motion filed is a motion to “split” a joint
chapter 13 case. 2 	Consistent with the fee compendium, in the
instant case, the clerk charged and the debtors paid a $235 fee
upon the filing of the motion to sever. 	Upon conversion, Mrs.
Butler will be required to pay an additional $25 fee to account
for the $10 difference between the chapter 7 and chapter 13
filing fee, and the $15 chapter 7 trustee fee.
III
In accordance with the foregoing, it is
ORDERED that the debtors’ motion to sever is GRANTED and the
above-captioned jointly filed chapter 13 case is severed. 	It is
further
ORDERED that the clerk shall remove the name of Despy May
Butler from the caption of the court’s electronic docket in this
case, and shall henceforth treat this case as relating only to
2 	The fee compendium also notes that “no fee is due if the
only reason for the split is to dismiss one of the two resulting
individual cases, and the court actually dismisses one of the
joint debtors.” 	In the instant case, however, neither debtor
seeks dismissal.
4
Case 10-00317 Doc 39 Filed 05/21/10 Entered 05/21/10 16:49:42 Desc Main
Document Page 4 of 5

the debtor Philip George Butler. 	It is further
ORDERED that upon entry of this order, the court shall
assign a new case number to the case of Despy May Butler. 	It is
further
ORDERED that the petition date of Mr. and Mrs. Butler’s
individual cases shall be the same date as the petition date in
the original joint chapter 13 case.
[Signed and dated above.]
Copies to: Debtors; Debtors’ attorney; Chapter 13 Trustee.
5	O:\TEEL\LSO\ORDERS\Severance\Mem and order re motion to sever joint chapter 13 case_Butler.wpd
Case 10-00317 Doc 39 Filed 05/21/10 Entered 05/21/10 16:49:42 Desc Main
Document Page 5 of 5