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In the case of In re Tay-Kwamya, — B.R. —-, 2007 WL 1175890 (Bkrtcy.S.D.N.Y.,2007) the debtor filed a Chapter 7 case but did not provide “all payment advices.” The Chapter 7 Trustee filed a “Request for Dismissal of Case Pursuant to 11 U.S.C. § 521(i)(2) and General Order M-315″ and, in response, the Debtor filed an “Affidavit in Opposition” conceding a failure to provide two “payment advices.” The debtor did, however, provide pay stubs for the six-week period prior to her bankruptcy filing. The Debtor stated that the gross pay of the missing pay stubs was $712.94 and that this amount could be verified by reviewing the pay stubs that were submitted to the Chapter 7 Trustee. She also stated that she could not locate the two missing pay stubs, and that she “may have great difficulty” in obtaining duplicate copies from her former employer.

The Court scheduled a hearing on the Request for Dismissal. Though the Chapter 7 Trustee indicated at the hearing that he intended to withdraw the Request for Dismissal, the Court determined that it would be more appropriate to consider the issues presented in the Request for Dismissal and address the outstanding issue of what constitutes sufficient “other evidence” in the case of missing payment advices.

The Court took into consideration the totality of the Debtor’s circumstances and quality of the other evidence provided by the Debtor to the Chapter 7 Trustee, finding that the Debtor met the statutory requirements and denied the Chapter 7 Trustee’s request to dismiss the case.

The court relied on In re Luders, 356 B.R. 671 (Bankr.W.D.Va.2006) inasmuch as that case provided an initial starting point for the Court’s consideration of what constitutes “other evidence” sufficient for the requirements of Section 521(a)(1)(B)(iv). In Luders, one payment advice was missing for Mr. Luders and two for Mrs. Luders. However, the pay stubs that were submitted to the Chapter 13 trustee contained year-to-date information, which included their total earnings over the sixty-day prepetition period. Like the Debtor in the instant case, neither Mr. or Mrs. Luders requested an extension of time under 11 U.S.C. § 521(i)(3) in which to file their payment advices. Accordingly, the Chapter 13 trustee requested an automatic dismissal of the debtors’ case for failure to file documentation. The court in Luders concluded that the year-to-date information contained on the timely submitted pay stubs constituted “other evidence of payment” in satisfaction of § 521(a)(1)(B)(iv) and declined to dismiss the case. 356 B.R. at 674.

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In the recently-decided case of Zelotes v. Adams, — B.R. —-, 2007 WL 638331 (D.Conn. 2007) a bankruptcy attorney brought a cause of action challenging the constitutionality of the Code provision added by the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) prohibiting “debt relief agencies” from ever advising their clients to incur additional debt in contemplation of bankruptcy even when it might be lawful and prudent to do so. The District Court denied the motion to of the U.S. Trustee to dismiss. The United States Trustee then moved for reconsideration.

The court held that (1) the provision of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) that prohibited “debt relief agencies” from ever advising their clients to incur additional debt in contemplation of bankruptcy even when it might be lawful and prudent to do so, such as when refinancing would reduce rate of interest that clients paid, was unconstitutionally overbroad as applied to bankruptcy attorneys; but that (2) the injunction would issue against enforcement of this provision only against plaintiff attorney.

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