UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW HAMPSHIRE 

In re 

 Frederick V. McMenimen, III Chapter 7 

 Debtor Case No: 12-10713-JMD 

ORDER

 Before this Court on July 16, 2013 was the Debtor’s Motion for Waiver of Discharge, 

filed on May 13, 2013, Court Paper 172. The hearing was held to address concerns raised by 

the United States Trustee in his Response filed May 16, 2013, Court Paper 173. 

 At the hearing held on July 16, 2013, the Debtor was not present but his counsel did 

appear on his behalf. The Court was advised that the Debtor is currently in a federal facility 

pursuant to an Order of the United States District Court for the District of New Hampshire 

issued in the matter of United States v. McMenimen, U.S. Case No. 1:12-cr-130-01-SM. 

This Court has heard the arguments of counsel and finds that: the Debtor filed the 

Motion for Waiver of Discharge on May 13, 2013; the Debtor is represented by experienced 

counsel; Debtor’s counsel explained the consequences and the effect of a waiver of discharge to 

the Debtor at the time the waiver was signed; Debtor’s counsel made the Debtor aware of the 

consequences of a waiver of discharge before it was signed; and Debtor’s counsel represented 

that the Debtor knowingly signed the Motion for Waiver of Discharge. The Court also notes 

that the Debtor has been zealous in protecting his rights in this case as noted by his Objections 

filed in this case (Court Papers 63; 77); his Motions for Rule 2004 Examinations (Court Papers 

72, 73); his Motions to Avoid Liens (Court Papers 117, 119 ) and his appeals of Orders of this 

Court entered in the main case (Court Paper 104) as well as in the Adversary Proceedings (Adv. 

Proc. 12-01103-JMD, Court Papers 26 and 30; and Adv. Proc. 12-01107-JMD, Court Papers 24 

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and 28). This Court also notes that this Debtor stipulated to the non-dischargeability of a debt 

owed to American Express as part of Adversary Proceeding 12-01082-LHK, captioned 

American Express Centurion Bank v. McMenimen, and therefore, the Debtor is familiar with 

the concept and effects of waiving his right to discharge debts. 

This Court recognizes the standards for incompetency in civil proceedings are distinct 

from the standards to be applied in criminal proceedings. 

Based upon these factors and in the absence of any Objection to the Motion for Waiver 

of Discharge, and with the support of the United States Trustee, Passatempo et al, and Susan 

Wagstaff, this Court finds that the Motion for Waiver of Discharge should be approved at this 

time. 

This Court therefore grants the Debtor’s Motion for Waiver of Discharge. However, 

because the Debtor was not present at the hearing on July 16, 2013, the Debtor may file a 

rescission of his Motion to Waive Discharge provided it is filed on or before September 16, 

2013. 

Given the Court’s Order approving the Debtor’s waiver of discharge, all pending 

Adversary Proceedings against the Debtor are stayed without prejudice and all discovery in the 

Adversary Proceedings either by or against the Debtor shall be suspended. These proceedings 

are: United States Trustee v. McMenimen, Adv. Proc. 12-01120-JMD; Passatempo et al v. 

McMenimen, Adv. Proc. 12-01103-JMD; and Wagstaff v. McMenimen, Adv. Proc. 

12-01107-JMD (collectively, the “Adversary Proceedings”).

Should the Debtor file a rescission of his Motion for Waiver of Discharge with this 

Court on or before the deadline of September 16, 2013, the stay of the Adversary Proceedings 

shall be immediately lifted without the need for the parties to seek further relief from this Court. 

To the extent necessary and as may be appropriate and equitable, this Court will also grant 

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motions to modify the Pretrial Orders in the Adversary Proceedings to reset deadlines that have 

expired or will expire in the near future. 

On or after September 17, 2013, in the absence of any rescission of the Motion to 

Waive Discharge, the waiver of discharge will stand and the Adversary Proceedings will be 

dismissed, without prejudice. If, after September 16, 2013, the Debtor, anyone acting on 

behalf of the Debtor, or any court at the request of the Debtor’s or someone acting on his behalf, 

vacates, amends and/or reverses the Order approving the Waiver of Discharge, the Plaintiffs in 

the Adversary Proceedings may either: 1) re-file their respective adversary proceeding as a new 

adversary proceeding; or, 2) request that this Court reopen his/her respective Adversary 

Proceeding, provided that any re-filing or motion to reopen is filed within 21 days after actual 

service of the order vacating, amending or reversing the Order Approving the Waiver of 

Discharge is made upon the Plaintiffs in the Adversary Proceedings. 

Dated this _____________________ 

 ___________________________________ 

 The Honorable J. Michael Deasy 

 United States Bankruptcy Judge 

/s/ J. Michael Deasy August 06, 2013

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