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Pay advice case 2: Ober

In re: Jeffrey T. Ober (Bk 06-00704; decision June 27, 2008; Judge Bucki in Buffalo): Section 521 of the Bankruptcy Code (11 USC Sect. 521(a)(1)(B)(iv) requires a debtor to dile with the bankruptcy court "copies of all pay advices or other evidence of payment received within 60 days" of the filing of the bankruptcy petition. 11 USC sect. 521(i)(1) further states that if information required to be filed by the debtor, including pay advices, is not filed within 45 days of the petition date, "the case shall be automatically dismissed." In Ober, the case was filed April 3, 2006, but pay advices were filed only through March 2, so the last 30 days of pay advices were missing. Never the less, no one objected to the petition while it was in Chapter 13. The chapter 13 plan was confirmed, after notice to all creditors, and a later amended chapter 13 plan was confirmed, again after notice to all creditors. After two years in chapter 13, the case was converted to Chapter 7. Only then did someone - the new chapter 7 trustee - object to the case and claim that the petition should be treated as if it had been automatically dismissed two years earlier. The court did not indicate how it would have ruled if the question had been presented back at the beginning of the case. Instead the court decided that it was far too late for the trustee to claim the case should be treated as if it were dismissed. The chapter 7 trustee's predecessor - the chapter 13 trustee - should have objected to the case earlier, before the plan was confirmed, twice, after notice to all creditors. Interestingly, the case made no reference to Judge Ninfo's Riffle case.

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