IN RE:SMITH CASE NO. 94-51792

This case was heard by the court on Feb 17, 1995 on the motion of the trustee to dismiss the case or in the alternative to transfer the case to the appropriate United States Bankruptcy Court serving West Virginia.

The debtor previously filed a petition for relief under chapter 13 of the Bankruptcy Code in this court on March 28, 1994. The Statement of Financial Affairs and Statement of Current Income accompanying the petition indicated the debtor had resided at 3324 Harston Drive, Lexington, Kentucky, for 1 year and 9 months and had previously resided at 3351 Cove Lake Drive, Lexington, Kentucky for 2 years, indicating the debtor had resided in this district more than 3 ½ years. However, the schedules to that petition indicated the debtor had been employed at that time for one week by David D. Smith at 436 Poplar Fork Road, Scott Depot, West Virginia. By amendment to the schedules filed April 18, 1994 the debtor gave his address as ss463 Poplar Fork Road, Scott Depot, West Virginia.

On motion of the chapter 13 trustee filed June 20, 1994 and heard by the court on July 13, 1994, the court ruled the debtor’s chapter 13 case should be dismissed for failure to make the plan payments to the trustee. The debtor was given 15 days to convert the case to a case under chapter 7, but did not do so. The order of dismissal was entered on August 1, 1994.

It appears from the record in the prior case that the debtor has resided in West Virginia at least since April of 1994. The present chapter 7 case was filed on December 7, 1994. It thus appears the debtor had resided in West Virginia more than 180 days prior to the commencement of this case in this district.

The records in the debtor’s cases indicate the attorney for the debtor received $190 for representing the debtor in the chapter 13 case and $720 for representing the debtor in this case.

The trustee has moved that counsel for the debtor be required to refund to the debtor the $720 fee she received in this case as excessive under the circumstances, in order that the debtor may obtain counsel to file the case in West Virginia.

On these facts the court finds the petition should be and hereby is dismissed and counsel for the debtor should be and hereby is directed to refund to the debtor the $720 fee she received in this case.

Dated:

By the court -

____________________

Joe Lee, Chief Judge

Copies to:

James Lyon

Barbara M. Griffin

Dean A. Langdon