UNITED STATES BANKRUPTCY COURT            Presentment date:12/4/03, 9:30 a.m.

EASTERN DISTRICT OF NEW YORK                        Hearing on objections:12/9/03, 10:00 a. m.    

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In the Matter of                                                                        

Case No.  803-85912-478

MICHAEL J. BOYLE,                                                Chapter 7

 

Debtor.                           NOTICE OF PRESENTMENT

 

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PLEASE TAKE NOTICE that, upon the application of Kenneth Kirschenbaum, by his counsel, Kirschenbaum & Kirschenbaum, P.C., the annexed proposed order will be presented for signature to the Honorable Dorothy Eisenberg, United States Bankruptcy Judge, at the United States Bankruptcy Court, Long Island Federal Courthouse, 290 Federal Plaza, Room 760, Central Islip, New York, on the 4^th day of December, 2003, at 9:30 a.m., or as soon thereafter as counsel can be heard, for an Order:

(a) Pursuant to Bankruptcy Rule 1007 and §105(a) of the Bankruptcy Code, compelling the debtor to forthwith file all required schedules and a statement of financial affairs;

(b) Pursuant to 11 U.S.C. § 343 and 105(a), compelling the debtor to appear before the trustee and submit to examination under oath at the next scheduled meeting of creditors under Section 341(a) of the Bankruptcy Code and at any adjourned meetings as requested by the trustee;

(c) Pursuant to Bankruptcy Rule 4004(b), extending for cause the time in which the trustee and all creditors of the estate may file objections to the debtor’s discharge for a period of 60 days from the date on which the debtor appears for examination at the meeting of creditors; and

(d) For such other, different, and further relief as to this Court may seem just and proper.

PLEASE TAKE FURTHER NOTICE that objections, if any, to the application and the proposed order, should be in writing and filed with the Clerk of the Bankruptcy Court, with a copy marked for the Chambers of the Honorable Dorothy Eisenberg, in accordance with the Local Rules for the United States Bankruptcy Court, Eastern District of New York, E.D.N.Y. LBR 2002-1(d), and served upon Kirschenbaum & Kirschenbaum, P.C., Attorneys for the Trustee, 200 Garden City Plaza, Garden City, New York 11530, Attention: Steven B. Sheinwald, Esq., and upon the United States Trustee, Long Island Federal Courthouse 560 Federal Plaza, Central Islip, New York 11722, so as to actually be received no later than 5:00 p.m. on December 1, 2003 , or the proposed order may be signed and entered as unopposed.

PLEASE TAKE FURTHER NOTICE, that if objections are timely filed, a hearing to consider each objection shall be held before the Honorable Dorothy Eisenberg, at the United States Bankruptcy Court, Long Island Federal Courthouse, 290 Federal Plaza, Room 760, Central Islip, New York on the 9^th day of December, 2003 at 9:30 a.m.

Dated: Garden City, New York

November 11, 2003

 

KIRSCHENBAUM & KIRSCHENBAUM, P.C.

 

By:                                                                        

       STEVEN B. SHEINWALD (SS-6336)

       Attorneys for the Trustee

       200 Garden City Plaza

       Garden City, NY 11530

       (516) 747-6700

 

Michael J. Boyle

Debtor Pro Se

45 Frank Street

Valley Stream, NY 11580

 

United States Trustee

Long Island Federal Courthouse

560 Federal Plaza

Central Islip, NY 11722

 

Homecoming Financial Network servicer

for Bank One National Association

c/o Steven J. Baum, PC

Attn. Brian Kumiega, Esq.

220 Northpointe Parkway Suite G

Amherst, NY 14228

 

 

 

 

UNITED STATES BANKRUPTCY COURT

EASTERN DISTRICT OF NEW YORK

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In the Matter of

Chapter 7

MICHAEL J. BOYLE,                                                Case No.  803-85912-478

 

Debtor.                                    AFFIRMATION                       

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STEVEN B. SHEINWALD, an attorney duly admitted to practice before the courts of the State of New York and before this Court, affirms the following to be true under penalty of perjury:

1.  I am a member of KIRSCHENBAUM & KIRSCHENBAUM, P.C., attorneys for the Chapter 7 Trustee, and I am fully familiar with the facts and circumstances set forth in this affirmation.

2.  I am submitting this affirmation in support of the trustee’s motion for an Order: (a) Pursuant to Bankruptcy Rule 1007 and §105(a) of the Bankruptcy Code, compelling the debtor to forthwith file all required schedules and a statement of financial affairs; (b) Pursuant to 11 U.S.C. §§ 343 and 105(a), compelling the debtor to appear before the trustee and submit to examination under oath at the next scheduled meeting of creditors under Section 341(a) of the Bankruptcy Code and at any adjourned meetings as requested by the trustee; (c) Pursuant to Bankruptcy Rule 4004(b), extending for cause the time in which the trustee and all creditors of the estate may file objections to the debtor’s discharge for a period of 60 days from the date on which the debtor appears for examination at the meeting of creditors; and (d) for such other and further relief as this Court deems just and proper.

3.  On September 10, 2003, the Debtor filed a voluntary petition for relief pursuant to Chapter 7 of Title 11 of the United States Code (the “Bankruptcy Code”).  At the time of filing, Schedule D was the only Schedule filed by the debtor.  Additionally, the debtor did not file a statement of Financial Affairs or a statement of intention

4.  According to Bankruptcy Rule 1007(b)(1), unless a court orders otherwise, a debtor is required to file schedules of assets and liabilities, a schedule of current income and expenditures, a schedule of executory contracts and unexpired leases, and a statement of financial affairs.

5.  In accordance with Bankruptcy Rule 1007(c), the schedules and statements, other than the statement of intention, shall be filed with the petition in a voluntary case, or if the petition is accompanied by a list of all the debtor’s creditors and their addresses, within 15 days thereafter.

6.  Furthermore, Bankruptcy Rule 1007(c) provides that any extension of time for the filing of the schedules and statements may be granted only on motion for cause shown and on notice to the United States Trustee.

7.  Notwithstanding that practically two months have passed since the filing of the petition, the debtor has still not filed the missing schedules or a statement of financial affairs, nor has the debtor sought a court order extending his time to file such schedules and statement.

8.  While the debtor did not disclose the filing of any prior bankruptcy proceedings in his current petition, an investigation into the debtor’s prior filing history has been performed.  Notably, the debtor filed three prior petitions since 2001, all of which have been dismissed.  Specifically, case numbers 801-86577-478, 802-87970-478, and 803-82330-478.  Copies of the dockets from the three prior filings are annexed hereto as Exhibit A.

9.  While the debtor did not list any unsecured creditors on the mailing matrix filed with the Court, a review of the creditor lists filed in the 2001 and 2002 cases reflects that the debtor had approximately 40 general unsecured creditors.  Given the time periods between filings, it is highly unlikely that those creditors have been fully satisfied and that there are no general unsecured creditors for the debtor to report.  Furthermore, because no general unsecured creditors were included on the creditor list filed by the debtor, none of them received notice of the current filing.

10.  According to 11 U.S.C. § 343, a debtor is required to appear and submit to examination under oath at the meeting of creditors held under 11 U.S.C. § 341.

11.   The initial meeting of creditors was scheduled to take place on October 8, 2003.  However, the debtor failed to attend the scheduled meeting.  Since that time, the debtor’s meeting of creditors has been adjourned three times.  The debtor has not appeared at any of the adjourned meetings, nor has he proffered any explanation for his non-appearance or requested an adjournment for cause.

12.  The last day to object to the debtor’s discharge is December 8, 2003.

13.  According to Bankruptcy Rule 4004(b), on motion of any party in interest, after hearing on notice, the court may extend for cause the time for filing a complaint objecting to discharge. 

14.  Due to the debtor’s failure to comply with the Bankruptcy Code and the Bankruptcy Rules, the trustee is unable to adequately investigate the debtor’s pre-petition financial affairs to determine what assets may be available for liquidation and distribution to creditors.  Furthermore, the trustee has been unable to determine whether there is a basis to object to the debtor’s discharge.

15.  The debtor’s motives are clear.  He has failed to make mortgage payments for 33 months.  The mortgagee has been attempting to exercise its rights under the terms of the mortgage and mortgagee note, and has been frustrated in its efforts by the debtor.  In addition, the debtor undoubtedly has unsecured creditors who have not been paid and who are also being frustrated in any efforts to recover sums due.  The debtor is a serial petition filer, who has demonstrated that he has no intention of fulfilling his obligations.  Instead, he expects the petitions to be dismissed, (without prejudice) thereby providing him with an additional opportunity to file yet another petition and more time to hold off creditors.  Notably, the debtor has failed to disclose the prior filings, likely expecting the trustee to seek a dismissal of the instant petition without prejudice based upon the debtor’s failure to file documents and appear at the 341 meeting.  In this way he is afforded another opportunity to file.  This abuse of the bankruptcy process must be stopped.