UNITED STATES BANKRUPTCY COURT

Eastern District of Virginia

Alexandria Division

IN RE: :

 : Chapter 7

RICHARD MURRAY, : Case No: 16-10548

 :

Debtor :

MEMORANDUM OF LAW OF POINTS AND AUTHORITIES IN

SUPPORT OFDEBTOR’S MOTION TO CONVERT CHAPTER 7

CASE TO CHAPTER 13

Debtor, Richard Murray, by counsel, in support of his motion

to convert chapter 7 case to chapter 13, cites the following points and

authorities:

The Bankruptcy Code provides as follows:

The debtor may convert a case under this chapter to a case

under chapter 11, 12 or 13 of this title at any time, if the case

has not been converted under section 1112, 1208, or 1307 of

this title. Any waiver of the right to convert a case under this

subsection is unenforceable. 11 U.S.C. Section 706 (a) (1994). 

A debtor wishing to convert their case pursuant to section 706(a) must

conform to the Bankruptcy Rule providing that “conversion . . . shall be on

motion filed and served as required by Rule 9013.” Federal Rule of

Bankruptcy Procedure 1017 (f) (2).

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Section 706 (a) has been construed to mean that an eligible debtor has

an absolute right to convert to chapter 13 at any time. 6 Collier on

Bankruptcy Section 706.02 [1] (Lawrence P. King et al., eds., 15th

ed. Rev. 2000). The Collier editors explain the rationale of the statute is that

“the debtor should always be given an opportunity to repay his debts.” 6

Collier on Bankruptcy at Section 706.02 [2] (quoting S. Rep. No. 95-989, 95

th Cong. 2d Sess. 380). According to the Collier editors, the remedy for an

inappropriate conversion is “a motion to reconvert the case for cause after

notice to the debtor and a hearing.” 6 Collier on Bankruptcy at Section

706.02 [1]

There is a line of cases that hold that the right to convert is absolute

only in the absence of extreme circumstances. Extreme circumstances may

involve egregious conduct on the part of the debtor. If the alleged conduct

was insufficiently egregious, conversion will not be denied. In re

Martin, 880 F.2d 857, 859 (5th Cir. 1989). There is no allegation of

egregious conduct here. However, this line of cases represents the minority

view. The majority view is that denying conversion from chapter 7 to 13 is

against the clear wording of the statute. Bruce H. White, “Is a Debtor’s

Right to Convert Under Section 706 (A) Really Absolute?”, 17 Am.

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Bankr. Inst. L.J. 2829 (Feb. 1998). For examples of courts following the

majority view see Street v. Lawson (In re Street), 55 B.R. 763, 765 (B.A.P. 9

Th Cir. 1985) (holding court has no discretion to deny debtor’s right to

convert); Nelson v. Easley (In re Easley), 72 B.R. 948, 952 (Bankr. M.D.

Tenn 1987)(stating debtor has an absolute right to convert if debtor is

eligible and has not previously converted from another chapter); In re

Kleber, 81 B.R. 726, 727 (Bankr. N.D. Ga. 1987)(holding that court has

no discretion to disallow conversion); In re Caldwell, 67 B.R. 296, 300-301

(Bankr. E.D. Tenn. 1986) (ruling that unequivocal code language gives

debtors an absolute right to convert); In re Jennings, 31 B.R. 378, 381

(Bankr. S.D. Ohio 1983) (reasoning that no limit on debtor’s right to convert

may be read into the Code). The court should not deny conversion from

Chapter 7 to Chapter 13 especially considering that no lack of good faith has

been shown, or any abuse of process. Here the Debtor’s motive

for converting to Chapter 13 is to pay his debts and not to escape debts. In

the absence of any sort of egregious circumstances or any improper motive

for the debtor converting from Chapter 7 to Chapter 13, the right of the

debtor to convert the case should be considered as absolute and should be

granted in accordance with the majority view of cases.

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CONCLUSION

Based upon the foregoing, Debtor’s Motion to convert the case from

Chapter 7 to Chapter 13 should be granted and Debtor should be granted the

opportunity to put forth a Chapter 13 Plan and prays the Court grant such

other and further relief as the Court deems equitable, appropriate and just.

Respectfully submitted,

RICHARD MURRAY

Dated: February 22, 2017

By: /s/ JOHN J.O’DONNELL JR. 

JOHN J. O'DONNELL JR.

Counsel for Debtor

VSB # 16510

601 King Street

Alexandria, VA 22314

Telephone: (703) 549-2082

Facsimile: (703) 739-1336

Email: Jjolaw@aol.com

CERTIFICATE OF SERVICE

I certify that I caused a true and correct copy of the foregoing to be filed 

electronically, using the CM/ECF system, and mailed, postage prepaid, to the Office 

of the US Trustee, 115 South Union Street, Suite 206, Alexandria, Virginia 22314, 

and to Janet M. Meilburger, 1493 Chain Bridge Road, Suite 201, McLean, Virginia, 

22101, and to all creditors and parties, this 22

nd day of February, 2017.

/s/JOHN J.O’DONNELL JR

John J. O'Donnell Jr., Esquire

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