In re Clayson Wayne MULLINS and Audree Maree Mullins, Debtors.
BAP No. 80-1027-KHG, BK No. SA-80-00593-AP.United States Bankruptcy Appellate Panels, Ninth Circuit.
Submitted November 10, 1980. Decided November 28, 1980.Benjamin H. Berkley, Anaheim, Cal., for debtors.
Loretta Ramseyer, Los Angeles, Cal., for Bank of America.
Before KATZ, HUGHES and GEORGE, Bankruptcy Judges.
AMENDED MEMORANDUM
The Bank of America, N.T. & S.A. appeals from an Order of the Honorable Peter M. Elliott, requiring the payment of a filing fee of $60.00 for the approval of a Stipulation relieving appellant creditor of the automatic stay imposed by 11 U.S.C. § 362.
Although no adversary proceeding had been commenced, appellant bank, the debtors and the trustee stipulated that the automatic stay be dissolved. The bankruptcy judge declined to enter an order approving *347 the stipulation unless appellant paid a $60.00 filing fee. This appeal followed.
Judge Elliott's reasoning appears unassailable. Appellant sought an order of the kind that disposes of an adversary proceeding, Rule 701(6), Rules of Bankruptcy Procedures. To commence an adversary proceeding, the payment of a $60.00 filing fee is presently required.[1] Memorandum of the Bankruptcy Division Administrative Office, U.S. Courts, dated April 19, 1980, setting forth the fee schedule adopted by the Judicial Conference of the United States pursuant to 28 U.S.C. § 1930(b). The filing fee applies whether the adversary proceeding is concluded by default, trial, stipulation or dismissal. The fee is not refundable.
The policy of the Administrative Office regarding the imposition of a fee for the filing of a stipulation is that a charge of $3.00 to be made therefor.
The Administrative Office and the Department of Justice have both declined this Panel's invitation to intervene and appear in this matter on behalf of the United States.
Logic would dictate affirmance of the judgment below, but in this case logic must yield to policy.
The order of the Bankruptcy Court is reversed, 7 B.R. 1, and the proceeding is remanded with instructions to entertain the request for entry of an order approving the stipulation upon payment of a fee of $3.00.
NOTES
[1] Debtors do not have to pay such a fee, and neither do trustees unless there are assets in the case or assets are ultimately produced.