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Sidney R. Miller v. Marilyn O. Marshall

May 24, 2011

SIDNEY R. MILLER, APPELLANT/DEBTOR
v.
MARILYN O. MARSHALL, APPELLEE/TRUSTEE.



The opinion of the court was delivered by: Judge Ronald A. Guzman

MEMORANDUM OPINION AND ORDER

Before the Court is pro se debtor/appellant Sidney R. Miller's appeal, pursuant to 28 U.S.C. § 158(a), of the bankruptcy court's order dismissing his case for failure to file certain documents as required by 11 U.S.C. ("the Bankruptcy Code") § 521(i). For the reasons set forth below, the Court reverses the order and remands the case to the bankruptcy court.

Background

On June 3, 2010, Miller filed a Chapter 13 petition in the United States Bankruptcy Court for the Northern District of Illinois, case number 10-BK-25290. Pursuant to § 521(i) of the Bankruptcy Code, Miller was required to file certain documents with the bankruptcy court within forty-five days of that filing or on or before July 19, 2010. On July 19, 2010, the trustee orally moved to dismiss the case because, among other things, Miller failed to file the required documents under § 521. (See Bankr. Ct. Tr., Case No. 10-BK-25290, 1-3, July 19, 2010.) Miller objected, explaining to the bankruptcy court that he had certain documents with him that were ready to be filed, upon which the bankruptcy court told Miller to let the trustee view the documents. (Id. at 4-5.) After viewing the documents, the trustee told the bankruptcy court that Miller still did not have all the required documents, and that today "[was] the 46th day," after Miller had filed his petition. (See id. at 8.) Upon which the following conversation ensued:

Miller: With all due respect, the reason that I can't produce tax returns [which Miller alleges he needed to properly complete one or more of the § 521 required documents] is because they are not in my possession. They're in the possession of the receiver in the state court when my currency exchanges were placed in receivership seven years ago. I spoke with the IRS [Internal Revenue Service] on April 26th. The IRS said that the tax returns were improperly filed under my own FEIN's [sic] [Federal Employer Identification Number]. The receiver never --

Court: Stop, stop. You're rambling on about things that have nothing to do with what we've just raised. One, you have to file a plan. You have to file it on time. You didn't do that. Two, once you file the plan, you have to start making plan payments. You're not doing that, okay? . . . .

[Y]ou open up your entire world when you filed bankruptcy. So you don't get to pick and choose what you do. If you want the benefit of the proceedings, you have to follow all the rules, all right? So you have to amend, you have to get your schedules on file, you need to make your payments, you need to have a plan. I'm continuing this for one week. If you do not have all those documents on file, and I'm not necessarily giving you leave to file them late, you haven't asked for that, if you don't have everything on file, your case will be dismissed next week. . . . .

Miller: And when you refer to those documents, you're referring [to] everything the trustee just --

Court: I'm referring to everything that the rules require, many of which he

[the trustee] mentioned all right? To [sic] have to follow the rules just like everybody else, okay?

Miller: I always attempt to, Your Honor.

Court: Well, you know, attempt to is not good enough. If you want the benefit of the proceeding, you have to do what it requires. So I'm giving you one week and a last chance to get all those documents on file. (Id. at 9-11.) A week later at a status hearing on July 26, 2010, Miller allegedly filed all the required documents:

Miller: The schedules that Your Honor extended one week have been filed. I have the trustee's copy in my hand. They're all file stamped. Would you ...


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