The Inapplicability of Means Testing to Cases Converted to Chapter 7
In addition to prescribing "means testing," amended §707(b) contains provisions that permit a trustee to recover his or her costs associated with seeking the conversion or dismissal of a chapter 7 case if the attorney who filed the case violated Rule 9011 of the Federal Rules of Bankruptcy Procedure.5 Section 707(b) further provides that an attorney's signature on a petition or other pleading constitutes a certification that the attorney has performed a "reasonable investigation" into the circumstances that gave rise to the petition or pleading, and that, among other things, the petition or pleading "does not constitute an abuse under [§707(b)(1)]."6 Together with means testing, these certification and liability provisions have caused great concern among the bankruptcy bench and bar.
The main purpose of this article is to offer an analysis explaining why means testing and the certification and liability provisions of §707(b) summarized above do not apply in cases commenced originally under chapter 11 or 13 and converted to a case under chapter 7. Because no court has yet ruled on the new provisions of the Code discussed in this article, the analysis offered here remains untested. Nevertheless, the analysis proceeds on the basis of well-established principles of statutory construction. In addition, the conclusion that means testing does not apply to cases converted from chapter 11 or 13 to chapter 7 is perfectly rational and may be constitutionally required. A second purpose of this article is to consider the question of good faith in the context of the conversion of a case from chapter 11 or 13 to chapter 7 given the existence of amended §707(b).
Inapplicability of §707(b) to Cases Converted to Chapter 7
Section 707(b)(1) provides that the court may dismiss a chapter 7 case "filed by an individual debtor under this chapter" if the granting of chapter 7 relief would constitute an "abuse."7 The reference to a case "filed...under this chapter" plainly refers to a case filed under chapter 7 and not some other chapter.8 Critically, a case converted from chapter 11 or 13 to chapter 7 is not a case "filed under" chapter 7. Instead, it is a case filed under chapter 11 or 13 and "converted" to a case under chapter 7. Accordingly, the provisions of §707(b)(1) do not apply in the converted chapter 7 case. This conclusion is directed not only by the plain text of §707(b),9 but also by other sections of the Bankruptcy Code.10
To begin with, several sections of the Code establish that the conversion of a case from chapter 11 or 13 to chapter 7 does not require, and does not constitute, the "filing" of a new case under chapter 7. Pursuant to §1307(a), a debtor who has filed a case under chapter 13 has the right to "convert" the case to one under chapter 7, and may do so "at any time."11 Similarly, pursuant to §1112(a), an individual debtor who has filed a case under chapter 11 has the right to "convert" the case to one under chapter 7, unless the chapter 11 debtor is not a debtor-in-possession (i.e., a chapter 11 trustee has been appointed or elected), the chapter 11 case was commenced as an involuntary proceeding, or the case was originally filed under some other chapter and converted to a chapter 11 case.12 Plainly, the concept of "converting" a case that has already been filed is distinct from the concept of "filing" a case.13
This conclusion is established by §348(a), which provides that the conversion of a case from chapter 11 or 13 to chapter 7 constitutes an "order for relief" under chapter 7, but does not change the original date of the "filing of the petition."14 Instead, the conversion simply gives rise to an order for relief under chapter 7 that supersedes the order for relief under chapter 11 or 13. The date of the original "filing" is preserved, and the date of the new "order for relief" under chapter 7 is deemed to be the date of the original order for relief under chapter 11 or 13.
Throughout the Code, the "filing" of a case and the "order for relief" are treated as distinct concepts, and for good reason. The filing of a petition is what commences a case.15 In turn, the commencement of a case often gives rise to an order for relief,16 but not in every situation. For example, under §303(b) of the Code, the filing of an involuntary petition commences a case,17 but the order for relief does not enter unless the involuntary filing is uncontested or the court determines that the debtor belongs in bankruptcy.18 If the involuntary proceeding is unwarranted, the court dismisses the case without ever entering an order for relief.
Careful evaluation of the text of §348 reveals that the section intentionally distinguishes between the "filing of the petition" and the "order for relief." Section 348 provides only that the conversion of a case constitutes "an order for relief" under the new chapter.19 Section 348 does not provide that the conversion of a case constitutes a "filing of the petition" under the new chapter. If Congress had intended the conversion of a case to constitute the "filing" of a new case, it would have said so. The fact that it did not say so means that Congress did not intend the conversion to constitute a new filing, but simply to generate a new "order for relief" as the section expressly provides.20 Because §707(b)(1) applies only to cases "filed" by an individual debtor under chapter 7, it does not apply to cases filed originally under chapter 11 or 13 and converted to chapter 7, and thus, the means-testing requirements of §707(b) do not apply in such cases.
Nor do the provisions of §707(b) otherwise restrict the debtor's right to convert a case from chapter 11 or 13 to chapter 7. To begin with, §707(b) says nothing about conversion of a case to chapter 7 from some other chapter. More important, §§1307(a) and 1112(a) do not reference §707(b) or otherwise restrict a debtor's right to convert a case under chapter 11 or 13 to one under chapter 7 based on the provisions of §707(b).21
Of course, §1307(g) does limit the debtor's ability to convert a chapter 13 case to one under chapter 7 by providing that a chapter 13 case may not be converted to another chapter unless the individual "may be a debtor" under the other chapter.22 Similarly, §1112(f) limits the debtor's ability to convert a chapter 11 case to one under chapter 7 using virtually identical terms—providing that a chapter 11 case may not be converted to another chapter unless the individual "may be a debtor" under the other chapter.23 But for purposes of §§1307(a) and 1112(b), the concept of who "may be a debtor" in a case under chapter 7 is defined in §§109(a) and (b), not §707.24
Specifically, §§109(a) and (b) provide that any person who resides in or has a domicile, property or a place of business in the United States "may be a debtor" under chapter 7, except for railroads, certain domestic financial institutions and foreign insurance companies.25 Accordingly, pursuant to §§109, 1112(a) and 1307(a), any individual debtor that qualifies under §109(a) may convert a case from chapter 11 or 13 to chapter 7. Notably, §109 does not incorporate the provisions of §707(b) in defining who "may be a debtor" in a case under chapter 7, and a careful reading of the Code demonstrates that §707(b) does not modify the provisions of §109.
To begin with, it is significant that, although the specific phrase "may be a debtor" appears in §§1307, 1112 and 109, it does not appear in §707(b), and §707(b) does not otherwise purport to qualify §109 by limiting the concept of who "may be a debtor" in chapter 7 cases.26 On the contrary, §707(b) provides only that, in a case filed by an individual debtor under chapter 7 (i.e., a case filed by an individual who "may be a debtor" pursuant to §109), the "granting of relief" in chapter 7 is proscribed if granting relief would constitute an "abuse."27 Proscribing the "granting of relief" is plainly not the same thing as redefining who "may be a debtor."
Moreover, §707(b) should not be interpreted to limit the concept of who "may be a debtor" in chapter 7 because if §707(b) were interpreted this way, the provision of §707(b) allowing conversion to a chapter 11 case would become entirely dysfunctional, as would the companion provision in §706 providing that a debtor may convert a chapter 7 case to one under chapter 11 "at any time."28 Section 109(d) expressly defines the type of person who "may be a debtor" in a chapter 11 case as "a person that may be a debtor under chapter 7 of this title."29 If, however, §707(b) were construed to limit who "may be a debtor" for purposes of §109 by virtue of "means testing," then the same person could not be a debtor under chapter 11 even though §707(b)(1) expressly directs that the chapter 7 case may be converted to one under chapter 11 if application of the means-testing criteria demonstrates that granting chapter 7 relief would be an abuse. Because such an interpretation would render inoperative the express provision in §707(b) allowing the conversion of a chapter 7 case to one under chapter 11, it must be rejected.30
For similar reasons, any interpretation of §707(b) that its means-testing criteria limits the scope of who "may be a debtor" must also be rejected because it conflicts with §706. Section 706(a) grants the debtor the right to convert a case from chapter 7 to chapter 11 "at any time."31 In addition, §706(d) provides that a case may not be converted from chapter 7 to chapter 11 unless the debtor "may be a debtor" under chapter 7.32 Again, if an individual is not someone who "may be a debtor" under chapter 7 because of the application of the means-testing criteria of §707(b), then the same individual is not someone who "may be a debtor" under chapter 11 by virtue of §109(d). This plainly contravenes the express provision of §707(b)(1) that a debtor who is not entitled to relief under chapter 7 because of "means testing" may convert the case to one under chapter 11, and similarly contravenes the debtor's right under §706(a) to convert a chapter 7 case to one under chapter 11 "at any time." Accordingly, §707(b) should not be interpreted as modifying the definition in §109 of who "may be a debtor" for filing or conversion purposes. Instead, §707(b) should be interpreted as it is written—to provide only for the denial of relief in cases filed under chapter 7, not those filed originally under some other chapter and converted to chapter 7.
This conclusion is further supported by reference to §301.33 Section 301(a) provides that an individual may commence a voluntary case under any chapter in which the individual "may be a debtor."34 Thus, anyone who "may be a debtor" under chapter 7 as defined by §109 may "file" a chapter 7 case. By its terms, §707(b)(1) applies to a case that has been "filed by an individual debtor under this chapter,"35 which may only be done by someone who may be a debtor pursuant to §109. Again, §707 does not direct dismissal or conversion because the individual is not someone who "may be a debtor." Rather, §707 expressly directs dismissal or conversion if "the granting of relief" would constitute an "abuse."36 The concept of "granting relief" and "filing" a case are not the same, as demonstrated with respect to the concept of an "order for relief" addressed in §348(a).37 Section 707(b) itself thus implicitly recognizes the distinction between the right to "file" a chapter 7 case (reserved to those who "may be a debtor" under a particular chapter as defined by §109), and the right to relief with respect to a case that has been filed under chapter 7 (reserved to situations that do not constitute an abuse). Accordingly, reference to §301 further supports the conclusion that the means-testing provisions of §707(b) do not apply to cases filed originally under chapter 11 or 13 and converted to chapter 7.
The same general analysis outlined above with respect to the means-testing provisions of §707(b) applies equally to the liability provisions of §707(b)(4)(A).38 To begin with, it is clear that §707(b)(4)(A) does not apply outside the chapter 7 context. By its terms, §707(b)(4)(A) applies to "the action of an attorney for the debtor in filing a case under this chapter"—meaning chapter 7.39 Similarly, §103(b) expressly provides that the provisions of subchapters I of chapter 7, including §707(b), apply "only" in a case under chapter 7.40
In addition, because §707(b)(4)(A) applies to actions arising in connection with "filing a case" under chapter 7, it does not apply to cases filed originally under chapter 11 or 13 and converted to chapter 7. As discussed above, the "conversion" of a case from chapter 11 or 13 to chapter 7 is not the "filing of a case" under chapter 7.
Similarly, the same analysis applies to the certification provisions set forth in §707(b)(4)(C) directing that the signature of an attorney on a petition or other pleading constitutes a certification that the attorney has determined that the petition or other pleading does not constitute an "abuse" under §707(b)(1).41 As noted, §707(b), including §707(b)(4)(C), does not apply in chapter 11 or 13 cases.42 Accordingly, §707(b)(4)(C) does not apply to the chapter 11 or 13 petition, or the conversion of a chapter 11 or 13 case to chapter 7. Once the case has been converted to chapter 7, however, §707(b)(4) may apply to pleadings filed in the chapter 7 case.
There are good reasons why Congress did not intend the provisions of §§707(b)(1), 707(b)(4)(A) and 707(b)(4)(C) discussed above to apply to cases filed originally under chapter 11 or 13 and converted to chapter 7. Although the balance of the analysis here focuses on considerations arising in connection with chapter 13 cases, the same applies generally to individual chapter 11 cases given that Congress has amended the provisions of chapter 11 applicable to individuals to function roughly the same as chapter 13 proceedings.43
Chapter 13 cases are strictly voluntary.44 That is so because, under the Thirteenth Amendment, a debtor cannot be compelled to work to satisfy a civil debt.45 Accordingly, an individual debtor has the right to abandon a chapter 13 case at any time.46
Chapter 13 plans are also notoriously difficult to complete, and default rates are exceptionally high.47 Debtors commonly commence chapter 13 cases, confirm their plans, struggle to stick to their strict chapter 13 budgets and make their payments, default, and then convert to chapter 7. Section 707(b)(1) provides that if the debtor's income exceeds the means-testing threshold, the court may dismiss the debtor's chapter 7 case or, with the debtor's consent, convert the case to one under chapter 13.48 If the debtor originally filed the case under chapter 13 but was unsuccessful in completing a plan and converted the case to one under chapter 7, however, it would make no sense to simply reconvert the case back to a proceeding under chapter 13. Likewise, it would make no sense to deny the debtor any bankruptcy relief under chapter 7 by dismissing the case. To do so would mean that the debtor would have filed for bankruptcy and worked to pay creditors in exchange for nothing.
If debtors who fail to succeed in chapter 13 cannot obtain relief through conversion to chapter 7 because of §707(b)(1), then bankruptcy would become a cruel lure that holds out the appearance of relief without actually providing any. Because a debtor in chapter 13 does not obtain a discharge until completion (or near completion) of the plan,49 a debtor might work for years to make payments to creditors without relief before defaulting under the plan. Because chapter 13 plans are notoriously difficult to complete, this is a common occurrence. Following default, the debtor's recourse is to convert to a chapter 7 case, surrender nonexempt assets to be liquidated for the benefit of creditors, and obtain a chapter 7 discharge. But if §707(b)(1) were construed to prevent the debtor from obtaining relief because of means testing, then the debtor would be left without this remedy.
A statutory form of relief that appears to offer benefits but actually confers none in most cases, and requires debtors to work to pay creditors in the interim, may well infringe on the Thirteenth Amendment's prohibition against involuntary servitude. It may also invite serious due process concerns. Full evaluation of these constitutional considerations, however, lies beyond the scope of this article. Nevertheless, to the extent that these concerns are valid, they counsel in favor of the statutory analysis offered above in order to save the statute from unconstitutionality.50
Good Faith
If an individual debtor commences a case under chapter 11 or 13 and then converts the case to one under chapter 7, the debtor may face the claim that the conversion has been made in bad faith. In considering whether to dismiss or convert a case because granting relief would constitute an "abuse" under §707(b)(1), §707(b)(3) permits the court to consider, in cases in which application of "means testing" does not require conversion or dismissal, whether the debtor "filed the petition in bad faith" or, under the totality of the circumstances, whether "the debtor's financial situation demonstrates abuse."51 By its terms, however, §707(b)(3) applies in tandem with §707(b)(1), and §707(b)(1) does not apply to cases filed originally under chapter 11 or 13 and then converted to chapter 7. Nevertheless, courts generally recognize that even without express statutory authorization, any case may be dismissed for lack of good faith.52 The question becomes whether a debtor's conversion of a case from chapter 11 or 13 to chapter 7 may justify conversion or dismissal under the general good faith standard.
Because a debtor has the statutory right under §1307(a) to convert a case from chapter 13 to 7, and likewise the right to do so in a chapter 11 case under §1112(a), the mere fact that a conversion has occurred cannot establish bad faith. Similarly, for the same reason, the debtor's mere desire to obtain relief under chapter 7 rather than chapter 11 or 13 cannot, by itself, establish bad faith. Likewise, where a debtor attempts to succeed in chapter 11 or 13 and fails, resorting to chapter 7 should not be barred simply because the debtor would have been denied chapter 7 relief if the debtor had initially commenced the case under chapter 7 without attempting first to proceed under chapter 11 or 13. As discussed above, the text of the Code specifically permits this result by recognizing that a debtor that originally files a case under chapter 11 or 13 may subsequently convert the case to one under chapter 7 without application of the "means testing" provisions of §707(b). Of course, there may be some rare situations in which a debtor's filing of a chapter 11 or 13 case may be viewed as lacking good faith because it appears to be simply an effort to avoid the limitations of chapter 7. Again, however, the mere fact that a debtor has converted a case from chapter 11 or 13 to chapter 7 should not be presumed to constitute bad faith.
By way of illustration, suppose that a debtor commences a chapter 13 case and proposes a chapter 13 plan that the debtor believes is feasible and begins making payments to the trustee. Suppose further that one of the debtor's creditors objects to the plan and insists that the debtor agree to more onerous terms. Given the extremely high degree of plan defaults under chapter 13, a debtor might reasonably decline to accede to the demands of the creditor and decide instead to convert the case to chapter 7. Absent unusual circumstances, the debtor's conversion should not be considered to be one in bad faith.
Taken as a whole, §707(b) embodies a preference that debtors with incomes that exceed the "means testing" threshold attempt to proceed under chapter 11 or 13 in the first instance. If debtors do so by filing initially under chapter 11 or 13 rather than chapter 7, they should not be penalized because, after attempting in good faith to succeed in chapter 11 or 13, they ultimately convert to chapter 7.
Footnotes
1 Macklin Fleming Visiting Lecturer of Law, Yale Law School; partner, Bingham McCutchen LLP. Board Certified in Business Bankruptcy Law by the American Board of Certification. Return to article
2 11 U.S.C. §707(b)(1). Return to article
3 11 U.S.C. §707(b)(2). Return to article
4 See 11 U.S.C. §707(b)(2); 151 Cong. Rec. S.1856 (March 1, 2005) (Statement of Sen. Charles Grassley) (describing criteria of §707(b) as providing a standard of "means testing"); Hon. Eugene R. Wedoff, "Means Testing in the New §707(b)," 79 Am. Bankr. L.J. 231 (2005) (discussing "means testing"). Return to article
5 11 U.S.C. §707(b)(4)(A). Return to article
6 11 U.S.C. §707(b)(4)(C). Return to article
7 11 U.S.C. §707(b)(1) (emphasis added). Return to article
8 See 11 U.S.C. §103(b) (providing that the provisions of Part I of chapter 7, including §707, apply only in chapter 7 cases). Return to article
9 See Hartford Underwriters Ins. Co. v. Union Planters Bank, 530 U.S. 1, 7 (2000) ("when the statute's language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms."). Return to article
10 See United Sav. Ass'n v. Timbers of Inwood Forest Assocs. Ltd., 484 U.S. 365, 369-71 (1988) (construing sections of Bankruptcy Code together and observing that "[s]tatutory construction is a holistic endeavor."); Kelly v. Robinson, 479 U.S. 36, 43 (1986) ("In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law"). Return to article
11 11 U.S.C. §1307(a). Return to article
12 11 U.S.C. §1112(2). Return to article
13 Pursuant to Rule 1017(f)(2) of the Federal Rules of Bankruptcy Procedure, the debtor may convert a case from chapter 11 to chapter 7 by filing a motion in the chapter 11 proceeding. Pursuant to Rule 1017(f)(3), a debtor may convert a case from chapter 13 to one under chapter 7 without court order by filing a notice of conversion in the chapter 13 case. The filing of a new petition is not required. Return to article
14 11 U.S.C. §348(a). Return to article
15 See 11 U.S.C. §301(a) (providing that a case is commenced by the filing of a petition in bankruptcy). Return to article
16 See 11 U.S.C. §301(b) (providing that filing of a voluntary petition constitutes an order for relief). Return to article
17 11 U.S.C. §303(b) (providing that an involuntary case is commenced by the filing of a petition). Return to article
18 11 U.S.C. §303(h) (providing that, if the involuntary petition "is not timely controverted, the court shall order relief against the debtor in an involuntary case"); Rule 1013, Fed. R. Bankr. P. (prescribing procedures governing involuntary bankruptcy filings). Return to article
19 11 U.S.C. §348. Return to article
20 See FCC v. NextWave Personal Communications Inc., 537 U.S. 293, 302 (2003) (where Congress uses certain words in one context, but not in another, it is presumed to act purposefully); Connecticut Nat'l. Bank v. Germain, 503 U.S. 249, 253-54 (1992) ("courts must presume that a legislature says in a statute what it means and means in a statute what it says there"); see, also, Lamie v. U.S. Trustee, 540 U.S. 526, 538 (2004) (courts may not add words to a statute); United States v. Locke, 471 U.S. 84, 95 (1985) (courts do not have "carte blanche to redraft statutes"). Return to article
21 11 U.S.C. §§1112(a) and 1307(a). Return to article
22 11 U.S.C. §1307(g). Return to article
23 11 U.S.C. §1112(f). Return to article
24 See Toibb v. Radloff, 501 U.S. 157, 160 (1991) ("§109...defines who may be a debtor under the various chapters of the Code"). Return to article
25 11 U.S.C. §§109(a) and (b). Return to article
26 See 11 U.S.C. §103(b) (providing that the provisions of Part I of chapter 7, including §707, apply only in chapter 7 cases); see, generally, Toibb v. Radloff, 501 U.S. 157, 160-61 (1991) (declining to infer limits on §109 and stating that "Congress took care in §109 to specify who qualifies—and who does not qualify—as a debtor under the various chapters of the Code"). Return to article
27 11 U.S.C. §707(b)(1). Return to article
28 11 U.S.C. §706(a). Return to article
29 11 U.S.C. §109(d). Return to article
30 See FCC v. NextWave Personal Communications Inc., 537 U.S. 293, 302 (2003) (rejecting interpretation of the Code that would render provisions inoperative). Return to article
31 11 U.S.C. §706(a). Return to article
32 11 U.S.C. §706(d). Return to article
33 11 U.S.C. §301. Return to article
34 11 U.S.C. §301(a). Return to article
35 11 U.S.C. §707(b)(1). Return to article
36 11 U.S.C. §707(b)(1). Return to article
37 See 11 U.S.C. §348(a). Return to article
38 11 U.S.C. §707(b)(4)(A). Return to article
39 11 U.S.C. §707(b)(4)(A) (emphasis added). Return to article
40 11 U.S.C. §103(b). An exception exists for provisions of chapter 7 that are expressly incorporated by reference in a chapter 13 provision. See, e.g., 11 U.S.C. §1325(b)(3). Return to article
41 11 U.S.C. §707(b)(1). Return to article
42 See 11 U.S.C. §103(b). Return to article
43 See, e.g., 11 U.S.C. §§1115 (providing that, like 11 U.S.C. §1306 applicable in chapter 13 cases, in a chapter 11 case involving an individual debtor, property of the estate includes the debtor's post-petition earnings from personal services) and 1141(d)(5) (providing that, similar to 11 U.S.C. §1328(a) applicable in chapter 13 cases, in a chapter case involving an individual debtor, and subject to certain exceptions, the debtor generally does not obtain a discharge until completion of the payments required under the plan). Return to article
44 The legislative history to §303, unchanged in relevant part by the 2005 amendments, states that "[i]nvoluntary chapter 13 cases are not permitted." H.R. Rep. no. 95-595, 95th Cong. 1st Sess. 321 (1977); S. Rep. no. 95-989, 95th Cong., 2d Sess. 33 (1978). Return to article
45 U.S. Const., Amend. 13, §1 (proscribing slavery and involuntary servitude); see Taylor v. Georgia, 315 U.S. 25 (1942). Return to article
46 11 U.S.C. §1307(a). Return to article
47 See Lown, Jean M. and Rowe, Barbara R., "A Profile of Utah Consumer Bankruptcy Petitioners," 5 J.L. & Fam. Stud. 113, 119 (2003); Norberg, Scott F., "Consumer Bankruptcy's New Clothes: An Empirical Study of Discharge and Debt Collection in Chapter 13," 7 Am. Bankr. L. Rev. 415, 439-40 (1999); Whitford, William C., "The Ideal of Individualized Justice: Consumer Bankruptcy as Consumer Protection, and Consumer Protection in Consumer Bankruptcy," 68 Am. Bankr. L.J. 397, 410 (1994). Return to article
48 11 U.S.C. §707(b)(1). Return to article
49 See 11 U.S.C. §§1328(a) (providing that a chapter 13 debtor does not obtain a discharge until completion of all payments required to be made under the plan) and 1328(b) (providing that a court may grant a discharge prior to completion of the payments required under the plan under certain circumstances). Return to article
50 See United States v. Security Industrial Bank, 459 U.S. 70, 78 (1982) (observing the "cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided") (internal quotation marks and citations omitted). Return to article
51 11 U.S.C. §707(b)(3). Return to article
52 See, e.g., Little Creek Dev. Co. v. Commonwealth Mortgage Corp. (In re Little Creek Dev. Co.), 779 F.2d 1068, 1071 (5th Cir. 1986). Return to article