The honest debtor is the only debtor who can get a discharge in bankruptcy. But who is an honest debtor? If we go by layman’s definition just to get an idea of who an honest debtor is, then the honest debtor is one who is in good faith when he files for bankruptcy. Of course, this definition is still vague. Courts analyze the issue of good faith and thus the issue of the honesty of the debtor in question on a case-to-case basis and based on the past and present conduct of the debtor in connection with his debts, and his bankruptcy. Although the right to bankruptcy is enshrined in the American constitution, it’s up to the courts to determine who actually is an honest debtor.
So let’s examine an actual case I handled a long time ago. Debtor was married, had no non-exempt assets, and had zero income when her chapter 7 case was filed. She wanted to discharge $90K of credit cards. A portion of those cards about $60K debtor used to gamble. Her husband was self-employed as a “handyman” making about $2500 a month but was supposed to inherit $3.0M from his father. However, his brother was full of greed and managed to keep all of the $3.0M for himself. Almost like a Cain and Abel relationship between the brothers.
After the case was filed, one creditor objected to discharge claiming that debtor had filled out the credit application stating that she earned $48K a year. Another creditor also objected to discharge of their credit card on the same grounds. Both creditors said that if they had known the truth that she actually had no income, they would not have given her any credit.
The UST filed a motion to dismiss chapter 7 case pursuant to 11 U.S. C. § 707 (b)(3) with prejudice. This section of the bankruptcy code allows the court to dismiss a case for bad faith, or based on the “totality of circumstances” of the case, even if there is no presumption of abuse under the means test. What does “with prejudice” mean? This means that if the court grants the UST motion to dismiss, debtor can never ever file for any kind of bankruptcy in the United States. It’s the same as having the “A” carved on your forehead to identify you as having been tried and found guilty of “adultery”. It doesn’t mean that you’re a straight A student. I don’t understand why that society should do this to their own citizens who should have their own freedom to have sex with whoever they want; this is between consenting adults after all. At least, this is more humane than the “honor” killing of their own daughters by members of their own family for something as insignificant as your sister wearing a pair of jeans. This is a definite escalation of having the scarlet “A” tattooed on your forehead. This probably just applies to their women. If you’re a man, then I guess it would be tattooed on your ass where there’s no public exposure.
The court granted the motion to dismiss with prejudice and this is what the court said:
“There is no rational basis for believing that she could repay her debts with gambling proceeds because she had no history of actually winning any significant amount of money, at least not enough to justify over $50,000 in cash advances. Compare In re Karelin, 109 B.R. 943, and In re Kong (even giant gorillas need debt relief it appears) 239 B.R.815. Likewise, there was little rational basis for relying on her husband’s potential stock market profits. The Debtor herself acknowledged that her husband had always lost the money he invested and had never seen any significant profit (apparently husband did not have a brain structure similar to Warren Buffet, but had one that was more similar to the giant gorilla aforesaid). The debtor’s husband admits that in 9 of the last 10 years, he experienced net losses on the stock market. The one year he made a profit, it was less than $5,000. Furthermore, the Court finds that the Debtor did not reasonably rely on the possibility that her husband’s brother might actually pay the $1.0M he owed given that: 1. Over 20 years had passed without compliance 2. His brother King Kong would thump his chest loudly every time he asked for his share of the $3.0M or acted like Al Pacino in “Scarface”, bring out his AK 47 and say “say hello to my little friend” to obtain and keep his interest in the family business of making high end coffins made from yellow jade from magic mountain 3. The fact that no one ever pursued any legal action like hiring mobsters to enforce the contact in question… Finally, the debtor’s reliance on assistance of any kind from the genie in Aladdin’s lamp that she claimed she had just obtained in a flea market in Tijuana and was close to obtaining the password for the genie to pop out was questionable. In sum, none of the debtor’s wishful thinking, even though done on a starless night of a blue moon was a legitimate basis for accumulating additional, unnecessary debt. If, for example, she had incurred those obligations in order to meet daily living expenses or to pay medical bills the situation might be different. Unfortunately, however, that is not the case here.”
Obviously, the court found that debtor was in bad faith and considered the totality of circumstances to dismiss her case with prejudice.
If you have too much debt and need relief, please set an appointment to see me. I will analyze your case personally.
* * *
Disclaimer: None of the foregoing is considered legal advice for anyone. Each case is different. There is no absolutely no attorney client relationship established by reading this article.
* * *
Lawrence Bautista Yang specializes in Bankruptcy, Business, Real Estate and Civil Litigation and has successfully represented more than five thousand clients in California. Please call Angie, Barbara or Jess at (626) 284-1142 for an appointment at 20274 Carrey Road, Walnut, CA 91789 or 1000 S. Fremont Ave., Mailstop 58, Building A-10 South Suite 10042, Alhambra, CA 91803.
(Advertising Supplement)