In Re Love , 61 B.R. 558 ( 1986 )

61 B.R. 558 (1986)

In re Robin E. LOVE, Debtor.

Bankruptcy No. 85-03011-BKC-AJC.

United States Bankruptcy Court, S.D. Florida.

June 9, 1986.

ORDER DENYING SUA SPONTE MOTION TO DISMISS UNDER 11 U.S.C. § 707(b)

A. JAY CRISTOL, Bankruptcy Judge.

This cause came on to be heard sua sponte upon the court's own motion to dismiss this chapter 7 petition pursuant to 11 U.S.C. § 707(b) and the court having received the inspiration for the motion from a little old ebony bird and not from any party in interest or any other person and having considered the presumption in favor of debtor provided in 11 U.S.C. § 707(b) and not deeming it appropriate to take evidence, the court finds:

Once upon a midnight dreary, while I pondered weak and weary

Over many quaint and curious files of chapter seven lore

While I nodded nearly napping, suddenly there came a tapping

As of some one gently rapping, rapping at my chamber door,

"Tis some debtor" I muttered, "tapping at my chamber door —

Only this and nothing more."

Ah distinctly I recall, it was in the early fall

And the file still was small

The Code provided I could use it

If someone tried to substantially abuse it

No party asked that it be heard.

"Sua sponte" whispered a small black bird.

The bird himself, my only maven, strongly looked to be a raven.

Upon the words the bird had uttered

I gazed at all the files cluttered

"Sua sponte," I recall, had no meaning; none at all.

And the cluttered files sprawl, drove a thought into my brain.

Eagerly I wished the morrow — vainly I had sought to borrow

From BAFJA, surcease of sorrow — and an order quick and plain

That this case would not remain as a source of further pain.

The procedure, it seemed plain.

As the case grew older, I perceived I must be bolder.

And must sua sponte act, to determine every fact,

If primarily consumer debts, are faced,

Perhaps this case is wrongly placed.

This is a thought that I must face, perhaps I should dismiss this case.

I moved sua sponte to dismiss it for I knew I would not miss it

The Code said I could, I knew it.

But not exactly how to do it, or perhaps some day I'd rue it.

I leaped up and struck my gavel.

For the mystery to unravel

Could I? Should I? Sua sponte, grant my motion to dismiss?

While it seemed the thing to do, suddenly I thought of this.

Looking, looking towards the future and to what there was to see

If my motion, it was granted and an appeal came to be,

Who would be the appellee?

Surely, it would not be me.

Who would file, but pray tell me, a learned brief for the appellee

The District Judge would not do so

At least this much I do know.

Tell me raven, how to go.

As I with the ruling wrestled

In the statute I saw nestled

A presumption with a flavor clearly in the debtor's favor.

No evidence had I taken

Sua sponte appeared foresaken.

Now my motion caused me terror

A dismissal would be error.

Upon consideration of § 707(b), in anguish, loud I cried

The court's sua sponte motion to dismiss under § 707(b) is denied.