APPENDIX O
BAD-FAITH DISMISSAL,
ORGANIZED BY CIRCUIT
A. First Circuit
Sheedy v. Bankowski (In re Sheedy), 875 F.3d 740 (1st Cir. Nov. 16, 2017) (Howard, Torruella, Lynch) (Not excusable neglect for purposes of Bankruptcy Rule 8002(d)(1)(B) that debtor’s counsel missed appeal deadline by one day because counsel was music director in a church and special holiday duties consumed the second week of the appeal period.), aff’g No. 16-cv-10702-ADB, 2017 WL 74282 at *1
Benoit v. Deutsche Bank Nat’l Trust Co. (In re Benoit), 564 B.R. 799 (B.A.P. 1st Cir. Mar. 16, 2017) (Deasy, Tester, Finkle) (Cause for dismissal included that debtor failed to comply with deadlines to bring adversary proceeding against Deutsche Bank, failed to bring foreclosure action on a mortgage on a neighboring property and was otherwise financially unable to deal with large defaulted mortgage.).
Witkowski v. Boyajian (In re Witkowski), 523 B.R. 300, 306-07 (B.A.P. 1st Cir. Nov. 13, 2014) (Tester, Godoy, Harwood) ("[T]he Debtor conceded that she never commenced making payments pursuant to the Plan as required by § 1326(a)(1) . . . she offered no satisfactory excuse for her omission. . . . [T]he Debtor never requested an extension of time for the commencement of Plan payments. . . . [T]he Debtor's failure to satisfy the requirements of § 1326(a)(1), standing alone, is a sufficient ground for dismissal of her chapter 13 case. When we consider the Debtor's failure to comply with § 1326(a) together with her undisputed and unexcused failure to attend the § 341 meeting, there is more than ample support for the Dismissal Order.").
Soto v. Doral Bank (In re Soto), 491 B.R. 307 (B.A.P. 1st Cir. May 8, 2013) (Haines, Feeney, Hoffman) (Applying Segarra-Miranda v. Acosta-Rivera (In re Acosta-Rivera), 557 F.3d 8 (1st Cir. Feb. 19, 2009) (Lipez, Selya, Howard), failure to provide payment advices triggered automatic dismissal under § 521(i) and debtor offered no evidence of circumstances that would justify the exercise of discretion otherwise. Section 521(a) and (i) are not in conflict with § 1307(c)(9) and bankruptcy court appropriately dismissed case without separate notice and hearing.).
In re Zuckerman, No. MS 12-085, 2013 WL 8374121, at *2 (B.A.P. 1st Cir. Apr. 24, 2013) (unpublished) (Deasy, Kornreich, Godoy) (Section 105(a) empowers bankruptcy court to sua sponte dismiss Chapter 13 case when debtor failed to file a certificate of service after being ordered to do so. Bankruptcy court repeatedly issued orders requiring the debtor to file missing documents. Debtor responded each time until bankruptcy court ordered debtor to file a certificate of service with respect to the Chapter 13 plan. The debtor missed the deadline for filing that certificate of service and the bankruptcy court sua sponte entered order of dismissal. "It was entirely appropriate for the bankruptcy court to have set and enforced a deadline in which the debtor must file a certificate of service for the chapter 13 plan. . . . The powers bestowed upon the court in § 105(a) include the equitable and discretionary power to dismiss a case sua sponte under § 1307(c)(1).").
Hayes v. Massachusetts Dep't of Rev. (In re Hayes), No. BAP MB 09-001, 2009 WL 8466788, at *5-*6 (B.A.P. 1st Cir. Aug. 3, 2009) (unpublished) (Haines, Votolato, de Jesus) (On motion to dismiss under § 1307(e) based on failure to file tax returns under § 1308, Massachusetts Department of Revenue had burden to show that returns were not filed but debtor had burden to prove that missing returns were not required. "A party bringing a motion to dismiss under § 1307(e) based upon the failure to comply with § 1308 would have to demonstrate that a debtor had failed to comply with § 1308 and thereafter address whether conversion or dismissal was appropriate. The MDOR established those facts in the Motion and in its exhibits took the extra step of demonstrating the income that the Debtor had presumably earned during the time periods for which the Debtor had not filed returns. . . . Nowhere in the statute or rules is it evident that the taxing authority is obligated in a motion to convert or dismiss to demonstrate that a debtor had an obligation to file a return but failed to do so. . . . Debtor had an obligation to file returns and chose instead to rely on her lack of knowledge and/or her belief that it was up to the MDOR to prove otherwise. . . . [V]iewed either under the Bankruptcy Code or state law, the MDOR, as the moving party, satisfied its burden that the Debtor had failed to file statutorily mandated tax returns by the date on which the meeting of creditors was conducted. Thereafter, the Debtor not only failed to demonstrate that she was not obligated to file returns but admitted that she was required to file the returns.").
Torres Martinez v. Arce (In re Torres Martinez), 397 B.R. 158 (B.A.P. 1st Cir. Dec. 1, 2008) (Boroff, Deasy, Rosenthal) (Creditor has standing to seek dismissal after confirmation notwithstanding untimely filed, disallowed claim; Bankruptcy Appellate Panel will not review dismissal based on bad faith failure to reveal assets when debtor failed to provide English language transcript on appeal. "Appellee had a pecuniary interest in this case that was not affected by the disallowance of his claim. The disallowance of the Appellee's claim only curtailed his right to payment under a confirmed plan which would have discharged his claim were the plan fully performed. But were the case dismissed for any reason, as occurred here, the Appellee's claim would not have been discharged. Accordingly, the Appellee had a pecuniary interest in the case sufficient for the Appellee to seek its dismissal.").
Torres Martinez v. Arce (In re Torres Martinez), 397 B.R. 158 (B.A.P. 1st Cir. Dec. 1, 2008) (Boroff, Deasy, Rosenthal) (Confirmation in a pre-BAPCPA case does not preclude dismissal for bad faith because, prior to addition of § 1325(a)(7), good faith in filing petition was not a necessary condition for confirmation).).
Gonzalez-Ruiz v. Doral Fin. Corp. (In re Gonzalez-Ruiz), 341 B.R. 371 (B.A.P. 1st Cir. May 4, 2006) (Feeney, Boroff, Kornreich) (Cause for dismissal with in rem relief from stay and bar to refiling for 180 days when fourth bankruptcy case was filed to stop a foreclosure sale while third case was still pending and sole purpose of fourth case was to undermine orders in third case allowing foreclosure.).
Sullivan v. Solimini (In re Sullivan), 326 B.R. 204, 211 (B.A.P. 1st Cir. Apr. 28, 2005) (Bankruptcy court appropriately dismissed fourth Chapter 13 case with bar to refiling for 180 days pursuant to §§ 105(a) and 349(a) when series of cases were filed in a bad-faith effort to avoid paying a judgment. "We explicitly adopt the totality of the circumstances test and conclude that the obligation of good faith is imposed on the debtor at two stages of a Chapter 13 proceeding. First, a debtor must file the Chapter 13 petition in good faith. . . . [U]nder § 1307(c), the objecting creditor has the burden of proof." BAP rejects In re Keach, 243 B.R. 851 (B.A.P. 1st Cir. 2000), to the extent it suggests that examination of a Chapter 13 debtor's good faith is a more limited inquiry.).
Lomagno v. Fitzgerald (In re Lomagno), No. MW 03-023, 2004 WL 6030756, at *2 (B.A.P. 1st Cir. Mar. 11, 2004) (unpublished) (Lamoutte, de Jesus, Haines) (It is not appropriate for bankruptcy court to sua sponte dismiss Chapter 13 case at hearing on objection to confirmation when debtor did not have notice that dismissal was risk. "This Panel has previously held that a bankruptcy court cannot sua sponte dismiss a Chapter 13 case without the notice and opportunity to be heard required by the Bankruptcy Code and Bankruptcy Rules. . . . In [Muessel v. Pappalardo (In re Muessel), 292 B.R. 712 (B.A.P. 1st Cir. May 13, 2003) (Haines, Carlo, Deasy)], the Panel first addressed whether a bankruptcy court has authority to dismiss a Chapter 13 case sua sponte and concluded that it does. . . . The Panel in Muessel then found that 'both the Bankruptcy Code and Bankruptcy Rules require prior notice to the debtor of any hearing, accompanied by a motion or order to show cause specifying the reasons for dismissal, before dismissal may be considered.'"), remanded to 320 B.R. 473 (B.A.P. 1st Cir. Feb. 9, 2005) (de Jesus, Vaughn, Carlo), aff'd, 429 F.3d 16 (1st Cir. Nov. 14, 2005) (Lipez, Howard, Restani).).
Fuccione v. Solomon (In re Fuccione), No. MB 99-083, 2000 WL 35916011 (B.A.P. 1st Cir. Feb. 24, 2000) (Goodman, Haines, Carlo) (Dismissal with § 109(g)(1) bar to refiling based on failure to timely file plan was not appropriate when debtor did not have notice that bankruptcy court was considering dismissal with prejudice as a sanction.).
Cote v. Solomon (In re Cote), No. MB 99-084, 2000 WL 35916012 (B.A.P. 1st Cir. Feb. 24, 2000) (Goodman, Haines, Carlo) (Dismissal with § 109(g)(1) bar to refiling based on failure to timely file plan was not appropriate when debtor did not have notice that dismissal with prejudice might be sanction for failure to file plan by extended deadline.).
Maine
In re Baril, No. 09-20112, 2015 WL 1636442 (Bankr. D. Me. Apr. 10, 2015) (Cary) (Cause for dismissal that debtor is $7,672 in arrears and cannot satisfy hardship discharge test—notwithstanding plan payments totaling more than $59,000.).
Massachusetts
In re Maali, 452 B.R. 325 (D. Mass. Mar. 1, 2010) (Stearns) (Cause for dismissal that pro se debtor failed to attend 341 meeting without sufficient excuse and failed to timely commence plan payments.).
In re Fitzhugh, No. 09-10397-RGS, 2009 WL 3764026 (D. Mass. Nov. 10, 2009) (Stearns) (Dismissal appropriate when pro se debtor failed to timely respond to trustee's motion alleging that debtor obtained credit counseling postpetition.).
In re Cameron, No. 13-10115-FJB, 2013 WL 1686300 (Bankr. D. Mass. Apr. 18, 2013) (Bailey) (Fourth case in 29 months was dismissed for failure to attend § 341 meeting.).
In re Mayberry, 487 B.R. 44 (Bankr. D. Mass. Jan. 11, 2013) (Boroff) (That plan did not propose to cure prepetition mortgage arrearage was not cause for dismissal. Debtor might negotiate mortgage loan modification.).
Hovey v. Vale Realty Trust (In re Hovey), No. 12-1244, 2012 WL 6543737 (Bankr. D. Mass. Dec. 14, 2012) (Feeney) (In fifth bankruptcy case filed across two different districts, not bad faith to file current Chapter 13 case to stop eviction when there is a legitimate dispute about the terms of the lease.).
In re Cromwell, 483 B.R. 276 (Bankr. D. Mass. Nov. 28, 2012) (Hillman) (Distinguishing In re Filion, 452 B.R. 329 (Bankr. D. Mass. May 3, 2011) (Hillman), not cause for dismissal that debtors with CMI greater than applicable median family income completed 36-month plan—confirmed without objection—during appeal of litigation with mortgage holder.).
In re Cromwell, 483 B.R. 276 (Bankr. D. Mass. Nov. 28, 2012) (Hillman) (Not cause for dismissal that debtors have completed payments under unconfirmed 36-month plan but trustee contends that applicable commitment period is 60 months; trustee must late file an objection to confirmation and win that objection before dismissal would be appropriate based on length of plan. Plan was not necessarily unconfirmable when debtors dispute whether they have CMI greater than applicable median family income and no timely objection to the length of the proposed plan was filed.).
In re O'Neal, No. 10-22931-JNF, 2011 WL 2117017 (Bankr. D. Mass. May 23, 2011) (Feeney) (Lack of good faith was not proven when moving party was debtor's brother engaged in probate dispute. Debtor failed to schedule prior Chapter 13 case, but amendment corrected error and debtor had other substantial unsecured debt.).
In re Chassie, No. 10-41432-MSH, 2011 WL 133007, at *1 (Bankr. D. Mass. Jan. 14, 2011) (Hoffman) (When debtors failed to file 2008 tax return by day before first date set for meeting of creditors, court had no discretion except to either dismiss or convert case, whichever was in best interests of creditors and estate. Case was dismissed when debtors had monthly net income exceeding $1,200. "Permitting the Debtors with such a high monthly net income to convert to Chapter 7 is not in the best interest of their creditors or the estate. Consequently the motion to dismiss is granted and the case is hereby dismissed.").
In re Euliano, 442 B.R. 177, 188-89 (Bankr. D. Mass. Nov. 29, 2010) (Boroff) (It was cause for dismissal that plan failed to provide full payment of prepetition arrearage on mortgage. Confirmed plan proposed to cure and maintain mortgage under § 1322(b)(5). Plan stated arrearage as $8,000. Mortgage holder did not object to confirmation but filed timely postconfirmation proof of claim showing arrearage of more than $15,000. Plan payments were not sufficient to pay higher arrearage amount within 60 months. Failure of plan to provide payment in full of allowed prepetition arrears constituted unreasonable delay prejudicial to mortgage creditor. Court is critical of trustee and other parties for permitting plan to be confirmed without addressing discrepancy between plan terms and proof of claim. Section 1322(b)(5) requires debtors to cure default within reasonable time. Curing default over more than 60-month plan was not reasonable. In contrast to United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (Mar. 23, 2010), in which proposed treatment of student loans was inconsistent with Code from outset, "it cannot be conclusively determined that a plan fails to comply with § 1322(b)(5) until the applicable deadlines for filing and objecting to proofs of claim have passed. . . . Where the deadline for filing claims falls after the deadline for objecting to a Chapter 13 plan, the failure of a creditor to object to a plan on the grounds that the plan has misstated the amount of the claim can not [sic], consistent with due process, bind the creditor with respect to the amount which the creditor is required to identify no earlier than the deadline for filing proofs of claim. Thus, the Debtors' proposed Plan 'treatment' of the Countrywide Claim—payment of less than the full prepetition arrears—does not preclude the Court from its postconfirmation conclusion that the Plan presents an unreasonable delay prejudicial to creditors." Debtor was given opportunity to propose modification within 30 days.).
In re Ryan, 431 B.R. 1 (Bankr. D. Mass. May 28, 2010) (Hoffman) (Not cause for dismissal that debtor failed to amend plan when filed claims made minimum required distribution impossible. Trustee's motion for dismissal was filed 16 months after confirmation of plan that proposed 7% minimum distribution to unsecured creditors. Claims filed would result in distribution below that floor. Although cause for dismissal was not established, trustee's motion was treated as motion to require debtor to modify plan under § 1329(a)(1) or to object to claims in order to permit minimum 7% distribution.).
In re Long, No. 09-10582-FJB, 2009 WL 1606476, at *2 (Bankr. D. Mass. June 4, 2009) (Bailey) (Reconsideration of dismissal for payment default and failure to file necessary documents is futile when debtor was 15 years in arrears on mortgage and debtor acting pro se "lacks the legal wherewithal to file a confirmable plan on her own." Debtor and her husband "have proven adept only at delay.").
In re Pearson, 354 B.R. 558 (Bankr. D. Mass. Oct. 13, 2006) (Cause for dismissal that Chapter 13 case was filed to thwart collection by creditor with fraud judgment, statements and schedules were inaccurate, disposable income "inexplicably" changed in response to objections to confirmation and debtor engaged in "numeric gymnastics.").
In re Marrama, 345 B.R. 458 (Bankr. D. Mass. July 14, 2006) (Hillman) (Debtor is not necessarily entitled to an evidentiary hearing on motion to dismiss when ineligibility is demonstrated from schedules, proofs of claim and other matters in a simultaneously pending Chapter 7 case.).
In re Thomson, 329 B.R. 359 (Bankr. D. Mass. Sept. 7, 2005) (Debtor's attorney is sanctioned under Rule 9011 for filing response to trustee's motion to dismiss falsely stating that debtor was not in default in plan payments. Attorney required to complete eight hours of CLE training in ethics. Attorney admitted he did not make reasonable inquiry before filing response.).
In re Haque, 334 B.R. 486 (Bankr. D. Mass. July 1, 2005) (No evidence of bad faith notwithstanding that debtors received prior Chapter 7 discharge and were now attempting to avoid judicial lien that was not avoided in prior case.).
In re Hague, 334 B.R. 486 (Bankr. D. Mass. July 1, 2005) (After denying confirmation based on lack of good faith, court set show cause why case should not be dismissed; case was two-party dispute where debtors were attempting to defeat state court litigation.).
New Hampshire
Taal v. St. Mary's Bank, No. 13-cv-194-PB, 2014 WL 130980 (D.N.H. Jan. 10, 2014) (unpublished) (Barbadoro) (Failure to file amended plan is cause for dismissal under § 1307(c)(3).).
In re Jordan, No. 13-11615-BAH, 2013 WL 6860772 (Bankr. D.N.H. Dec. 26, 2013) (Harwood) (Cause for dismissal that debtor filed Chapter 13 petition in bad faith on heels of Chapter 7 discharge to manipulate bankruptcy system and re-impose automatic stay against foreclosing mortgage holder.).
In re James, No. 13-10446-JMD, 2013 WL 5371953 (Bankr. D.N.H. Sept. 24, 2013) (unpublished) (Deasy) (Dismissal appropriate under § 1307(c) for bad faith. Second case filed within days of dismissal of first with no material difference in circumstances. Plan could only be funded through contributions of nondebtor spouse. Schedules and statements not timely filed in either case. Second filing was attempt to subvert bankruptcy court decision on priority DSO debt rather than appeal. Scheduling of DSO claim was inconsistent with ruling in first case.).
In re Stevens, No. 12-11392-JMD, 2013 WL 5229801, at *5-*7 (Bankr. D.N.H. Sept. 17, 2013) (Deasy) (Evidence did not prove that debtor intentionally undervalued asset or strategically omitted creditors from schedules. "There [was] no direct evidence to show that the business was worth more on the Petition Date than the value the Debtor assigned to it. There [was] no evidence to support a finding that the Debtor had knowledge that the business had a higher value on the Petition Date, and then purposefully under-represented that value on his schedules. . . . [T]here [was] no evidence to support a finding that the Debtor assigned a value to the business with a reckless disregard for the accuracy of the value. . . . [N]othing in the record indicates that the Debtor's actions in valuing the business were part of a pattern of evasiveness or intentional understatement. . . . [T]here [was] no evidence . . . that the Debtor strategically omitted certain favored creditors, or that the Debtor changed his story about the status of omitted creditors.").
Puerto Rico
In re Rivera-Torres, No. 06-1997CCC, 2007 WL 626045 (D.P.R. Feb. 23, 2007) (unpublished) (Dismissal of case at a pretrial conference vacated when no notice given of opportunity for hearing.).
In re Lopez Llanos, 578 B.R. 700 (Bankr. D.P.R. Dec. 14, 2017) (Lamoutte) (Third Chapter 13 case in eight years is dismissed with two-year bar to refiling based on bad faith and unreasonable delay under § 1307(c). Debtor failed to reveal pending litigation in which debtor received cash settlement within a month of the current petition. Debtor failed to file tax returns, failed to reveal liens on real property and failed to file required amended statements and schedules. Debtor also failed to confirm a plan for more than a year.).
In re Figueroa, No. 07-00964 (ESL), 2012 WL 1035903 (Bankr. D.P.R. Mar. 27, 2012) (Lamoutte) (Plan default and lack of regular income were cause for dismissal.).
In re Marquez, No. 10-03882, 2011 WL 4543226 (Bankr. D.P.R. Sept. 28, 2011) (Lamoutte) (Confirmation was finding of good faith that precluded subsequent motion to dismiss for bad faith.).
In re Salva, No. 03-09405(ESL), 2009 WL 2898822 (Bankr. D.P.R. Apr. 1, 2009) (Lamoutte) (When best-interests-of-creditors test was not raised prior to confirmation, that test cannot be cause for dismissal after confirmation.).
In re Rovira Ortiz, No. 03-04534 SEK, 2006 WL 3898381 (Bankr. D.P.R. June 2, 2006) (unpublished) (Debtor's former spouse had standing to pursue motion to dismiss, even though he was not scheduled as a creditor. Under § 1307(c) the former spouse was a party in interest since he had "a pecuniary interest affected by the bankruptcy proceedings." Davis v. Mather (In re Davis), 239 B.R. 573, 579 (B.A.P. 10th Cir. 1999).).
In re Hernandez Sanchez, No. 01-3455 GAC, 2006 WL 3898310 (Bankr. D.P.R. Jan. 13, 2006) (unpublished) (Secured creditor's motion to dismiss denied after stipulated surrender of truck acknowledged collateral was in third party's possession.).
Rhode Island
Batac v. Boyajian, 532 B.R. 440 (D.R.I. July 1, 2015) (McConnell) (Cause for dismissal that debtor had insufficient income to support a confirmable plan and failed loan modification made any plan unconfirmable.).
B. Second Circuit
Castaldo v. Bank of N.Y. (In re Castaldo), No. 07-1840-bk, 2009 WL 754793 (2d Cir. Mar. 24, 2009) (unpublished) (Sack, Parker, Cote) (Cause for dismissal that debtor failed to comply with bankruptcy court order to file amended plan.).
Connecticut
In re Kwong, No. 3:17-cv-00496 (SRU), 2017 WL 1479419 (D. Conn. Apr. 24, 2017) (Underhill) (District court lacked jurisdiction to hear appeal of dismissal of Chapter 13 petition because debtor missed the appeal deadline in Bankruptcy Rule 8002(a).).
In re Ciarcia, No. 16-21698 (JJT), 2017 WL 5062144, at *7 (Bankr. D. Conn. Nov. 1, 2017) (Tancredi) (Dismissal for bad faith with three-year bar to refiling appropriate based on evidence that debtor purposefully did not schedule known creditors, failed to schedule known litigation, probably defrauded customers and was otherwise a bad actor. “There is nothing in the language of Section 1307(c) . . . that prevents a bankruptcy court, upon dismissal of the debtor’s bankruptcy case, from sanctioning a debtor for misconduct occurring during the pendency of the case. . . . Where, as here, there is sufficient cause, the imposition of prejudice under the authority of Section 105(a) and Section 349(a) is necessary to prevent the abuse of a Chapter 13 case.”).
In re Smigelski, No. 11-23618(ASD), 2012 WL 1569617 (Bankr. D. Conn. May 3, 2012) (Dabrowski) (Cause for dismissal that debtor was ineligible for Chapter 13 relief and lacked ability to effectuate plan. Case dismissed with 180-day bar to filing under Chapter 11 or Chapter 13. Debtor had moved to convert to Chapter 11, but conversion would be abusive.).
New York
Eastern District of New York
Wenegieme v. Macco, 580 B.R. 17 (E.D.N.Y. Jan. 9, 2018) (Bianco) (Dismissal for bad faith with one-year bar to refiling was appropriate when third bankruptcy was filed to upset foreclosure, schedules were empty or incomprehensible, debtor failed to make any payments, debtor failed to appear at meeting of creditors and prior dismissals indicated no ability to formulate a confirmable plan.).
Campora v. HSBC Bank USA, N.A. (In re Campora), Nos. 14-CV-5066 (JFB) & 14-CV-7133 (JFB), 2015 WL 5178823 (E.D.N.Y. Sept. 3, 2015) (Bianco) (Cause for dismissal when debtor failed to (1) commence timely payments under § 1326(a)(1)(A), (2) comply with disclosure requirements under local rules, and (3) provide trustee with copy of current year tax return. There were many indicia of bad faith, including the filing of false documents to mislead bankruptcy court.), denying appeal of No. 14-70330-AST, 2014 WL 4980027 (Bankr. E.D.N.Y. Oct. 6, 2014) (Trust) (Dismissal for bad faith when debtor made false representations regarding status of foreclosure and fabricated documents; $10,000 sanction payable to the court, attorney fees payable to foreclosing creditor, plus one-year filing bar.).
In re Watkins, Nos. 06-CV-1341 (DGT), 06-CV-597 (DGT), 2008 WL 708413 (E.D.N.Y. Mar. 14, 2008) (unpublished) (Trager) (Cause for dismissal that no confirmable plan was presented.).
In re Watkins, 362 B.R. 568, 574 (E.D.N.Y. Feb. 16, 2007) (Trager) (Cause for dismissal on landlord's motion when, notwithstanding "numerous adjournments," case was not ready for confirmation.).
Richmond v. Caruso (In re Richmond), 580 B.R. 617 (Bankr. E.D.N.Y. Dec. 14, 2017) (Craig) (Chapter 13 case and 14 related adversary proceedings are dismissed for cause including that debtor failed to comply with order to provide for bank’s mortgage notwithstanding years of unsuccessful litigation in this case and in related single-asset Chapter 11 case.).
In re Hanley, 575 B.R. 207 (Bankr. E.D.N.Y. Aug. 11, 2017) (Grossman) (Cause for dismissal that debtors were in material default of direct payment of mortgage at end of 60-month period, loan modification was attempted but not completed and plan modification to cure postconfirmation defaults over objection of mortgagee was not possible because of 60-month limit in § 1329(c).).
In re Addams, 564 B.R. 458, 466
In re Ward, 423 B.R. 22 (Bankr. E.D.N.Y. Jan. 12, 2010) (Craig) (Although debtor was not serial filer, cause for dismissal under § 1307(c) that debtor engaged in state court and bankruptcy actions to prevent purchaser at prepetition foreclosure sale from obtaining possession of property.).
In re Montalvo, 416 B.R. 381 (Bankr. E.D.N.Y. Oct. 5, 2009) (Trust) (Cause for dismissal with prejudice to refiling that debtor and spouse each filed three abusive cases to stop foreclosure and eviction.).
Northern District of New York
Rossi v. Celli, No. 1:08-MC-0081 (LEK), 2008 WL 4519008 (N.D.N.Y. Sept. 26, 2008) (Kahn) (Stay pending appeal of dismissal is denied for failure to satisfy standards for injunctive relief.).
Nitzsche v. Muscatello (In re Muscatello), No. 1:06-CV-453 (LEK), 2006 WL 3437469 (N.D.N.Y. Nov. 29, 2006) (unpublished) (Mortgage creditor lacked standing to enforce or appeal consent order between Chapter 13 trustee and debtor, which conditioned dismissal upon debtor's failure to make plan payments. Creditor is party in interest to bring motion to dismiss under § 1307(c), and creditor should have intervened under Bankruptcy Rule 2018 to have standing to enforce order.).
Harris v. Albany County Office, Nos. 1:05-CV-0525 (GLS), 1:05-CV-0526 (GLS), 2006 WL 1007880 (N.D.N.Y. Apr. 17, 2006) (unpublished) (Cause for dismissal that confirmable plan depends on avoidance of tax foreclosures as fraudulent conveyances and statute of limitations in § 548(d)(1) has run with respect to the sales; even if foreclosure sales could be undone, proceeds would be insufficient to satisfy enough debts to allow a confirmable plan.).
In re Bush, 579 B.R. 688, 703–04 (Bankr. N.D.N.Y. Dec. 19, 2017) (Cangilos-Ruiz) (Not bad faith for § 1307(c) purposes that debtor filed Chapter 13 on eve of hearing in state court that probably would have resulted in garnishment and foreclosure. Chapter 13 is often filed to save a residence with the effect of shifting financial burdens to unsecured creditors. “Debtor had a legitimate reason to file this case. Debtor’s explanation is credible, that his filing was to prevent a foreclosure and establish a feasible plan to pay his creditors. Preservation of a residence at the expense of unsecured creditors is a primary motivating factor for many chapter 13 filings.”).
Wheeler v. Wheeler (In re Wheeler), 511 B.R. 240, 249 (Bankr. N.D.N.Y. June 9, 2014) (Cangilos-Ruiz) (Bad-faith case dismissed under § 1307(c), with two-year bar to refiling. Petition was "dilatory tactic to interrupt the final stage of . . . lengthy litigation" in which debtor had fabricated evidence, disregarded state court orders and been repeatedly sanctioned. Attorney fees awarded as sanction under Bankruptcy Rule 9011(c).).
Southern District of New York
In re Wimmer, 512 B.R. 498, 513 (Bankr. S.D.N.Y. June 30, 2014) (Morris) (Neither § 1307(c) nor Law v. Siegel, __ U.S. __, 134 S. Ct. 1188, 188 L. Ed. 2d 146 (Mar. 4, 2014), precludes sua sponte dismissal under § 105(a) of case filed by ineligible Chapter 20 debtor. "Dismissal can be accomplished through §§ 109(e) and 105(a) without § 1307(c). Sections 1307(c) and 109(e) deal with different scenarios. Section 1307(c) 'sets out the standard ("cause") that a bankruptcy court must apply in deciding whether, in its discretion, an already filed Chapter 13 case should be dismissed or converted to Chapter 7.' . . . Section 1307(c) sets forth several examples of cause, none of which include ineligibility to be a debtor. All of the examples deal with conduct taking place after the case is filed. The § 109(e) determination, however, is made 'on the date of filing of the petition.' . . . Its purpose is to 'ensure that the excess monthly incomes of Chapter 13 debtors [are] not wildly out of proportion to the debts they seek to repay.' . . . Its original role was that of 'gatekeeper, determining which proprietors was [sic] small enough to reorganize under Chapter 13 and which had to file for Chapter 11 relief, where they would have to comply with more exacting requirements.' . . . Given this gatekeeper function, it makes little sense to tie § 109(e) to § 1307(c). 'The matter of eligibility is one that must be determined at the outset.' Sua sponte dismissal may be appropriate to 'preserve the use of . . . resources to cases involving debtors eligible to file under [chapter 13].' . . . The requirements of § 1307(c) are not contravened by sua sponte dismissal pursuant to §§ 105(a) and 109(e), and the principals [sic] laid out in Law v. Siegal are not infringed.").
In re Lin, 499 B.R. 430 (Bankr. S.D.N.Y. Oct. 18, 2013) (Lane) (Dishonesty, IRS as only creditor and two-year delay without confirming plan were cause for dismissal for bad-faith filing. Debtor's claim that she was victim of $1.7 million extortion was implausible.).
In re Burgos, 476 B.R. 107 (Bankr. S.D.N.Y. Aug. 3, 2012) (Morris) (Case was dismissed for unreasonable delay. Debtor failed to timely file plan, to begin payments to trustee or to file required documents under § 521(a).).
In re Thomas, No. 06-22557 (ASH), 2007 WL 1655669, at *9 (Bankr. S.D.N.Y. June 4, 2007) (That debtor filed case "for no legitimate bankruptcy purpose" is bad-faith cause for dismissal. Case was filed to prevent loss of funds held in Maryland state court, which had decided that debtor had no interest in funds.).
Sassower v. Alito (In re Sassower), Nos. 05-23120, 05-8730, 2007 WL 1319460 (Bankr. S.D.N.Y. May 3, 2007) (Trustee's motion to dismiss granted for failure to provide full payment of priority claims, failure to begin timely payments, unreasonable delay prejudicial to creditors, failure to propose plan in good faith, and bad faith in filing case.).
Western District of New York
Bethune v. Reiber, No. 04-CV-6430 CJS, 2006 WL 1007621 (W.D.N.Y. Apr. 14, 2006) (unpublished) (Cause for dismissal that incarcerated debtor failed to make payments for eight months before and after confirmation of a plan; explanation that third parties mismanaged the debtor's real properties and failed to remit rents can't save the case.).
Vermont
In re Flory, No. 10-10748, 2012 WL 627670 (Bankr. D. Vt. Feb. 24, 2012) (Brown) (Cause for dismissal with one-year prejudice to refiling that debtor violated confirmation order by failing to report or turn over funds inherited during case. Debtor knew of confirmation requirement but depleted funds in probate account, making significant discretionary expenditures not disclosed to trustee.).
In re Lowell, No. 07-10348, 2008 WL 2077915 (Bankr. D. Vt. May 14, 2008) (unpublished) (Brown) (Sua sponte dismissal for unreasonable delay prejudicial to creditors when plan was not confirmed after continuances and stay relief had been granted to principal creditor.).
In re Rounds, No. 05-11419, 2005 WL 2840475 (Bankr. D. Vt. Oct. 5, 2005) (unpublished) (Brown) (Failure to appear at show cause hearing concerning filing fee and incomplete mailing matrix—together with evidence of prior similar incomplete petitions and unpaid filing fees—are cause for dismissal.).
In re Riccitelli, No. 95-10030, 2001 WL 36159724 (Bankr. D. Vt. May 2, 2001) (Brown) (Trustee's motion to dismiss because case exceeds 60 months is denied. Section 1307(c) does not indicate that exceeding 60 months is cause for dismissal. Debtors are current in plan payments and dismissal is not otherwise warranted.).
C. Third Circuit
In re Klaas, 858 F.3d 820, 828
In re Mondelli, No. 13-2171, 2014 WL 889352 (3d Cir. Mar. 7, 2014) (unpublished) (Rendell, Smith, Hardiman) (Serial filings by debtor and family member to stop foreclosure constituted bad faith; bankruptcy court had inherent authority to sanction debtor with $6,000 costs incurred by creditor and trustee.), aff'g, No. 12-4659 (WJM), 2013 WL 1187098 (D.N.J. Mar. 21, 2013) (unpublished) (Martini) (Bad-faith Chapter 13 filing to delay sheriff's sale was properly dismissed; debtor sanctioned $6,000 for pattern of vexatious litigation.).
In re Richmond, No. 08-1888, 2009 WL 2008430 (3d Cir. July 13, 2009) (unpublished) (Barry, Smith, Restani) (Transfer of marital residence to nonfiling spouse for $1.00 two years and three weeks before Chapter 13 petition was not bad faith for purposes of dismissal under § 1307(c) when spouse immediately mortgaged property and used proceeds to pay debtor's gambling debts.), aff'g 2008 WL 577294 (D.N.J. Feb. 29, 2008).).
In re Myers, 491 F.3d 120 (3d Cir. June 21, 2007) (Smith, Cowen, Siler) (Cause for dismissal that debtor filed Chapter 13 petition in bad faith to stop entry of a state court judgment and as part of a litigation tactic.), aff'g 334 B.R. 136 (E.D. Pa. Oct. 17, 2005) (Brody) (Case is dismissed, not converted, when debtor acted in bad faith by fraudulently conveying assets prepetition and by allowing withdrawal from bank account by spouse.).
Barbel v. Chase Manhattan Bank (In re Barbel), Nos. 04-4515, 04-4516, 04-4517, 2006 WL 1518842 (3d Cir. June 2, 2006) (unpublished) (Cause for dismissal that debtor failed to make payments required by an interim plan, debtor delayed Chapter 13 case by claiming to own property and by filing numerous pro se motions in violation of court orders, and five amended plans were rejected as unconfirmable.).
Delaware
Johnson v. United States Tr. (In re Johnson), No. 15-10365-BLS, 2016 WL 4577002 (D. Del. Aug. 31, 2016) (Sleet) (Citing § 349(1), cause for dismissal with one-year bar to refiling included five bankruptcy filings by the debtor and/or the debtor’s spouse to frustrate eviction with respect to business property.).
Buchanan v. Buchanan (In re Buchanan), Nos. 04-12419 (JKF), 07-034-SLR, 2007 WL 2828019 (D. Del. Sept. 26, 2007) (Dismissal appropriate to allow state family court to address distribution of marital property when parties had been in marital dissolution litigation for two years and Chapter 13 plan had not been confirmed.).
Dye v. Joseph (In re Dye), 346 B.R. 669 (D. Del. July 28, 2006) (Multiple pro se bankruptcy petitions coupled with refusal to file tax returns and the filing of a blank Chapter 13 plan constituted cause for dismissal with bar to refiling for two years.).
Gretz v. Inner Spirits, Inc. (In re Gretz), No. 09-52848 (BLS), 2011 WL 1048635 (Bankr. D. Del. Mar. 18, 2011) (Shannon) (Inconsistencies in schedules were troubling but were cured or explained by debtor and did not establish bad faith for purposes of junior lienholder's motion to dismiss. Under Perlin v. Hitachi Capital America Corp., 497 F.3d 364 (3d Cir. Aug. 3, 2007) (Smith, Cowen, Yohn), test for good faith is relatively lenient. Debtor had been beset by financial difficulties and pressures for years, including from junior lienholder. Junior lien resulted from loan for renovation of home that had been damaged by fire. Substantial work had never been completed, preventing debtor from obtaining certificate of occupancy. Under all circumstances, case was filed in good faith.).
In re Quinn, 425 B.R. 136 (Bankr. D. Del. Mar. 26, 2010) (Shannon) (On reconsideration, not cause for dismissal that debtor left 16 large dogs unattended in property, but purchaser of property was entitled to administrative expense claim for cleanup and repairs.).
In re Quinn, 423 B.R. 454, 462 (Bankr. D. Del. Dec. 29, 2009) (Shannon) (Even "atrocious" conduct toward one creditor is not necessarily bad faith for purposes of cause for dismissal when debtor did not act in bad faith toward creditors in general. Under In re Myers, 491 F.3d 120 (3d Cir. June 21, 2007) (Smith, Cowen, Siler), bad faith for purposes of dismissal must be examined in light of debtor's behavior "toward all creditors and . . . the debtors' overarching motives in filing for bankruptcy.").
New Jersey
Bembry-Muhammad v. Greenberg, No. 15-8829, 2016 WL 6246345, at *3 (D.N.J. Oct. 24, 2016) (unpublished) (Linares) (Reconsideration of dismissal of appeal of order denying confirmation and dismissing Chapter 13 case is denied, and district court refuses to seal the case record. Debtor failed to explain why she failed to prosecute her appeal in a timely fashion, and “‘the fact that information may be damaging to a debtor’s reputation is not sufficient to seal a document’ in a bankruptcy case.”).
In re Richmond, No. 07-5417 (RMB), 2008 WL 577294, at *5 (D.N.J. Feb. 29, 2008) (unpublished) (Bumb) (Not cause for dismissal that debtor amended schedules to show gambling losses and transfer of property more than two years prior to filing. "Although [creditor] has argued at length that the Debtor intentionally waited for the two year period to pass, that argument has little weight because, during that time, the Debtor continued to make payments to [that creditor].").
In re Ameen, No. 05-1743RBK, 2005 WL 1683654 (D.N.J. July 19, 2005) (unpublished) (Failure to present confirmable plan and delay in amending plan are causes for dismissal.).
In re Shafer, No. 14-18831 (MBK), 2014 WL 4652903 (Bankr. D.N.J. Sept. 18, 2014) (Kaplan) (Chapter 20 case dismissed for bad faith when prior Chapter 7 case discharged $300,000 four years earlier, current case was a two-party dispute filed on eve of state court default judgment, debtors spent heavily in months before filing without paying creditors and plan proposed only 10% return over 36 months.).
In re Dwek, No. 11-37368, 2013 WL 3938911, at *2 (Bankr. D.N.J. July 29, 2013) (Ferguson) (Dismissal rather than "treading water in the bankruptcy court" was better option when confirmation required resolution of claim of IRS which could take forever.).
In re Moore, No. 11-43549/JHW, 2012 WL 693463 (Bankr. D.N.J. Mar. 2, 2012) (Wizmur) (Case remains dismissed based on bad faith and failure to make plan payments. Debtor was free to pursue state court remedies involving dispute with landlord.).
In re Gambacorto, No. 11-18849, 2011 WL 3512179 (Bankr. D.N.J. Aug. 11, 2011) (Ferguson) (Applying In re Lilley, 91 F.3d 491 (3d Cir. July 31, 1996) (Sloviter, Sarokin, Rosenn), it was bad-faith cause for dismissal that case involved two-party dispute and debtor's motive was avoidance of potential judgment.).
In re Toriello, No. 08-18063(DHS), 2010 WL 3943737 (Bankr. D.N.J. Oct. 5, 2010) (unpublished) (Steckroth) (Case was not subject to dismissal for bad faith under § 1307(c) when daughter of unscheduled creditor had actual notice in time to file timely claim, creditors retained protective lien and nothing in record suggested filing lacked good faith.).
In re Roth, No. 10-13287/JHW, 2010 WL 2485951 (Bankr. D.N.J. June 14, 2010) (unpublished) (Wizmur) (Dismissal of Chapter 13 case for bad faith under either § 1307(c) or § 1325(a)(7) requires an evidentiary hearing at which the debtor has the burden of proof.).
In re Dahlgren, 418 B.R. 852 (Bankr. D.N.J. Nov. 9, 2009) (Lyons) (Not cause for dismissal that confirmation of plan proposing to divest one co-owner of interest in property and to reduce that interest to monetary claim was denied. Failure to submit confirmable plan would be basis for future dismissal under § 1307(c)(5).), aff'd, No. 10-1988 (FLW), 2010 WL 5287411 (D.N.J. Dec. 17, 2010) (unpublished) (Wolfson), aff'd, No. 11-2794, 2012 WL 3611823 (3d Cir. Aug. 23, 2012) (unpublished) (Smith, Fisher, Rakoff).).
In re Banini, No. 09-17399/JHW, 2009 WL 1362829 (Bankr. D.N.J. May 14, 2009) (Wizmur) (Denying pro se debtor's second motion for extension to complete required documents, cause to dismiss case included multiple failures to complete filing, to obtain credit counseling and to complete installment fee payments.).
Pennsylvania
Eastern District of Pennsylvania
In re Knauss, No. CA 13-01131-WY, 2013 WL 5942391 (E.D. Pa. Nov. 5, 2013) (Yohn) (Cause to dismiss included eve-of-filing transfer to debtor of real property subject to foreclosure judgment. Case was debtor's sixth, seventh involving the property, following years of litigation with secured creditor, multiple transfers of property between debtor and daughter, and no chance of confirmed plan.).
In re Pierson, No. 08-1015, 2009 WL 1424472 (E.D. Pa. May 19, 2009) (Jones) (Dismissal of case for payment default was not error; pro se debtor's conspiracy attacks on bankruptcy court and trustee were unfounded.).
Trusty v. Wachovia Bank of Del., N.A., No. 05-6782, 2006 WL 2321624 (E.D. Pa. Aug. 8, 2006) (unpublished) (Cause for dismissal that debtor filed second Chapter 13 case eight days after dismissal of prior case, debtor failed to prove change in circumstances between cases and debtor failed to show confirmable Chapter 13 plan in prospect.).
In re Delone, Nos. 05-13430, 05-05707-JF, 05-06345-JF, 2006 WL 358650 (E.D. Pa. Feb. 13, 2006) (unpublished) (Dismissal appropriate when debtor was in default, and plan would exceed five years and would impermissibly modify mortgage.).
In re Blanco, 520 B.R. 476, 484 (Bankr. E.D. Pa. Oct. 29, 2014) (Frank) (Unreasonable delay that is prejudicial to creditors is cause for dismissal. Facts included "cavernous divide between the magnitude of the arrearage claims secured by the Debtor's real property and the Plan funding, the facial infeasibility of the Plan in light of the Debtor's income and expense disclosures, the Debtor's apparent inability to grasp the need to present a plan that addressed the feasibility issue, his failure to take any action to present any plausible theory for a plan that would satisfy the requirements of 11 U.S.C. § 1325(a) after almost six (6) months and his failure to articulate any other rehabilitative rationale for the chapter 13 case[.]").
In re Prater, No. 10-15730-MDC, 2010 WL 4261226 (Bankr. E.D. Pa. Oct. 21, 2010) (Coleman) (Debtor dissatisfied with outcome of state court litigation who failed to list disputed debts is given a last chance to commence payments to trustee and to address all debts, else petition will be dismissed for bad faith. Petition filed without reorganizational purpose can be dismissed for lack of good faith under § 105(a) and § 1307(c).).
In re Norley, No. 10-10436, 2010 WL 9449238 (Bankr. E.D. Pa. Mar. 30, 2010) (Fitzsimon) (Ninth case dismissed as bad-faith attempt to prevent sheriff's sale.).
In re Schafer, No. 08-13812DWS, 2009 WL 2913439 (Bankr. E.D. Pa. Mar. 9, 2009) (Sigmund) (Cause for dismissal that debtor had insufficient income to make proposed plan payments.).
In re Manno, No. 08-15588bf, 2009 WL 236844 (Bankr. E.D. Pa. Jan. 30, 2009) (Fox) (Totality of circumstances justifies dismissal for bad faith; filing on eve of state court trial when action had been pending for three years is forum shopping. Factors included allegations of fraud, numerous attempts to reorganize under Chapter 13 without success and failure to reduce unnecessary expenses.).
In re Patton, No. 07-13996DWS, 2009 WL 136817 (Bankr. E.D. Pa. Jan. 20, 2009) (Sigmund) (Three-case history of filings and dismissals is probative of bad faith when there has been no change in circumstances; third case is dismissed with prejudice to refiling without permission of court.).
In re Dixon, No. 08-10510DWS, 2009 WL 151688 (Bankr. E.D. Pa. Jan. 20, 2009) (Sigmund) (Third case is dismissed for bad faith when schedules failed to disclose assets and misstated ownership of real property.).
In re Foley, No. 07-16433BF, 2008 WL 5411070 (Bankr. E.D. Pa. Oct. 2, 2008) (Fox) (Cause for dismissal under § 1307(c)(5) that confirmation was denied for lack of feasibility. There was no legitimate purpose for further administration in Chapter 13.).
In re Patton, 388 B.R. 629 (Bankr. E.D. Pa. June 6, 2008) (Sigmund) (Although confirmation is denied based on lack of feasibility, debtor's performance in making scheduled plan payments supports opportunity to propose feasible plan rather than dismissal.).
In re Orawsky, 387 B.R. 128 (Bankr. E.D. Pa. May 2, 2008) (Frank) (Motion to dismiss alleging that plan fails disposable income test is more precisely a motion to dismiss under § 1307(c)(1) for unreasonable delay that is prejudicial to creditors; because plan is confirmed, there is no ground for dismissal under § 1307(c)(1).).
In re Scott-Gage, No. 05-10069bf, 2008 WL 724769, at *2 (Bankr. E.D. Pa. Mar. 17, 2008) (Fox) (Trustee as "party in interest for purposes of section 1307(c)(6)" met evidentiary burden that debtor was in material default of plan payments; case dismissed.).
In re Madera, No. 07-17296DWS, 2008 WL 351446, at *6 (Bankr. E.D. Pa. Feb. 7, 2008) (Sigmund) (Filing of three bankruptcy cases and two adversary proceedings in 18 months to stop foreclosure is bad faith, applying In re Lilley, 91 F.3d 491 (3d Cir. 1996). "The [debtors'] true intentions are also demonstrated by their utter failure to comply with their statutory duties in bankruptcy." Case is dismissed with bar to refiling for 180 days, but creditor's motion for sanctions is denied since creditor did not comply with Safe Harbor Provision of Rule 9011(c)(1)(A).).
In re Perry, No. 06-14777DWS, 2008 WL 185617 (Bankr. E.D. Pa. Jan. 18, 2008) (Sigmund) (Cause for dismissal that debtor unreasonably delayed and prejudiced creditors, while in material default of confirmed payments. Debtor's motion to again modify confirmed plan to add postconfirmation defaults is denied for failure to demonstrate change in circumstances.).
Trusty v. Monument St. Funding (In re Trusty), Nos. 06-15767ELF, 07-012, 2007 WL 3274420 (Bankr. E.D. Pa. Nov. 5, 2007) (Third case filed to stop foreclosure is dismissed when debtor's financial situation has not improved materially.).
In re Glauser, No. 07-13165DWS, 2007 WL 2221413, at *3 (Bankr. E.D. Pa. Aug. 1, 2007) (Under In re Lilley, 91 F.3d 491 (3d Cir. 1996), lack of good faith is cause for dismissal and history of prior filings and case dismissals is probative of bad faith. Husband and wife filed successive cases individually to block state court litigation concerning prepetition foreclosure. "Where, as here, two spouses are co-mortgagors and the sole objective of the bankruptcy is to protect the jointly owned and occupied residence from foreclosure, a unity of interest and concert of action exists.").
In re Graboyes, 371 B.R. 113 (Bankr. E.D. Pa. July 11, 2007) (Because of prolonged dispute with principal creditor that filed secured proof of claim that court ultimately disallowed, case filed in 2002 was still not confirmed; court set confirmation hearing with notice that failure to obtain confirmation may be cause for dismissal due to unreasonable delay that is prejudicial to creditors.).
In re Jackson, No. 06-13808ELF, 2007 WL 1188202 (Bankr. E.D. Pa. Apr. 18, 2007) (Case dismissed under § 1307(c)(1) for unreasonable and prejudicial delay, when seven months after filing case is not ready for confirmation. Delay includes inadequate schedules that were uncorrected for six months. Debtor and counsel reacted to creditors' motions rather than preparing for confirmation.).
In re Jackson, No. 06-13808ELF, 2007 WL 1188202 (Bankr. E.D. Pa. Apr. 18, 2007) (On court's sua sponte notice to consider dismissal under § 1307(c)(1), case is dismissed based on prejudicial delay for seven months, with case still not ready for confirmation.).
In re Asken, No. 05-20092REF, 2007 WL 1056724, at *4 (Bankr. E.D. Pa. Apr. 3, 2007) (On trustee's motion for dismissal with prejudice due to serial filings, inability to confirm feasible plan, delay prejudicial to creditors and evidence of bad faith, case is dismissed with requirement that debtors obtain "written leave of this Court before they may file a fourth bankruptcy petition.").
In re Goodell, No. 05-16948DWS, 2006 WL 23568, at *4 (Bankr. E.D. Pa. Jan. 4, 2006) (unpublished) ("[C]ontinued unwarranted refusal to file tax returns" is cause for dismissal. Debtor objected to IRS claim and refused to file tax returns. In a pre-BAPCPA case, court commented that § 1308, as amended by BAPCPA, expressly requires debtors to file tax returns and amended § 1307(c) makes it clear that failure to file tax returns is cause for dismissal or conversion.).
In re Schlupp, No. 05-16879DWS, 2005 WL 2483209 (Bankr. E.D. Pa. Sept. 2, 2005) (unpublished) (Sigmund) (Six cases by debtor and spouse in five years filed to deal with mortgage that was foreclosed prior to current filing are cause for dismissal; mortgagee has standing to seek dismissal notwithstanding foreclosure.).
In re Daniels, No. 04-11496 SR, 2005 WL 6506461 (Bankr. E.D. Pa. Apr. 25, 2005) (unpublished) (Raslavich) (Cause for dismissal for bad faith when plan proposed to continue making mortgage payments while adversary proceeding seeking TILA rescission was pending, but debtors made no postpetition mortgage payments for one year. Under any circumstance, debtors would be required, if successful in rescission complaint, to tender repayment of original loan amount, and proposed plan made no such provision. Moreover, rescission would result in debtors' holding unsecured real estate worth more than $300,000, and plan made no provision for payment of that amount to unsecured creditors.).
Middle District of Pennsylvania
DeHart v. Bridgeforth (In re Bridgeforth), 571 B.R. 669 (Bankr. M.D. Pa. Aug. 18, 2017) (Thomas) (Nine unconfirmed plans over three years caused an unreasonable delay that justifies dismissal, but pro se debtor is granted 30 additional days to confirm a plan that pays $20,649 to unsecured creditors based on court’s recalculation of disposable income.).
Chertok v. Phelan (In re Phelan), No. 1:15-BK-04101 MDF, 2017 WL 713570 (Bankr. M.D. Pa. Feb. 22, 2017) (France) (Bad-faith conduct during Chapter 13 case that justified dismissal included failure to respect court orders, misleading documents and failure to account for business assets; dismissal was appropriate rather than conversion because continuing in bankruptcy would complicate resolution of claims by landlord better left to state court.).
In re Zaver, 520 B.R. 159, 164 (Bankr. M.D. Pa. Oct. 15, 2014) (France) (Citing Torres Martinez v. Arce (In re Torres Martinez), 397 B.R. 158 (B.A.P. 1st Cir. Dec. 1, 2008) (Boroff, Deasy, Rosenthal), creditor is a party in interest and has standing to seek dismissal despite failure to file timely claim. Creditor's "pecuniary interest in the case [will] continue[ ] until a discharge [is] entered. If the case [is] dismissed for any reason before the entry of a discharge, the claim [will] continue unaffected.").
In re Zaver, 520 B.R. 159 (Bankr. M.D. Pa. Oct. 15, 2014) (France) (Filing Chapter 13 to interrupt litigation in another forum does not prove bad faith if debtor presents intent and ability to reorganize.).
North Cent. Pa. Reg'l Planning & Dev. Comm'n v. Watson (In re Watson), No. 4-13-bk-00304-JJT, 2014 WL 3848652, at *1-*2 (Bankr. M.D. Pa. Aug. 4, 2014) (Thomas) (Not bad faith when business debtors with "minimal amount of sophistication" had prior bankruptcy 8 years before current petition, accepted transfer of real property 11 years ago, failed to fully disclose leases on property and failed to keep clear records. "Sequential filers do carry a presumption of bad faith, but such term is statutorily associated with two pending cases over the course of 12 months. . . [T]wo filings, eight years apart, strikes me as immaterial if not irrelevant. . . . The real importance of records lies in their necessity to ascertain the Debtors' financial condition. . . . The Movant has not demonstrated that the financial records or the lack of them will have any significance in this case. . . . [T]he pivotal shortcoming in this case was the failure to fully disclose leases on the property. I am not satisfied that such an omission was a calculated move to abuse the bankruptcy process as to destroy the good faith of the filing.").
In re Cartwright, No. 1-13-bk-02952MDF, 2014 WL 2574502 (Bankr. M.D. Pa. June 9, 2014) (France) (Bad faith not found when Chapter 13 was filed to avoid defending state court action that debtor could not afford.).
In re Manfredi, 434 B.R. 356 (Bankr. M.D. Pa. July 23, 2010) (Opel) (Although lack of good faith may be cause for dismissal, debtors' poor financial management and spending practices evidenced bad judgment rather than bad faith.).
In re Manfredi, 434 B.R. 356 (Bankr. M.D. Pa. July 23, 2010) (Opel) (Under totality of circumstances, debtors did not file case in bad faith; debtors' poor financial management and spending practices evidenced bad judgment rather than bad faith.).
In re Barnhart, No. 1:07-bk-02308MDF, 2010 WL 94573 (Bankr. M.D. Pa. Jan. 5, 2010) (unpublished) (France) (Case was not filed in good faith when debtor transferred assets after judgment in state court and failed to adequately disclose assets and liabilities.).
Western District of Pennsylvania
Shovlin v. Klaas, No. 15cv0802, 2015 WL 5093320, at *7-*8 (W.D. Pa. Aug. 28, 2015) (Schwab) (That debtor needed 63 months to complete payments under confirmed plan is not cause for dismissal; failure to file certificate of completion of financial management course before last payment under plan does not mandate dismissal. "Although Sections 1322 and 1325 prohibit a debtor and a Bankruptcy Court from knowingly proposing and confirming a plan that extends beyond five years . . . , these Sections of the Bankruptcy Code do not mandate dismissal of a bankruptcy case if a debtor needs a reasonable period of time to cure an unanticipated arrearage incurred during the sixty-month plan period. . . . [I]t does not appear to this Court as though Debtors were delinquent in attending the educational course. . . . [E]ven if Debtors had been delinquent in filing their statement of completion for the course, the Bankruptcy Court could have extended the deadline in accordance with Fed.R.Bankr.P. 1007(c) and 9006(b)(3) . . . ."), aff'g 533 B.R. 482, 487-89 (Bankr. W.D. Pa. June 4, 2015) (Taddonio) (Not cause for dismissal that debtors required 63 months to complete payments under confirmed plan. After paying more than $170,000 to the Chapter 13 trustee in 60 months, the debtors required an additional three months to pay the $1,123 needed to complete the plan. A creditor moved to dismiss, arguing the debtor had no right to cure a default after the 60-month maximum time period in § 1322(d) expired. "[C]ompliance with the requirements of section 1322 is determined at the time of plan confirmation . . . . A plan default does not turn into a violation of section 1322(d) simply because it occurs in month 60. . . . [D]ebtors who have established a lengthy track record of good faith should not be denied an opportunity to cure a deficiency solely because 60 months have passed. To do so would impose a standard of perfection at the conclusion of the plan term that does not exist at any other point in the case. . . . [D]efault was not the result of an unreasonable delay by the Debtors. . . . Debtors made all of the monthly payments called for in their plan, tendering in excess of $170,000 to the chapter 13 trustee. . . . [T]he Debtors promptly corrected the deficiency. . . . To deprive the Debtors of a discharge under these circumstances would be contrary to the spirit and intent of the Bankruptcy Code which offers a 'fresh start' to the honest, but unfortunate debtor.").
Pinkeney v. Chase Home Fin., LLC, No. 09cv0166, 2009 WL 1472909 (W.D. Pa. May 27, 2009) (Schwab) (Sixth case was properly dismissed and automatic stay lifted to permit mortgage creditor to proceed with sheriff's sale. Debtor's counsel appeared at hearing, and debtor had opportunity to present evidence at motion for reconsideration. Determination that current case was filed in bad faith was not error.).
In re Monteleone, 553 B.R. 288 (Bankr. W.D. Pa. July 19, 2016) (Deller) (Cause for dismissal under § 1307(c) included that no plan payments had been made, that the plan proposed to obtain a reverse mortgage with respect to property that was sold at foreclosure after stay relief was granted and that only defense to dismissal offered by the debtor was a challenge to a completed state court foreclosure.).
In re Klaas, 533 B.R. 482, 486 (Bankr. W.D. Pa. June 4, 2015) (Taddonio) (Not cause for dismissal that debtors completed financial management course and filed certificate in 63rd month of plan. "The failure to file a statement of completion does not warrant dismissal of the Debtors' bankruptcy case. Rather, the inability to complete the course only impacts the debtor's eligibility for a discharge. See 11 U.S.C. § 1328(g)(1) . . . . The Debtors were not delinquent in attending the personal financial management course, nor did they tardily file the statement of completion. . . . [T]he Debtors' last plan payment was received by the trustee on March 24, 2015. By that date, the Debtors received the requisite instruction and filed their statement of completion. The Debtors therefore satisfied the personal financial management requirements in compliance with Bankruptcy Rule 1007(c)."), aff'd, 539 B.R. 465 (W.D. Pa. Aug. 28, 2015) (Schwab), aff'd, 858 F.3d 820 (3d Cir. June 1, 2017) (Fisher, Vanaskie, Krause).).
In re Grabowski, 462 B.R. 534 (Bankr. W.D. Pa. Dec. 12, 2011) (Agresti) (Failure to respond to trustee's motion results in dismissal of case.).
In re Nealen, 407 B.R. 194 (Bankr. W.D. Pa. July 9, 2009) (Deller) (Cause for dismissal that debtor did not get a prepetition briefing, has no ground for waiver and is accordingly ineligible. Also, failure of the debtor to file documents required by § 521(a)(1) constitutes cause for dismissal under § 521(i).).
D. Fourth Circuit
Woodard v. Browning, No. 08-1329, 2008 WL 2959852 (4th Cir. Aug. 4, 2008) (Niemeyer, Traxler, Gregory) (For reasons stated by district court in Woodard v. Browning, No. 5:06-cv-00484-BO (E.D.N.C. Feb. 25, 2008), dismissal of case is affirmed.).
Maryland
Kaur v. Grigsby, No. PWG-17-7, 2017 WL 4050229, at *3 (D. Md. Sept. 13, 2017) (Grimm) (Sua sponte dismissal is appropriate when debtor asked for extension of time to file schedules and other documents but then missed new deadline in spite of warning that dismissal would result. “It is an abuse of the process Kaur elected to pursue to request an extension and then fail to meet that extension without showing cause for the delay and timely seeking additional time.”).
Mustafa v. Branigan, Nos. PJM 16-3828, PJM 16-4007, 2017 WL 2634153, at *1
Dailey v. Thomas, No. ELH-16-3065, 2017 WL 1093277 (D. Md. Mar. 23, 2017) (Hollander) (Cause for dismissal included failure to make at least three payments required by proposed plan and failure to confirm a plan notwithstanding four amended plans.).
In re Howes, 563 B.R. 794 (D. Md. Dec. 12, 2016) (Hollander) (In a multiyear battle between pro se Chapter 13 debtor and mortgagees, bankruptcy court did not abuse its discretion when it dismissed case with 24-month bar to refiling based on debtor’s failure to escrow 32 missing mortgage payments.).
Coler v. Draper, No. WDQ-12-2020, 2012 WL 5267436 (D. Md. Oct. 23, 2012) (unpublished) (Quarles) (After dismissal for bad faith, stay of garnishment pending appeal was denied. Garnishment was based on uncontested state court judgment, which could be satisfied from real estate equity.).
Halkas v. Grigsby (In re Halkas), No. 2006-2744, 2007 WL 187798 (D. Md. Jan. 22, 2007) (unpublished) (Chapter 13 trustee's motion to dismiss for failure to pay was resolved by order to sell debtor's home, with net proceeds distributed to creditors; debtor's appeal became moot when no stay existed, allowing trustee's distribution.).
Suntrust Bank v. Johnson (In re Johnson), No. 05-13865, 2006 WL 3498411, at *4 (D. Md. Dec. 4, 2006) (unpublished) (Denial of motion to dismiss or reconvert Chapter 13 case reversed, due to failure of bankruptcy court to conduct good-faith inquiry "with respect to the motivations of the debtor . . . or his strategy in converting to a Chapter 13 after the debt became non-dischargeable in the Chapter 7 proceedings in light of his clear fraud." In Chapter 7 case, Suntrust's debt was excepted from discharge due to willful and malicious burning of bank's collateral, a truck. Debtor then converted. Finney v. Smith (In re Finney), 992 F.2d 43 (4th Cir. 1993), is authority under § 105(a) for "an immediate reconversion to prevent abuse of the bankruptcy process.").
Sweatmon v. Ocwen Fed. Bank, FSB, No. PJM 05-264, PJM 05-265, 2005 WL 4014094, at *1 (D. Md. Mar. 17, 2005) (unpublished) (Fourth Chapter 13 petition filed to stop foreclosure is dismissed with prejudice to refiling for 180 days. "To say that Sweatmon's recourse to the bankruptcy process has been excessive is an understatement.").
In re Rand, No. 14-10753PM, 2014 WL 1648290, at *2 (Bankr. D. Md. Apr. 23, 2014) (Mannes) (Chapter 20 case dismissed for lack of good faith when purpose of Chapter 13 filing was to avoid or delay paying debt declared nondischargeable by consent order in Chapter 7 case discharged four months earlier. "Debtor is unfairly manipulating the Bankruptcy Code to discharge a non-dischargeable debt. The motivation of the Debtor in seeking Chapter 13 relief was entirely focused on one debt, as nothing else is accomplished by the filing.").
In re Frank, No. 08-18263PM, 2009 WL 465798, at *2 (Bankr. D. Md. Feb. 24, 2009) (Mannes) (Although lack of good faith was indicated when debtor reached settlement substantially reducing prebankruptcy judgment, then stopped making payments while maintaining "lifestyle that was inconsistent with honest and unfortunate debtors seeking a good-faith rehabilitation of their financial condition," debtor avoids dismissal by amending plan to substantially increase payments to unsecured creditors.).
In re Wilson, No. 04-29916PM, 2008 WL 4865587 (Bankr. D. Md. Nov. 7, 2008) (Mannes) (That debtor missed payments is not cause to dismiss when debtor can make up missing payments over remaining plan life.).
In re Smith, 355 B.R. 519 (Bankr. D. Md. Nov. 2, 2006) (Although § 1307(c)(4) lists failure to commence timely payments under § 1326 as a basis for dismissal, section is inapplicable when car lender reduced its contract to a prepetition judgment and no portion of debt becomes due after petition for purposes of preconfirmation entitlement to adequate protection in § 1326(a)(1)(C).).
In re Thomas, No. 06-10714-DK, 2006 WL 4547175 (Bankr. D. Md. Sept. 5, 2006) (Motion to reconsider court's dismissal of case is denied when debtor and her attorney failed to appear for hearing on second amended plan and third amended plan was not timely filed.).
In re Estate of Roberts, No. 05-26653 ESD, 2005 WL 3108224 (Bankr. D. Md. Aug. 15, 2005) (unpublished) (Case filed by executor of deceased is dismissed sua sponte with finding that decedent's estate is not a "person" eligible for Chapter 13 relief.).
North Carolina
Eastern District of North Carolina
In re Green, No. 13-02513-8-RDD, 2014 WL 985467 (Bankr. E.D.N.C. Mar. 13, 2014) (Doub) (Sua sponte dismissal with prejudice ordered after pro se debtor failed to cure service deficiencies with respect to motions for sanctions for stay violations. Debtor had five prior cases. Motions failed to state plausible grounds for violations of stay. Attorney fees of $1,500 awarded against debtor.).
In re Shepard, No. 12-05482-8-RDD, 2012 WL 5832439 (Bankr. E.D.N.C. Nov. 16, 2012) (Doub) (Cause for dismissal of fifth case for failure to attend hearings. Serial filer did not show ability to cure deficiencies or propose confirmable plan.).
In re Pittman, No. 08-08662-8-RDD, 2010 WL 2206919 (Bankr. E.D.N.C. May 27, 2010) (unpublished) (Doub) (Cause for dismissal that debtors refused to file modified plan to increase payments to creditors to account for inheritance within 180 days of petition. Inheritance was property of estate under § 541(a)(5)(A), and debtors were obligated to modify plan to increase percentage to unsecureds as requested by trustee.).
In re Tippett, No. 08-00548-8-JRL, 2008 WL 2020348 (Bankr. E.D.N.C. May 8, 2008) (Leonard) (Dismissal for bad faith: petition was filed two weeks after commencement of state court trial, only purpose in filing is to frustrate that litigation, and debtor lacks regular income.).
Middle District of North Carolina
Clayton v. Ameriquest Mortgage Co., 331 B.R. 238 (M.D.N.C. Aug. 24, 2005) (Motion for reconsideration of dismissal is denied: debtor stated no basis for assertion that bankruptcy judge was biased.).
In re Page, 519 B.R. 908 (Bankr. M.D.N.C. Oct. 7, 2014) (Aron) (Dismissal for bad faith appropriate under § 1307(c) when petition was filed to avoid incarceration for failure to pay attorney fees assessed by contempt orders in domestic relations dispute. State court contempt damages were undisclosed in petition.).
In re Carpenter, No. 13-50305, 2013 WL 1194865 (Bankr. M.D.N.C. Mar. 22, 2013) (unpublished) (Waldrep) (Fourth petition in less than nine months was dismissed with one-year bar to refiling. Debtor failed to attend meetings of creditors in all cases. Filing was in bad faith, unreasonably delaying and prejudicing creditors.).
In re Wallace, No. 10-81205C-13D, 2010 WL 3584981, at *1 (Bankr. M.D.N.C. Sept. 14, 2010) (unpublished) (Stocks) (Dismissal mandated by § 521(i) when debtor did not file schedules or statement of financial affairs within 45 days of the petition is not subject to exception for mistake or neglect by counsel. "It is undisputed that the Debtors in this case did not file [schedules and a statement of financial affairs] within 45 days after the date of the filing of the petition . . . . Hence, dismissal of this case was mandated by section 521(i). . . . Such a dismissal is statutory in nature and is not subject to being vacated or avoided based upon a party's mistake, inadvertence or excusable neglect.").
In re Alston, No. 08-80687, 2008 WL 4093708, at *4 (Bankr. M.D.N.C. Aug. 27, 2008) (Carruthers) (Applying factors from In re Love, 957 F.2d 1350 (7th Cir. 1992), petition filed to stop writ of execution and to cure arrearage on mortgage is not filed in bad faith. "Dismissing the case would hinder the mortgage creditor's opportunity to be repaid in full through the Debtor's proposed Chapter 13 plan.").
South Carolina
Haynes v. Stephenson, No. 3:14-cv-352-MGL, 2015 WL 687133 (D.S.C. Feb. 18, 2015) (Lewis) (Dismissal of third bankruptcy within a year with prejudice to refiling under any chapter for one year was appropriate under § 349(a) when debtor failed to receive the prepetition briefing required by § 109(h) and debtor omitted ownership of businesses and bank accounts in a pattern of abusive misconduct; review of one-year prohibition was moot because of passage of time during appeal.).
Lanier v. Branch Bank & Trust, No. 3:12-0416-MBS, 2013 WL 1194729 (D.S.C. Mar. 22, 2013) (unpublished) (Seymour) (Secured and unsecured debts exceeded § 109(e) limitations; second case properly dismissed for bad faith.).
Breen v. Stephenson, No. 4:08-804-TLW, 2009 WL 440490 (D.S.C. Feb. 20, 2009) (Wooten) (For purposes of dismissal, bankruptcy court appropriately accepted and relied on affidavit of non-attorney employee of trustee's office stating that debtor had not filed necessary documents and was in default.).
Bennett v. Bay View Bank (In re Bennett), No. CA.2:04: CV 23129 CWH, 2006 WL 1207827 (D.S.C. May 1, 2006) (unpublished) (Cause for dismissal with prejudice that third Chapter 13 petition was filed in violation of order that dismissed second case with bar to refiling for 180 days.).
In re Robertson, No. 09-09267-dd, 2010 WL 5462500 (Bankr. D.S.C. Dec. 29, 2010) (Duncan) (Willful refusal to cooperate with trustee—including failure to provide quarterly reports of operation of child care center, failure to maintain contact and default in payments—was cause for dismissal with prejudice to refiling for one year under Chapter 11, 12 or 13.).
In re Smith, 418 B.R. 160, 165 (Bankr. D.S.C. Oct. 14, 2009) (Duncan) (Departing from prior precedent, burden of proof to demonstrate cause for dismissal under § 1307(c), including bad faith in a serial filing, remains on moving party; if prior filing is relevant to cause for dismissal, but evidence of changed circumstances demonstrates that most recent filing "represents a real effort to deal with debtor's financial problems," burden of proving cause for dismissal stays with creditor. "Perhaps in past due to the precedent followed by this court concerning dismissals for second and third filings, Creditors offered no evidence of bad faith other than the two filings and the statement that there was no substantial change in circumstances. It is important, however, that all of this Court's bad faith serial filing precedent discussed bad acts of the debtors over and above taking a second bite at the chapter 13 apple. Those facts do not appear in this case.").
In re Smith, 418 B.R. 160 (Bankr. D.S.C. Oct. 14, 2009) (Duncan) (Dismissal for cause for bad faith requires proof of something more than just a prior Chapter 13 case; evidence of changed circumstances leaves creditor with unsatisfied burden of proof.).
In re McFadden, 383 B.R. 386 (Bankr. D.S.C. Feb. 27, 2008) (Waites) (That presumption of lack of good faith arises under § 362(c)(3) because of prior case dismissed within a year does not raise presumption of bad faith for purposes of dismissal with prejudice under § 1307(c); elements of good faith for § 362(c)(3) purposes are different and burden of proof is different. Failure to seek extension of automatic stay under § 362(c)(3) is factor that weighs in favor of finding that current case was not filed in good faith.).
In re Bridges, 326 B.R. 345, 351 (Bankr. D.S.C. Mar. 29, 2005) (Citing Deans v. O'Donnell, 692 F.2d 968, 972 (4th Cir. 1982), and Solomon v. Cosby (In re Solomon), 67 F.3d 1128, 1234 (4th Cir. 1995), case filed less than 30 days following conclusion of Chapter 7 is not in bad faith. "The short period between the close of Debtors' Chapter 7 case and the filing of their second Chapter 13 case is a factor that weighs in favor of the Chapter 13 Trustee." Other factors weighed in favor of debtors.).
Virginia
Eastern District of Virginia
Askri v. Gorman (In re Askri), No. 1:17-cv-506 (LMB/TCB), 2017 WL 5181111 (E.D. Va. Nov. 8, 2017) (Brinkema) (Dismissal for cause was appropriate given history of four “leap frog” bankruptcies and unsubstantiated claims that the debtor paid off three mortgages totaling $1.2 million during the pending case. Debtor also failed to demonstrate sufficient income to fund any plan that would address large mortgages.).
Freidzon v. Gorman, No. 1:16-CV-627(LMB/JFA), 2016 WL 9211754 (E.D. Va. July 29, 2017) (Brinkema) (Bankruptcy court appropriately granted voluntary dismissal and denied motion to vacate that dismissal when it appeared that Chapter 13 case was a purely two-party dispute more appropriately resolved in state court.), aff’d,D 687 F. App’x 242 (4th Cir. Apr. 27, 2017) (unpublished) (King, Diaz, Thacker).).
Singh v. Gorman (In re Singh), No. 1:17cv266, 2017 WL 4476841 (E.D. Va. June 23, 2017) (Ellis), aff'd, 710 F. App'x 138 (4th Cir. Feb. 1, 2018) (Motz, Keenan, Hamilton) (Dismissal of fifth bankruptcy case filed to stop foreclosure was appropriate under § 1307(c) based on evidence that debtor could not make payments necessary to cure mortgage defaults, debtor was substantially in arrears of payments in current case and meandering testimony by debtor served to prove lack of good faith.).
Wong Yong Kim v. Gorman, No. 1:16-cv-538, 2016 WL 9229846 (E.D. Va. Sept. 27, 2016) (Ellis) (Pro se debtor’s appeal of order dismissing Chapter 13 case is dismissed because debtor failed to designate a record on appeal as required by Bankruptcy Rule 8003(a)(1).), aff'd, 687 F. App’x 243 (4th Cir. Apr. 27, 2017) (unpublished) (Motz, Duncan, Agee).).
Abbott v. Hyman (In re Abbott), Nos. 07-33454, 3:08CV086-HEH, 2008 WL 782859, at *2 (E.D. Va. Mar. 25, 2008) (unpublished) (Hudson) (Case dismissed for bad faith when debtors refused to file tax returns, to schedule debts or to file statement of financial affairs. "Mr. Abbott's unsubstantiated testimony that he had fully paid all debts and that he did not legally owe them further supported decision to dismiss the case.").
Davis v. Hyman, No. 3:05CV519, 2006 WL 568620 (E.D. Va. Mar. 7, 2006) (unpublished) (Dismissal for cause when debtor was in default of plan payments and bankruptcy court had given debtor two weeks to bring case current. Under § 1307(c)(6), material default by debtor under confirmed plan is cause for dismissal.).
Sawyer v. Worcester (In re Sawyer), Nos. 3:05CV644-HEH, 04-39378, 2005 WL 5864795, at *5 (E.D. Va. Nov. 25, 2005) (Bad faith that debtor attempted for eight months to confirm plan when net monthly income was below required monthly plan payments. "The Bankruptcy Court correctly held that this improper purpose constituted bad faith as it abuses the provisions, purpose, and spirit of Chapter 13. Appellant appears to have no genuine intention of paying her debts. Her sole purpose in filing the bankruptcy action at issue was to avoid payment of the state court judgments.").
In re Pope, No. 16-12318-RGM, 2016 WL 4035626 (Bankr. E.D. Va. July 22, 2016) (Mayer) (Dismissal of second case within a year is appropriate when both cases were disabled by debtor’s failure to perform duties and no explanation was offered by debtor for failure to attend meetings of creditors and file necessary documents. Debtor can always file a third case if purpose would be served.).
In re Criscuolo, No. 09-14063-BFK, 2014 WL 1910078 (Bankr. E.D. Va. May 13, 2014) (Kenney) (Hiding income and spending undisclosed income on luxury items was bad-faith conduct sufficient to support dismissal with prejudice under Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 127 S. Ct. 1105, 166 L. Ed. 2d 956 (Feb. 21, 2007).).
In re Larijani, No. 13-11163-RGM, 2013 WL 1385222 (Bankr. E.D. Va. Apr. 3, 2013) (Mayer) (In fifth tandem filing in 22 months by debtor and spouse, motion to vacate dismissal based on failure to get § 109(h) briefing is denied. Chapter 13 case would be futile because debtor does not have enough income to deal with sole creditor—a foreclosing mortgage holder.).
In re Paliev, No. 11-17647-BFK, 2012 WL 3564031, at *5 (Bankr. E.D. Va. Aug. 17, 2012) (Kenney) (Not unreasonable delay for § 1307(c) purposes that case has been pending for nine months without confirmation of a plan. "The case has been pending for roughly 9 months. The Debtor is on her first Amended Plan. It is not unusual in this District for Debtors to file a third, or even a fourth, Amended Plan in order to gain confirmation. Consequently, the Court cannot find that the Debtor's Plan was filed in bad faith, nor can the Court find that the case should be dismissed.").
In re Nwonwu, No. 11-12608-SSM, 2011 WL 3586078 (Bankr. E.D. Va. Aug. 12, 2011) (Mitchell) (Cause for dismissal that plan was not feasible, debtor was unable to comply with loan modification that reduced mortgage payments, home was uninhabitable because of fire damage and debtor could not afford repairs.).
In re Haney, No. 10-10258-SSM, 2010 WL 3363270, at *7 (Bankr. E.D. Va. Aug. 24, 2010) (unpublished) (Mitchell) (Notwithstanding troubling questions about debtor's good faith in filing case to "derail enforcement" of divorce decree, "it is nevertheless fair to ask whether the debtor is actually in a position to propose a confirmable plan." Debtor is given opportunity to propose amended plan, but if not confirmable, case would be dismissed.).
In re Shatalin, No. 09-11796-RGM, 2010 WL 318297 (Bankr. E.D. Va. Jan. 20, 2010) (Mayer) (Cause for dismissal that debtor failed to make first payment required by § 1326(a)(1); consistent with local rule, when trustee certified that first payment was not timely made, clerk of court was ordered to dismiss Chapter 13 case.).
In re Jahanian, No. 08-10030-SSM, 2009 WL 3233161 (Bankr. E.D. Va. Sept. 28, 2009) (unpublished) (Mitchell) (Motion to dismiss denied notwithstanding debtor's failure to sell property by date in confirmed plan, conditioned on sale of real property by new deadline for amount sufficient to pay unsecured creditors 100%. Debtor was current in monthly payments to trustee, but requirement in confirmed plan to pay 100% to unsecured creditors could not occur without sale of property.).
In re Ellis, 406 B.R. 736 (Bankr. E.D. Va. June 2, 2009) (Mayer) (Cause to dismiss when debtor filed petition solely to frustrate former spouse's claim as part of protracted litigation.).
In re Strickland, No. 07-11206-RGM, 2008 WL 2437837 (Bankr. E.D. Va. June 11, 2008) (Mayer) (Continuance of trustee's motion to dismiss is denied when debtor is significantly delinquent in second bankruptcy and stay relief had been granted to mortgagee.).
In re Sawyer, No. 07-10252-SSM, 2007 WL 1725627 (Bankr. E.D. Va. June 13, 2007) (Bad faith justifying dismissal of second Chapter 13 case filed to challenge a judgment and disbarment when there's been no change in circumstances and prior case was filed for exactly the same purposes. Current case was filed five months after unsuccessful multiple appeals of prior case.), on motion to correct clerical error, 2007 WL 2110314 (Bankr. E.D. Va. July 17, 2007).).
In re Moroney, 330 B.R. 527 (Bankr. E.D. Va. June 8, 2005) (Case dismissed for lack of good faith when plan pays only 5.9% of IRS claim declared nondischargeable in prior Chapter 7 and debtor paid IRS nothing in 12 years.).
In re Moroney, 330 B.R. 527, 532 (Bankr. E.D. Va. June 8, 2005) (Plan that proposed to pay part of tax debt excepted from discharge in prior Chapter 7 case would be dismissed as filed in bad faith. The debtors' effort to discharge the tax debt "leads to the question of whether the debtor inappropriately filed for Chapter 13 relief after obtaining a discharge in Chapter 7. This procedure, often referred to as 'Chapter 20,' may be permitted under certain circumstances, but it 'ought not be permitted when the debtor improperly seeks to accomplish indirectly through sequential filings . . . that which he cannot achieve directly under each Chapter.' In re Taylor, 261 B.R. 877, 884 (Bankr. E.D. Va. 2001).").
EMC Mortgage Corp. v. Plymouth (In re Plymouth), Nos. 00-30451-S, 00-186, 2005 WL 1692450 (Bankr. E.D. Va. Feb. 17, 2005) (unpublished) (Evidence of bad faith included that debtor and debtor's spouse jointly or individually filed 12 petitions with no payments made on mortgage for 87 months.).
Western District of Virginia
Coomes v. Structured Asset Sec., No. 5:16cv00048, 2017 WL 2799903 (W.D. Va. June 27, 2017) (Urbanski) (Dismissal of third case within a year was appropriate when debtor failed to comply with court orders, failed to make payments to the trustee, failed to pay mortgagee and failed to propose a confirmable plan.).
In re Brown, 399 B.R. 162 (Bankr. W.D. Va. Jan. 16, 2009) (Krumm) (Second Chapter 13 petition with sole purpose of stopping foreclosure of mortgage included in pending Chapter 13 case is dismissed for bad faith.).
West Virginia
Northern District of West Virginia
Bland v. Zigmont (In re Bland), No. 1:08CV130, 2009 WL 539981 (N.D. W. Va. Mar. 4, 2009) (Keeley) (Cause for dismissal for lack of good faith when debtor failed to disclose and refused to cooperate in embezzlement action against her son and refused to provide son's address to trustee.), aff'g No. 06-1159, 2008 WL 2002647, at *3 (Bankr. N.D. W.Va. May 6, 2008) (Flatley) (Dismissal is appropriate under § 105(a) and/or § 1307(c) when debtor failed to disclose that her son had embezzled from debtor's business and debtor refused to cooperate in trustee's effort to prosecute son; conversion to Chapter 7 would not be in best interests of creditors because debtor is judgment proof. "[T]he Debtor has shown herself to be the atypical litigant who is abusing the bankruptcy system and is thereby violating the good faith requirements in §§ 105(a), 1307(c), and 1327(a)(7).").
In re Bailey, No. 09-2564, 2010 WL 3813847 (Bankr. N.D. W. Va. Sept. 24, 2010) (unpublished) (Flatley) (Debtor did not file case in bad faith under totality of circumstances, when debtor had economic hardship and avoiding domestic support obligations or frustrating family court decrees was not sole purpose in filing. Domestic support obligations were protected by requirement that debtor be current to obtain confirmation and be current postconfirmation to obtain discharge. Former spouse had also filed complaint to determine dischargeability under § 523(a)(5) and (15).).
Southern District of West Virginia
In re Cottrell, No. 2:16-bk-20545, 2017 WL 2544135 (Bankr. S.D. W. Va. June 9, 2017) (Volk) (In fifth bankruptcy case in four years, dismissal with 180-day bar to refiling was appropriate under § 109(g)(1) when debtor failed to appear at rescheduled meetings of creditors, failed to file schedules, failed to provide tax returns and failed to make payments to trustee.).
E. Fifth Circuit
Mallory v. Heitkamp (In re Mallory), No. 11-20192, 2012 WL 1292776 (5th Cir. Apr. 16, 2012) (unpublished) (Garza, Southwick, Haynes) (Multiple missed payments were adequate cause for dismissal under § 1307(c)(4).), aff'g 444 B.R. 553 (S.D. Tex. Feb. 2, 2011) (Miller) (Cause for dismissal with prejudice included unreasonable delay—three years between filing and confirmation—and $19,000 delinquency in payments to trustee. Debtor also did not provide trustee with information regarding domestic support obligation.).
Mallory v. Heitkamp (In re Mallory), No. 11-20192, 2012 WL 1292776 (5th Cir. Apr. 16, 2012) (unpublished) (Garza, Southwick, Haynes) (Multiple missed payments were adequate cause for dismissal under § 1307(c)(4).).
Louisiana
Eastern District of Louisiana
In re Maher, No. 12-2718, 2013 WL 5428697 (E.D. La. Sept. 24, 2013) (Morgan) (Notice of Deficiency—that debtor failed to file a required tax return under § 1308—was not sufficient notice that bankruptcy court might dismiss case with prejudice to refiling for six months.).
Countrywide Home Loans, Inc. v. Stewart, No. 10-3589, 2011 WL 1899820, at *10 (E.D. La. May 16, 2011) (McNamara) (Bankruptcy court erred in denying trustee's unopposed motion to dismiss case for lack of feasibility when Countrywide filed timely postconfirmation proof of claim that stated larger arrearage amount than provided for through plan; on remand, bankruptcy court should determine if late-filed proof of claim should be allowed. If debtor "had truthfully filled out his bankruptcy schedules or confected a plan including the full pre-petition arrearage, then the Chapter 13 Trustee should have objected to confirmation or the bankruptcy court on its own authority could have then questioned confirmation. The bankruptcy court implicitly relied on Debtor's representations and confirmed the Plan.").
In re Stewart, No. 03-18462, 2010 WL 3490976 (Bankr. E.D. La. Aug. 23, 2010) (unpublished) (Magner) (Trustee's motion to dismiss for failure to make sufficient plan payments to satisfy mortgage holder's prepetition arrearage claim is overruled when mortgage holder was bound by confirmed plan to amount of arrearage stated in plan and distributions exceeded that amount; mortgage holder's late-filed proof of claim for a larger arrearage amount was not allowed. Citing United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 130 S. Ct. 1367, 176 L. Ed. 2d 158 (Mar. 23, 2010), Countrywide was bound by arrearage amount established in confirmed plan. Although court had previously permitted Countrywide to file untimely proof of claim 46 months into case—based on representations that debtor would not be prejudiced—claim had not been allowed and confirmed plan trumped proof of claim. Debtor had satisfied Countrywide's prepetition claim in full and was entitled to discharge.), rev'd and vacated by No. 10-3589, 2011 WL 1899820 (E.D. La. May 16, 2011) (McNamara).).
Texas
Eastern District of Texas
In re Alvarado, No. 09-40855-R, 2009 WL 3617655, at *3 (Bankr. E.D. Tex. Oct. 29, 2009) (unpublished) (Rhoades) ("[D]ebtors' failure to confirm a Chapter 13 plan in this case after two confirmation hearings constitutes an unreasonable delay that is prejudicial to creditors, and such failure constitutes cause for the dismissal of this case with prejudice to re-filing pursuant to 11 USC §§ 349(a) and 1307(c).").
In re Brown, No. 05-49114, 2009 WL 565032, at *4 (Bankr. E.D. Tex. Mar. 5, 2009) (Rhoades) (Cause for dismissal that debtors had not been "completely forthcoming with this Court and the Chapter 13 trustee" concerning postpetition income increase and producing relevant documents, but debtors allowed opportunity to avoid dismissal by amending plan in good faith.).
In re Ferrell, No. 04-40048, 2008 WL 2857141 (Bankr. E.D. Tex. July 21, 2008) (Rhoades) (Cause for dismissal found where debtors were in default of agreed order that provided future defaults would result in trustee submitting certificate of noncompliance and order of dismissal. Under
In re Richardson, No. 07-42881, 2008 WL 270263, at *2 (Bankr. E.D. Tex. Jan. 30, 2008) (Rhoades) (On creditor's Rule 59 motion for relief from "Order Evidencing Automatic Dismissal," bankruptcy court is without authority to vacate automatic dismissal under § 521 to enter an order dismissing with prejudice to refiling for six months. Naked petition was automatically dismissed pursuant to § 521(i)(1) when court entered "Order Evidencing Automatic Dismissal." Creditor moved for relief under Rule 59 to set aside dismissal and then dismiss with prejudice to refiling for six months. "[T]here is no question . . . that grounds existed for automatic dismissal under 11 U.S.C. § [521](i)(1). Section 105(a) does not empower the Court to vacate a dismissal that has occurred by operation of 11 U.S.C. § 521(i)(1), alter the statutory penalty of 11 U.S.C. § 521(i)(1), or 'judicially legislate perceived shortcomings in existing law.' . . . Congress has determined that the penalty for failure to comply with 11 U.S.C. § 521(a) is the dismissal of the case and limitations on the applicability of the automatic stay in any bankruptcy case filed within a year of the dismissal. . . . [N]othing in 11 U.S.C. § 521(i)(1) provides an exception for a debtor who may have filed his bankruptcy case in bad faith. . . . A creditor who believes that cause exists to dismiss a bankruptcy case with prejudice based on a debtor's fad faith would be well served to request an expedited hearing on the request so that it can be considered and acted upon before the case can be dismissed by operation of 11 U.S.C. § 521(i)(1).").
Northern District of Texas
Rosetti v. Chase Home Fin. LLC (In re Rosetti), No. 07-04063-DML, 2007 WL 2669265 (Bankr. N.D. Tex. Sept. 6, 2007) (unpublished) (Lynn) (Motion to dismiss based on ineligibility and bad faith is denied; Chase objected to confirmation but did not raise either ineligibility under § 109(g)(2) or bad faith until after confirmation.).
In re Wigley, 333 B.R. 768 (Bankr. N.D. Tex. Oct. 24, 2005) (Cause for dismissal that debtor failed to pay postpetition trust fund taxes owed as responsible person.).
In re Gonzalez, No. 00-50774-RLJ-13, 2005 WL 1819948 (Bankr. N.D. Tex. July 8, 2005) (unpublished) (Jones) (Cause for dismissal that debtors failed to file and pay income taxes during case, even though debtors are within five months of completing 60-month plan.).
Southern District of Texas
In re Shead, Nos. H-08-1386, H-07-34357, 2008 WL 1995373, at *3 (S.D. Tex. May 6, 2008) (Hughes) (After withdrawal of reference, case was dismissed for bad-faith filing of petition that was in reality effort to resolve partnership dispute. "Although Shead's case involves two lenders holding liens on the [partnership] properties and his home mortgage, the real dispute that Shead sought to resolve was management and control of the partnership's assets. Shead could, and should, have filed a state court suit seeking to wind up the partnership and resolve any lingering issues between [his partner] and himself." Case was dismissed with prejudice to refiling for 180 days.).
In re Khan, No. 16-30033-H3-13, 2016 WL 3648468 (Bankr. S.D. Tex. June 30, 2016) (Paul) (Fifth Chapter 13 case in three years is dismissed for cause including that home mortgage arrearage of $417,823.31 exceeded debtor’s ability to pay, debtor failed to file required documents and debtor has continued to own a luxury home without paying the mortgage.).
In re Goodwill, No. 15-30704-H3-13, 2015 WL 5772379 (Bankr. S.D. Tex. Sept. 30, 2015) (Paul) (Cause for dismissal of fourth bankruptcy filing in 12 months that debtors failed to file accurate schedules and statement of financial affairs, failed to object to claims, had no ability to propose confirmable plan, and failed to file a confirmable plan in fourth case. All amounted to unreasonable delay that was prejudicial to creditors.).
In re Juneau, No. 08-35040-H3-13, 2014 WL 4104765 (Bankr. S.D. Tex. Aug. 19, 2014) (Paul) (Not cause for dismissal that payments made under confirmed plan fell short of payments due and modification was barred by § 1329(c).).
In re Yuen, No. 13-30249-H3-13, 2013 WL 3430768, at *1 (Bankr. S.D. Tex. July 8, 2013) (Paul) (Evidence did not show that debtor filed case to "gain an unfair advantage in a two-party dispute.").
In re Yuen, No. 13-30249-H3-13, 2013 WL 3430768, at *1 (Bankr. S.D. Tex. July 8, 2013) (Paul) (Court rejects its own order to show cause with respect to dismissal when evidence did not show that debtor filed case to "gain an unfair advantage in a two-party dispute.").
In re West, No. 12-30961-H3-13, 2013 WL 2403334 (Bankr. S.D. Tex. May 31, 2013) (Paul) (Fifth case dismissed with 180-day bar to refiling. Four prior filings demonstrated pattern of bad faith and abuse.).
In re Watts, No. 09-35864, 2012 WL 3400820 (Bankr. S.D. Tex. Aug. 9, 2012) (Bohm) (Bad-faith failure to disclose malpractice action against prior Chapter 7 attorney was cause for dismissal. Debtor, himself a licensed attorney, had voluntarily converted from Chapter 7 to Chapter 13. Eleven months after confirmation, malpractice claim was filed in state court against prior Chapter 7 attorney. Failure to timely disclose claim, or obtain authorization to name trustee as party plaintiff, evidenced bad faith for case dismissal with 180-day refiling bar.).
In re Izen, No. 12-31020-H3-13, 2012 WL 2994497 (Bankr. S.D. Tex. July 20, 2012) (Paul) (Cause for dismissal of third Chapter 13 in less than one year that debtor failed to begin payments.).
In re Thalmann, 469 B.R. 677 (Bankr. S.D. Tex. Mar. 13, 2012) (Bohm) (Bad-faith cause for dismissal that debtor scheduled prepetition judgment as disputed when amount of judgment made debtor ineligible. Moving creditor was given option to have case dismissed with prejudice to refiling or converted.).
In re Nguyen, No. 07-35484-H3-13, 2011 WL 5591658 (Bankr. S.D. Tex. Nov. 16, 2011) (Paul) (When confirmed plan did not address payment of postpetition property taxes, failure to pay postpetition taxes could not be material default under plan. Motion of tax assessor to dismiss case was denied.).
In re Nutter, No. 09-34827-H3-13, 2010 WL 271272 (Bankr. S.D. Tex. Jan. 15, 2010) (Paul) (Failure to file tax return required by § 1308 was one factor justifying dismissal with prejudice of fifth case filed by debtor and/or debtor's spouse.).
In re Nutter, No. 09-34827-H3-13, 2010 WL 271272 (Bankr. S.D. Tex. Jan. 15, 2010) (Paul) (Bad faith included five bankruptcy cases between debtor and spouse, failure to commence timely plan payments and failure to file tax return required by § 1308. Motion to extend automatic stay denied and case dismissed with prejudice to refiling for 180 days.).
In re Jenkins, No. 09-36433-H3-13, 2010 WL 56003 (Bankr. S.D. Tex. Jan. 5, 2010) (Paul) (In third Chapter 13 case, cause for dismissal included unreasonable delay by debtor that was prejudicial to creditors under § 1307(c)(1) and failure to commence timely payments under § 1307(c)(4). Court declined to grant in rem relief, since BAPCPA added other remedies for creditors in event debtor filed again.).
In re Walker, No. 09-33809-H3-13, 2009 WL 2973404 (Bankr. S.D. Tex. Sept. 9, 2009) (Paul) (Sixth Chapter 13 filing is dismissed for abuse when debtor did not appear for dismissal hearing and failed to cure deficiencies outlined in trustee's motion to dismiss.).
In re Meador, No. 06-80509-GE-13, 2008 WL 243673 (Bankr. S.D. Tex. Jan. 25, 2008) (Clark) (Cause for dismissal that debtors filed multiple amended schedules and B22Cs that obscured and misrepresented disposable income available for unsecured creditors; inability to explain fluctuations demonstrated fundamental unfairness dealing with creditors.).
In re Hendrick, No. 02-35038, 2007 WL 2482887 (Bankr. S.D. Tex. Sept. 4, 2007) (Cause for dismissal that debtor was in default of seven plan payments and had failed to account for $253,000 received from sale of business.).
In re Essien, 358 B.R. 286, 289-90 (Bankr. S.D. Tex. Dec. 6, 2006) (Isgur) (As sanction for debtor's untruthfulness in affidavit in support of motion for extension of time to receive prepetition credit counseling, court dismisses Chapter 13 case with bar to refiling for 180 days. "This bar is an aspect of the Court's sanction order and is intended to deter Essien and others similarly situated from acting in an untruthful manner before a court of law.").
In re Allison, No. 06-30040, 2006 WL 2620480 (Bankr. S.D. Tex. Sept. 12, 2006) (unpublished) (Isgur) (Creditor that failed to timely file proof of claim has standing to seek dismissal on basis of ineligibility because confirmation of plan and any subsequent discharge would affect creditor's right to pursue debtor's personal liability.).
In re Allison, No. 06-30040, 2006 WL 2620480 (Bankr. S.D. Tex. Sept. 12, 2006) (unpublished) (Isgur) (Ineligibility is not cause for dismissal after confirmation because confirmation order was final adjudication of eligibility and is res judicata with respect to eligibility and subject matter jurisdiction.).
In re Russell, 348 B.R. 441 (Bankr. S.D. Tex. Aug. 26, 2006) (Cause for dismissal with prejudice when debtors filed Chapter 13 case in Southern District of Texas during appeal of dischargeability judgment in Chapter 7 case still pending in Eastern District of Texas, statements and schedules were inaccurate, plan proposed 1.93% distribution in a minimal duration of 36 months and debtor was not credible.).
In re Moore, 319 B.R. 504, 517 (Bankr. S.D. Tex. Jan. 18, 2005) (Bankruptcy court puts debtor's bar on notice that Chapter 13 cases will be dismissed based on delay that is prejudicial to creditors when counsel is not prepared to prosecute confirmation of a plan on the date set for the confirmation hearing. "[T]he debtor and counsel must be prepared to carry the burden of proof for plan confirmation on the assigned date of the confirmation hearing. If the debtor and counsel are unable to do that, if the failure is without good reason, and if the delay is prejudicial to creditors, then the Court may dismiss the case. Failure to review the claims docket, failure to file timely objections to claims and motions to value collateral, and any other failure to comply with the Initial Order are very substantial factors that the Court will consider in determining whether there is unreasonable delay prejudicial to creditors.").
Western District of Texas
Emiabata v. Langehennig (In re Emiabata), No. A-08-CA-0013 LY, 2008 WL 4533995 (W.D. Tex. Sept. 26, 2008) (Yeakel) (Failure to comply with timely payment order justifies dismissal for unreasonable delay that is prejudicial to creditors.).
In re Lanehart, No. 08-10400-CAG, 2008 WL 4200776, at *3 (Bankr. W.D. Tex. Sept. 8, 2008) (Gargotta) (Not cause for dismissal that debtor failed to attend voluntary meeting with trustee. "[N]o provision in the Code or Rules [addresses] dismissal of a case merely because of a debtor's failure to attend a meeting with a trustee that was set by the trustee and never agreed to by the debtor. Neither the Local Rules of the Bankruptcy Court for the Western District of Texas, nor any of the court's standing orders, provide that the failure of a debtor to personally attend a meeting with the Trustee is per se grounds for dismissal." Commending trustee for streamlining the confirmation process and providing opportunity to resolve disputes with debtors, absent a court order requiring debtor to attend meeting with trustee, no cause for dismissal exists.).
F. Sixth Circuit
Jodway v. Fifth Third Bank (In re Jodway), 719 F. App'x 502 (6th Cir. Jan. 5, 2018) (Moore, Thapar, Larsen) (Dismissal was appropriate based on material default under confirmed plan when plan required debtors to surrender property and to make deficiency payments to lienholder, but debtors failed to do either. Debtors’ motion to modify to reduce deficiency payments was futile response to dismissal when modification would not resolve failure to surrender property.), aff'g No. 17-cv-10437, 2017 WL 2351972 (E.D. Mich. May 31, 2017) (Drain) (Dismissal based on failure to surrender property and failure to pay consistent with confirmed plan cannot be challenged with arguments about mortgagee’s behavior that are barred by res judicata effect of other litigation.).
In re Henry, 534 B.R. 721, 723 (B.A.P. 6th Cir. Aug. 3, 2015) (Delk, Harrison, Lloyd) (Dismissal appropriate when pro se debtor was given 14 days to file amended plan and no amended plan was received by the bankruptcy court. Debtor claimed that amended plan was mailed on the last date for filing consistent with court orders, but the bankruptcy court never received the plan. "[B]oth PACER and the ability to e-file are available in the Southern District of Ohio Bankruptcy Court for limited use by non-attorney users. . . . The Debtor-Appellant knew that documents needed to be filed. If there was any doubt that the documents would arrive through the mail, the debtor should have made arrangements to present the documents physically to the Court.").
In re Dyer, No. 12-8030, 2013 WL 987729, at *7 (B.A.P. 6th Cir. Mar. 14, 2013) (unpublished) (Emerson, Harris, Lloyd) (Not cause for dismissal that stay terminated 30 days after the petition under § 362(c)(3) without a request for extension when the debtors can confirm a plan. In second case within a year, no one moved for extension and the stay expired 30 days after the petition pursuant to § 362(c)(3)(A). Bankruptcy court sua sponte ordered debtors and their counsel to show cause why the case should not be dismissed and fees disgorged. Court denied confirmation, dismissed the case and ordered disgorgement based solely on the failure of the debtors to seek an extension of the stay under § 362(c)(3). "[T]he Dismissal Order denied confirmation of the Debtors' plan and dismissed the Debtors' case for only one reason: that the automatic stay had terminated. The Bankruptcy Court thus employed an erroneous legal standard and abused its discretion.").
In re Cline, No. 11-8075, 2012 WL 1957935 (B.A.P. 6th Cir. June 1, 2012) (unpublished) (Emerson, Harris, Shea-Stonum) (Cause for dismissal with prejudice to refiling for two years that debtor failed to appear at court-ordered deposition in fourth bankruptcy case, then failed to appear at show-cause hearing with respect to contempt.).
De Vito v. Pees (In re DeVito), No. 09-8072, 2010 WL 4269384, at *4-*5 (B.A.P. 6th Cir. Oct. 14, 2010) (unpublished) (Boswell, McIvor, Shea-Stonum) (Dismissal for "lack of prosecution" was abuse of discretion when debtors actively participated during 14 months that case was pending. Debtors made payments totaling $20,000, filed an avoidance action and filed four amended plans, and bankruptcy court made no findings with respect to prejudice to creditors. "'Lack of prosecution' is not one of the specific grounds for dismissal set forth under 11 U.S.C. § 1307(c); however, because failure to prosecute a case may result in an unreasonable delay that is prejudicial to creditors, a 'lack of prosecution' may in some cases constitute 'cause' for a dismissal of a chapter 13 case. . . . [T]he bankruptcy court failed to consider the second prerequisite for dismissing a case for 'lack of prosecution'; that is, that the delay caused by the lack of prosecution is prejudicial to creditors. . . . Given the funds on hand and failure of any creditor to object to another adjournment, this Panel finds that the bankruptcy court abused its discretion by failing to consider the lack of prejudice to creditors.").
Simon v. Amir (In re Amir), 436 B.R. 1 (B.A.P. 6th Cir. Aug. 5, 2010) (Boswell, McIvor, Rhodes) (Chapter 7 debtor's claim that preconversion Chapter 13 petition should have been dismissed because he did not obtain prepetition briefing required by § 109(h) was waived. Debtor did not raise the argument for many months, debtor appeared and litigated extensively before raising the issue and § 109(h) issue was not raised until after Chapter 7 trustee pursued recovery of property.).
Simon v. Amir (In re Amir), 436 B.R. 1 (B.A.P. 6th Cir. Aug. 5, 2010) (Boswell, McIvor, Rhodes) (Chapter 7 debtor's claim that preconversion Chapter 13 petition was signed and filed by someone else and should be dismissed is rejected because debtor ratified Chapter 13 petition by extensive pro se participation and debtor made no attempt to disavow original petition until Chapter 7 trustee pursued recovery of property.).
Oliver v. Bankfirst Fin. Servs. (In re Oliver), No. 08-8053, 2009 WL 394435 (B.A.P. 6th Cir. Feb. 17, 2009) (unpublished) (Fulton, McIvor, Rhodes) (Appeal of dismissal without transcript of hearing provided insufficient information to determine whether bankruptcy court abused discretion.).
Robilio v. Stevenson (In re Robilio), Nos. 06-8102, 06-8103, 2007 WL 2039065 (B.A.P. 6th Cir. July 13, 2007) (unpublished) (That debtor admits being present at hearing on trustee's motion to dismiss is judicial admission that notice was adequate; debtor failed to include transcript of hearing to support contention that she was not allowed to testify.).
Wellman v. Salt Creek Valley Bank (In re Wellman), 337 B.R. 729 (B.A.P. 6th Cir. Jan. 26, 2006) (table decision) (Fourth case was properly dismissed for 14-month material default in payments.).
Kentucky
Eastern District of Kentucky
In re Pfetzer, No. 17-20802, 2018 WL 1448742, at *2–*7 (Bankr. E.D. Ky. Mar. 22, 2018) (Wise) (Failure to timely object to confirmation on ground that petition was filed in bad faith under § 1325(a)(7) precludes motion to dismiss for bad faith under § 1307(c)
In re Caise, 359 B.R. 152 (Bankr. E.D. Ky. Feb. 6, 2006) (Case dismissed for debtors' failure to make proposed plan payments; debtors' attorney ordered to refund fees to debtors when attorney failed to adequately supervise paralegal.).
Western District of Kentucky
In re Lane, No. 17-32237(1)(13), 2018 WL 718403 (Bankr. W.D. Ky. Feb. 5, 2018) (Lloyd) (Motion to dismiss with prejudice filed after confirmation that raises same issues decided against creditor at confirmation is precluded by confirmation order. Issues of feasibility and good faith could have been raised and litigated at confirmation but weren’t; finality of confirmation order can’t be avoided by filing motion to dismiss.).
In re Ashby, No. 12-41111, 2013 WL 3216137, at *3 (Bankr. W.D. Ky. June 25, 2013) (Stout) (Case is dismissed under § 1307(c)(11) because debtor did not pay all support that became due after the petition; confirmation was also denied under § 1325(a)(8) for same reason. "Debtor's failure to pay a domestic support obligation to his former spouse that was due post-petition is by itself cause for dismissal of this case under Bankruptcy Code § 1307(c)(11).").
In re Hall, 346 B.R. 420 (Bankr. W.D. Ky. July 31, 2006) (New § 1325(a)(7) provides an alternative to dismissal—denial of confirmation—when a Chapter 13 petition is not filed in good faith; however, remedy of dismissal remains available, and Chapter 13 petition filed in bad faith is dismissed with prejudice to refiling for one year.).
Michigan
Eastern District of Michigan
In re Clark, No. 13-10762, 2013 WL 3849610 (E.D. Mich. July 24, 2013) (Lawson) (Failure to pay filing fee is cause for dismissal when filing history includes previous failure to pay filing fee.).
Reymer v. Carroll (In re Reymer), 403 B.R. 475 (E.D. Mich. Apr. 7, 2009) (Roberts) (Totality-of-circumstances determination requires more than just a de minimis payment to unsecured creditors to support sua sponte dismissal for lack of good faith.).
In re Sharp, No. 06-13151, 2007 WL 107674, at *1 n.2 (E.D. Mich. Jan. 9, 2007) (unpublished) (Appeal of Chapter 13 Case Management Order that would dismiss case without a hearing if debtor did not timely file Chapter 13 Confirmation Hearing Statement is moot because debtor filed statement and plan was confirmed; debtor lacks standing to challenge similar orders in other Chapter 13 cases. District court notes: "the practice of dismissing a case without particular notice in the circumstances set forth in the Case Management Order relies on an assumption which may be inappropriate and unjustified.").
In re Mabone, 471 B.R. 534 (Bankr. E.D. Mich. May 25, 2012) (Tucker) (Bad-faith dismissal refused when creditor acted inequitably and in violation of stay by disabling vehicle ignition system.).
In re Mehlhose, 469 B.R. 694 (Bankr. E.D. Mich. Mar. 22, 2012) (Tucker) (Filing Chapter 7 then converting to Chapter 13 was bad faith when debtors were not eligible for Chapter 7 discharge because of prior denial of discharge and debtors understated income in Schedule I. Case was dismissed with two-year refiling bar, and debtors were required to pay attorney fees of moving creditor.).
Western District of Michigan
In re Fuller, 581 B.R. 236 (Bankr. W.D. Mich. Jan. 10, 2018) (Gregg) (Court declines to upset dismissal when schedules showed debtor exceeded debt limits, debtor failed to make payments for more than four months, debtor lacked regular income and Chapter 13 case was unreasonably delaying creditors. Amended schedules filed after order of dismissal were not “newly discovered evidence” for purposes of Rule 59 relief from dismissal order.).
In re Cummings, 523 B.R. 93 (Bankr. W.D. Mich. Dec. 12, 2014) (Gregg) (Cause for dismissal that Chapter 13 case was filed to avoid paying domestic support obligation, debtors kept cottage and two cars rather than pay former spouse and debtors paid thousands to continue vexatious litigation with former spouse instead of paying support.).
In re St. Vincent, No. DM 11-90684, 2012 WL 879286 (Bankr. W.D. Mich. Mar. 22, 2012) (Dales) (Bad-faith cause for dismissal that there was no debt and case was filed to stall adversary proceeding filed by Chapter 7 trustee who sought sale of property in which debtor held interest with two co-tenants.).
In re Bulson, 327 B.R. 830 (Bankr. W.D. Mich. May 27, 2005) (Hughes) (After sua sponte revoking confirmation, case is also dismissed. Debtors had been noticed that case would be dismissed if they did not achieve confirmation. Debtors' attorney affirmatively represented plan was in compliance with § 1325 confirmation requirements, when it was not. Misrepresentation sufficiently fraudulent to require revocation of confirmation and dismissal.).
Ohio
Northern District of Ohio
In re Lundy, No. 15-32271, 2017 WL 4417692 (Bankr. N.D. Ohio Sept. 29, 2017) (Whipple) (Debtor’s motion for Rule 60 relief from order of dismissal is denied; pro se debtor admitted that dismissal was required for failure to file tax returns.).
In re Smith, No. 16-62124, 2017 WL 3986491 (Bankr. N.D. Ohio Sept. 8, 2017) (unpublished) (Kendig) (Motion to strike untimely filed third amended plan
In re Lundy, No. 15-32271, 2016 WL 6108524, at *3
In re Ott, No. 12-61310, 2012 WL 2579308 (Bankr. N.D. Ohio July 3, 2012) (unpublished) (Kendig) (Cause for dismissal that pro se, incarcerated debtor used wrong petition form and did not file schedules, means test form, or statement of financial affairs; no stay pending appeal of dismissal.).
In re Shelly, 458 B.R. 740 (Bankr. N.D. Ohio Sept. 28, 2011) (Shea-Stonum) (Cause for dismissal that plan was not feasible because debtors could not pay IRS secured claim in full.).
In re Aldridge, No. 10-36799, 2011 WL 3889246 (Bankr. N.D. Ohio Sept. 1, 2011) (Whipple) (When projected disposable income calculation requires debtors to pay $2,500 per month to unsecured creditors and debtors are financially unable to pay that amount into plan, confirmation is denied, leave to further amend would be futile and cause for dismissal is present.).
In re Saffold, 373 B.R. 39 (Bankr. N.D. Ohio July 30, 2007) (Debtor consents to dismissal of fourth case filed within 10 years; creditor had no standing to seek sanctions because mortgage note had been assigned subsequent to creditor's obtaining state court monetary and foreclosure judgments.).
In re Grischkan, 320 B.R. 654 (Bankr. N.D. Ohio Jan. 26, 2005) (Morgenstern-Clarren) (Cause for dismissal of fourth Chapter 13 case filed to stop a foreclosure included that debtor failed to make mortgage payments for nearly six years, filed serial bankruptcy cases to stop foreclosures, failed to fund previous cases yet claimed improved financial circumstances in latest case.).
Southern District of Ohio
In re Nixon, No. 05-12169, 2005 WL 4041163, at *1 (Bankr. S.D. Ohio May 18, 2005) (unpublished) (In "one of the most egregious examples of serial filings that this Court has observed," fourth Chapter 13 petition is dismissed with a bar to refiling for a period of three years.). Accord In re Nixon, No. 05-12169, 2005 WL 4041245 (Bankr. S.D. Ohio May 18, 2005).).
Tennessee
Eastern District of Tennessee
In re Harris, Nos. 1:05-CV-186, 1:05-CV-216, 2006 WL 572001 (E.D. Tenn. Mar. 8, 2006) (unpublished) (Cause for dismissal under § 1307(c)(6) that debtor stopped making plan payments.).
First Tenn. Bank Nat'l Ass'n v. Hansen (In re Hansen), 473 B.R. 240 (Bankr. E.D. Tenn. Apr. 6, 2012) (Rucker) (Not cause for dismissal that meth lab was operated by third party in debtors' home when debtors did not approve and were not aware. Debtors had no intent to injure property. Bank's damage claim was reduced by foreclosure recovery, with balance unsecured.).
In re Leonard, No. 09-32725, 2009 WL 1475138, at *4 (Bankr. E.D. Tenn. May 22, 2009) (Stair) (17th case is dismissed with 365-day bar to refiling. No discharge, no confirmed plan and no filing fee paid in prior 16 cases. Debtor had "propensity to willfully ignore the court's Orders.").
In re Stewart, No. 08-30485, 2008 WL 839733 (Bankr. E.D. Tenn. Mar. 27, 2008) (Stair) (Fifth Chapter 13 case is dismissed for bad faith with one-year refiling bar when papers were incomplete, payments were in default, and briefing certificate may have been forged.).
G. Seventh Circuit
In re Downs, 614 F. App'x 855 (7th Cir. Sept. 23, 2015) (Easterbrook, Kanne, Sykes) (Dismissal of Chapter 13 case is affirmed for procedural default on appeal by pro se debtor.).
Miller v. Marshall (In re Miller), No. 13-3359, 2014 WL 4674804 (7th Cir. Sept. 22, 2014) (unpublished) (Cudahy, Posner, Kanne) (Dismissal was appropriate when debtor did not make payments, did not propose a plan and did not show he could fund any foreseeable plan.).
In re Dempsey, No. 07-1042, 2007 WL 2478674 (7th Cir. Aug. 31, 2007) (unpublished) (Failure to confirm eight amended plans over two-year period is unreasonable delay prejudicial to creditors under § 1307(c)(1).).
Illinois
Central District of Illinois
In re Evans, No. 14-70700, 2015 WL 1278911, at *5 (Bankr. C.D. Ill. Mar. 17, 2015) (Gorman) (Dismissal for unreasonable delay and bad faith with bar to refiling for one year when debtor lied about $1,600 debt to employer to permit full payment of that debt, debtor misled trustee and creditors about pending marital dissolution while negotiating transfer of residence, and debtor's "cavalier attitude" was "seriously misguided.").
In re Evans, No. 14-70700, 2015 WL 1278911 (Bankr. C.D. Ill. Mar. 17, 2015) (Gorman) (Dismissal for bad faith with one-year bar to refiling when debtor repeatedly failed to schedule employer as creditor, facilitated payment of employer's loan in violation of the stay, transferred residence to wife in postpetition marriage dissolution and failed to correct errors in schedules and SOFA.).
In re Youngblood, No. 13-71071, 2013 WL 5592904 (Bankr. C.D. Ill. Oct. 10, 2013) (Gorman) (Bad-faith cause for dismissal included that Statements and Schedules contained numerous inaccuracies and misrepresentations, debtor lied about budget and ability to fund plan, debtor failed to disclose dissolution of limited liability company and transfer of its assets without consideration, and debtor filed bankruptcy to avoid state court sanctions for false accusations. Dismissal rather than conversion appropriate because debtor had few creditors, debtor had sufficient unencumbered property to satisfy remaining unsecured claims, and Chapter 7 trustee would benefit no one.).
In re Bell, No. 04-75161, 2008 WL 80728, at *3 (Bankr. C.D. Ill. Jan. 7, 2008) (Gorman) (Notice of potential sua sponte dismissal is given after denial of motion to amend confirmed plan to pay unscheduled IRS claim that was not provided for in plan; existence of IRS priority claim means that plan was not capable of confirmation for failure to pay priority claims in full, and under In re Escabedo, 28 F.3d 34, 35 (7th Cir. 1994), confirmation entered in violation of § 1322(a)(2) is "nugatory.").
In re Guthrie, No. 05-82828, 2005 WL 3542664, at *1 (Bankr. C.D. Ill. Dec. 22, 2005) (unpublished) (Motion to dismiss for bad faith denied: "the question of good faith requires a totality of the circumstances analysis that merits a trial.").
In re Kaufman, No. 05-72035, 2005 WL 2205792 (Bankr. C.D. Ill. Aug. 24, 2005) (unpublished) (Lessen) (Dismissal motion denied: not bad faith that debtor used tax refunds and workers' compensation settlement prepetition to pay normal consumer debts, make normal household purchases and make minor home improvements.).
Northern District of Illinois
Miller v. Marshall, No. 12 C 02566, 2013 WL 5213366 (N.D. Ill. Sept. 17, 2013) (Tharp) (Failure to continue making payments under proposed plan pursuant to § 1326 is cause for dismissal under § 1307(c)(4).), aff'd, No. 13-3359, 2014 WL 4674804 (7th Cir. Sept. 22, 2014) (unpublished) (Cudahy, Posner, Kanne).).
Miller v. Marshall, No. 12 C 02566, 2013 WL 5213366 (N.D. Ill. Sept. 17, 2013) (Tharp) (Failure to continue making payments under proposed plan pursuant to § 1326 is cause for dismissal under § 1307(c)(4).), aff'd, No. 13-3359, 2014 WL 4674804 (7th Cir. Sept. 22, 2014) (unpublished) (Cudahy, Posner, Kanne).).
In re Miller, No. 10 C 4432, 2011 WL 940044, at *4 (N.D. Ill. Mar. 15, 2011) (Holderman) (Trustee's motion to dismiss was appropriately granted when "unreasonably suspicious and evasive" debtor failed to file schedules or plan within 45 days of petition. "[A] debtor in a voluntary Chapter 13 case generally has only forty-five days after the filing of the petition to file the required information under § 521(a) before the case is automatically dismissed. . . . Once this statutory deadline has passed, 'any party in interest may request the court to enter an order dismissing the case.'").
In re Brown, No. 08 C 3230, 2010 WL 3189992 (N.D. Ill. Aug. 11, 2010) (Leinenweber) (Appeal of dismissal was bad-faith delaying tactic in frivolous case. Dispute that debtor had with mortgage creditor about payment credits belonged in state court foreclosure proceeding.).
Marshall v. Henry (In re Henry), 368 B.R. 696 (N.D. Ill. Feb. 13, 2007) (Although some courts have found cause for dismissal based upon plan exceeding 60 months, § 1322(d)'s five-year limitation is limited to confirmation and does not impact dismissal under § 1307(c).).
Marshall v. Henry (In re Henry), 368 B.R. 696 (N.D. Ill. Feb. 13, 2007) (Not cause for dismissal that plan exceeds 60 months; § 1322(d)'s five-year limitation applies at confirmation and does not impact dismissal. Dismissal is within discretion of bankruptcy court, and where circumstances unknown to debtor at confirmation caused payments to extend beyond 60 months (tax claim exceeded debtor's scheduled amount), dismissal not required.).
In re Pratola, 578 B.R. 414, 419–22 (Bankr. N.D. Ill. Dec. 27, 2017) (Baer) (Educational loans in excess of debt limits in § 109(e) are not necessarily cause for dismissal or conversion under § 1307(c). “Pursuant to § 1307(c) . . . [i]f cause does exist, then the court has discretion to either dismiss or convert the case, whichever is in the best interests of creditors and the estate. . . . Despite the fact that the list does not include ineligibility under § 109(e), courts agree that ineligibility is usually cause for either dismissal or conversion if the debtor owes more than the statutory debt limit. . . . However, ineligibility is not an absolute cause for dismissal or conversion when a debtor owes more than the § 109(e) debt limit. . . . Neither § 1307(c) nor § 109(e) expressly requires the Court to dismiss a case under such circumstances. . . . To the extent that the language of the statute is ambiguous, the Court may look beyond the text and at legislative history in order to reach a decision. . . . In order to keep debtors with large businesses from filing chapter 13 cases, Congress created the debt limits. . . . [T]he debt limits were not created to prevent individual wage earners with large amounts of consumer debt from filing chapter 13 cases. In particular, individuals with large amounts of educational debt are not the type of debtors whom Congress intended to exclude from chapter 13. . . . [C]reditors holding educational debt likely prefer chapter 13 . . . . Congress simply could not have intended to exclude otherwise eligible individuals from being chapter 13 debtors solely because of educational debt that exceeds the limit. . . . Although the treatment of educational debt has changed and educational costs and debts have increased significantly, the chapter 13 debt limits have increased minimally by comparison. . . . Pratola exceeds the unsecured debt limit solely as a result of his educational debt. Dismissing his case would not advance the Congressional intent behind the debt limits, and doing so would hinder the principal purpose of the Bankruptcy Code
In re Handy, 557 B.R. 625, 628-29 (Bankr. N.D. Ill. Aug. 31, 2016) (Cox) (Not cause for dismissal that plan will require more than 60 months to complete payments to creditors. “Dismissal is not required in all cases where a debtor needs more than three years or five years to complete his or her plan obligations. The decision to convert or to dismiss a Chapter 13 case is a matter of discretion . . . . [W]hile Chapter 13 debtors may not confirm a plan that exceeds five years, they may be allowed a reasonable amount of time to cure a default.”).
In re Lewis, No. 10 B 16195, 2010 WL 5376256 (Bankr. N.D. Ill. Dec. 23, 2010) (Schmetterer) (Case filed in improper venue was dismissed for bad faith. Debtor had never been domiciliary or resident of Northern District of Illinois. Debtor resided in Colorado and filed in Illinois to evade adverse legal action in Colorado. Plan was not feasible, and debtor had no regular income. Dismissal included prohibition on refiling in Northern District of Illinois unless permitted by court on further order.), aff'd, 459 B.R. 281 (N.D. Ill. 2011) (Dow).).
In re Barkley, No. 10-B74048, 2010 WL 3655560 (Bankr. N.D. Ill. Sept. 10, 2010) (unpublished) (Barbosa) (Husband of debtor lacks standing to seek dismissal of wife's Chapter 13 petition when husband is not a creditor and is not otherwise able to articulate why he is a party in interest.).
In re Grant, 428 B.R. 504 (Bankr. N.D. Ill. May 24, 2010) (Squires) (Cause for dismissal that debtor had materially defaulted in payments and full payment of unsecured creditors required by confirmed plan could not be completed in maximum five-year term. Debtor missed opportunity to seek modification of confirmed plan, and debtor was bound by confirmation under § 1327(a).).
In re Henry, 343 B.R. 190 (Bankr. N.D. Ill. June 12, 2006) (Applying four factors from In re Brown, 296 B.R. 20 (Bankr. N.D. Cal. 2003), not cause for dismissal that confirmed plan in its 57th month will require 30 additional months to complete payments because of a larger than scheduled claim from the IRS. Debtor diligently paid more than $65,000 into the plan, only two payments were missed during the 57 months and debtor cannot be blamed for the incorrectly scheduled tax claim.).
Southern District of Illinois
In re Curtis, No. 09-41396, 2010 WL 1444851, at *2 (Bankr. S.D. Ill. Apr. 9, 2010) (unpublished) (Altenberger) (Motion to dismiss for bad-faith filing is moot when confirmation occurs without objection before hearing on motion to dismiss. "Pennell raised the good faith issue in her motion to dismiss under § 1307(c) prior to confirmation. . . . [A]lthough she received notice . . . she did not file an objection to confirmation . . . . When the Court confirmed the plan, it necessarily found that the Debtor's petition was filed in good faith, and under § 1327(a), Pennell is now bound by that determination. . . . Pennell's motion to dismiss . . . is denied as moot.").
In re Perkins, 381 B.R. 530 (Bankr. S.D. Ill. Nov. 21, 2007) (Death of debtor is not necessarily cause for dismissal; further administration is feasible, since plan payments continue to be made and discharge will be available notwithstanding death of debtor. Court construes Bankruptcy Rule 1016 to be consistent with § 1328, finding no reason to preclude deceased from receiving discharge at conclusion of plan payments.).
Indiana
Northern District of Indiana
Reed v. Aikman (In re Reed), No. 02-11945, 1:04-CV-87, 2005 WL 1383868 (N.D. Ind. June 3, 2005) (unpublished) (Cause for dismissal that debtor refused to turn over $128.95 tax refund to trustee; debtor stated he would never remit the $128.95.).
In re Wheeler, 503 B.R. 694, 697 (Bankr. N.D. Ind. Dec. 18, 2013) (Grant) (Cause for dismissal that debtors did not disclose postpetition Social Security disability award and benefits. Social Security disability benefits "represented a material change in [debtors'] income and circumstances. [Debtors'] argument that it would have made no difference is a non-starter. The information itself was material. . . . By not disclosing that income, the debtors denied the trustee and creditors the opportunity to consider what, if anything, they might want to do as a result of that change in their circumstances.").
In re Maxfield, No. 04-60355, 2009 WL 2105953 (Bankr. N.D. Ind. Feb. 19, 2009) (unpublished) (Lindquist) (In pre-BAPCPA case, § 521(j)(1) did not apply and debtor's failure to pay postpetition federal income taxes was not per se cause for case dismissal under § 1307(c). Failure to pay postpetition taxes may be evidence of lack of good faith. Confirmed plan had no provision for postpetition taxes under § 1322(b)(6), and IRS did not file claim for postpetition taxes under § 1305.).
In re Brandford, 386 B.R. 742 (Bankr. N.D. Ind. Apr. 17, 2008) (Klingeberger) (Although trustee does not allege debtor filed second case in bad faith, cause for dismissal that debtor has two pending cases that would discharge the same debts.).
In re Perez, No. 07-12021, 2007 WL 4893515 (Bankr. N.D. Ind. Nov. 27, 2007) (Grant) (Motion to continue hearing on dismissal is denied; hearing is unnecessary as result of debtors' consent to trustee's motion for dismissal.).
In re Weems, 359 B.R. 919 (Bankr. N.D. Ind. Feb. 7, 2007) (When trustee or party in interest knows that debtor's scheduled address is no longer correct, party moving for dismissal should also move to change debtor's address, providing both the scheduled and new addresses. It is debtor's duty to notify court of change of address, but when debtor does not, this procedure ensures due process notice.).
In re Herrin, 325 B.R. 774, 778-79 (Bankr. N.D. Ind. Apr. 28, 2005) (Klingeberger) ("When the debtor fails to pay the Trustee as required pre-confirmation, the remedy of choice should be a motion to dismiss/convert under 11 U.S.C. § 1307(c)—either singular request raises both possibilities for the Court, whichever is determined to be in the best interests of creditor (All creditors) and the estate—rather than a motion for relief from the stay.").
Wisconsin
Eastern District of Wisconsin
Little v. Grossman, No. 08-CV-334, 2008 WL 4282594 (E.D. Wis. Sept. 17, 2008) (Stadtmueller) (Failure to file designation of record, statement of issues and brief, and to pay appellate fee is fatal to debtor's appeal of dismissal with 180-day bar to refiling.).
In re Ambrosius, 536 B.R. 814, 816-17 (Bankr. E.D. Wis. Aug. 17, 2015) (Kelley) (Failure to make postpetition income tax deposits is not default on a material term of the plan for purposes of dismissal under § 1307(c)(6) when confirmed plan did not exercise option to provide for postpetition claims under § 1322(b)(6). "Just as a post-petition creditor is not required to participate in the debtor's case by filing a § 1305 claim, the debtor is not required to pay any § 1305 claims that are filed, because the language of § 1322(b)(6) is equally as permissive as § 1305. . . . [S]ince the Debtor's plan could, but does not, provide for payment of the postpetition IRS claims, there is no violation of the confirmed plan for the Debtor's failure to pay them.").
In re Westenberg, 365 B.R. 895 (Bankr. E.D. Wis. Mar. 30, 2007) (Trustee's motion to dismiss for failure to provide postpetition tax return and one half of refund denied because debtors fully complied with plan and were ready for discharge. Dispute involved payment of secured creditors, and plan provided for long-term payment that would continue beyond discharge.).
Western District of Wisconsin
Spencer v. Federal Home Loan Mortgage Corp. (In re Spencer), 246 F. Supp. 3d 1241 (W.D. Wis. Mar. 30, 2017) (Conley) (Debtor's failure to file amended plan or an explanation for missing tax returns by date in bankruptcy court order was unreasonable delay and a failure to file documents for purposes of dismissal under § 1307(c).).
Martin v. Awve, 558 B.R. 889 (W.D. Wis. Sept. 28, 2016) (Peterson) (Sua sponte dismissal of case was not appropriate because debtor was entitled to notice and an opportunity to oppose dismissal
Spencer v. PNC Bank, N.A., No. 14-cv-422-wmc, 2015 WL 1520912 (W.D. Wis. Apr. 2, 2015) (Conley) (Bad-faith cause for dismissal included no payment of mortgage for six years, filing on the eve of summary judgment in state court foreclosure action, failure to schedule disputed mortgage, ineligibility for discharge and few debts other than mortgage.).
In re Shafer, 393 B.R. 655, 661-62 (Bankr. W.D. Wis. June 9, 2008) (Martin) (Bad faith that debtors voluntarily dismissed prior case in which plan was not confirmable and made substantial preferential payments for home remodeling and other lifestyle expenses. "Debtors who demonstrate no effort to control unusually high expenses would have difficulty demonstrating that the filing was made in good faith. Home remodeling, large pension deductions and high food costs show a much greater concern for the debtors' current and future maintenance of a very comfortable standard of living than with any effort to pay their existing creditors.").
In re Howard, 333 B.R. 826 (Bankr. W.D. Wis. Oct. 31, 2005) (That filing fees were unpaid in three prior cases is not cause for dismissal of current case; § 1307(c)(2) applies to current case.).
H. Eighth Circuit
Paulson v. Wein (In re Paulson), No. 12-3720, 2013 WL 3970104 (8th Cir. Aug. 5, 2013) (unpublished) (Smith, Bowman, Shepherd) (Cause for dismissal that debtor repeatedly filed "inadequate plans of reorganization" that prejudiced creditors.).
Baldwin v. Credit Based Asset Servicing & Securitization (In re Baldwin), 516 F.3d 734 (8th Cir. Feb. 25, 2008) (Loken, Gruender, Benton) (Debtor's motion for reinstatement was a timely Rule 60 motion for relief from dismissal order based on inadequacy of notice; remand is necessary to determine whether adequate notice of the hearing on dismissal was given, which will determine whether denial of motion for reinstatement was harmless error.), rev'g 362 B.R. 413, 418 (B.A.P. 8th Cir. 2006) (Six days' notice by first-class mail was sufficient for motion to dismiss in debtor's eighth Chapter 13 case. "[T]he Debtor filed his bankruptcy case when he knew a foreclosure sale was pending, and while he was away from the only address known for him for a period of several weeks. This was the Debtor's eighth bankruptcy filing, and not his first case filed for the purpose of staying a foreclosure sale. Because the Debtor chose to file his case pro se such that [the mortgage holder] could not contact an attorney, and he filed the case during a weeks-long period of time when he was absent from the State of Missouri, there was no reasonable way for [the mortgage holder] to have provided him with notice in any form. . . . [W]e conclude that the mailed notice six days prior to the hearing was sufficient under the circumstances."), on remand 2008 WL 2157094 (Bankr. E.D. Mo. May 21, 2008) (Schermer) (On remand, relief from dismissal of eighth bankruptcy case is denied. Debtor was aware of expedited process for hearing emergency stay relief and dismissal and debtor intentionally remained outside court's jurisdiction to prevent formal service. Due process not violated by expedited hearing to permit creditor to proceed with collection after eight bankruptcy filings. Notice of hearing was mailed to address shown on pro se petition, and process server actually served debtor two days prior to hearing.).
Paulson v. McDermott (In re Paulson), 560 B.R. 317 (B.A.P. 8th Cir. Nov. 17, 2016) (Federman, Schermer, Saladino), aff'd, No. 17-1093, 2017 WL 3951860 (8th Cir. Sept. 8, 2017) (unpublished) (Loken, Gruender, Shepherd) (“Because the Bankruptcy Court did not clearly err in concluding that the Debtor had no meritorious defense to the UST’s Motion to Dismiss, the Bankruptcy Court’s Orders denying the Debtor’s motion to reinstate the dismissed case and denying his motion to reconsider are AFFIRMED.” After years of litigation, debtor refused to accept that a bank and a railroad were secured creditors. Debtor’s invocation of a “Peoples Seventh Amendment Jury” did not help.).
Paulson v. Wein (In re Paulson), 477 B.R. 740 (B.A.P. 8th Cir. Sept. 20, 2012) (Schermer, Federman, Saladino) (Cause for dismissal included five unconfirmable plans and that debtor refused to properly treat two secured creditors with prepetition judgments. Convening a "Peoples Seventh Amendment Jury" was inappropriate attempt to defeat the validity of state court judgments outside of the state or federal judicial systems.).
McCarty v. Jenkins (In re Jenkins), 428 B.R. 845 (B.A.P. 8th Cir. Apr. 26, 2010) (Schermer, Mahoney, Saladino) (Debtor was not in material default at end of 60-month period when postconfirmation modifications cured mortgage defaults by increasing monthly payments but did not increase base amount payable to trustee; debtor could satisfy base in original plan because modifications did not increase base.).
Marshall v. McCarty (In re Marshall), 407 B.R. 359, 362 (B.A.P. 8th Cir. June 23, 2009) (Federman, Mahoney, Saladino) (Dismissal with one-year refiling bar was appropriate based on evidence of bad faith: "[d]ebtor's repeated attempts to relitigate the amount she owed on the mortgage arrearage and to circumvent strict compliance orders by filing new cases.").
Ruesch v. Household Auto. Fin. Corp. (In re Ruesch), 337 B.R. 203 (B.A.P. 8th Cir. Dec. 5, 2005) (Kressel, Federman, Venters) (Panel cannot find abuse of discretion in dismissal when debtor failed to provide adequate record on appeal from dismissal order.).
Ruesch v. Household Auto. Fin. Corp. (In re Ruesch), 337 B.R. 203 (B.A.P. 8th Cir. Dec. 5, 2005) (Kressel, Federman, Venters) (Panel cannot find abuse of discretion in dismissal when debtor failed to provide adequate record on appeal from dismissal order.).
Iowa
Northern District of Iowa
In re Mosher, No. 13-01154, 2013 WL 4453360 (Bankr. N.D. Iowa Aug. 16, 2013) (Kilburg) (Fifth case dismissed for bad faith with one-year filing bar. Debtors repeatedly filed bare petitions without schedules and statement within days of scheduled foreclosure sales.).
In re Jirak, No. 11-01514, 2011 WL 5037074 (Bankr. N.D. Iowa Oct. 21, 2011) (Kilburg) (Cause for dismissal that debtor failed to provide required tax returns and failed to file amended schedules and plan as ordered.).
In re Cockhren, No. 08-01382, 2010 WL 3952880 (Bankr. N.D. Iowa Oct. 7, 2010) (Kilburg) (Cause for dismissal included unreasonable delay prejudicial to secured creditor and material default when debtor failed to comply with confirmed plan and failed to make payments to secured creditor.).
In re Eilderts, 389 B.R. 682 (Bankr. N.D. Iowa June 5, 2008) (Kilburg) (Cause for dismissal that debtors violated order that they not spend Economic Stimulus Rebate payment from IRS without court permission.).
Minnesota
In re Hager, 447 B.R. 876, 876 (Bankr. D. Minn. Apr. 13, 2011) (O'Brien) (Cause for dismissal that Chapter 13 case has been pending for eight months and after five amended plans, debtors are "unable or unwilling to propose a confirmable plan.").
In re Hofer, 437 B.R. 680 (Bankr. D. Minn. Oct. 21, 2010) (O'Brien) (Cause for dismissal that case was filed and plan proposed with improper motive to modify marital dissolution decree. Proposal to pay 100% over 60 months would modify marital dissolution decree requiring sale of former marital home. Court cited history of limitation on federal court jurisdiction over marital dissolution matters in support of dismissal of case.).
In re Rowell, 421 B.R. 524, 538-39 (Bankr. D. Minn. Dec. 15, 2009) (Kishel) (Citing § 521(j) and distinguishing In re Corbo, 391 B.R. 617 (Bankr. D. Minn. Aug. 11, 2008) (O'Brien), "tax compliance language" that requires timely filing of postpetition tax returns at penalty of dismissal is appropriate though perhaps redundant of statutory requirement; timely payment of postpetition taxes is not required by statute, but good faith requires such a provision when history of failing to pay taxes drove debtor into Chapter 13. "The formal provision in a plan for a duty to file [postpetition] returns might be surplusage as to the existence of the duty; but, there is no real reason to bar the inclusion of an enunciated duty in the plan of a debtor who has been derelict in general taxpayer's obligations, pre-petition. . . . Current law imposes no specific statutory duty on Chapter 13 debtors to stay current in payment of post-petition tax obligations. . . . Given the undisputed history, the IRS was well-put to demand the inclusion of 'tax compliance language' in any plan to be confirmed here, as an 'integrity control' measure toward ensuring the Debtor's good faith. The Debtor cannot satisfy 11 U.S.C. § 1325(a)(3) unless she includes it in any further modified plan.").
In re Corbo, 391 B.R. 617, 622 (Bankr. D. Minn. Aug. 11, 2008) (O'Brien) (Rejecting In re Robertson, No. 697-61956-FRA13, 2000 WL 33716977 (Bankr. D. Or. Jan. 7, 2000), failure to pay postpetition taxes is not per se cause for dismissal when no provision of confirmed plan, local rule or general order required dismissal. "There is no controlling local rule or standing order in this jurisdiction requiring Chapter 13 debtors to file all post petition tax returns when due and to make all post petition tax payments when due. There is also no such provision in the controlling Chapter 13 plan in this case, . . . and therefore the plan is not in default. Were there such a provision applicable, the controversy here would require no discussion and would simply require enforcement by dismissal, unless a feasible modified plan were proposed and confirmable, or there existed some other prevailing circumstances.").
Missouri
Eastern District of Missouri
Tasic v. Labarge (In re Tasic), No. 4:13CV00474 ERW, 2013 WL 2425130 (E.D. Mo. June 4, 2013) (unpublished) (Webber) (Sua sponte dismissal not appropriate without notice and hearing opportunity.).
LaBarge v. Rotellini (In re Rotellini), 510 B.R. 241, 246-47 (Bankr. E.D. Mo. May 1, 2014) (Schermer) (Dismissal with one-year refiling bar was appropriate when debtor had filed six cases over five years and schedules and statements were a mess. "Debtor's previous problems [with mental health and drug addiction] are unfortunate . . . . However, this does not excuse the pattern of behavior shown by the Debtor throughout his cases. It is not fair to require the Debtor's creditors to suffer the consequences and inconvenience of his inaccurate and incomplete filings. . . . It is the duty of a debtor to proceed with full and complete candor, and the bankruptcy system depends on it. . . . Debtor is a serial filer whose actions abuse and insult the integrity of the bankruptcy process. . . . [T]he only way to stress the importance of the reason for dismissal of this case and to prevent further abuse by the Debtor is to dismiss this case and enjoin the Debtor from refiling a bankruptcy petition for 365 days[.]").
Western District of Missouri
In re Campbell, 356 B.R. 722, 726 & n.5 (Bankr. W.D. Mo. Dec. 11, 2006) (Dow) (Three Chapter 13 petitions between August and October are dismissed, apparently on court's action based on various deficiencies. "[E]ach case was dismissed as a result of Debtor's failure to comply with the appropriate Bankruptcy Rules and file schedules, a plan, a creditor matrix or pay the filing fee. In the first case, filed on August 3, 2006, Debtor failed to file a plan, schedules, statements and did not pay the filing fee. That case was dismissed on August 9, 2006, for failure to upload a creditor matrix. In Debtor's second filing on September 20, 2006, he again failed to file a plan, schedules, statements, creditor matrix or pay the filing fee. The case was dismissed on September 21, 2006, because Debtor was ineligible to file a petition for failure to document compliance with § 109(h) (failure to file credit counseling certificate). Finally, Debtor filed the third case on September 21 (the same date the prior case was dismissed), and it was dismissed for failure to file a creditor matrix on October 2, 2006." In a footnote: "At the hearing, counsel speaking on behalf of Debtor claimed that the Debtor was at the courthouse with the intention to file the necessary credit counseling certificate but the second case was dismissed before he was able to file the certificate. Notwithstanding this contention, the Debtor did in fact fail to properly file the certificate.").
Nebraska
In re Loury, No. BK11-41632-TLS, 2011 WL 5024302 (Bankr. D. Neb. Oct. 20, 2011) (Saladino) (Dismissal for bad faith not warranted when debtor presented evidence of increased income and was current on postpetition plan payments.).
I. Ninth Circuit
Stokes v. Drummond (In re Stokes), 719 F. App’x 679 (9th Cir. Apr. 16, 2018) (unpublished) (Silverman, Paez, Owens) (Pro se appeal of order dismissing Chapter 13 case fails for lack of meaningful content.).
Nemeth v. Cohen (In re Nemeth), 709 F. App’x 507 (9th Cir. Jan. 25, 2018) (unpublished) (Reinhardt, Trott, Hurwitz) (Bankruptcy court appropriately dismissed Chapter 13 case under § 1307(c)(4) when debtor failed to make plan payments and failed to pay postpetition mortgage payments.).
Gilbert v. Danielson (In re Gilbert), No. 16-55253, 2016 WL 7384095 (9th Cir. Dec. 21, 2016) (unpublished) (Wallace, Leavy, Fisher) (Dismissal was appropriate when debtor failed to commence making payments required by § 1326(a)(1).).
Zapata v. United States Tr. (In re Zapata), No. 12-60081, 2016 WL 4123864 (9th Cir. Aug. 3, 2016) (unpublished) (Schroeder, Canby, Callahan) (Cause for dismissal under § 1307(c) included that the debtor failed to appear at the § 341 meeting of creditors and the debtor failed to commence making timely payments under § 1326(a)(1).), aff'g No. CC-11-1184-PaKiNo, 2012 WL 4466283 (B.A.P. 9th Cir. Sept. 28, 2012) (unpublished) (Pappas, Kirscher, Novack) (Cause for dismissal that debtors neither attended meeting of creditors as required by § 343 nor commenced payments within 30 days as required by § 1326(a)(1).).
Azam v. U.S. Bank Nat'l Ass'n (In re Azam), No. 14-55523, 2016 WL 1085500 (9th Cir. Mar. 10, 2016) (unpublished) (Reinhardt, Murguia, Owens) (Dismissal of fourth case was appropriate when only purpose of filing was to seek more favorable forum in which to challenge state court foreclosure.).
In re Glover, No. 11-60033, 2013 WL 4106652 (9th Cir. Aug. 13, 2013) (unpublished) (Hawkins, Thomas, McKeown) (Sua sponte dismissal of eighth bankruptcy case with five-year bar to refiling was appropriate under §§ 1307(c) and 105(a) based on egregious facts including unfair manipulation of the Bankruptcy Code and a pattern of abuse of Chapter 13 cases.).
Nelson v. Burchard (In re Nelson), 343 B.R. 617 (B.A.P. 9th Cir. 2006), on remand, 2006 WL 2091899 (Bankr. N.D. Cal. July 26, 2006), aff’d, 2007 WL 2385094 (B.A.P. 9th Cir. Aug. 8, 2007), aff’d, 2009 WL 1452674, at *1 (9th Cir. May 26, 2009) (Citing Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir. 1999), "Nelson filed in bad faith by misrepresenting claims in her petition, trying to manipulate the bankruptcy system to avoid a past waiver of discharge, and filing serial petitions to avoid state court litigation.").
Velasquez v. Burchard (In re Velasquez), No. 06-17203, 2008 WL 2229833 (9th Cir. May 28, 2008) (unpublished) (Pregerson, Tashima, Gould) (Dismissal for bad faith is affirmed when record established that debtor filed to defeat state court judgment, failed to disclose all assets and lacked financial need for bankruptcy relief.).
Neuton v. City Nat'l Bank (In re Neuton), Nos. 03-56266, 01-05163-WMB, 2005 WL 1793395 (9th Cir. July 27, 2005) (unpublished) (Failure to obtain confirmation within five years of filing case is cause for dismissal under § 1307(c).).
Barcus v. Schneider (In re Schneider), No. 03-35735, 2005 WL 1394997, at *1 (9th Cir. June 14, 2005) (unpublished) (Creditor cannot use a motion to dismiss based on fraud as a way around the 180-day limitation on revocation of an order of confirmation procured by fraud under § 1330(a). Chapter 13 plan was confirmed in April 2001. In November 2001, a creditor learned that debtor had committed perjury by testifying that the signature on a letter was genuine when in fact it was forged. More than a year later, in November 2002, the creditor filed a motion to dismiss based on the debtor's perjury. "Barcus seeks to bypass revocation, which is time-barred, and jump to dismissal. We decline to circumvent the Bankruptcy Code's procedures for addressing fraudulent procurement of a Chapter 13 confirmation, especially when doing so would fly in the face of an express time limitation. The 180-day limit for filing a request for revocation of a Chapter 13 plan, 11 U.S.C. § 1330(a), bars Barcus's motion to dismiss, which was filed approximately a year after the 180 days had run.").
Olson v. Van Meter (In re Olson), No. NV-17-1168-LTiF, 2018 WL 989263, at *5–*6, *7 (B.A.P. 9th Cir. Feb. 5, 2018) (unpublished) (Lafferty, Tighe, Faris) (In a marijuana case, BAP reverses sua sponte dismissal by bankruptcy court that made no fact-finding or legal conclusions with respect to cause under § 1307(c). Debtor was 92 years old, legally blind, living in assisted living facility. Shopping center was quitclaimed to the debtor the same day the Chapter 13 petition was filed. Among the tenants was a marijuana dispensary, legal under California law. Lease was apparently arranged by debtor’s son on behalf of an LLC that owned and managed the shopping center before transfer to the debtor. Plan proposed to terminate lease to dispensary and to sell the property to pay creditors. “[T]he bankruptcy court did not articulate the legal basis for its ruling or make findings to support its conclusions that the [Controlled Substances Act] was being violated and that that violation was grounds for dismissal. . . . Some courts have held that, to the extent estate assets are used for or generated by the operation of a federally prohibited marijuana business, a trustee or debtor in possession may not administer those assets without violating federal law. . . . The bankruptcy court here made no finding, however, that the trustee would be administering the proceeds of an illegal business, and there is no evidence in the record that the rents were to be used to fund the plan. Some courts have held that a bankruptcy filing or a plan of reorganization proposed by a debtor who is involved in an illegal enterprise is not in good faith, even where the debtor does not have a subjective bad motive, is in legitimate need of bankruptcy relief, and there is otherwise no indicia of an attempt to abuse the bankruptcy process. . . . [S]ome courts have concluded that a debtor engaged in an illegal business who seeks bankruptcy relief comes into court with unclean hands and is not eligible for relief. . . . The bankruptcy court here made no finding of bad faith or unclean hands. Further, it concluded that it was a crime for Debtor to be accepting rents from Mr. Bass’ business without making any findings showing that all the elements of a CSA violation had been established (such as the requirement that the conduct be ‘knowing’).” In a concurring opinion: “This Debtor’s plan did not necessarily require the rental income from the dispensary to fund the proposed payments. . . . The sale of Debtor’s real property would have been simply a liquidation of legal estate assets. . . . Any prosecution . . . would require a showing that Debtor knew that Mr. Bass leased the property to operate a marijuana dispensary, and that she intended to allow that use. The Debtor’s personal knowledge is an especially critical inquiry for an elderly, blind woman residing in assisted living with an attorney-in-fact in charge of the lease. . . . Debtor’s son’s knowledge in acting for her cannot be imputed to Debtor for purposes of showing criminal knowledge and intent. . . . Although debtors connected to marijuana distribution cannot expect to violate federal law in their bankruptcy case, the presence of marijuana near the case should not cause mandatory dismissal.”).
Burns v. Federal Nat’l Mortg. Ass’n (In re Burns), No. CC-17-1082-FLKu, 2018 WL 669175 (B.A.P. 9th Cir. Feb. 1, 2018) (unpublished) (Faris, Lafferty, Kurtz) (Pro se debtor failed to properly appeal dismissal of Chapter 13 case and BAP lacks jurisdiction to fix it.).
Erum v. Wells Fargo Bank, N.A. (In re Erum), No. HI-17-1144-BTaL, 2017 WL 5895732 (B.A.P. 9th Cir. Nov. 29, 2017) (unpublished) (Brand, Taylor, Lafferty) (Bankruptcy court appropriately dismissed Chapter 13 case sua sponte with 180-day bar to refiling when debtor with experience in multiple bankruptcy cases over many years failed to file required documents after extended deadlines and numerous warnings.).
Seymour v. Greer (In re Seymour), No. EC-17-1075-KuFS, 2017 WL 5196703 (B.A.P. 9th Cir. Nov. 9, 2017) (unpublished) (Kurtz, Faris, Spraker) (Cause for dismissal of latest Chapter 13 case by serial filer was failure to make correct plan payments under § 1307(c)(4).).
Stokes v. Drummond (In re Stokes), No. MT-17-1085-FBKu, 2017 WL 4768100 (B.A.P. 9th Cir. Oct. 17, 2017) (unpublished) (Faris, Brand, Kurtz) (Denial of motion to reconsider order dismissing third bankruptcy case was not error when debtor gave contradictory explanations for failure to attend meetings of creditors and made unsupported allegations of collusion between trustee and mortgagee.).
Ang v. Anderson (In re Ang), No. CC-16-1377-LTaKu, 2017 WL 3444474 (B.A.P. 9th Cir. Aug. 10, 2017) (unpublished) (Lafferty, Taylor, Kurtz) (Bad-faith cause for dismissal included eight failed Chapter 13 cases since 2009 all filed to stop foreclosure, no payments to Wells Fargo since 2009 and negative disposable income that must deal with mortgage default in excess of $300,000.).
Swartout v. Johnson (In re Swartout), No. EC-16-1187-BJuTa, 2017 WL 1371298, at *4 (B.A.P. 9th Cir. Apr. 12, 2017) (unpublished) (Brand, Jury, Taylor) (In a battle between the Chapter 13 trustee and an intransigent debtor’s counsel over a $180 payment, bankruptcy court did not give adequate notice that failure to file a modified plan would be cause for dismissal. “[T]he bankruptcy court did not provide any warning whatsoever that failure to file a modified plan would result in dismissal of Debtor’s chapter 13 case. Under Ninth Circuit law, ‘involuntary dismissal sua sponte requires that there has been notice giving a warning that dismissal is imminent.’”).
Swartout v. Johnson (In re Swartout), No. EC-16-1187-BJuTa, 2017 WL 1371298, at *4 (B.A.P. 9th Cir. Apr. 12, 2017) (unpublished) (Brand, Jury, Taylor) (In a battle between the Chapter 13 trustee and an intransigent debtor’s counsel over a $180 payment, bankruptcy court did not give adequate notice that failure to file a modified plan would be cause for dismissal. “[T]he bankruptcy court did not provide any warning whatsoever that failure to file a modified plan would result in dismissal of Debtor’s chapter 13 case. Under Ninth Circuit law, ‘involuntary dismissal sua sponte requires that there has been notice giving a warning that dismissal is imminent.’”).
Walker v. Danielson (In re Walker), No. CC-16-1011-TaKuKi, 2016 WL 5957274 (B.A.P. 9th Cir. Oct. 13, 2016) (unpublished) (Taylor, Kurtz, Kirscher) (Debtor failed to allege any ground for relief from sua sponte order dismissing pro se skeletal Chapter 13 petition when debtor failed to provide a transcript on appeal and did not address deficiency notice, order to comply and notice of intent to dismiss case issued by bankruptcy court before petition was dismissed.).
In re Bayati, No. 2:13-bk-36168-VZ, 2016 WL 5848892 (B.A.P. 9th Cir. Oct. 5, 2016) (unpublished) (Kirscher, Taylor, Kurtz) (Dismissal with bar to refiling without permission was justified based on abuse of process. Debtor filed two cases in the Southern District of California for an ineligible trust notwithstanding confirmed plan in individual case in Central District of California
Cuevas v. Chandler (In re Cuevas), No. 2:14-bk-32359-NB, 2016 WL 5845670 (B.A.P. 9th Cir. Oct. 5, 2016) (unpublished) (Kurtz, Kirscher, Taylor) (In a decade-long battle between debtor and others over home owned by trust, bankruptcy court appropriately dismissed Chapter 13 petition that was filed to delay eviction when continuing the Chapter 13 case would increase costs for trustee in debtor’s simultaneously pending prior Chapter 7 case. Debtor lacked income to fund a plan, debtor had no real debts and expectation of substantial distribution from prior Chapter 7 estate was imaginary.).
Velasquez v. Burchard (In re Velasquez), No. 3:14-BK-30344, 2016 WL 4259952 (B.A.P. 9th Cir. Aug. 9, 2016) (unpublished) (Taylor, Jury, Kirscher) (Evidence of unreasonable delay that was prejudicial to creditors for purposes of dismissal under § 1307(c)(1) included that case had been pending for 14 months, no confirmable plan was in sight, the debtor failed to complete the § 341(a) meeting process and stopped making payments to the trustee.).
Sanders v. Cohen (In re Sanders), No. CC-15-1284-FKiKu, 2016 WL 3961804 (B.A.P. 9th Cir. July 15, 2016) (unpublished) (Faris, Kirscher, Kurtz) (Pro se debtor in fifth bankruptcy case in five years had adequate notice that trustee and creditors sought dismissal. Pro se debtor’s failure to raise due process issue before the bankruptcy court was a waiver; debtor presented no argument that would have avoided dismissal for cause even if further notice had been provided.).
Pfeiffer v. Skelton (In re Pfeiffer), No. SC-15-1228-FJuKi, 2016 WL 1179337 (B.A.P. 9th Cir. Mar. 25, 2016) (unpublished) (Faris, Jury, Kirscher) (Material default supporting dismissal under § 1307(c)(6) included that debtor tendered "promissory note" that purported to require the Treasury of the United States to pay the defaulted payments to the trustee.).
Burris v. Curry (In re Burris), No. CC-14-1552-TaKuD, 2015 WL 5922036 (B.A.P. 9th Cir. Oct. 9, 2015) (unpublished) (Taylor, Kurtz, Dunn) (Cause for dismissal included eight months in which debtor made no progress toward confirmation and failed to address mortgage arrears notwithstanding warning from court.).
Wildhaber v. Burchard (In re Wildhaber), No. NC-14-1352-PaJuKl, 2015 WL 4550128 (B.A.P. 9th Cir. July 28, 2015) (unpublished) (Pappas, Jury, Klein) (Cause for dismissal under § 1307(c)(3) that pro se debtor intentionally did not file plan within 14 days allowed by Bankruptcy Rule 3015(b); though "perhaps misinformed," debtor's decision not to file a plan was not reviewable without a transcript.).
Villalon v. Burchard (In re Villalon), No. NC-14-1414-KiTaD, 2015 WL 3377854 (B.A.P. 9th Cir. May 22, 2015) (unpublished) (Kirscher, Taylor, Dunn) (Cause for dismissal that seven proposed plans all were not feasible and debtor failed to make payments required by § 1326(a)(1)(A).).
Phillips v. Leavitt (In re Phillips), No. NV-14-1359-JuKuD, 2015 WL 2180321 (B.A.P. 9th Cir. May 8, 2015) (unpublished) (Jury, Dunn, Kurtz) (Cause for dismissal under § 1307(c)(5), (c)(1) and (c)(3) included denial of confirmation of seven plans, more than two years without confirming a plan and failure to file an eighth plan in 10 weeks after denial of confirmation of plan number seven.).
Carmona v. Cohen (In re Carmona), No. CC-14-1380-TaPaKi, 2015 WL 1791156 (B.A.P. 9th Cir. Apr. 21, 2015) (unpublished) (Taylor, Pappas, Kirscher) (In 60th month of plan, case dismissed for material default under § 1307(c)(6): confirmed plan required that wholly unsecured junior lien be paid as either a secured or an unsecured claim and debtor did neither.).
Schlegel v. Billingslea (In re Schlegel), 526 B.R. 333, 341 (B.A.P. 9th Cir. Feb. 25, 2015) (Kirscher, Kurtz, Jury) (Cause for dismissal in 59th month under §1307(c)(6) that plan cannot pay required minimum percentage to unsecured creditors within applicable commitment period. Junior lienholder filed large unsecured claim to which no objection was filed. Debtors made required payments for nearly five years, but payment amount was insufficient to pay minimum 48% dividend required by confirmation order. Debtors move for hardship discharge, and trustee moved to dismiss. "[E]ven though a chapter 13 debtor has completed his or her monthly plan payments, failure to pay unsecured creditors the promised percentage dividend constitutes a material default with respect to a term of a confirmed plan. § 1307(c)(6).").
Dudley v. Simmons (In re Dudley), No. AZ-12-1631-KuDPa, 2014 WL 764360 (B.A.P. 9th Cir. Feb. 26, 2014) (unpublished) (Kurtz, Dunn, Pappas) (Cause for dismissal that 60 months have elapsed, debtor is in material default under confirmed plan by failing to pay former spouse's secured claim and debtor is not able to cure the default. Dismissal is in best interest of former spouse, the only remaining creditor.).
Oliver v. United States Trustee (In re Oliver), No. CC-11-1482-PaKiRn, 2012 WL 5232201, at *3 (B.A.P. 9th Cir. Oct. 23, 2012) (unpublished) (Pappas, Kirscher, Renn) (Dismissal is appropriate when debtor failed to attend fourth scheduling of § 341 meeting. "A bankruptcy court may dismiss a petition for the unexcused failure by the debtor to attend the § 341(a) meeting of creditors.").
Torres v. Fitzgerald (In re Torres), No. WW-11-1479-HKiJu, 2012 WL 2005676 (B.A.P. 9th Cir. June 1, 2012) (unpublished) (Hollowell, Kirscher, Jury) (Appeal of dismissal order is moot when debtor did not seek stay and property that was focus of Chapter 13 case was foreclosed after dismissal.).
Schnall v. Fitzgerald (In re Schnall), No. WW-11-1378-KiJuH, 2012 WL 1888144 (B.A.P. 9th Cir. May 24, 2012) (unpublished) (Kirscher, Jury, Hollowell) (Cause for dismissal that debtor proposes to keep residence without paying mortgages and did not have sufficient income to cure default and maintain payments; even if debtor could avoid mortgage liens, resulting equity would exceed debtor's ability to pay unsecured creditors. Bankruptcy court denied confirmation and then dismissed based on the absence of any confirmation in prospect.).
Dockery v. Busuego (In re Christensen), No. CC-11-1375-MkLaPa, 2012 WL 603708 (B.A.P. 9th Cir. Feb. 2, 2012) (unpublished) (Markell, Lafferty, Pappas) (Cause for dismissal that debtor was deceased and only remaining asset—an adversary proceeding to recover a fraudulent conveyance—was without merit.).
Townley v. Fitzgerald (In re Townley), No. WW-10-1397-JuWaPa, 2011 WL 6934444 (B.A.P. 9th Cir. Nov. 7, 2011) (unpublished) (Jury, Wallace, Pappas) (Appeal of dismissal without stay was moot; dismissal was justified when debtors could not submit confirmable plan and lacked sufficient income to pay mortgage, and proposed plan would impermissibly modify mortgage.).
Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 918 (B.A.P. 9th Cir. July 29, 2011) (Markell, Mann, Dunn) (After BAPCPA addition of good-faith filing requirement for confirmation in § 1325(a)(7), statement in Leavitt v. Soto (In re Leavitt), 209 B.R. 935 (B.A.P. 9th Cir. June 4, 1997), aff'd, 171 F.3d 1219 (9th Cir. Mar. 26, 1999) (Fletcher, Tashima, Bryan), that debtor has burden of proof when bad-faith filing is raised as cause for dismissal may be open to question, but not here. "When a creditor seeks dismissal due to bad faith, the applicable burden of proof is not as clear. We acknowledge that Leavitt II states that, for purposes of determining whether cause exists to dismiss a chapter 13 case based on bad faith, the '[d]ebtor bears the burden of proving that the petition was filed in good faith.' . . . [W]hen we decided Leavitt II, this statement was unexceptional. In 1997, there was no statutory requirement that a chapter 13 case be filed in good faith; the present requirement, now contained in § 1325(a)(7), was not added formally until 2005. It is thus true now that the debtor, as plan proponent, has the burden of proof on the confirmation issues of whether both the case and the plan were filed in good faith. . . . If the question were close, we might question the strength and applicability of Leavitt II's statement regarding burden of proof for motions to dismiss given the 2005 statutory addition of § 1325(a)(7), and given, as other courts have noted, that such a statement runs contrary to the ordinary notion that a movant bears the burden of production and persuasion as to the relief requested.").
Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 915-16 (B.A.P. 9th Cir. July 29, 2011) (Markell, Mann, Dunn) (Cause for dismissal under § 1307(c)(1) that debtors delayed bankruptcy case for three years by untrustworthy financial reporting, constantly changing income and expense information and "a fuzzy and constantly-moving target" that foiled efforts by trustee and principal creditor to police case; cause for dismissal under § 1307(c)(3) that debtors filed new plan seven months after deadline set by court. "A debtor's unjustified failure to expeditiously accomplish any task required either to propose or to confirm a chapter 13 plan may constitute cause for dismissal under § 1307(c)(1). . . . The court warned the Ellsworths at the April 14, 2009 status conference (more than two years into their bankruptcy case) that the court doubted the accuracy and transparency of their financial information and that their chapter 13 case would be dismissed unless the Ellsworths expeditiously resolved the court's doubts. . . . Paragraph (3) of § 1307(c) applies not only to the first plan filed, but also to any subsequent plan or modification required by the court. . . . Here, the Ellsworths failed to file timely a plan as required by the bankruptcy court's January 2009 Order. . . . [T]he Ellsworths were to file a new plan within thirty days. . . . [T]hey did not file a new plan until September 2009, seven months after the court's deadline.").
Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904, 918 (B.A.P. 9th Cir. July 29, 2011) (Markell, Mann, Dunn) (After BAPCPA addition of good-faith filing requirement for confirmation in § 1325(a)(7), statement in Leavitt v. Soto (In re Leavitt), 209 B.R. 935 (B.A.P. 9th Cir. June 4, 1997), aff'd, 171 F.3d 1219 (9th Cir. Mar. 26, 1999) (Fletcher, Tashima, Bryan), that debtor has burden of proof when bad-faith filing is raised as cause for dismissal may be open to question, but not here. "[W]e might question the strength and applicability of Leavitt II's statement regarding burden of proof for motions to dismiss given the 2005 statutory addition of § 1325(a)(7), and given, as other courts have noted, that such a statement runs contrary to the ordinary notion that a movant bears the burden of production and persuasion as to the relief requested.").
Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth), 455 B.R. 904 (B.A.P. 9th Cir. July 29, 2011) (Markell, Mann, Dunn) (Bad-faith cause for dismissal included filing on heels of state court noncompete injunction, single large claim, fuzzy, inaccurate and opaque financial reporting, four versions of Form B22C, withdrawal of cash from bank account on eve of filing, three years without confirming a plan, large under-reported charitable contributions and failure to comply with timing in court orders. After BAPCPA addition of good-faith filing requirement for confirmation in § 1325(a)(7), statement in Leavitt v. Soto (In re Leavitt), 209 B.R. 935 (B.A.P. 9th Cir. June 4, 1997), aff'd, 171 F.3d 1219 (9th Cir. Mar. 26, 1999) (Fletcher, Tashima, Bryan), that debtor has burden of proof when bad-faith filing is raised as cause for dismissal may be open to question in future case, but not here.).
In re Glover, No. OR-10-1217-JuMkH, 2011 WL 3298899 (B.A.P. 9th Cir. Apr. 22, 2011) (unpublished) (Jury, Markell, Hollowell) (Citing Leavitt v. Soto (In re Leavitt), 171 F.3d 1219 (9th Cir. Mar. 26, 1999) (Fletcher, Tashima, Bryan), § 105(a) and § 349(a), it was bad-faith cause for dismissal with bar to refiling for five years that debtor filed eight bankruptcy cases that unfairly manipulated the Bankruptcy Code to prevent foreclosures and the plan was patently not confirmable.), aff'd, No. 11-60033, 2013 WL 4106652 (9th Cir. Aug. 13, 2013) (unpublished) (Hawkins, Thomas, McKeown).).
Eardley v. U.S. Bank Nat'l Ass'n (In re Eardley), No. CC-08-1175-MoMkH, 2009 WL 7809924 (B.A.P. 9th Cir. May 11, 2009) (unpublished) (Montali, Markell, Hollowell) (Although burying motion to dismiss in an objection to confirmation ordinarily does not provide adequate notice, debtor had meaningful opportunity to respond and filed a 26-page response; however, debtor was not on notice that bankruptcy court would consider and then impose a lifetime bar to refiling.).
Eardley v. U.S. Bank Nat'l Ass'n (In re Eardley), No. CC-08-1175-MoMkH, 2009 WL 7809924 (B.A.P. 9th Cir. May 11, 2009) (unpublished) (Montali, Markell, Hollowell) (Bad faith included that debtor filed petition five days after dismissal of a related petition that was dismissed with a bar to refiling.).
Tillman v. Danielson (In re Tillman), No. CC-07-1432, 2008 WL 8462961 (B.A.P. 9th Cir. July 17, 2008) (unpublished) (Pappas, Markell, Snyder) (Citing §§ 707(a)(3) and 1307(c)(9), bankruptcy court appropriately dismissed Chapter 13 case after conversion from Chapter 7 based on preconversion order to show cause with respect to pro se debtor's failure to file documents required by § 521. U.S. trustee "joined in" order to show cause, satisfying the statutory requirement that only the U.S. trustee can request dismissal for failure to comply with § 521. Nothing in Bankruptcy Code or Rules allows the debtor a new 15-day period to file required documents after conversion from Chapter 7 to Chapter 13.).
Randle v. Enmark (In re Randle), No. EC-07-1349-DCMo, 2008 WL 8448825, at *4 (B.A.P. 9th Cir. June 30, 2008) (unpublished) (Dunn, Carroll, Montali) (Citing § 105(a) and notwithstanding § 1307(c)(9), it was cause for dismissal that debtors failed to file proper list of creditors after multiple warnings that failure to cure deficiency would result in dismissal. "Although § 1307(c)(9) speaks in terms of a dismissal on this basis only upon motion by the U.S. Trustee, we previously have held that in the absence of a motion by the U.S. Trustee, § 105(a) authorizes the bankruptcy court to dismiss a case sua sponte for failure to comply with § 521(1). Tennant v. Rojas (In re Tennant), 318 B.R. 860, 869-70 (9th Cir. BAP 2004).").
Randle v. Enmark (In re Randle), No. EC-07-1349-DCMo, 2008 WL 8448825, at *4 (B.A.P. 9th Cir. June 30, 2008) (unpublished) (Dunn, Carroll, Montali) (Citing Tennant v. Rojas (In re Tennant), 318 B.R. 860 (B.A.P. 9th Cir. Dec. 10, 2004) (Montali, Perris, Brandt), failure to timely file list of creditors after multiple warnings from bankruptcy court was cause for sua sponte dismissal notwithstanding § 1307(c)(9). "Although § 1307(c)(9) speaks in terms of a dismissal on this basis only upon motion by the U.S. Trustee, we previously have held that in the absence of a motion by the U.S. Trustee, § 105(a) authorizes the bankruptcy court to dismiss a case sua sponte for failure to comply with § 521(1).").
Rocco v. King (In re King), No. AZ-07-1317-PaJuK, 2008 WL 8444814, at *3-*7 (B.A.P. 9th Cir. Mar. 12, 2008) (unpublished) (Pappas, Jury, Klein) (Dismissal for bad faith under § 1307(c) and denial of confirmation because case was not filed in good faith under § 1325(a)(7) are analytically the same; under totality of circumstances, filing Chapter 13 to avoid posting supersedeas bond to appeal state court judgment was not alone bad faith when debtors were willing and able to pay 100% through plan. "While bad faith in commencing a chapter 13 petition is not one of the enumerated 'causes' warranting dismissal, it is well established that such a lack of good faith can constitute 'cause' for dismissal. . . . Debtors filed the petition to avoid the emotional turmoil associated with Rocco's aggressive collection efforts, and as a means to pay their debts in full through the chapter 13 plan. . . . The fact that Debtors propose to pay all their creditors in full is particularly telling, though not determinative, in the good faith analysis.").
Brown v. Sobczak (In re Sobczak), 369 B.R. 512, 517-18 (B.A.P. 9th Cir. May 11, 2007) (Chapter 13 debtor has standing to seek discretionary dismissal under § 1307(c) after conversion from Chapter 7. Debtor moved to dismiss Chapter 13 case after conversion from Chapter 7 when trustee challenged debtor's $150,000 Arizona exemption. New domicile rule in § 522(b)(3)(A) required application of Ohio's $5,000 homestead exemption. Trustee argued that debtor lacked standing to seek dismissal under § 1307(b) because the case was previously converted from Chapter 7. "[A] request to dismiss or convert under § 1307(c) may be made by any party in interest or by the United States Trustee. Although the term 'party in interest' appears many times in the Bankruptcy Code, it is not defined . . . . Clearly, the debtor has a pecuniary interest and practical stake in whether his own bankruptcy case should be dismissed and is, accordingly, a party in interest in that proceeding. . . . [A] chapter 13 debtor in a converted case should not be able to accomplish that which he could not accomplish in a chapter 7, that is, automatic dismissal of his case without court intervention or oversight. However, allowing a debtor to bring a motion to dismiss under § 1307(c) does not guarantee dismissal as such motion may only be granted after notice and a hearing.").
Brown v. Sobczak (In re Sobczak), 369 B.R. 512, 519 (B.A.P. 9th Cir. May 11, 2007) (Although Chapter 13 debtor has standing to seek dismissal under § 1307(c) after conversion from Chapter 7, not in best interests of creditors and estate to allow dismissal when debtor filed too soon for purposes of 730-day domicile rule in § 522(b)(3)(A) and will forfeit most of the homestead exemption if dismissal is denied. Debtor filed Chapter 7 and claimed $150,000 Arizona homestead exemption. Chapter 7 trustee objected. Debtor had not been domiciled in Arizona for 730 days required by § 522(b)(3)(A). Debtor converted to Chapter 13 and then moved to dismiss. BAP first concluded that debtor had standing to seek discretionary dismissal under § 1307(c), notwithstanding conversion from Chapter 7. Applying best-interests-of-creditors and estate test in § 1307(c), creditors would be better off if debtor were forced to remain in bankruptcy because in bankruptcy the debtor would be entitled to smaller Ohio $5,000 homestead exemption notwithstanding that outside of bankruptcy, debtor would be entitled to $150,000 Arizona exemption. "[T]he bankruptcy court must be guided by what is in the best interest of the estate and creditors. . . . While [debtor] may have made a tactical error in filing his petition before he had resided in Arizona for the minimum time required to enable him to claim exemptions available under Arizona law, there is nothing in the language of § 1307(c) or the legislative history of BAPCPA that indicates that the benefit afforded [debtor's] creditors under § 522(b)(3)(A) was unintended.").
Velasquez v. Burchard (In re Velasquez), No. NC-06-1150-SPaBu, 2006 WL 6811040, at *4 (B.A.P. 9th Cir. Oct. 25, 2006) (unpublished) (Smith, Pappas, Bufford) (Dismissal for bad faith under § 1307(c) was appropriate when Chapter 13 case was filed to prevent enforcement of state court judgment under a vexatious litigation statute. Debtor failed to disclose assets, claimed a net worth of hundreds of thousands of dollars and bragged to be "sitting down in a sea of money."), aff'd, 280 Fed. Appx. 652 (9th Cir. May 28, 2008) (Pregerson, Tashima, Gould).).
DeSousa v. Gilton (In re Gilton), No. EC-06-1000-SJB, 2006 WL 6810991 (B.A.P. 9th Cir. Sept. 29, 2006) (unpublished) (Smith, Jury, Brandt) (In pre-BAPCPA case, motion to dismiss based on bad faith filed 10 days before confirmation hearing was not precluded by confirmation.).
DeSousa v. Gilton (In re Gilton), No. EC-06-1000-SJB, 2006 WL 6810991 (B.A.P. 9th Cir. Sept. 29, 2006) (unpublished) (Smith, Jury, Brandt) (Filing Chapter 13 to avoid state court litigation over competing contracts to sell residence was not bad faith given debtors' advanced ages, poor health, limited monthly income, lack of prior bankruptcy filings and inability to fund litigation.).
Penland v. Rakozy (In re Penland), No. ID-05-1467-HKMa, 2006 WL 6811002 (B.A.P. 9th Cir. Aug. 17, 2006) (unpublished) (Hollowell, Klein, Marlar) (Dismissal under § 1307(c)(1) was error when bankruptcy court made no finding of unreasonable delay by debtors; dismissal under § 1307(c)(5) was not appropriate because bankruptcy court denied confirmation of second amended plan and dismissed Chapter 13 case without giving debtors an opportunity to address reasons for denial of confirmation.).
Tran v. Harrah's Operating Co. (In re Tran), No. EC-05-1229-ABPa, 2006 WL 6811015 (B.A.P. 9th Cir. Aug. 8, 2006) (unpublished) (Albert, Brandt, Pappas) (Cause for dismissal that debtor failed to prove feasibility or good faith notwithstanding multiple continuances and modified plans. Thirteen months was unreasonable delay for § 1307(c)(1) purposes given that debtor proposed multiple modified plans and attempted confirmation at several hearings.), aff'd, 279 Fed. Appx. 567 (9th Cir. May 23, 2008) (Fletcher, Rymer, Duffy).).
Toland v. Spartan Mortgage Servs. (In re Toland), No. EC-05-1377-PaAB, 2006 WL 6811030 (B.A.P. 9th Cir. June 15, 2006) (unpublished) (Pappas, Albert, Brandt) (Cause for dismissal included that debtor spent nonexempt proceeds from sale of home on living expenses without court approval and in violation of court orders and debtor failed to confirm a plan or to demonstrate any likelihood of being able to confirm a plan.).
Berman v. Maney (In re Berman), 344 B.R. 612 (B.A.P. 9th Cir. June 12, 2006) (Provisions of BAPCPA that permit direct appeal to circuit courts of appeals do not apply to appeal of dismissal of Chapter 13 case filed before October 17, 2005; misguided direct appeal to court of appeals is treated as an appeal to bankruptcy appellate panel.).
Nelson v. Meyer (In re Nelson), 343 B.R. 671, 675 (B.A.P. 9th Cir. May 15, 2006) (Dismissal of Chapter 13 case for cause requires two-step process: "First, it must be determined that there is 'cause' to act. Second, once a determination of 'cause' has been made, a choice must be made between conversion and dismissal based on the 'best interests of the creditors and the estate.'"), on remand, No. 05-10660, 2006 WL 2091899 (Bankr. N.D. Cal. July 26, 2006), after remand, BAP No. NC-07-1093KSP, 2007 WL 2385094 (B.A.P. 9th Cir. Aug. 8, 2007) (unpublished).).
Nelson v. Meyer (In re Nelson), 343 B.R. 671, 675-76 (B.A.P. 9th Cir. May 15, 2006) (When Chapter 13 case is dismissed under § 1307(c)(5) based on the denial of confirmation of a plan, debtor must be afforded opportunity to file modified plan; once cause for dismissal is determined, the bankruptcy court must assess whether conversion or dismissal is in best interests of creditors and estate. "The statutory 'cause' that applies to denial of plan confirmation is § 1307(c)(5): 'denial of confirmation of a plan under section 1325 of this title and denial of a request made for additional time for filing another plan or a modification of a plan.' . . . The conjunction 'and' in § 1307(c)(5) means that there are two essential elements that each must be satisfied in order to constitute 'cause' to convert or dismiss a case following the denial of confirmation of a plan: (1) denial of confirmation; and (2) denial of a request for time to file a new or a modified plan. . . . Although the debtor did not request additional time for filing another plan or modifying the plan, the court did not afford her an opportunity to make such a request after it denied plan confirmation. . . . [T]he second element of § 1307(c)(5) requires, at a minimum, that the court must afford a debtor an opportunity to propose a new or modified plan following the denial of plan confirmation. . . . Because the court did not offer the debtor such an opportunity, the second element of § 1307(c)(5) was not satisfied. It follows that there was no 'cause' to dismiss or convert the chapter 13 case under that authority."), on remand, No. 05-10660, 2006 WL 2091899 (Bankr. N.D. Cal. July 26, 2006).).
Tennant v. Rojas (In re Tennant), 318 B.R. 860, 869-71 (B.A.P. 9th Cir. Dec. 10, 2004) (Montali, Perris, Brandt) (Sua sponte dismissal for failure to file statement of affairs within time required by "comply order" was appropriate notwithstanding § 1307(c)(9) and Rule 1017(c). When debtor did not file complete schedules, plan and statement of financial affairs, clerk issued "Order to Comply with Bankruptcy Rules 1007 and 3015(b) and Notice of Intent to Dismiss Case under 11 U.S.C. § 109(g)(1)." Order gave debtor 15 days to file missing documents or face dismissal with restrictions on refiling for 180 days. Debtor filed all of required documents except statement of financial affairs, which according to a declaration of counsel, was missing by mistake. "[Section 1307(c)(9)] authorizes only the United States trustee to move for a dismissal of Debtor's bankruptcy case and excludes other parties in interest from doing so. The restrictive language in Section 1307(c) must be considered in light of the language of Section 105(a) . . . . The court can dismiss a case sua sponte under Section 105(a). . . . Section 105(a) makes 'crystal clear' the court's power to act sua sponte where no party in interest or the United States trustee has filed a motion to dismiss a bankruptcy case. . . . The language of Section 105(a) is unambiguous. The statute was revised in 1986 to overrule prior decisions prohibiting a court from acting sua sponte when the statute authorized only a party in interest to act. . . . This compels the conclusion that the requirement 'only on request of the United States trustee' in Section 1307(c)(9) does not preclude the court from acting sua sponte. The section is intended to restrict any other party in interest, but not the court. . . . The court's authority to dismiss a bankruptcy case sua sponte under Section 105(a) is not restricted by Rule 1017(c) . . . Rule 1017(c) is only applicable if the court dismisses a case on a motion pursuant to . . . 1307(c)(9). It does not govern the procedure if the court chooses to proceed under its authority to act sua sponte in accordance with Section 105(a). . . . [I]f a case involves only very narrow procedural aspects, a court can dismiss a Chapter 13 case without further notice and a hearing if the debtor was provided 'with notice of the requirements to be met.' . . . Thus, a procedure is 'perfectly appropriate' that notifies the debtor of the deficiencies of his petition and dismisses the case sua sponte without further notice and a hearing when the debtor fails to file the required forms within a deadline.").
Alaska
In re King, 461 B.R. 789 (Bankr. D. Alaska Oct. 25, 2010) (MacDonald) (Case dismissed sua sponte when debtor could not propose plan that would satisfy § 1322(a)(2) requirement to pay priority domestic support obligation in full.).
In re Hymes, No. F08-00812-DMD, 2009 WL 8413046 (Bankr. D. Alaska May 13, 2009) (MacDonald) (Cause for dismissal that pro se debtors missed 15-day deadline to file plan after conversion to Chapter 13. $300,000 disputed tax claim was no excuse for failure to timely file plan.).
In re Burke, No. A08-00144-DMD, 2008 WL 8652590 (Bankr. D. Alaska July 7, 2008) (MacDonald) (Bad-faith cause for dismissal included understatement of tax liability and failure to file required tax returns.).
Arizona
Bond v. Kerns, No. CV-12-00875-TUC-RCC, 2013 WL 7046375 (D. Ariz. Dec. 16, 2013) (unpublished) (Collins) (Refusal to amend plan to account for going-concern value of restaurant business as ordered by bankruptcy court is cause for dismissal.).
Hodder v. Wilshire Credit Corp. (In re Hodder), No. 4:10-ap-00798-JMM, 2011 WL 4073005 (Bankr. D. Ariz. Sept. 12, 2011) (Marlar) (Cause for dismissal that debtors failed to confirm plan for three years; case would be dismissed unless, within 30 days, debtors amended plan, maintained current payments on residence and complied with prior stipulation that acknowledged validity of home mortgage.).
In re Sherman, No. 4:09-bk-02833-JMM, 2009 WL 1607856 (Bankr. D. Ariz. June 9, 2009) (Marlar) (When only debt was owed to former spouse and divorce attorneys, case was a two-party dispute and state court was the more appropriate forum to sort the rights of the parties, dismissal for lack of good faith was appropriate.).
In re Johnston, No. 4:05-bk-04340-JMM, 2009 WL 1259975 (Bankr. D. Ariz. May 5, 2009) (Marlar) (Cause for dismissal that debtors failed to make nine monthly payments to trustee. Debtors had benefited from nearly five years of protection from creditors, yet failed to make minimum monthly payments of $150 that would have paid creditors 2%.).
California
Central District of California
Battle v. Danielson (In re Battle), 529 B.R. 294, 296-97 (C.D. Cal. Mar. 31, 2015) (Bernal) (Applying Nelson v. Meyer (In re Nelson), 343 B.R. 671 (B.A.P. 9th Cir. May 15, 2006) (Klein, Ryan, Brandt), bankruptcy court should not have dismissed Chapter 13 case without affording debtor opportunity to amend plan; § 1307(c)(5) is conjunctive, and bankruptcy court made no finding that opportunity to amend would be futile. "[T]he use of the conjunction 'and' in Section 1307(c)(5) means that two elements must exist to constitute 'cause' to dismiss a bankruptcy case: (1) denial of confirmation; and (2) denial of a request for time to file a new or a modified plan. . . . This does not mean the bankruptcy court must grant infinite second chances to the debtor; but, where as here, there is no finding that amendment would be futile, the bankruptcy court must give the debtor at least one second chance.").
Azam v. U.S. Bank Nat’l Ass’n (In re Azam), No. 8:13-cv-01485-JLS, 2014 WL 12689267 (C.D. Cal. Apr. 1, 2014) (Staton) (Bad-faith cause for dismissal included serial filings of Chapter 7 and Chapter 13 cases with no intent to reorganize or to obtain a discharge and use of the Chapter 13 case to forum shop litigation with a creditor.).
In re Gilbert, 535 B.R. 317 (Bankr. C.D. Cal. July 27, 2015) (Houle) (Cause for dismissal under § 1307(c) included proposed plan payment of more than $5,000 per month when debtor had only $200 per month in disposable income, payments to creditors with respect to property owned by nondebtor entities, debtor's failure to make payments to the trustee and failure to timely provide tax returns required by § 521.).
In re D'Arco, No. 1:12-bk-18255-MT, 2014 WL 5824903 (Bankr. C.D. Cal. Nov. 10, 2014) (Tighe) (Case pending for two years without confirmation properly dismissed for bad faith when debtor failed to provide trustee with requested information, failed to account for all assets, failed to accurately report spousal income, failed to properly allocate business expenses and failed to file documents as directed by court.).
Eastern District of California
In re Dores, No. 16-10169-B-l3, 2017 WL 2468964 (Bankr. E.D. Cal. June 7, 2017) (unpublished) (Lastreto) (Bad-faith cause for dismissal included omissions and misrepresentations in schedules, failure to reveal $40,000 payment and filing solely to derail litigation. Egregious misconduct justified 180-day bar to refiling.).
In re Ambriz, No. 10-12445-B-13, 2013 WL 2316602 (Bankr. E.D. Cal. Jan. 7, 2013) (unpublished) (Lee) (Dismissal not in best interests of creditors notwithstanding that debtors sold vehicle and financed replacement without permission of trustee or court.).
Landis v. Pinedo (In re Pinedo), No. 11-01271-B, 2011 WL 10723288 (Bankr. E.D. Cal. Dec. 30, 2011) (Lee) (Fourth case in eight years dismissed with two-year bar to refiling—pattern of filings without schedules and inability to propose feasible plan. Debts incurred since prior Chapter 7 would not be dischargeable.).
In re Barajas, No. 06-10598-B-13, 2006 WL 3254483 (Bankr. E.D. Cal. Nov. 8, 2006) (unpublished) (Lee) (Refinancing of homestead more than one year before bankruptcy did not implicate bad faith when there was no evidence that refinancing resulted in cash paid to debtors; there was no evidence that debtors filed bankruptcy to defeat claim for damages from automobile accident, and it was probable that accident victim would receive more through Chapter 13 plan than through state court litigation.).
Northern District of California
In re Tran, 814 F.Supp.2d 946, 951 (N.D. Cal. Aug. 31, 2011) (Wilken) (Chapter 13 case filed six months after Chapter 7 discharge with purpose to avoid surviving wholly unsecured lien that offers no payment to unsecured creditors is unfair manipulation of Bankruptcy Code and was not filed in good faith. "[T]he main reason she filed her Chapter 13 petition was to strip the second deed of trust. The good faith factors she relies upon pale in light of the fact that she had an improper reason for filing a Chapter 13 case, and no proper reason. . . . Appellant filed a Chapter 7 case to discharge her general unsecured debts. Six months after the discharge, she filed this Chapter 13 case to avoid a lien that could not, under [Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (Jan. 15, 1992),] be avoided in her Chapter 7 case. In her Chapter 13 plan, she offered no payments to unsecured creditors . . . . Appellant wishes to partake of the benefits provided under both Chapters 7 and 13 by first discharging all debts in Chapter 7 and then discharging the one remaining unsecured debt in Chapter 13, without providing any benefit to any unsecured creditors. . . . Appellant's Chapter 13 case is an attempt unfairly to manipulate the Bankruptcy Code to evade the holding in Dewsnup and, thus, was not filed in good faith."), aff'g, 431 B.R. 230 (Bankr. N.D. Cal. June 25, 2010) (Jellen) (Bad-faith cause for dismissal that debtor ineligible for Chapter 13 discharge filed for sole purpose of stripping wholly unsecured junior lien that could not be stripped in recent prior Chapter 7 case because of Dewsnup v. Timm, 502 U.S. 410, 112 S. Ct. 773, 116 L. Ed. 2d 903 (Jan. 15, 1992). Unrelated debtor, also ineligible for discharge, did not file in bad faith when there were justifications for filing other than lien stripping.).
Marks v. Ocwen Loan Servicing, No. C 10-01148 WHA, 2010 WL 3219299 (N.D. Cal. Aug. 12, 2010) (Alsup) (Res judicata barred debtor from re-litigating issues with Ocwen that had been previously decided by district court decision. Appeal was also untimely.).
Gschwend v. Markus, No. C 07-00838 JSW, 2008 WL 4346503, at *2 (N.D. Cal. Sept. 23, 2008) (White) (Filing case was "an improper attempt to re-litigate a final state court judgment . . . . [R]es judicata barred Gschwend from challenging the state court judgment or litigating the issues underlying the state court judgment in bankruptcy court."), aff'g 2007 WL 88308 (Bankr. N.D. Cal. Jan. 9, 2007) (unpublished) (Cause for dismissal that Chapter 13 debtor with net worth of $1.3 million and no unsecured debt filed case to delay collection of $59,316 judgment lien; citing In re Nelson, 343 B.R. 671 (B.A.P. 9th Cir. 2006), court stays dismissal for 20 days to permit debtor to file amended plan that pays lien creditor in full within a reasonable time.).
O'Reilly v. Chang, No. C-06-01894 RMW, 2007 WL 1232055 (N.D. Cal. Apr. 26, 2007) (Denial of dismissal is not an appealable final order.).
In re Gutierrez, No. 17-42410, 2018 WL 1115201 (Bankr. N.D. Cal. Feb. 27, 2018) (Lafferty) (In fourteenth case by debtor, error in order granting extension of time to file documents inspires bankruptcy court to ask bankruptcy appellate panel to return appeal of dismissal to allow for reconsideration of dismissal.).
In re Hennessy, No. 11-13793, 2013 WL 3939886 (Bankr. N.D. Cal. July 29, 2013) (Jaroslovsky) (Death of debtor was cause for dismissal. Bankruptcy Rule 1016 provides only two options when a Chapter 13 debtor dies—dismissal or continuation of the plan as if the debtor had not died.).
In re Lehr, 479 B.R. 90 (Bankr. N.D. Cal. Aug. 28, 2012) (Montali) (Bad-faith dismissal based on failure to disclose time-share, Porsche and other assets.).
In re Patlan, No. 12-11743, 2012 WL 3718875 (Bankr. N.D. Cal. Aug. 27, 2012) (Jaroslovsky) (Case was filed in good faith, notwithstanding prepetition default in judicial foreclosure action, when plausible cause of action alleged that deed of trust had been forged by debtor's nephew, who had been convicted of that forgery.).
In re Massingill, No. 11-10833, 2012 WL 1941808 (Bankr. N.D. Cal. May 28, 2012) (Jaroslovsky) (Bad-faith cause for dismissal that purpose of Chapter 13 filing was to strip wholly unsecured lien after debtors negotiated forbearance agreement under representation of avoiding bankruptcy.).
In re Dunsford, No. 08-11424, 2012 WL 1554889 (Bankr. N.D. Cal. Apr. 30, 2012) (Jaroslovsky) (Failure to make good-faith effort to promptly sell business as required by plan was cause for dismissal. Debtor claimed interest in corporation and proposed to sell interest at auction if negotiated sale was not obtained by set date. Debtor did not make good-faith effort to sell, knowing listing price was too high.).
In re Ferrill, No. 08-40377 EDJ, 2008 WL 495717 (Bankr. N.D. Cal. Feb. 20, 2008) (Jellen) (Case is dismissed for bad faith: debtor has no ability to fund plan, and real estate was transferred to debtor by quitclaim deed on eve of filing with sole purpose of delaying foreclosure.).
Southern District of California
Bauman v. Billingslea (In re Bauman), No. 12cv2476-IEG (RBB), 2013 WL 4679987, at *2 (S.D. Cal. Aug. 29, 2013) (Gonzalez) (Dismissal under § 1307(c) requires a "meaningful opportunity to be heard" and cause; when denial of confirmation is ground for dismissal, § 1307(c)(5) "'requires, at a minimum, that the court must afford a debtor an opportunity to propose a new or modified plan[.]'").
Bauman v. Billingslea (In re Bauman), No. 12cv2476-IEG (RBB), 2013 WL 4679987, at *2 (S.D. Cal. Aug. 29, 2013) (Gonzalez) (When denial of confirmation is ground for dismissal, § 1307(c)(5) "'requires, at a minimum, that the court must afford a debtor an opportunity to propose a new or modified plan[.]'").
In re Bauman, No. 11-11223-PB13, 2012 WL 4339616 (Bankr. S.D. Cal. Sept. 12, 2012) (unpublished) (Bowie) (Failure to correct incomplete schedules and to propose plan was cause for dismissal.).
In re Hill, 374 B.R. 745, 748 (Bankr. S.D. Cal. Aug. 7, 2007) (Chapter 13 trustee's motion to dismiss on ground that case exceeds 60 months is denied; 60-month period is confirmation element under § 1322(c) but is not ground for dismissal under § 1307. "Nowhere in § 1307 is it specified that failure to complete a confirmed plan in 60 months is, in itself, a ground for dismissal." Payment beyond confirmed plan's time period may be construed as breach of plan term, but congressional use of "may" rather than "shall" in § 1307(c) is significant. Debtors have consistently performed over 60-month period and have paid unsecured creditors 100% plus 10% interest.).
Hawaii
Collins v. Countrywide Home Loans, Inc. (In re Collins), Nos. 14-00453 SOM/BMK, 14-00488 SOM/BMK, 2015 WL 477324 (D. Haw. Feb. 5, 2015) (unpublished) (Mollway) (Unreasonable delay for purposes of dismissal under § 1307(c) included denial of confirmation of four proposed plans premised on the "impossible" reduction of secured claims to zero.).
In re Horowitz, No. 16-00239, 2016 WL 5106985, at *2
Idaho
In re Champ, No. 08-40272-JDP, 2013 WL 4463019 (Bankr. D. Idaho Aug. 19, 2013) (Pappas) (Failure to amend Schedule I to disclose postconfirmation Social Security benefits did not warrant dismissal under § 1307(c)(6). Debtors' counsel passed away. Debtors contacted trustee to advise of benefits and completed 60-month plan. Dismissal would be a "harsh sanction" when Social Security benefits would not affect payments under plan.).
In re Marek, No. 12-20997-TLM, 2013 WL 660044 (Bankr. D. Idaho Feb. 22, 2013) (Myers) (Cause for dismissal with two-year bar to refiling that debtors acted in bad faith by failing to make full disclosure in schedules.).
In re Woods, No. 11-02786-TLM, 2012 WL 2343897 (Bankr. D. Idaho June 20, 2012) (Myers) (Cause to dismiss that debtor delayed obtaining confirmation, to creditors' prejudice.).
In re Cluff, No. 09-41244-JDP, 2012 WL 1552391 (Bankr. D. Idaho Apr. 30, 2012) (unpublished) (Pappas) (Failure to turn over all of tax refund was not bad faith under totality of circumstances. Debtor failed to turn over 2010 tax return to trustee as required by confirmed plan. Debtor also failed to inform trustee that she had married soon after filing, which altered disposable income. Bad faith not found, but debtor would be required to cure failure to turn over tax refund before being eligible for discharge.).
In re Warren, No. 10-40865-JDP, 2011 WL 2420323, at *4 (Bankr. D. Idaho June 13, 2011) (Pappas) (Cause for dismissal under § 1307(c)(1)—unreasonable delay that is prejudicial to creditors—that debtors incrementally failed to satisfy projected disposable income test with successive amendments intended to respond to each objection sustained by the court. "Debtors are attempting to correct their Form [B]22C's incrementally, as the Court rules on various issues raised by Trustee. . . . [I]t is not the task of the chapter 13 trustee and the Court to essentially craft a confirmable plan for Debtors via a series of objections and rulings. . . . Because the Court concludes Debtors have had ample opportunity to confirm a plan, yet continue to submit problematic information and forms, Debtors' request for additional time to file yet another plan or another Form [B]22C must be declined. Their approach to proposing a plan, litigating about it with Trustee, and then proposing and litigating about another plan, amounts to unreasonable delay. . . . [T]his case has already been pending for over one year; Debtors have proposed three plans; and Trustee has offered valid objections on multiple grounds each time. . . . [A]t some point, the delay in getting a plan confirmed becomes prejudicial to creditors.").
In re Warren, No. 10-40865-JDP, 2010 WL 5174470 (Bankr. D. Idaho Dec. 15, 2010) (Pappas) (It is not bad faith or unreasonable delay that debtors attempt to retain arguably unnecessary items of property, including two cars and two motorcycles. Debtors should be given opportunity to file amended plan to demonstrate meaningful belt tightening.).
In re Allen, No. 07-20389-TLM, 2009 WL 3242106 (Bankr. D. Idaho Oct. 1, 2009) (unpublished) (Myers) (Default under confirmed plan is cause to dismiss when debtors did not show sufficient basis to modify plan under § 1329(a).).
In re Hieter, 414 B.R. 665, 673 (Bankr. D. Idaho Mar. 13, 2009) (Pappas) (Cause for dismissal under § 1307(c) that debtors cannot satisfy good-faith condition for confirmation in § 1325(a)(7): prior Chapter 13 case was filed within four years of filing of prior Chapter 7 case, and debtors confirmed a plan but dismissed the prior Chapter 13 case and refiled the current Chapter 13 case six days later to take advantage of expiration of bar to discharge in § 1328(f). Debtors had no intention of completing confirmed plan in prior Chapter 13 case and admitted that prior case was voluntarily dismissed and the current case refiled solely to become eligible for discharge. "Debtors' conduct amounts to an unfair manipulation of the bankruptcy system. . . . [D]ismissal is appropriate . . . . [B]ad faith in filing a chapter 13 petition is cause for dismissal under § 1307(c).").
In re Hieter, 414 B.R. 665 (Bankr. D. Idaho Mar. 13, 2009) (Pappas) (Cause for dismissal that current Chapter 13 case was filed in bad faith six days after dismissal of prior Chapter 13 case when prior case was filed to allow time to pass so that debtors would be eligible for discharge in current case under § 1328(f). Current case lacked good faith for § 1325(a)(7) purposes, and no plan could be confirmed because prior case was filed and dismissed with no intention of completing confirmed plan but only to allow four years to pass for § 1328(f) purposes. Lack of good faith for § 1325(a)(7) purposes can constitute bad-faith cause for dismissal under § 1307(c).).
In re Short, No. 07-40528, 2007 WL 2700481 (Bankr. D. Idaho Sept. 11, 2007) (Cause for dismissal that debtor filed eight prior bankruptcies while stating in petition that no prior filings had been made. While serial filings are not always cause for dismissal, serial filings coupled with nondisclosure are indicative of bad faith.).
In re Weiss, No. 04-04424-TLM, 2005 WL 3148296 (Bankr. D. Idaho Nov. 2, 2005) (unpublished) (Bad faith is cause for dismissal, but it is in best interests of creditors and estate to convert case to Chapter 7.).
In re Couch-Russell, No. 02-03719, 2004 WL 4960379 (Bankr. D. Idaho Mar. 5, 2004) (unpublished) (Bad faith justifying dismissal with bar to refiling for 180 days that debtor converted to Chapter 13 after discharge was denied under § 727(a)(2)(A), debtor surreptitiously settled litigation and kept $30,000 in a prior Chapter 13 case and proposed minimal plan evidences that debtor is seeking to circumvent penalty imposed after losing discharge litigation in Chapter 7 case.).
In re Thomas, No. 03-21545, 2004 WL 4960374 (Bankr. D. Idaho Jan. 21, 2004) (unpublished) (Not bad faith that debtors filed Chapter 13 petition immediately after denial of discharge in Chapter 7 case when proposed plan will pay 33% of unsecured debt; although Chapter 13 case and prior Chapter 7 case have stayed state court litigation, plan appears to be an attempt to pay all creditors in an orderly and pro rata manner.).
Montana
In re Bennett, No. 17-60065-13, 2017 WL 2198951, at *7 (Bankr. D. Mont. May 18, 2017) (Hursh) (Although debtor failed to schedule assets and inappropriately commingled business and non-business assets and debts, because of a large domestic support obligation that will be nondischargeable permitting the debtor an additional chance to confirm a plan is in best interests of debtor and the former spouse. Debtor’s misconduct is “deeply troubling,” but the court is “reluctant to characterize it as egregious” for purposes of bad-faith dismissal.).
In re Jurgens, No. 15-605592-13, 2015 WL 6163511 (Bankr. D. Mont. Oct. 20, 2015) (Kirscher) (Ineligibility under § 109(e) is “cause” to dismiss or convert under § 1307(c). Unemployed debtor given 16 days to find employment that would provide regular income to fund a plan.).
In re O'Connor, No. 08-60641-13, 2008 WL 4516374, at *20 (Bankr. D. Mont. Sept. 30, 2008) (Kirscher) (Cause for dismissal that first confirmation hearing was "a waste of the Trustee's time and of scarce judicial resources" and second confirmation hearing ended in denial of confirmation because debtors did not satisfy disposable income test. Notwithstanding cause for dismissal, debtors are permitted third opportunity to confirm a plan subject to condition: "If the Chapter 13 Trustee after review of the further amended Plan files any further objections to confirmation, on any point, the Court will dismiss the case without further notice or hearing[.]".).
In re Luxford, No. 05-63105-13, 2007 WL 987270 (Bankr. D. Mont. Mar. 29, 2007) (Trustee's motion to dismiss under § 1307(c) for cause on grounds of bad faith and obtaining confirmation by fraud is granted (180 days for § 1330 revocation of confirmation had expired). Omissions of assets and transactions from schedules, misrepresentation of financial dealings, and egregious behavior both pre- and postpetition were evidence of bad faith in filing and proposing plan. Court applies totality-of-circumstances test of Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1124-25 (9th Cir. 1999).).
Oregon
In re Wishon, 410 B.R. 295 (Bankr. D. Or. Aug. 12, 2009) (Dunn) (Serial filing dismissed for bad faith with 180-day bar to refiling under § 109(g)(1) when schedules were patently inaccurate and proposed plan reflected fundamental lack of understanding of Chapter 13.).
In re Godfrey, No. 05-46441-rld13, 2007 WL 1039079 (Bankr. D. Or. Mar. 30, 2007) (unpublished) (Prepetition transfers to family members raised questions of bad faith, as did filing to discharge debt excepted from discharge in prior Chapter 7, but under totality of circumstances, including debtor's credibility and age, filing was not in bad faith.).
In re Lindquist, 349 B.R. 246 (Bankr. D. Or. Sept. 8, 2006) (Ex-spouse's claims of hidden assets and other misconduct were not supported by evidence and did not establish cause for dismissal 20 months after petition.).
In re Fredricksen, 325 B.R. 302 (Bankr. D. Or. Apr. 11, 2005) (withdrawn from bound volume) (withdrawn from publication) (Ineligibility is cause for dismissal under § 1307(c).).
Washington
Western District of Washington
Angelo v. Touch Worldwide Holdings Ltd. (In re Angelo), No. C17-1056-JCC, 2017 WL 5456194 (W.D. Wash. Nov. 14, 2017) (Coughenour) (Bad-faith dismissal of Chapter 13 case was appropriate based on evidence that debtor lied in schedules, engaged in misconduct in prepetition litigation, filed Chapter 13 as a litigation tactic and had substantial assets and income not committed to paying creditors.).
In re Wheeler, 323 B.R. 758 (Bankr. W.D. Wash. Apr. 26, 2005) (Citing Tennant v. Rojas (In re Tennant), 318 B.R. 860 (B.A.P. 9th Cir. 2004), "strict compliance" order that denied confirmation and required debtor to file missing pay stubs within 30 days else petition would be dismissed without further hearing is an appropriate procedure for dismissal under § 105(a) when a Chapter 13 debtor has not filed documents required by Bankruptcy Code or local rules; dismissal after debtor fails to comply with strict compliance order is not a dismissal under § 1307 but is a form of sua sponte dismissal in accordance with § 105(a).).
In re Wheeler, 323 B.R. 758, 765 (Bankr. W.D. Wash. Apr. 26, 2005) (Dismissal pursuant to "strict compliance" order denying confirmation that required debtor to file two consecutive pay stubs within 30 days else Chapter 13 petition would be dismissed was a permitted sua sponte dismissal under § 105(a). Citing Tennant v. Rojas (In re Tennant), 318 B.R. 860 (B.A.P. 9th Cir. 2004), "the Trustee, or a creditor, may utilize a strict compliance order that allows the Court's sua sponte dismissal of a Chapter 13 case without further notice, in accordance with 11 U.S.C. § 105(a).").
J. Tenth Circuit
Shattuck v. Bondurant (In re Shattuck), 411 B.R. 378 (B.A.P. 10th Cir. July 29, 2009) (Cornish, Bohanon, Rasure) (Court-appointed receiver for an LLC is not licensed to practice law and cannot move to dismiss a Chapter 13 case without counsel.).
Tollefsen v. US Bank Nat’l Ass’n (In re Tollefsen), Nos. NO-07-057, 07-10268-M, 2008 WL 762487 (B.A.P. 10th Cir. Mar. 11, 2008) (unpublished) (Nugent, Brown, Thurman) (Pro se debtor’s appeal of dismissal fails when debtor did not provide record from which BAP could assess whether defective proofs of claim were the problem.).
Tollefsen v. US Bank Nat'l Ass'n (In re Tollefsen), Nos. 07-057, 07-10268-M, 2008 WL 762487, at *2 (B.A.P. 10th Cir. Mar. 11, 2008) (unpublished) (Nugent, Brown, Thurman) (Dismissal affirmed when debtor failed to provide transcript or adequate record for appeal; "[i]t is appellant's responsibility to ensure that a relevant transcript is provided, and this Court is under no obligation to remedy any failure of appellant to provide a sufficient record.").
Alexander v. Hardeman (In re Alexander), 363 B.R. 917, 925 (B.A.P. 10th Cir. Mar. 13, 2007) (Rejecting In re Nelson, 343 B.R. 671 (B.A.P. 9th Cir. 2006), after finding bad faith, bankruptcy court can dismiss Chapter 13 case without separate findings with respect to best interests of creditors under § 1307(c). "Nelson breaks down § 1307(c) into a two-step process . . . . Nothing in our circuit's case law indicates that the Tenth Circuit would interpret § 1307 in accord with Nelson.").
Thomas v. Hardeman (In re Thomas), 356 B.R. 788 (B.A.P. 10th Cir. Nov. 22, 2006) (table decision) (McFelley, Brown, McNiff) ("Nor was it an abuse of discretion for the bankruptcy court to dismiss the Debtor's fifth bankruptcy case with prejudice to filing for 180 days. The Debtor is a serial filer who proposed an unconfirmable Plan in her most recent case. She failed to request any additional time to amend the Plan, to file tax returns, or to address the problems with the Plan.").
Wilkins v. Hamilton (In re Wilkins), Nos. KS-04-050, 01-42217-13, 2005 WL 1926413 (B.A.P. 10th Cir. Aug. 11, 2005) (unpublished) (Bohanon, Cornish, Boulden) (Case dismissed when trustee and court directed debtor not to gamble while case was pending but debtor violated instructions and committed perjury by denying gambling.).
Colorado
In re Miller, 526 B.R. 857, 861 (D. Colo. Sept. 23, 2014) (Blackburn) (Sua sponte dismissal upon death of debtor was appropriate. Hardship discharge under § 1328(b) based on death of debtor did not satisfy requirement of "further administration" under Bankruptcy Rule 1016.).
In re Diggins, 561 B.R. 782 (Bankr. D. Colo. Dec. 21, 2016) (Rosania) (Discussing eight other similar cases from same district, not appropriate to dismiss Chapter 13 case without discharge when debtor defaulted in direct payments to mortgagee, completed payments to other creditors, then successfully negotiated a mortgage modification between 60th and 70th months that resolved the default in direct payments. “[T]he Plan provided that payments would be made directly to Chase on its secured claim. . . . Trustee issued a Notice of Final Cure . . . . Carrington filed its response . . . asserting Debtor still owed $29,055.97 in post-petition payments. . . . [T]he Trustee filed a motion to dismiss . . . . Debtor filed a response, indicating she had entered into a loan modification . . . . Trustee contends that, because Debtor did not take steps to address the default until month 60 of her plan, and did not complete the mortgage modification until month 70, Debtor’s case should be dismissed without a discharge. . . . [I]t would be inequitable to deny discharge in this unique situation. . . . Debtor regularly paid her mortgage for four years of her plan, and then acted promptly to modify the mortgage as soon as her income dropped. Even if this Court believed that Debtor’s temporary inability to make payments to Carrington as they worked out a modification was a default, it was not material under 11 U.S.C. § 1307(c)(6). . . . ‘ . . . [S]ections 1322 and 1325 . . . do not mandate dismissal of a bankruptcy case if a debtor needs a reasonable period of time to cure an unanticipated arrearage incurred during the sixty-month period.’”).
In re Payer, No. 10-33656, 2016 WL 5390116, at *2
In re Tabert, No. 15-13805 EEB, 2015 WL 7353347, at *2-*3 (Bankr. D. Colo. Oct. 29, 2015) (Brown) (Failure to timely file a Chapter 13 plan is cause for dismissal under § 1307(c)(3), but U.S. trustee's "Standing Motion to Dismiss Deficient Case" was not served on anyone, in violation of Bankruptcy Rule 1017(f)(1), and will not support dismissal for failure to timely file a plan. Debtor converted to Chapter 13 when Chapter 7 trustee threatened to sell the debtor's home. Debtor did not file a plan. On 15th day after conversion, bankruptcy court entered dismissal order pursuant to local rule and UST's "Standing Motion to Dismiss." The Chapter 7 trustee and the Chapter 13 trustee then filed motions to set aside dismissal so that case could be reconverted to Chapter 7. "Rule 1017(f)(1) provides that a proceeding to dismiss a case under § 1307(c) is governed by Rule 9014, which in turn provides that 'relief shall be requested by motion and reasonable notice and opportunity for hearing shall be afforded . . . .' . . . While failure to file a plan is 'cause' for dismissal under § 1307(c)(3), and the Standing Motion could suffice to fill the motion requirement set forth in Rule 1017(f)(1), it did not satisfy the notice requirement in Rule 1017(f)(1). The Standing Motion was not served on anyone pursuant to Rule 7004. In addition, the reference to notice and an opportunity for hearing in § 1307(c) and Rule 9014 invokes the provisions of L.B.R. 9013-1, which requires a separate notice to be served on interested parties. . . . Section 521(a)(1) provides a list of documents that must be filed at the outset of a bankruptcy case, which list does not include the chapter 13 plan in a chapter 13 case. . . . [T]he grounds for dismissal listed in § 1307(c), which includes the failure to timely file a plan, do not result in automatic dismissal. They require the filing of a motion and service of the motion and a notice that gives parties an opportunity to object and request a hearing. . . . The failure of the Court to provide parties with sufficient procedural due process is grounds for relief under Fed. R. Civ. P. 60(b)(4).").
In re Tabert, No. 15-13805 EEB, 2015 WL 7353347 (Bankr. D. Colo. Oct. 29, 2015) (Brown) (Failure to timely file a Chapter 13 plan is not listed in § 521(i) as a ground for automatic dismissal; instead, dismissal for failure to file a plan under § 1307(c)(3) requires notice and a hearing consistent with Bankruptcy Rule 1017(f)(1). Failure of bankruptcy court to give notice and opportunity to be heard before dismissing a Chapter 13 case for failure to timely file a plan is a ground for relief from dismissal order under Rule 60 of the Federal Rules of Civil Procedure. U.S. trustee's "Standing Motion to Dismiss Deficient Case" was not served on anyone, in violation of Bankruptcy Rule 1017(f)(1), and will not support dismissal for failure to timely file a Chapter 13 plan.).
In re Formaneck, 534 B.R. 29, 33-35 (Bankr. D. Colo. July 13, 2015) (Romero) (Failure to make direct payments to mortgagee for 30 postconfirmation months is material default under plan that precludes discharge and provides cause for dismissal under § 1307(c)(6); trustee has standing to seek dismissal with or without participation by mortgagee. Dismissal, not conversion, is appropriate under § 1307(c)(6) because conversion would reward debtors' default by allowing a discharge in the Chapter 7 case. "Debtors' failure to make direct payments to Wells Fargo for over thirty months, which is contrary to the terms of the Confirmed Plan, establishes a material default . . . . [P]ayments required to be made directly to creditors under a confirmed chapter 13 plan are 'payments under the plan,' as that term is used in § 1328(a). . . . Debtors cannot obtain a discharge of their debts in Chapter 13, and rewarding the Debtors with a discharge in Chapter 7 for their failure to comply with the Confirmed Plan and the Bankruptcy Code is inappropriate.").
In re Lanham, 346 B.R. 211, 217-20 (Bankr. D. Colo. Mar. 24, 2006) (Tax protestor's Chapter 13 case filed to manage $263,000 settlement of nondischargeable taxes from prior Chapter 7 case is dismissed for bad faith. "[T]he Debtor has significantly overstated his expenses and has significantly understated his household income. The Debtor's reluctance to give a straight answer when questioned about his income and expenses leads the Court to believe that the Debtor is attempting to mislead the Court and his creditors. . . . [T]he Debtor was unwilling to answer the simple question regarding where he lives. . . . The Debtor deeply resents the concept of paying income taxes . . . . In the Debtor's previous Chapter 7 case, he agreed that $263,450.70 of his tax debt was non-dischargeable . . . . [T]he only reason the Debtor filed this Chapter 13 case was to discharge the tax debt which he had already agreed was non-dischargeable. . . . The Debtor was originally ineligible for relief under Chapter 13 because he owed over $500,000 to the IRS alone. However, he negotiated a stipulation which reduced his unsecured debt below the limit for Chapter 13. Then he filed a Chapter 13 case and attempted to discharge his tax debt . . . . [T]he Debtor is not sincerely motivated . . . . [T]he Debtor has no desire to make a bona fide effort to pay the IRS.").
Kansas
In re Penaran, 424 B.R. 868 (Bankr. D. Kan. Feb. 3, 2010) (Nugent) (Cause not found to dismiss below-median-income debtor's case when debtor owed substantial domestic support obligation but feasible plan was proposed.).
In re Werts, 410 B.R. 677 (Bankr. D. Kan. Aug. 19, 2009) (Karlin) (Motion of U.S. trustee to dismiss for bad faith denied when debtors admitted omissions and errors in schedules and statement of financial affairs but attorney accepted responsibility and made corrections after mistakes were pointed out. Debtors had no intent to hide information.).
In re Smith, 395 B.R. 711 (Bankr. D. Kan. Sept. 11, 2008) (Nugent) (Although relief from stay under § 362(d)(4) was not appropriate because six filings in five years was evidence of hindering and delaying foreclosing creditor but not fraud, cause for dismissal with prejudice to refiling for 180 days included unreasonable delay that was prejudicial to foreclosing creditor and debtor's failure to comply with orders in prior Chapter 11 case.).
In re Guebert, No. 07-41165, 2008 WL 1744777 (Bankr. D. Kan. Apr. 11, 2008) (Somers) (Pattern of abuse in 12 filings by debtor and spouse supports dismissal with prejudice for 180 days.).
New Mexico
In re Ontiveros, No. 12-12457 TA, 2014 WL 347726 (Bankr. D.N.M. Jan. 31, 2014) (Thuma) (Unreasonable delay was cause for dismissal when case was pending for 18 months with no payment to creditors and debtor ceased making payments to trustee or to former spouse. In absence of evidence that Chapter 7 trustee would be able to liquidate estate and provide dividend to unsecured creditors, dismissal is in best interests of creditors.).
In re Garcia, 434 B.R. 638 (Bankr. D.N.M. Aug. 13, 2010) (Starzynski) (Stipulated order for dismissal if arrearage was not cured was binding contract; it was not inequitable to hold debtor to agreement, notwithstanding payment of $29,000 into plan.).
In re Cordova, No. 13-07-10950 MS, 2007 WL 2077633, at *4 (Bankr. D.N.M. July 16, 2007) (Case is appropriately dismissed under § 1307(e) because debtor failed to file tax returns required by § 1308; "because Debtor's statements and schedules do not reflect an excess of unencumbered non-exempt assets, dismissal, rather than conversion is in the best interest of creditors.").
In re Keenan, 364 B.R. 786 (Bankr. D.N.M. Mar. 27, 2007) (Starzynski) (Statements of ownership and values of property were in good faith and not cause for dismissal.).
Oklahoma
Eastern District of Oklahoma
In re Hester, No. 16-80113-TRC, 2016 WL 3573969 (Bankr. E.D. Okla. June 23, 2016) (Cornish) (After multiple continuances, pro se debtor’s case is dismissed for failure to file required documents, lack of income and failure to begin payments to the trustee.).
In re Griggs, No. 08-80734-TRC, 2011 WL 4527438 (Bankr. E.D. Okla. Sept. 27, 2011) (Cornish) (Cause not found to dismiss when payments were delinquent on claims secured by home and rental property but debtors had completed 40 months of plan and made reasonable proposal to cure defaults. Equity existed, and debtors demonstrated sufficient income to stay current on home loan being paid outside plan and make plan payments.).
Western District of Oklahoma
Thomas v. Wieland (In re Thomas), No. CIV-09-1386-D, 2010 WL 3282633 (W.D. Okla. Aug. 18, 2010) (DeGiusti) (Bankruptcy court is without statutory authority to grant debtor's application to appeal in forma pauperis from order dismissing Chapter 13 case with prejudice.).
Utah
In re Norton, 319 B.R. 671, 674 (Bankr. D. Utah Jan. 20, 2005) (Ninth unsuccessful pro se Chapter 13 case is dismissed with prejudice based on debtor's "defiant and abusive behavior.").
K. Eleventh Circuit
Echeverry v. Weiner (In re Echeverry), 720 F. App'x 598 (11th Cir. Jan. 23, 2018) (unpublished) (Marcus, Wilson, Jordan) (Debtor’s failure to provide record or transcript on appeal requires court of appeals to affirm holding that dismissal under § 1307(c) was appropriate when debtor failed to make payments, failed to attend confirmation hearing, failed to file tax returns and other required documents and failed to file proof of prepetition briefing.).
Shuman v. Allan (In re Allan), No. 10-11991, 2011 WL 1496468 (11th Cir. Apr. 20, 2011) (unpublished) (Wilson, Pryor, Bucklew) (Failure to schedule interest in spendthrift trust was not cause for dismissal when trust was valid under Florida law and not part of bankruptcy estate. Assuming debtor should have scheduled beneficial interest, failure was not bad faith since spendthrift trust was not property of estate under § 541(c)(2).).
Alabama
Middle District of Alabama
Elliott v. Reding (In re Elliott), No. 3:10-CV-1041-WKW, 2011 WL 744800 (M.D. Ala. Feb. 25, 2011) (Watkins) (Cause for dismissal that, after six continuances, debtor was three years in default of plan payments.).
In re Smith, 536 B.R. 478 (Bankr. M.D. Ala. July 16, 2015) (Sawyer) (Receipt and dissipation of workers' compensation settlement funds in violation of terms of plan that required debtor to turn over proceeds to trustee constituted material default and cause for dismissal.).
In re Snow, No. 12-11042, 2013 WL 960208 (Bankr. M.D. Ala. Mar. 12, 2013) (Williams) (Cause for dismissal that plan dedicated nonexempt proceeds from automobile accident claim to trustee but debtor settled, received disbursement and spent all but small portion.).
In re Porterfield, No. 12-30630-DHW, 2012 WL 1428474 (Bankr. M.D. Ala. Apr. 24, 2012) (Williams) (Cause for dismissal that all debts were scheduled in prior Chapter 7 case in which discharge was denied. Applying § 523(a)(10), debts would not be dischargeable in present case and payments were not meaningful enough to upset nonbankruptcy collection rights. Debtor proposed to waive discharge, paying approximately $5,000 to unsecured creditors over 56 months, representing 11% of unsecured claims.).
In re Newburn, No. 06-80090-WRS, 2006 WL 2385012 (Bankr. M.D. Ala. Aug. 17, 2006) (unpublished) (Not cause for dismissal that debtor failed to pay amounts due former spouse under divorce decree pending determination whether obligations are actually in the nature of support.).
In re Oliver, 323 B.R. 769, 773-75 (Bankr. M.D. Ala. May 2, 2005) (Sawyer) (Seventh Chapter 13 case filed in violation of injunction against refiling at dismissal of sixth case is dismissed with a bar to refiling for two years and debtor's counsel is sanctioned with a $500 fine for failing to check court records or PACER. "[S]erial filing of bankruptcy petitions, in bad faith, may subject an attorney to the imposition of sanctions, even if the filing did not violate an injunction. . . . [T]his court has experienced . . . an 'epidemic' of serial Chapter 13 filings. . . . Lawyers should not be permitted to gain a competitive advantage in the marketplace by lowering their ethical standards. This Court has observed time and again this process of lawyer shopping coupled with serial filing. The lawyers should be something more than a mere scrivener for her client. A lawyer may not take his client's word concerning previous bankruptcy filings when it is so easy to check the Court's records. If, as here, a client has filed six previous Chapter 13 cases all of which failed, one should reasonably ask, why a seventh case will succeed. . . . [A] monetary sanction is necessary here to achieve the Court's purpose of deterring lawyers from filing petitions in bankruptcy in violation of an injunction. . . . In addition, the Court finds sufficient cause to impose a two-year injunction against refiling against a Debtor who concealed the existence of an injunction from his lawyer, causing the filing of yet another bankruptcy petition in bad faith.").
In re Brown, 319 B.R. 691, 693 (Bankr. M.D. Ala. Jan. 14, 2005) (Three petitions filed within 24 months, the third filed in violation of 180-day bar to refiling at dismissal of second case is flagrant abuse of bankruptcy and bad faith. "Multiple or repeated bankruptcy filings do not constitute per se bad faith, however a debtor's history of filings and dismissals may be evidence of bad faith. . . . The primary evidence of bad faith in this case is the Debtors' successive bankruptcy filings.").
Northern District of Alabama
In re Green, No. 16-04137-TOM-13, 2017 WL 6498051 (Bankr. N.D. Ala. Dec. 18, 2017) (Mitchell) (Case dismissed for cause with 180-day bar to refiling under § 109(g) based on postpetition default in payments. Repudiation of postpetition agreement reached in open court that favored debtor with opportunity to cure postpetition mortgage defaults in reduced amounts influenced decision to dismiss case for cause.).
In re Davis, No. 11-43159-JJR, 2012 WL 3239204 (Bankr. N.D. Ala. June 7, 2012) (unpublished) (Robinson) (After case dismissal, motion to maintain stay pending appeal denied when debtor did not appear at four confirmation hearings, nor at hearing on motion to continue stay. Debtor failed to show that plan was in good faith and no cause was shown to maintain stay.).
In re Wise, 415 B.R. 579 (Bankr. N.D. Ala. Sept. 2, 2009) (Robinson) (That debtors obtained briefing on same day they filed petition would be a ground for dismissal had creditor moved to dismiss before confirmation; because § 109(h) is not jurisdictional, motion to dismiss based on ineligibility filed on same day as confirmation order is untimely.).
In re Anderson, No. 06-40856-JJR-13, 2009 WL 1065142 (Bankr. N.D. Ala. Apr. 15, 2009) (Robinson) (Notwithstanding debtor's continuing duty to amend schedules to reflect accurate financial circumstances during pendency of case, failure to amend did not justify conversion or dismissal as neither would be in best interests of creditors. Any party in interest, including debtor or trustee, may move to modify confirmed plan to increase plan payments.).
Florida
Middle District of Florida
Zalloum v. Weatherford (In re Zalloum), No. 6:17-cv-561-Orl-40, 2018 WL 1039998 (M.D. Fla. Feb. 1, 2018) (Byron) (Cause for dismissal that debtor failed to file amended plan by deadline set by bankruptcy court; no further hearing was required and deadline set by bankruptcy court put debtor on adequate notice of possibility of dismissal.), on remand, No. 6:13-bk-04030-KSJ, 2017 WL 1012971 (Bankr. M.D. Fla. Mar. 15, 2017) (Jennemann) (On remand, bankruptcy court denies reconsideration of order dismissing case after debtor repeatedly missed deadlines and failed to appear at hearings.), remanded from No. 6:15-cv-404-Orl-40, 2016 WL 7494481 (M.D. Fla. Jan. 28, 2016) (Byron) (Cause for dismissal that debtor failed to comply with a court order requiring the debtor to file a Chapter 13 plan.).
Orcutt v. Crawford, No. 8:10-CV-1925-T-17, 2011 WL 4382479, at *3 (M.D. Fla. Sept. 20, 2011) (Kovachevich) (Motion to dismiss for lack of good faith denied when omission of assets and transfers from schedules had been corrected and amended plan accounted for value of assets. "Motion to Dismiss for lack of good faith is measured by the same standard as an objection to Plan Confirmation for lack of good faith." Applying Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir. Mar. 29, 1983) (Tjoflat, Clark, Miller), failure to disclose motorcycle and vending machines was overcome by totality of circumstances, including plan amendment to pay value of assets.).
D'Elia v. Waage (In re D'Elia), No. 2:10-cv-196-FtM-29, 2011 WL 1326819 (M.D. Fla. Apr. 6, 2011) (Steele) (Dismissal of case for failure of proposed plan to satisfy confirmation requirements was remanded when bankruptcy court made no specific finding of cause. Confirmation was denied and case dismissed apparently because case had been pending for two years. There was no finding of bad faith and no specific findings of deficiency in plan that would justify dismissal.).
In re Thompson, No. 3:17-bk-241-JAF, 2017 WL 3475011 (Bankr. M.D. Fla. Aug. 11, 2017) (Funk) (Cause for dismissal included that fifth bankruptcy case was filed to stop creditors from enforcing state court orders with respect to debtor’s properties, failure to file necessary documents, failure to provide pay advices, failure to file income tax returns and a “cavalier attitude” toward the case and creditors.).
In re Kirk, No. 3:16-bk-4073-JAF, 2017 WL 1533387 (Bankr. M.D. Fla. Apr. 27, 2017) (Funk) (Cause for dismissal included failure to fix inaccurate schedules, failure to make adequate protection payments and failure to insure real property.).
In re Howard, No. 3:07-bk-3910-JAF, 2014 WL 444207, at *4 (Bankr. M.D. Fla. Feb. 3, 2014) (Funk) (Failure to disclose death of spouse or receipt of insurance proceeds prior to completion of plan "does not constitute bad faith warranting dismissal of the case" when debtor was advised by counsel that disclosure was not necessary and tax returns provided to trustee revealed status as widow.).
In re Dean, No. 6:04-BK-1187-ABB, 2008 WL 4572390 (Bankr. M.D. Fla. Feb. 19, 2008) (Briskman) (Not cause to dismiss that debtor incurred postpetition tax liability given that debtor made 36 monthly plan payments and tax liability resulted from involuntary assessment; postpetition tax debt is nondischargeable but debtor can discharge other obligations in completed plan.).
In re Kilpatrick, No. 6:03-bk-02732-KSJ, 2007 WL 4707331, at *1, *3 (Bankr. M.D. Fla. Nov. 15, 2007) (Jennemann) (In case of "prolific litigator," cause for dismissal is failure to make regular payments; debtor's motion to reconsider and to remove trustee is "frivolous.").
In re Kollar, 357 B.R. 657 (Bankr. M.D. Fla. Oct. 5, 2006) (Cause for dismissal with prejudice to discharge of any debts that debtor filed Chapter 13 to thwart enforcement of prepetition auction of real property and that debtor has no regular income and no ability to pay creditors. Debtor admitted she did not intend to pay unsecured creditors. Debtor failed to reveal that her employment was terminated after the petition.).
In re Vick, 327 B.R. 477 (Bankr. M.D. Fla. July 15, 2005) (Evidence of bad faith included 10% payment of marital obligations when debtor had ability to pay 65%, and filing solely to prolong 11-year divorce litigation. Due to dilatory tactics, appropriate remedy is dismissal.).
In re Yunker, 328 B.R. 591 (Bankr. M.D. Fla. July 14, 2005) (Paskay) (Lender's motion to dismiss case as filed in bad faith is denied; mere fact that debtor obtained prior Chapter 7 discharge and then filed Chapter 13 to deal with nondischargeable debt is not per se bad faith, and creditor will have opportunity to object to proposed plan, which offered $.90 on dollar to nondischargeable claim.).
Northern District of Florida
Binitie v. Heart, No. 4:11-CV-275-SPM/WCS, 2012 WL 858587 (N.D. Fla. Mar. 13, 2012) (unpublished) (Mickle) (Cause for dismissal of third case in two years that debtor failed to make payments or attend meeting of creditors, demonstrating lack of good faith. Filings were intended to delay foreclosure rather than satisfy debts.).
In re Brown, No. 17-10021-KKS, 2017 WL 3493101 (Bankr. N.D. Fla. Apr. 19, 2017) (Specie) (In continuing saga of at least 12 tag-team bankruptcy cases filed by mother and son to stop foreclosure and eviction, dismissal with prejudice under § 349(a) and with prospective relief under § 362(d)(4) is appropriate to allow mortgagee to obtain possession. Son and mother are barred from filing for 180 days.).
In re Ardis, No. 16-30618-KKS, 2016 WL 9454712 (Bankr. N.D. Fla. Nov. 8, 2016) (Specie) (Pro se debtor’s effort to avoid dismissal of Chapter 13 case by seeking recusal of judge based on rulings against debtor is denied.).
In re Buis, 337 B.R. 243, 251 (Bankr. N.D. Fla. Jan. 11, 2006) (Killian) (Plan that did not mention principal unsecured creditor that had obtained prebankruptcy judgment for violation of Florida's Unfair and Deceptive Trade Practices Act was evidence of bad faith. "[T]he very language of the initial plan filed by the debtors demonstrates that both the plan and this case were filed in bad faith.").
Southern District of Florida
In re Serra, No. 17-Civ-22224-COOKE, 2018 WL 1516624, at *3 (S.D. Fla. Mar. 28, 2018) (Cooke) (Bankruptcy court failed to give ailing debtor adequate notice before it dismissed Chapter 13 case. Pro se debtor lived at a property owned by the debtor’s daughter that had been foreclosed before the petition and with respect to which a writ of possession was pending. Mortgagee was only creditor and moved for stay relief. Bankruptcy court set a hearing on confirmation and stay relief but debtor was injured, bedridden and unable to attend. Bankruptcy court denied confirmation, granted stay relief and dismissed the Chapter 13 case. “While a bankruptcy court may dismiss a case on its own motion, Trustee has cited to no law indicating a case can be dismissed without notice to the debtor and an opportunity for her to be heard. . . . I therefore reverse the Order Denying Confirmation and Dismissing Chapter 13 Case and remand to the bankruptcy court for proper notice and a hearing.”).
In re Scott, No. 14-38122-BKC-RBR, 2017 WL 2802714, at *2 (Bankr. S.D. Fla. June 26, 2017) (Ray) (Citing Marrama v. Citizens Bank, 549 U.S. 365, 127 S. Ct. 1105, 166 L. Ed. 2d 956 (Feb. 21, 2007), bad faith by debtor and debtor’s counsel justifying dismissal with prejudice for one year included the failure to surrender real property required by confirmed plan, failure to surrender and cease opposition to foreclosure as required by an agreed order and failure to comply with enforcement orders with respect to prior orders. “[T]he conduct of Debtor and Debtor’s counsel . . . amount[s] to bad faith conduct. . . . Debtor and [counsel] have displayed a great lack of respect for the decisions of this Court resulting in bad faith conduct and an abuse of the bankruptcy process. . . . Debtor does not have an absolute right to dismissal of her bankruptcy case; however, this Court finds that it is an appropriate sanction to dismiss Debtor’s case with a prejudice period of one year and close the case without a discharge.”).
In re Sanchez, No. 10-23140-BKC-LMI, 2016 WL 6127507, at *5 (Bankr. S.D. Fla. Oct. 20, 2016) (Isicoff) (When confirmed plan required debtor to provide yearly tax returns to trustee, failure to provide tax returns was default for purposes of dismissal under § 1307(c); however, default was not material because even if debtor had provided tax returns, no change in plan would have been required. “[T]he amended [current monthly income statements] . . . show that the Debtor’s net changes in income were not such that modification would be warranted . . . . [E]ven had the Debtor timely turned over her tax returns to the Trustee, and had the Trustee sought modification, I would not have ordered the Debtor to modify the [plan]. Consequently, the Debtor’s failure to timely turn over the tax returns is a default under the [plan] but it is not a material default. . . . ”).
In re Deliz-Medina, No. 10-33888-LMI, 2013 WL 5952409, at *2 (Bankr. S.D. Fla. Nov. 7, 2013) (Isicoff) (Dismissal not appropriate when "income verification language" in plan required debtors to provide tax returns each year—which they did—but did not unambiguously require the debtors to also amend Schedules I and J or to file an amended plan when returns showed increased income. "[T]here is nothing in the Bankruptcy Code that requires debtors to sua sponte affirmatively modify their plan upward as a result of an increase in income.").
In re Weiser, 391 B.R. 902 (Bankr. S.D. Fla. July 31, 2008) (Cristol) (Dismissal for lack of good faith when "the Debtors entered into loan transactions that involved material terms that were, at best, not disclosed to the lenders and, at worst, concealed from their lenders.").
In re Casavalencia, 389 B.R. 292, 293-94, 296 (Bankr. S.D. Fla. June 5, 2008) (Olson) (Case dismissed and debtor and debtor's attorney ordered to pay $8,000 attorney fee to creditor based on misrepresentations in schedules in Chapter 13 case in which "no . . . plan could possibly be filed by this debtor which satisfies the good faith requirements of 11 U.S.C. § 1325(a)(3)." "The falsehoods contained in the petition and schedules filed here were untrue and misleading and at least some of them (particularly including the Debtor's nomenclature) would have been known to [the attorney] 'upon the exercise of reasonable care.' I find that Rule 9011 and 11 U.S.C. §§ 105(a) and 526(a)(2) provide the basis for the award of such sanctions.").
In re Wrubleski, 380 B.R. 635 (Bankr. S.D. Fla. Jan. 11, 2008) (Olson) (Tax protestor's motion to reconsider dismissal is denied; debtor did not possess money judgment against federal government or any other liquidated claim to offset prepetition tax obligation.).
In re Stembridge, No. 06-bk-10138-JKO, 2007 WL 5987119 (Bankr. S.D. Fla. June 11, 2007) (Olson) (Third filing after two bad faith dismissals is also dismissed for bad faith when debtor failed to schedule assets and filed groundless objection to secured claim.).
In re Farber, 355 B.R. 362 (Bankr. S.D. Fla. Nov. 9, 2006) (Under totality-of-circumstances test of Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885, 886 (11th Cir. 1983), debtors acted in bad faith in filing third case. Case dismissed with prejudice for six-month period. Among factors was debtors' grossly inaccurate scheduling of debts, including creditors holding judgment claims in excess of the unsecured eligibility limit.).
In re Tovar, No. 04-17383-BKC-AJC, 2005 WL 2451684, at *2 (Bankr. S.D. Fla. Apr. 19, 2005) (unpublished) (Applying Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir. 1983), and totality-of-circumstances test, that debtor willfully omitted assets is cause for bad-faith dismissal, and amendments to schedules filed after Rule 2004 examination were too late. "The filing of an amendment in an attempt to disclose the omissions does not cure the failure to disclose in the originally filed schedules and statement of financial affairs for purposes of a Court determining whether to dismiss a Chapter 13 proceeding for cause.").
Georgia
Middle District of Georgia
Roberts v. Hill (In re Hill), Nos. 05-50350-JDW, 05-5115, 2006 WL 3694637 (Bankr. M.D. Ga. June 6, 2006) (unpublished) (Upon creditor's complaint for dismissal of Chapter 13 case and judgment based on debtor's alleged fraud, since § 523(a)(2)(A) was not included in § 1328(a) grounds for exception from discharge, there was no cause for dismissal.).
Northern District of Georgia
Thomas v. Goodman (In re Thomas), No. 1:11-cv-1608-WSD, 2011 WL 4404136 (N.D. Ga. Sept. 21, 2011) (Duffey) (Cause for dismissal that debtor failed to make required mortgage payments to trustee. Requiring payments through trustee pending determination of adversary proceeding against lender was appropriate and consistent with § 1322(b)(2) protection from modification and did not prejudice debtor's due process or equal protection rights.).
Dean v. Suntrust Bank, No. 1:07-cv-00248-JEC, 2007 WL 1953151, at *4 (N.D. Ga. June 29, 2007) (unpublished) (Carnes) (Lack of "valid or legitimate purpose" in filing case is evidence of bad faith. Debtor filed case to pursue nonbankruptcy dispute with Suntrust Bank over funds frozen by Bank due to its belief that funds were stolen from another bank's account. District court affirmed abstention from that dispute. Debtor had no delinquent debt, had no pending foreclosures or repossessions, and was paying all unsecured debts.).
In re Webb, No. 17-10835-WHD, 2017 WL 5125538 (Bankr. N.D. Ga. Nov. 3, 2017) (Drake) (Pro se motion for stay pending appeal of order dismissing Chapter 13 case with prejudice is denied for lack of likelihood of success.).
In re Murff, No. 16-59055-WLH, 2016 WL 5118280 (Bankr. N.D. Ga. Sept. 16, 2016) (Hagenau) (Federal Rule 60 relief from order dismissing seventh bankruptcy case in ten years not appropriate when debtor failed to file plan, debtor did not attend meeting of creditors or confirmation hearing and debtor failed to make payments to trustee.).
In re Miller, No. 13-76000-MHM, 2015 WL 1743277, at *3 (Bankr. N.D. Ga. Apr. 10, 2015) (Murphy) (Dismissal for cause based on two months of missed plan payments not reconsidered when debtor failed to seek payment suspension prior to dismissal. "The circumstances in this case do not justify reconsideration of the dismissal. While Debtor may lose his vehicle and substantial equity in the Property, similar circumstances exist in many dismissed cases. And although Debtor experienced a decline in income, Debtor had other remedies available to prevent his case from being dismissed. . . . Debtor could have filed a motion to suspend payments for cause to prevent his case from being dismissed, but he did not. . . . Debtor's unfortunate decline in income is not an unusual circumstance, and the resulting dismissal is not an 'extreme' or 'unexpected' result that might justify reconsideration in the face of an objecting prejudiced creditor.").
In re Burroughs, No. 14-50559-WLH, 2014 WL 1689969, at *3 (Bankr. N.D. Ga. Apr. 29, 2014) (Hagenau) (Cause for dismissal with 180-day refiling bar when debtor had "failed to properly prosecute this case and [ ] three prior Chapter 13 cases. . . . Debtor has failed to attend his 341 hearing and has failed to file a plan which can be properly administered by the Chapter 13 Trustee. . . . Debtor has filed this case . . . to facilitate the filing of an adversary proceeding against [mortgage lender that foreclosed]. . . . [B]ankruptcy court is not the proper place for the litigation of these issues[.]").
In re Deal, No. G10-23553-REB, 2014 WL 2086783, at *3 (Bankr. N.D. Ga. Mar. 11, 2014) (Brizendine) (Bad-faith cause for dismissal that debtor failed to timely amend schedules to show increase in income of nonfiling spouse, failed to provide tax returns until directed to do so and failed to file quarterly business income and expense reports. Debtor's "pattern of conduct during the administration of this case reveals a persisting reluctance of candor concerning the true state of his finances that is inconsistent with the good faith expected of every debtor[.]").
In re Pullen, No. 11-81588-MHM, 2012 WL 3067570 (Bankr. N.D. Ga. July 12, 2012) (Murphy) (Dismissal refused when moving attorney failed to prepare order required by local rules. Debtor ordered to provide proof to trustee that ad valorem taxes were being escrowed and that direct monthly mortgage payments were being made. Moving party had refused to accept payments from debtor.).
In re Coscarelli, No. 11-51097-MGD, 2011 WL 1520019 (Bankr. N.D. Ga. Feb. 23, 2011) (Diehl) (That debtor filed three cases since September 2009 was not cause for dismissal when circumstances had changed; appropriate remedy was stay relief to allow creditor to pursue state court proceeding.).
In re Johnson, No. 10-86408-MHM, 2010 WL 5017186 (Bankr. N.D. Ga. Nov. 8, 2010) (Murphy) (It is cause for dismissal that debtor filed fourth case using husband's Social Security number and made no effort to correct the error.).
In re Bates, No. 08-79346, 2009 WL 6499129 (Bankr. N.D. Ga. Mar. 4, 2009) (Massey) (Cause for dismissal without prejudice that debtor failed to submit a confirmable plan under § 1307(c)(5).).
In re Manigault, No. 07-67308-mhm, 2007 WL 7143082 (Bankr. N.D. Ga. May 25, 2007) (Murphy) (Ninth bankruptcy case filed as part of scheme to benefit from automatic stay is dismissed with bar to refiling for five years.).
In re Dean, No. 06-71654-pwb, 2006 WL 6589024 (Bankr. N.D. Ga. Dec. 18, 2006) (Bonapfel) (Cause for dismissal that debtor had no need for bankruptcy relief to manage state court dispute with two banks over ownership of wire-transferred funds. Debtor was current on all obligations, had no pending real estate foreclosures or personal property repossessions and he intended to pay all unsecured debt.).
In re Leggett, 335 B.R. 227 (Bankr. N.D. Ga. Aug. 19, 2005) (Bonapfel) (Case dismissed to permit litigation of liability in district court determination of debtor's liability on alleged $1.9 million debt was essential to eligibility.).
Southern District of Georgia
In re Alegria, No. 08-41769, 2015 WL 3400419 (Bankr. S.D. Ga. May 26, 2015) (Coleman) (Debtor's failure to force sale or refinancing of former marital home by ex-husband constituted delay prejudicial to creditors and warranted dismissal of otherwise completed case when decline in property value since confirmation meant little or no return to creditors. Debtor's voluntary conveyance of interest in former marital residence to ex-husband for no consideration combined with misrepresentations regarding status of property and prospects for sale or refinancing constituted bad faith, an additional ground for dismissal.).
In re Waits, No. 12-60405, 2014 WL 1271345 (Bankr. S.D. Ga. Mar. 26, 2014) (Coleman) (Cause for dismissal with 180-day refiling bar when debtor repeatedly dealt unfairly with secured creditor, proposed modification of confirmed plan that further disregarded rights of secured creditor, and failed to disclose asset sales in schedules.).
In re Carroll, No. 07-50098, 2007 WL 7023832 (Bankr. S.D. Ga. July 5, 2007) (Dalis) (Interim Bankruptcy Rule 1007(c) is not inconsistent with § 521(i), and bankruptcy court clerk appropriately dismissed Chapter 13 petition when payment advices were not filed within the Bankruptcy Rule 1007(c) deadline; without regard to § 521(i), case was subject to dismissal under § 1307(c)(9) when debtor failed to file payment advices within 15 days after the petition.).
In re Langlands, No. 04-43292, 2007 WL 7022208 (Bankr. S.D. Ga. Feb. 8, 2007) (Davis) (Citing factors from Kitchens v. Georgia Railroad Bank & Trust Co. (In re Kitchens), 702 F.2d 885 (11th Cir. Mar. 29, 1983) (Tjoflat, Clark, Miller), cause for dismissal that debtor failed to list all assets and liabilities and debtor acted in bad faith toward ex-wife prior to petition by withdrawing funds from retirement account in violation of marital settlement agreement.).
In re Lewis, 339 B.R. 814, 817 (Bankr. S.D. Ga. Mar. 27, 2006) (That debtors are ineligible for discharge because of four-year limitation in § 1328(f) is not cause for dismissal. "[B]ecause a creditor might be required to wait to pursue the balance remaining under the obligation after conclusion of the case standing alone does not establish an unreasonable delay. In the present cases, the debtors propose to pay all creditors in full. . . . However, even with less than a 100% case, the lack of available discharge does not establish an unreasonable delay if the plans are otherwise confirmable. . . . Unsecured creditors have a better chance and more cost-efficient opportunity to be paid in a chapter 13 plan under court supervision than contemplated under available state debt-collection law. Merely because the chapter 13 debtor will not receive a discharge under an otherwise confirmable plan does not establish unreasonable delay that is prejudicial to creditors.").
In re Jacobs, No. 04-42683, 2005 WL 6742490 (Bankr. S.D. Ga. Apr. 22, 2005) (Davis) (In pre-BAPCPA case, cause for dismissal included serial filings and automatic stay in effect for two years while home mortgage was not being paid.).
In re Hill, No. 89-20465, 1990 WL 10625153 (Bankr. S.D. Ga. Apr. 30, 1990) (Davis) (Third case in three years is dismissed for bad faith when foreclosure occurred between cases and no change in circumstances justified new filing.).
L. D.C. Circuit
King v. States Res. Corp., 233 Fed. Appx. 1 (D.C. Cir. Apr. 4, 2007) (Henderson, Randolph, Garland) (Citing Marama v. Citizens Bank of Massachusetts, 127 S. Ct. 1105 (2007), dismissal of fifth bankruptcy case filed to stop foreclosure is affirmed; transfer of interest in property to debtor on morning of scheduled foreclosure sale demonstrated bad faith and abuse of bankruptcy.).
District of Columbia
In re Jackson, No. 11-00007, 2011 WL 768098 (Bankr. D.D.C. Mar. 4, 2011) (Teel) (Third case was dismissed, with 180-day bar to refiling, when attorney knowingly and intentionally filed while second case was still pending in effort to avoid triggering § 362(c)(4). Petition, schedules and statement of financial affairs were inaccurate. Attorney was sanctioned for violating Bankruptcy Rule 9011. Attorney also violated § 526(c)(2) by intentionally and negligently failing to advise assisted person not to make statement in filed documents that is untrue or misleading, or that upon exercise of reasonable care would have been known to be untrue or misleading, as required by § 526(a)(2).).
In re Derose, No. 08-00461, 2010 WL 5128616 (Bankr. D.D.C. Dec. 10, 2010) (unpublished) (Teel) (Motion to dismiss for failure to pay postpetition condominium assessments would require further pleadings and hearing; confirmed plan was unclear as to treatment of condominium association debt.).
In re Bopp, No. 10-00121, 2010 WL 2363626 (Bankr. D.D.C. June 8, 2010) (unpublished) (Teel) (Motion to vacate dismissal order was denied when case had been dismissed for failure to file necessary documents under § 521(a) and dismissal was automatic under § 521(i).).