XXX BANKRUPTCY COURT
EASTERN DISTRICT OF XXX
……………………………………………………………………..X
In re:
Chapter 7
XXX Case No.: XXX
Debtor.
……………………………………………………………………..X
XXX,
Plaintiff,
v.
XXX
Defendants.
……………………………………………………………………..X
MOTION FOR REMOVAL
COMES NOW, Plaintiff XXXX pursuant to 11 U.S.C § 707 (a).and,
and files this Motion to withdraw the Chapter 7 Bankruptcy Case. Plaintiff files this Motion on
the grounds that the Trustee has failed to protected Plaintiff or Plaintiff’s assets. In support of
this Motion, Plaintiff states as follows:
BACKGROUND
On or about January XXXX, the Plaintiff commenced the adversary proceedings in this
Honorable Court by filing a Complaint.
On October XXX, Plaintiff filed in this Court a petition for relief under Chapter 13 of
the Bankruptcy Code. Consequently, the Plaintiff filed a Notice of Voluntary Conversion from
Chapter 13 to Chapter 7, upon which the case was converted to a Chapter 7 bankruptcy.
The Court then appointed XXXX as the Trustee of the Plaintiff’s Estate.
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RELIEF REQUESTED
Plaintiff requests that this Chapter 7 Bankruptcy be withdrawn for the reasons stated
herein.
BASIS OF THE RELIEF REQUESTED
A. The Trustee has failed to protect Plaintiff or Plaintiff’s assets
A chapter 7 trustee’s duties pertinent to this analysis are prescribed in 11 USC. § 704(1)
& (4). The trustee shall investigate the debtor’s financial affairs, collect the property of the estate,
reduce it to money, distribute the money to the creditors, and close the estate "as expeditiously as
is compatible with the best interests of parties in interest." "[A] chapter 7 trustee voluntarily
assumes a statutory duty under § 704(1) to collect and reduce the property of the estate for which
trustee serves, and close such estate as expeditiously as is compatible with the best interests of
parties in interest." In re C. Keffas & Son Florist, Inc., 240 B.R. 466 (Bankr. E.D.N.Y. 1999).
Further, it is the trustee’s duty to both the debtor and the creditors to realize from the
estate all that is possible for distribution among the creditors. See 6 Collier on Bankruptcy, (15th
Ed. Revised), ¶ 704.02[3] at 704-12.
In the instant action, Plaintiff asserts that the Trustee, on several occasions, failed to act
in the best interest of the Plaintiff. Plaintiff points at the following examples, which show the
disregard of Plaintiff’s best interest:
i. The Trustee failed to address the Proofs of Claims and only considered Plaintiff’s
assets. (See Tr. p. 5, lines 10-13; p. 9, lines 16-18 & 19-21) 1 .
1 The reference to (Tr. p… lines…) refers to the transcript of the hearing of the meeting between the Trustee and
the Plaintiff held on May 5, 2021.
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ii. The Trustee insisted on having an objection to the discharge for sixty days, which
would fall on Plaintiff’s birthday, amidst Plaintiff’s objection. (Tr. p. 9, lines 10-
15).
iii. The Trustee refused to sell Plaintiff’s Howard Beach Property.
iv. The Trustee failed to address Plaintiff’s concerns over the actions of Plaintiff’s
former attorney Darren Aronow, whose employee Marianne DeRosa made an
error indicating Plaintiff’s bank balance as $63,000, which error has subjected
Plaintiff to much harm.
v. The Trustee was committed to object to Plaintiff’s discharge.
vi. The Trustee hired his law firm for the rate of $700 per hour, which is clearly
against Plaintiff’s financial interests.
vii. The Trustee hired Plaintiff’s personal injury attorney.
viii. The Trustee increased fees, which were filed in December XXX.
ix. Both of Plaintiff’s properties were foreclosed illegally.
Further, the Trustee erroneously claims jurisdiction over this case. It is interesting to note
that the Trustee filed a motion to control Plaintiff’s Personal Injury Case, immediately after
Plaintiff filed the motion to withdraw the Chapter 7 bankruptcy on March XXXX. On March
XXX, XXX called Plaintiff indicated that Tracy Heston from the Trustee’s Alan
XXX office reached out concerned that Plaintiff had filed a motion to withdraw from the
bankruptcy proceedings. Then the next day XXX claimed there was a verbal offer from
the defendant to settle for $400,000.00 and that they had been pushed up $500,000.00. XXX also mentioned that the Trustee, XXX, not me, was now his client. The
foregoing shows how the Trustee has breached its duties of loyalty to the Estate.
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B. There is just cause to seek withdrawal of the case
According to 11 U.S. Code § 707(b)(1), “[a]fter notice and a hearing, the court, on its
own motion or on a motion by the United States trustee, trustee…, or any party in interest, may
dismiss a case filed by an individual debtor under this chapter…” (Emphasis added). The Debtor
is by definition a "party in interest" in her own case and necessarily has an interest in the
"expeditious" administration of her case. See In re C. Keffas Son Florist, Inc., 240 B.R. 466
(Bankr. E.D.N.Y. 1999).
In the instant action, the Trustee has clearly failed to protect the Plaintiff and her assets.
This amounts to just cause to withdraw the Petition, since Plaintiff’s best interests are at stake.
CONCLUSION
In light of the foregoing, Plaintiff prays that this Court should issue an Order dismissing
and/or withdrawing Petitioner’s Petition. Plaintiff further prays that this Court issues any other
order it deems just.
Date: _________________ XXX
XXX
Pro Se Debtor
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CERTIFICATE OF SERVICE
I certify that a copy of this Motion to Withdraw the case was served on [ENTER DATE] to the
Defendants in this action at the following addresses:XXX6
200 Business Park Drive, Ste 103
Armonk, NY 10504
XXX Loan Management Services, Inc.
DATE:
XXX
Pro Se Debtor
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