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Case 12-10110-rlj13 Doc 48 Filed 09/17/13 Entered 09/17/13 13:37:23 Page 1 of 3

Walter O’Cheskey
Standing Chapter 13 Trustee
6308 Iola Avenue
Lubbock, TX 79424
(806) 748-1980 Office
(806) 748-1956 Fax

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE NORTHERN DISTRICT OF TEXAS

ABILENE DIVISION

IN RE:
JOHN DAVID PAYNE
JENNIFER LYNN PAYNE

CASE NO: 12-10110-RLJ-13
DATED: September 17, 2013
ATTORNEY: MONTE J WHITE & ASSOCIATES PC
HEARING DATE: 10/28/2013
HEARING TIME: 11:00 AM

Trustee’s Motion to Compel Debtor to File with the Court a copy of the Debtor’s 2012

Federal Income Tax Return or in the Alternative to Provide a Copy to the Trustee and/or to Pay any
Excess Tax Refund to the Trustee within Ten (10) days of the Entry of the Order Requested Herein

Comes now Walter O’Cheskey, Standing Chapter 13 Trustee, Movant herein, and pursuant to
Section1307(c) of the Bankruptcy Code and Bankruptcy Rule 9014 files this Trustee’s Motion to Compel Debtor to
File with the Court a copy of the Debtor’s 2012 Federal Income Tax Return or in the Alternative to Provide a Copy to
the Trustee and/or to Pay any Excess Tax Refund to the Trustee within Ten (10) days of the Entry of the Order
Requested Herein ("Motion"), and for same would respectfully show the Court as follows:

NO HEARING WILL BE CONDUCTED HEREON UNLESS A WRITTEN RESPONSE IS FILED WITH THE CLERK
OF THE UNITED STATES BANKRUPTCY COURT AT US BANKRUPTCY COURT, CLERK’S OFFICE, 1205
TEXAS AVE #306, LUBBOCK, TEXAS, 794010000 BEFORE CLOSE OF BUSINESS ON October 11, 2013,
WHICH IS TWENTY-FOUR (24) DAYS FROM THE DATE OF SERVICE HEREOF.

ANY RESPONSE MUST BE IN WRITING AND FILED WITH THE CLERK, AND A COPY MUST BE SERVED
UPON COUNSEL FOR THE MOVING PARTY PRIOR TO THE DATE AND TIME SET FORTH HEREIN. IF A
RESPONSE IS FILED A HEARING WILL BE HELD WITH NOTICE ONLY TO THE OBJECTING PARTY.
IF NO HEARING ON SUCH NOTICE OR MOTION IS TIMELY REQUESTED, THE RELIEF REQUESTED SHALL
BE DEEMED TO BE UNOPPOSED, AND THE COURT MAY ENTER AN ORDER GRANTING THE RELIEF
SOUGHT OR THE NOTICED ACTION MAY BE TAKEN.

1.

2.

3.

4.

5.

Debtor initiated the instant Chapter 13 proceeding by the filing of a voluntary petition on April 5, 2012.

Section 521(f) of the Bankruptcy Code provides, inter alia,: “At the request of the court, the United
States Trustee, or any party in interest in a case under chapter 7, 11, or 13, a debtor who is an individual
shall file with the court - (1) at the same time filed with the taxing authority, a copy of each Federal
income tax return required under applicable law (or at the election of the debtor, a transcript of such tax
return) with respect to each tax year of the debtor ending while the case is pending under such chapter;
... .”

Movant is the Trustee, and therefore, is a party in interest in this case.

Debtor is an individual.

On 1/23/2013 the Trustee mailed to Debtor by United States First Class Mail postage paid, at his/her
home address shown on the Petition or any notice of change of address most recently received from the
Debtor by the Trustee, a “2012 Tax Year Reminder Notice” (“the Request”) which contained the following
statement: “The Trustee hereby requests a copy of your 2012 1040/1040A/1040EZ Federal Tax
RETURN with all schedules attached when the return is filed.” The Trustee’s email address, fax
number, and mailing address were provided.

6.

The Request also stated: “If you filed for an extension to file your return, send the Trustee a copy of the
extension request which you filed. A signed copy of the extension request must be sent to the Trustee
immediately upon filing.

7.

Case 12-10110-rlj13 Doc 48 Filed 09/17/13 Entered 09/17/13 13:37:23 Page 2 of 3

Finally, the Request also stated: “If you are not required to file a tax return with the IRS, you must submit
a Statement Concerning Federal Tax Returns Requested by Trustee. This statement can be found on
the Trustee’s web site at http://extranet.ch13-12westtex.org.”

8.

9.

10.

The 2012 federal income tax return or request for extension was due to be filed with the IRS by April
17th, 2012.

Debtor has, as of the date of filing hereof, failed to provide the Trustee with a copy of his/her 2012
federal income tax return or transcript; request to IRS for an extension; or affidavit regarding non-filing
and/or has failed to pay the excess refund above $2,000.00 as provided in General Order 2010-01, if
applicable.

Debtor(s) have not provided Trustee Tax Return or Refund (if applicable)

The Trustee would show that it is necessary in the fulfillment of the Trustee’s duties under the
Bankruptcy Code, that the Trustee receive and review Debtor’s federal income tax return, inter alia, in
order to determine the amount of any IRS Refund due to Debtor, and also to determine whether or not
there has been a change in Debtor’s financial circumstances such that a Trustee Modification to the Plan
is appropriate. Further, that it is necessary that Debtor turn-over to the Trustee any “excess” IRS Refund
in order that the Trustee may comply with the provisions of the Court’s General Order that any such
“excess” be paid by the Trustee pro-rata to Debtor’s general unsecured creditors.

WHEREFORE, PREMISES CONSIDERED, Walter O’Cheskey, Standing Chapter 13 Trustee, Movant herein, prays
that UNLESS A COPY OF THE DEBTOR’S 2012 FEDERAL INCOME TAX RETURN, TRANSCRIPT, AFFIDAVIT,
OR A REQUEST TO IRS FOR EXTENSION, IS FILED OR DELIVERED TO THE TRUSTEE AT LEAST FIVE (5)
BUSINESS DAYS PRIOR TO THE ABOVE STATED PRE-HEARING CONFERENCE DATE AND THE DEBTOR
PAYS THE EXCESS REFUND TO THE TRUSTEE (in which event there will be no pre-hearing conference or
hearing, and this Motion will be withdrawn by the Trustee), this Court enter an Order COMPELLING THE
DEBTOR TO PROVIDE A COPY OF THE DEBTOR’S 2012 INCOME TAX RETURN AND/OR PAY THE
DEBTOR’S EXCESS TAX REFUND ABOVE $2,000.00 WITHIN TEN (10) DAYS OF THE ENTRY OF THE ORDER
(“Order”).

Dated: September 17, 2013

Respectfully submitted,

/s/ Walter O'Cheskey
Walter O'Cheskey,Chapter 13 Trustee
6308 Iola Ave., Suite 100,
Lubbock TX 79424

Case 12-10110-rlj13 Doc 48 Filed 09/17/13 Entered 09/17/13 13:37:23 Page 3 of 3

NOTICE OF HEARING

You are hereby notified of the filing of the foregoing Trustee’s Motion. A pre-hearing conference on the Trustee’s
Motion will be held on 10/28/2013 at 8:30 AM by the Trustee at the same location. Any objection or response to the
proposed Motion not resolved or defaulted at the Pre-Hearing Conference will be heard by the Court at the Hearing
Date and Time above at the following location:

Live
US COURTHOUSE ROOM 2000A
3RD AND PINE
ABILENE, TEXAS

Video
US COURTHOUSE ROOM 2201
3RD & PINE
ABILENE, TEXAS

You do not have to attend the pre-hearing conference or hearing unless you oppose the Motion.

Certificate of Service

I hereby certify that a copy of the foregoing “Trustee’s Motion to Compel Debtor to File with the Court a Copy of the
Debtor’s 2012 Federal Income Tax Return or in the Alternative to Provide a Copy to the Trustee and/or to Pay Any
Excess Tax Refund to the Trustee within Ten (10) days of the Entry of the Order Requested herein” was served on
the following parties at the addresses listed below by United States First Class Mail or via electronic mail.

Debtor1: JOHN DAVID PAYNE
1949 PORTLAND AVE

ABILENE, TX 79605

Debtor 2: JENNIFER LYNN PAYNE

1949 PORTLAND AVE

ABILENE, TX 79605

Debtor Attorney

MONTE J WHITE & ASSOCIATES PC
ATTORNEY AT LAW ABILENE
402 CYPRESS SUITE 310
ABILENE TX 79601-0000

Internal Revenue Service
PO Box 7346
Philadelphia, PA 1901-7346

Dated: September 17, 2013

/s/ Walter O'Cheskey
Walter O'Cheskey,Chapter 13 Trustee