Unpaid filing fees can be nondischargeable debts, in the opinion of two judges in Detroit.
A chapter 7 debtor filed two petitions pro se, seeking filing fee waivers in both. The court dismissed both cases before ruling on the waiver.
The debtor filed again, this time with counsel and this time paying the filing fee. Bankruptcy Judge Thomas J. Tucker dismissed the new petition for failure to pay the prior filing fees and was upheld on Feb. 17 by District Judge Laurie J. Michelson.
To dismiss, the bankruptcy judge relied on the All Writs Act in Section 105(a) and on Section 707(a)(2), which allows dismissal for “nonpayment of any fees” required by 28 U.S.C. § 123. That provision in the Judicial Code sets fees throughout the federal court system.
Judge Michelson noted that bankruptcy courts are split on whether Section 707(a)(2) applies only to nonpayment of filing fees in the current case. She did not come down on one side or the other, because she held that Section 105(a) was a valid basis for dismissing.
Reliance on Section 105(a) was proper, Judge Michelson said, so long as no Bankruptcy Code provisions were to the contrary. She said there is nothing in the Code that prohibits a judge from mandating the payment of prior filing fees.
The debtor contended that the automatic stay in Section 362(a)(6) precluded use of Section 105(a) because the judge was attempting to collect pre-filing debt. Judge Michelson said that the automatic stay did not apply because it was designed to prevent harassment by creditors.
Since Section 707(a)(2) allows dismissal for failure to pay “any fees,” resolving the spilt on that theory might have been a better ground for upholding the bankruptcy court.