John P. Fitzgerald, III

Acting United States Trustee

For Region 4

1725 Duke Street, Suite 650

Alexandria, VA 22314

Jack Frankel, Attorney

(703) 557-7229

United States Bankruptcy Court 

Eastern District of Virginia 

Alexandria Division

In re: 

Ben Pourbabai, Case No. 18-13560-BFK

 Debtor. Chapter 11 

 

 

Motion to Dismiss or Convert Case to Chapter 7 and

Motion to Shorten Notice Period for Hearing this Motion 

 Comes Now, John P. Fitzgerald, III, Acting United States Trustee for Region 4, and moves 

the court to:

(1) Dismiss or convert this case to a case under Chapter 11 of the Bankruptcy Code 

because the Debtor did not read the Statements and Schedules, Section 1112(b)(4)(a);

(2) To shorten the notice period for a hearing on this motion to dismiss or convert case to 

Chapter 7, Bankruptcy Rule 9006(c)(1).

 In support of these motions the following representations are made. 

1. The court has authority to hear and decide this matter. 28 U.S.C. §1334. 

2. This is a core proceeding because it is a matter concerning the administration of the 

estate. 28 U.S.C. §157(b)(2)(A). 

3. On January November 23, 2018, the Debtor filed a petition for relief under Chapter 13 of 

the Bankruptcy Code. The case was converted to Chapter 11 on December 13, 2018.

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4. On February 21, 2019, the continued meeting of creditors in the Chapter 11 case was 

held.

5. The Debtor with his counsel, Fenlene H. Edrington, appeared at the continued meeting. 

6. The Debtor was duly sworn.

7. The Debtor testified, among other things, that he had not read the petition, schedules and 

statements. 

8. The Debtor testified that he had “glanced” at them. He also testified that he “trusted” his 

attorney in that the petition, schedules and statements were correct.

9. The Debtor signed the following statement: “Under penalty of perjury, I declare that I 

have read the summary and schedules filed with this declaration and that they are true 

and correct.” Declaration About an Individual Debtor’s Schedules, Docket No. 98, page 

29.

10. The Debtor also signed the following statement: “I have read the answers on the 

Statement of Financial Affairs and any attachments, and I declare under penalty of 

perjury that the answers are true and correct. I understand that making a false statement, 

concealing property, or obtaining money or property by fraud in connection with a 

bankruptcy case can result in fines up to $250,000, or imprisonment for up to 20 years, 

or both.” Statement of Financial Affairs, Docket No. 98, page 37.

Argument

Dismissal or Conversion to Chapter 7 Warranted

 A Chapter 11 case may be dismissed or converted for cause. 11 U.S.C. §1112(b)(4). 

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 Cause exists to dismiss or convert this case to Chapter 7.

 As stated, the Debtor testified at the meeting of creditors that he did not read the schedules 

and statements. However, the Debtor signed, under penalty of perjury, that he had read them. 

 Bankruptcy is serious business. Bankruptcy provides time for financially hard-pressed 

debtors time to reorganize their affairs. It stays most creditor actions. 

 The bankruptcy system rests on honesty and veracity of the debtors. The information 

provided in the schedules and statements must be reliable and accurate. For the Debtor to testify 

that he did not read the statements and schedules, which he signed under penalty of perjury, 

declaring he had read them, is anathema to the bankruptcy process. This cavalier disregard for 

the seriousness of the bankruptcy process should not be tolerated or excused. 

 Under Section 1112(b) of the Bankruptcy Code, the Court may find cause for dismissal or 

conversion if there has been a lack of good faith. “The good faith requirement attempts to 

prevent abuse of the provisions, purpose or spirit of the Bankruptcy Code.” In re Adler, 329 B.R. 

406, 410 (Bankr. S.D. NY 2005)

 Wherefore, this case should be dismissed or converted to Chapter 7, whichever is in the best 

interests of the estate and the creditors.

Reduction in Notice Period Warranted

 Bankruptcy Rule 9006(c)(1) allows the court, in its discretion and for cause, to reduce the 21-

day notice period for a motion to dismiss or convert a case to Chapter 7.

 Pursuant to Local Bankruptcy Rule 9013-1(N), the Acting United States Trustee for Region 

Four, by counsel, certifies:

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(1) That counsel has carefully examined this matter and concluded that there is a true need for 

an expedited hearing on this matter;

(2) That the need for this expedited hearing has not been created through any lack of due 

diligence on the part of the counsel for the Acting United States Trustee for Region Four;

(3) That counsel for the Acting United States Trustee for Region Four has made a bona fide

effort to resolve this matter without a hearing. This matter cannot be resolved without a 

hearing in that the Debtor testified he signed the petition, schedules and statements without 

reading them.

 Wherefore, the notice period for a hearing on the motion to dismiss or convert should be 

reduced.

February 25, 2019 John P. Fitzgerald, III

Acting United States Trustee

For Region 4

/s/ Jack Frankel

Jack Frankel, Attorney

Office of United States Trustee

1725 Duke Street, Suite 650

Alexandria, VA 22314

(703) 557-7229

Certificate of Service

 I hereby certify that on the 25th day of February, 2019, I mailed, first class, postage prepaid, a 

true copy of these motions to:

Fenlene H. Edrington, Esq.

Moreton and Edrington, PC

297 Herndon Parkway, Suite 203

Herndon, VA 20170

Ben Pourbabai

9896 Sunnybrook Dr.

Great Falls, VA 22066

/s/ Jack Frankel 

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 John P. Fitzgerald, III

 Acting United States Trustee

 For Region 4 

 /s/ Jack Frankel 

 Jack Frankel, Attorney 

 Office of United States Trustee 

 

Certificate of Service

 I hereby certify that on the 22nd day of February, 2019, I mailed, United States mail, first 

class, postage prepaid, a true copy of this motion to the Debtor and to the Debtor’s attorney.

Fenlene H. Edrington, Esq.

Moreton and Edrington, PLC

297 Herndon Parkway, Suite 203

Herndon, VA 20170

Email: fhe@melawva.com

Ben Pourbabi

9896 Sunnybrook Drive

Great Falls, VA 22066

/s/ Jack Frankel

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