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In re Robin E. LOVE,
Debtor.
Bankruptcy No. 85-03011-BKC-AJC.
United States Bankruptcy Court, S.D. Florida.
June 9, 1986.
Once upon a midnight dreary, while he pondered weak and
weary, Over cluttered Chapter seven files, to Bankruptcy
Judge A. Jay Cristol While the winds of fall did whistle
came the whisper of a raven, "Sua sponte" this case dismiss,
for tis one you’ll never miss.
The Code said, to prevent abuse, if consumer debt relief
was case’s use, The judge alone could say "No more."
But with presumption in his favor, The case with error might
debtor flavor. So quoth the good Judge, "Nevermore."
Motion denied.
BANKRUPTCY k2264(1)
51k2264(1)
Formerly 51k48
Sua sponte dismissal would be error, Though authority in
Code is there, To eschew abuse of consumer debt, As
presumption for debtor must be met. Bankr.Code, 11 U.S.C.A.
§ 707(b) .
ORDER DENYING SUA SPONTE MOTION TO DISMISS UNDER 11
U.S.C. § 707(b)
A. JAY CRISTOL, Bankruptcy Judge.
This cause came on to be heard sua sponte upon the
court’s own motion to dismiss this chapter 7 petition
pursuant to 11 U.S.C. § 707(b) and the court having
received the inspiration for the motion from a little old
ebony bird and not from any party in interest or any other
person and having considered the presumption in favor of
debtor provided in 11 U.S.C. § 707(b) and not deeming
it appropriate to take evidence, the court finds:
Once upon a midnight dreary, while I pondered
weak and weary
Over many quaint and curious files of chapter seven
lore
While I nodded nearly napping, suddenly there came a
tapping
As of some one gently rapping, rapping at my chamber
door,
"Tis some debtor" I muttered, "tapping at my chamber
door
Only this and nothing more."
Ah distinctly I recall, it was in the early fall
And the file still was small
The Code provided I could use it
If someone tried to substantially abuse it
No party asked that it be heard.
"Sua sponte" whispered a small black bird.
The bird himself, my only maven, strongly looked to be a
raven.
Upon the words the bird had uttered
I gazed at all the files cluttered
"Sua sponte," I recall, had no meaning; none at all.
And the cluttered files sprawl, drove a thought into my
brain.
Eagerly I wished the morrow, vainly I had sought to
borrow
From BAFJA, surcease of sorrow
and an order quick and plain
That this case would not remain
as a source of further pain.
The procedure, it seemed plain.
As the case grew older, I perceived I must be bolder.
And must sua sponte act, to determine every fact,
If primarily consumer debts, are faced,
Perhaps this case is wrongly placed.
This is a thought that I must face, perhaps
I should dismiss this case.
I moved sua sponte to dismiss it
for I knew I would not miss it
The Code said I could, I knew it.
But not exactly how to do it, or perhaps some day
I’d rue it.
I leaped up and struck my gavel.
For the mystery to unravel
Could I? Should I? Sua sponte, grant my motion to
dismiss?
While it seemed the thing to do, suddenly I thought of
this.
Looking, looking towards the future and to what there was
to see
If my motion, it was granted and an appeal came to
be,
Who would be the appellee?
Surely, it would not be me.
Who would file, but pray tell me,
a learned brief for the appellee
The District Judge would not do so
At least this much I do know.
Tell me raven, how to go.
As I with the ruling wrestled
In the statute I saw nestled
A presumption with a flavor clearly in the debtor’s
favor.
No evidence had I taken
Sua sponte appeared foresaken.
Now my motion caused me terror
A dismissal would be error.
Upon consideration of § 707(b), in anguish, loud I
cried
The court’s sua sponte motion to dismiss under
§ 707(b) is denied.
The citation for this epic is 61 B.R. 558. The
citation for last issue’s ode to a tree, Fisher v.
Lowe, is 333 N.W.2d 67. Keep your eyes peeled for more
outlandish judicial opinions next year.
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