§ 152.1     Procedure, Timing and Form
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 152.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Creditors, the Chapter 13 trustee, the U.S. trustee and other “parties in interest” have standing to move for dismissal for cause.1 Section 1307(c) is worded in the alternative—the court “may” convert or dismiss, “whichever is in the best interests of creditors and the estate.” Section 1307(c) lists 10 nonexclusive examples of cause for dismissal or conversion.2

[2]

Neither the Code nor the Rules specify any particular time within which a motion to dismiss must be filed. When the request comes from the debtor, § 1307(b) permits dismissal “at any time” so long as the case has not previously been converted.3 There is no similar provision with respect to a motion to dismiss by a party other than the debtor. One reported decision suggests that the completion of payments under the plan is the deadline after which a motion to dismiss is untimely.4

[3]

As discussed above,5 only the U.S. trustee has standing under § 1307(c)(9) to seek dismissal of a Chapter 13 case for failure of the debtor to file the statement, schedules and other information required by § 521(1).6 Bankruptcy Rule 1017(c) provides that the bankruptcy court may dismiss a Chapter 13 case under § 1307(c)(9) “after a hearing on notice served by the United States Trustee on the debtor, the trustee and any other entities as the court directs.”7 Notwithstanding the plain language of § 1307(c)(9), it has been held that a Chapter 13 case can be dismissed when the debtor files inaccurate information, either on the motion of a creditor or on the court’s own action.8 A reported decision from the Central District of California reveals a local rule that authorizes the clerk of the bankruptcy court to (invisibly) dismiss a Chapter 13 petition with prejudice to refiling for 180 days after the clerk gives written notice to the debtor that the petition, statement or schedules are deficient.9 This practice is not easily reconciled with the requirement in § 1307(c)(9) of a motion from the U.S. trustee or the notice and hearing requirements in Bankruptcy Rule 1017(c).

[4]

Bankruptcy Rule 1017(f) states that a proceeding to dismiss a Chapter 13 case at the request of a party in interest is commenced by filing a motion and is a contested matter governed by Bankruptcy Rule 9014.10 When the moving party wants dismissal with a condition such as an injunction against future filing by the debtor or a declaration with respect to the dischargeability of debts,11 Bankruptcy Rule 7001 seems to require an adversary proceeding.12 Reported decisions have excused the filing of an adversary proceeding when a creditor’s motion to dismiss with prejudice is filed pursuant to § 349(a).13

[5]

The motion to dismiss should state specifically what “cause” under § 1307(c) is present or what other grounds are asserted for dismissal of the case. The moving party has the burden to serve the debtor.14

[6]

Dismissal affects all creditors. The requirement in § 1307(c) that the court assess the best interests of creditors argues for notice to all creditors of any motion to dismiss. That many reported decisions find in § 349(a) power for bankruptcy courts to condition dismissal of a Chapter 13 case with respect to refiling of bankruptcy or the discharge of debts15 means that all creditors have important rights at dismissal that are only protected if all creditors receive notice of any motion to dismiss. For no obvious good reason, the Bankruptcy Rules are anything but clear with respect to who must give notice of a motion to dismiss a Chapter 13 case and to whom that notice must be sent.

[7]

As amended in 1999, Bankruptcy Rule 1017(a) provides that a Chapter 13 case shall not be dismissed on the motion of a party other than the debtor “before a hearing on notice as provided in Rule 2002.”16 Rule 1017(a) even provides that “for the purpose of the notice, the debtor shall file a list of creditors with their addresses within the time fixed by the court unless the list was previously filed. If the debtor fails to file the list, the court may order the debtor or another entity to prepare and file it.”17 This Rule contemplates that there will be a hearing on a creditor’s or trustee’s motion to dismiss a Chapter 13 case and that notice of the hearing will be served on all creditors.

[8]

Unfortunately, the “hearing on notice as provided in Rule 2002” does not exist with respect to the dismissal of a Chapter 13 case. Bankruptcy Rule 2002(a)(4) requires at least 20 days’ notice by mail of the hearing on the dismissal of a Chapter 7, 11 or 12 case; there is no similar provision in Bankruptcy Rule 2002 with respect to notice of a hearing on dismissal of a Chapter 13 case. This omission is not helpful.

[9]

Bankruptcy Rule 1017(a) has another quirk or two with respect to motions to dismiss Chapter 13 cases. The requirement for a (nonexistent) hearing on notice as provided in Rule 2002 does not apply when the motion to dismiss arises under Bankruptcy Rule 1017(b) or (c). Bankruptcy Rule 1017(b) governs dismissal of a Chapter 13 case for failure to pay a filing fee.18 Rule 1017(b)(1) requires notice only to the debtor and the trustee when dismissal is for failure to pay a filing fee.

[10]

Bankruptcy Rule 1017(c) concerns dismissal (only) on the motion of the U.S. trustee for failure of the debtor to timely file the list of creditors, schedules and statement of financial affairs.19 Rule 1017(c) contemplates “a hearing on notice served by the United States trustee on the debtor, the trustee, and any other entities as the court directs.”20 The Advisory Committee note to the 1999 amendments to Bankruptcy Rule 1017(c) states that this new subdivision was added to the Rule to require the U.S. trustee to serve a motion to dismiss under § 1307(c)(9) on the debtor and the trustee and that the amendment would have the effect of “avoiding the expense of sending notices of the motion to all creditors in a Chapter 7 case.” Unfortunately, Rule 1017(c) also covers motions by the U.S. trustee to dismiss Chapter 13 cases under § 1307(c)(9), and the effect of the Rule is to support the practice of limiting notice of such motions.

[11]

Creditors have important interests and rights at dismissal of a Chapter 13 case, without regard to whether the dismissal motion is provoked by the debtor’s failure to pay a filing fee or the failure to file schedules. Especially in serial filing situations when the debtor files a naked petition to stop a foreclosure but pays no fee and files no other documents, the creditor frozen in the middle of a foreclosure is acutely interested in arguing for conditions on dismissal of the latest filing.21 The Rules should provide for a hearing and notice to all creditors of any motion to dismiss a Chapter 13 case.

[12]

Notice and hearing problems for debtors and creditors have cropped up at dismissal in a few decisions. In Muessel v. Pappalardo (In re Muessel),22 the trustee moved to dismiss based on the debtor’s failure to amend the plan as required by a court order permitting the refinancing of a home mortgage. The debtor responded that the court-ordered amendment was impossible because it would violate conditions in the lender’s commitment letter for the refinancing. At the hearing, the bankruptcy court “sua sponte” dismissed the case “for failure to stay current on plan payments under the confirmed Chapter 13 plan.”23 On appeal, the Bankruptcy Appellate Panel for the First Circuit found that dismissal on a ground not stated in the motion to dismiss violated the notice and hearing rights of the debtor:

The Bankruptcy Code requires “notice and a hearing” before a Chapter 13 case may be dismissed. . . . The Bankruptcy Rules contemplate that dismissal by the bankruptcy court shall only occur after the parties, including the debtor, are notified of the reasons for dismissal and the date of the hearing. See Fed. R. Bankr. P. 1017(f). . . . [T]he bankruptcy court sua sponte dismissed the Debtor’s Chapter 13 case on alternate grounds without notice or a meaningful opportunity for the Debtor to be heard on those grounds. The bankruptcy court’s actions violated the Debtor’s fundamental rights to procedural due process and the express requirements of the Bankruptcy Code.24
[13]

Phillips v. Attorneys Title Guaranty Fund, Inc. (In re Robinson),25 illustrates the difficulties creditors face, caused by poor noticing protocols at dismissal of a Chapter 13 case. In Robinson, the pro se debtor filed a Chapter 13 petition without a complete list of creditors and never filed schedules or a statement of financial affairs. The debtor failed to make the first plan payment and failed to attend the meeting of creditors, and the trustee quickly moved to dismiss the case. The debtor conceded in response that he did not meet the statutory requirements for Chapter 13. No notice was given to creditors of the trustee’s motion to dismiss.

[14]

Phillips, a creditor, found out about the motion to dismiss “in some way” and opposed dismissal, arguing instead for conversion to Chapter 7. The bankruptcy court dismissed the Chapter 13 case with prejudice to refiling for 180 days. Phillips appealed.

[15]

By the time the appeal got to the Bankruptcy Appellate Panel for the Tenth Circuit, the 180 days had passed and the debtor filed a new Chapter 7 case. Phillips argued to the BAP that dismissal of a Chapter 13 case without notice to all creditors and an opportunity to argue for conversion was improper. The BAP concluded that Phillips’s appeal was moot. With respect to Phillips’s conversion argument, the BAP (lamely) found that Phillips failed to provide the bankruptcy court with any reason to convert rather than dismiss the Chapter 13 case.

[16]

The obvious problem for Phillips was lack of notice and opportunity to prepare evidence in support of conversion. Without notice of the motion to dismiss, exactly what happened in Robinson happens everywhere—creditors are disabled to adequately participate in a hearing whether the Chapter 13 case should be converted or dismissed—the decision contemplated by the alternative wording in § 1307(c). Robinson demonstrates that appellate review is not a satisfying remedy for lack of notice of a motion to dismiss.

[17]

Bankruptcy Rule 2002(f)(2) requires notice after the fact to all creditors of the dismissal of the case. A party in interest that would prefer conversion or conditions on dismissal that receives notice of dismissal but no notice of the motion to dismiss might move for rehearing under Bankruptcy Rule 9023 (Rule 59 of the Federal Rules of Civil Procedure) or for relief from the order under Bankruptcy Rule 9024 (Rule 60 of the Federal Rules of Civil Procedure).

[18]

Notice to creditors of an impending dismissal is especially problematic when dismissal is triggered by a “drop dead” or “probationary” order entered earlier in the case or in an earlier case.26 Orders conditioning continuation of the Chapter 13 case are a common resolution of defaults by the debtor that are not entirely fatal and of motions for relief from the stay.27 Such orders are routinely entered without notice to all creditors. When the condition occurs, the Chapter 13 case may be dismissed “automatically”—invisibly to creditors that might wish to argue for conversion rather than dismissal or for conditions on dismissal.28 One reported decision holds that the debtor is not necessarily entitled to a hearing on dismissal when the condition in a prior probationary order is triggered and the case is automatically dismissed.29 This outcome puts everyone at risk under “drop dead” orders—the debtor does not get a hearing on circumstances that may have changed since entry of the prior order; creditors have no opportunity to argue for conversion or conditions on dismissal.

[19]

The debtor or creditor that wants to oppose dismissal should file a written response, else the motion to dismiss may be deemed uncontested and granted without a hearing. It has been held that even dismissal with prejudice to refiling30 does not require a hearing if the debtor was warned and failed to request a hearing.31 If the opposing party desires conversion rather than dismissal, the written opposition should request conversion and state why conversion is in the best interests of creditors and the estate.

[20]

In re Wulfekuhl32 illustrates the importance of taking seriously the response to a motion to dismiss. The Chapter 13 trustee moved to dismiss several Chapter 13 cases because the debtors had failed to timely commence making payments under § 132633 or because of material default in payments under confirmed plans. Written responses were filed in different cases by the same debtor’s counsel, each reading “Debtor denies each and every allegation.” It turned out that counsel filed this general denial without first contacting each debtor to determine if there was a default and whether there was any excuse. The bankruptcy court held that this practice violated Bankruptcy Rule 9011 and imposed a sanction of $2,500.

[21]

The Bankruptcy Reform Act of 1994 created incentives for debtors to oppose dismissal and argue for conversion to Chapter 7 when salvaging the Chapter 13 case is not possible. The 1994 Act amended § 348(f) of the Code to redefine the bankruptcy estate at conversion and to require that valuations of property and of allowed secured claims during the Chapter 13 case “shall apply” at conversion to Chapter 7, with allowed secured claims reduced to the extent of payments in accordance with the Chapter 13 plan.34

[22]

In many Chapter 13 cases filed after October 22, 1994, it will be to the debtor’s advantage to convert to Chapter 7 and receive the benefits of § 348(f) rather than suffer dismissal.35 For example, if encumbered property was valued during the Chapter 13 case and if payments were made to lienholders consistent with the confirmed plan, conversion will preserve those valuations and will reduce the allowed amount of secured claims to reflect payments under the plan. At conversion, if the debtor desires to redeem personal property under § 722, the reduced balances of allowed secured claims “shall apply.” In contrast, after dismissal, lienholders can assert all of their contract and state law rights, including collection of the entire debt before releasing any liens.

[23]

At the hearing on a party in interest’s motion to dismiss a Chapter 13 case, the burden of proof is on the movant to demonstrate cause for dismissal under § 1307(c). In contrast to the burdens of proof at confirmation,36 when the ground for dismissal of a Chapter 13 case is bad faith by the debtor, it has been held that the burden of establishing a lack of good faith is on the party moving for dismissal.37 Arguably in dicta, the Bankruptcy Appellate Panel for the Ninth Circuit assigned to the debtor the burden of proving good faith on a creditor’s motion for dismissal with prejudice based on bad faith by the debtor.38


 

1  11 U.S.C. § 1307(c). See, e.g., In re Cowan, 235 B.R. 912 (Bankr. W.D. Mo. 1999) (Creditor discharged in Chapter 7 case has standing to seek dismissal of simultaneous Chapter 13 case when creditor will receive a pro rata share of any distributions in the Chapter 7 case. Debtor filed Chapter 13 after discharge but before closing of Chapter 7 case as a strategy to remain in possession of a car that Chapter 7 trustee sought to recover after avoiding an unperfected lien. The unperfected lienholder has standing to seek dismissal of the Chapter 13 case even though the lienholder is technically not a creditor in the Chapter 13 case.).

 

2  See §§ 311.2 [ Conversion on Request of Creditor or Trustee ] § 141.2  Conversion on Request of Creditor or Trustee and 312.1 [ Cause for Conversion ] § 141.3  Cause for Conversion.

 

3  11 U.S.C. § 1307(b). See § 329.1 [ Procedure, Timing and Form ] § 151.1  Procedure, Timing and Form.

 

4  See In re Parffrey, 264 B.R. 409, 414 (Bankr. S.D. Tex. 2001) (Bankruptcy court is without discretion to enter discharge and deny motion to dismiss because debtor completed payments to the trustee, notwithstanding that debtor failed to file income tax returns during Chapter 13 plan. Debtor tendered balance due to Chapter 13 trustee one day before the hearing on the IRS’s motion to dismiss. “If the Court had discretion in the matter, the Court would deny a discharge and dismiss the case for bad faith . . . . But Congress did not see fit to give bankruptcy judges discretion on this point. The statute provides that when payments are complete, the Court shall grant a discharge. . . . The IRS motion to dismiss is denied because the Court does not have discretion to grant it in the circumstances currently presented.”).

 

5  See §§ 61.2 [ Seek Conversion or Dismissal ] § 53.14  Seek Conversion or Dismissal and 311.2 [ Conversion on Request of Creditor or Trustee ] § 141.2  Conversion on Request of Creditor or Trustee.

 

6  See 11 U.S.C. § 1307(c)(9).

 

7  Fed. R. Bankr. P. 1017(c).

 

8  See, e.g., In re Green, 141 B.R. 440 (Bankr. M.D. Fla. 1992) (Although § 1307(c)(9) provides for dismissal “on the request of the United States trustee” when the debtor failed to file accurate statements and schedules in violation of § 521(1), “the bases for dismissal of a Chapter 13 case outlined in § 1307 are not exhaustive, and this Court is satisfied that a Chapter 13 case may be dismissed for the Debtor’s failure to comply with § 521(1) upon either the Motion of a creditor or the Court’s own Motion.” Amendment of schedules to include omitted property “is of no consequence inasmuch as an amendment to the Schedules does not cure the failure to originally schedule an asset.”). See also In re Greene, 127 B.R. 805 (Bankr. N.D. Ohio 1991) (It is cause for dismissal sua sponte, though without prejudice, when debtor missed mandatory 15-day time limits in Bankruptcy Rules 3015 and 1007(c) by nine days. Counsel offered no excuse for missing the deadlines and no assurance that counsel or the debtors would meet future deadlines. “The failure to meet a mandatory deadline cannot be cured by the simple expedient of filing the required papers before the court’s show cause hearing.”).

 

9  In re Fernandez, 212 B.R. 361, 367 (Bankr. C.D. Cal. 1997) (In a chronicle of five bankruptcy cases by related or affiliated debtors filed “in concert” and “surreptitiously” to frustrate a foreclosure sale, it is appropriate for clerk of bankruptcy court, consistent with local rules, to dismiss Chapter 13 petition with prejudice to refiling for 180 days after written notice that petitions, statements and schedules are deficient. “Amended General Order No. 1, incorporated in Local Rule 180, provides in relevant part: ‘If the Chapter 13 schedules, statement and plan are not filed with the petition, the Clerk shall . . . issue an order notifying the debtor that, if the plan, schedules and statement are not filed within 15 days, the case shall be dismissed at the time with a 180-day bar to refiling.’ The clerk in this case furnished such a written order to the Debtor . . . . The clerk’s order contained a clear and unmistakable notice to the Debtor of the consequences of a failure to comply with the filing requirements on a timely basis. General Order No. 96-06 explicitly grants to the Clerk of Court the authority to dismiss bankruptcy cases when a debtor does not comply with the filing requirements after a written warning. . . . The clerk’s dismissal order was consistent with the authority granted in General Order No. 96-06.”), aff’d, 227 B.R. 174 (B.A.P. 9th Cir. 1998).

 

10  Fed. R. Bankr. P. 1017(f). See also discussion of procedure for conversion in § 311.2 [ Conversion on Request of Creditor or Trustee ] § 141.2  Conversion on Request of Creditor or Trustee.

 

11  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

12  Fed. R. Bankr. P. 7001 (“The following are adversary proceedings: . . .  (4) a proceeding to object to or revoke a discharge; . . . (6) a proceeding to determine the dischargeability of a debt; (7) a proceeding to obtain an injunction or other equitable relief, . . . (9) a proceeding to obtain a declaratory judgment relating to any of the foregoing.”).

 

13  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal. See, e.g., In re Gress, 257 B.R. 563 (Bankr. D. Mont. 2000) (Trustee’s motion to dismiss for bad faith filed in opposition to debtor’s motion to modify confirmed plan does not require an adversary proceeding but is motion practice governed by Bankruptcy Rule 9014.); In re Robertson, 206 B.R. 826, 829 (Bankr. E.D. Va. 1996) (“[T]he Court can find no specific authority for labeling [the motion to dismiss with prejudice] as an injunction requiring an adversary proceeding under B.R. 7001(7). To the contrary, motions to dismiss with prejudice have been the customary procedure in instances of abuse of the system for enjoining the debtor from re-filing for a certain amount of time, even beyond the 180 day mark.”).

 

14  See Fed. R. Bankr. P. 9013, 9014, 7004.

 

15  See § 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal. See also § 20.1 [ Court-Imposed Restrictions on Eligibility to Refile ] § 24.1  Court-Imposed Restrictions on Eligibility to Refile.

 

16  Fed. R. Bankr. P. 1017(a).

 

17  Fed. R. Bankr. P. 1017(a).

 

18  See also §§ 36.6 [ Application to Pay Filing Fee in Installments ] § 36.29  Application to Pay Filing Fee in Installments, 38.3 [ Filing Fee and Option to Pay in Installments ] § 37.5  Filing Fee and Option to Pay in Installments and 203.2 [ Filing Fee Payment Requirement ] § 113.2  Filing Fee Payment Requirement.

 

19  See 11 U.S.C. § 1307(c)(9).

 

20  Fed. R. Bankr. P. 1017(c).

 

21  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile, § 139.2  BAPCPA: More Grounds; Changed Consequences, § 152.3  Cause for Dismissal Added or Changed by BAPCPA, § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

22  292 B.R. 712 (B.A.P. 1st Cir. 2003).

 

23  292 B.R. at 717.

 

24  292 B.R. at 717–18.

 

25  Nos. UT-02-043, 02T-21711, 2003 WL 1442465 (B.A.P. 10th Cir. Mar. 21, 2003) (unpublished).

 

26  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile, § 139.2  BAPCPA: More Grounds; Changed Consequences, § 141.4  Cause for Conversion Added or Changed by BAPCPA, § 141.6  Automatic Conversion: The “Drop Dead” Clause and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

27  See § 82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay.

 

28  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

29  In re Black, 180 B.R. 534, 534–35 (S.D. Ind. 1995) (Debtor is not necessarily entitled to a hearing on dismissal where probationary order dismissed case if the debtor missed payment without satisfactory explanation. “The Bankruptcy Court placed Black’s bankruptcy on probationary status and instructed the Trustee to submit an order dismissing Black’s case ‘in the event future plan payments were not timely made to the trustee without satisfactory explanation.’ . . . [A]fter having been informed by the Trustee that Black had again failed to make timely payments, the Bankruptcy Court dismissed Black’s case. . . . [T]he case was dismissed without a hearing. . . . [A]s used in § 1307(c), the phrase ‘after notice and a hearing’ does not necessarily mean that a hearing is required. . . . Black does not dispute the fact that he received notice from the Bankruptcy Court that his case was going to be dismissed if he missed another payment without adequate explanation. Such notice was sufficient for the purposes of 11 U.S.C. § 1307. . . . Black offers no proof that he requested a hearing or in any way asked the Bankruptcy Court to consider any explanation for why he again failed to make a scheduled payment. Therefore, the Bankruptcy Court was not required to provide Black with a hearing before dismissing the case.”).

 

30  See § 24.1  Court-Imposed Restrictions on Eligibility to Refile and § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

31  See In re Loren, No. 99 Civ. 3001 (BSJ), 2000 WL 640667, at *2 (S.D.N.Y. May 18, 2000) (Bankruptcy court need not hold a hearing on dismissal with prejudice to refiling under § 109(g) when order was entered requiring debtor to file tax returns and payroll stubs, debtor failed to file the required documents and debtor failed to respond to the trustee’s notice that the case would be dismissed with prejudice. “The court did not err by dismissing the case without a hearing. The law is well-settled that a hearing is not necessarily required to dismiss a Chapter 13 case as long as notice is properly given and if no hearing is requested. . . . [N]otice was properly given to appellant. However, appellant did not respond with a request for a hearing in a timely fashion. Appellant’s inaction implicates 11 U.S.C. § 109(g) which allows a court to dismiss a Chapter 13 case with prejudice.”).

 

32  267 B.R. 856 (Bankr. W.D. Mo. 2001).

 

33  See discussion beginning at § 44.1  First Test of Debtor’s Good Intentions.

 

34  11 U.S.C. § 348(f)(1)(A), (B).

 

35  See § 143.2  In Cases Filed after October 22, 1994§ 143.3  Payments Held by Chapter 13 Trustee at Conversion: § 1326(a)(2) after BAPCPA, § 145.2  In Cases Filed after October 22, 1994 and § 145.3  Lienholders’ Rights at Conversion under § 348(f) after BAPCPA.

 

36  See § 115.3  Burden of Proof and § 143.3  Payments Held by Chapter 13 Trustee at Conversion: § 1326(a)(2) after BAPCPA.

 

37  New Jersey Lawyers’ Fund for Client Protection v. Goddard (In re Goddard), 212 B.R. 233, 237 n.1 (D.N.J. 1997) (In a footnote, “the party moving for dismissal” has the burden of proof to demonstrate cause.). Accord In re Edwards, No. 03-10018, 2003 WL 22016324, at *5 (Bankr. D. Vt. Aug. 26, 2003) (unpublished) (“[T]he creditor has the burden of proving its allegation of bad faith in order to effect a dismissal. By contrast, the burden of proving good faith in a chapter 13 case falls squarely upon the debtor.”); In re Dickerson, 232 B.R. 894 (Bankr. E.D. Tex. 1999).

 

38  Leavitt v. Soto (In re Leavitt), 209 B.R. 935, 939–40 (B.A.P. 9th Cir. 1997) (Bad faith is cause for dismissal with prejudice; BAP seems to put burden of proof on the debtor to show good faith on creditor’s motion to dismiss. “Bad faith, which is generally held to be a cause for dismissal of a case under § 1307, is also cause for dismissal with prejudice under § 349(a). . . . Debtor bears the burden of proving that the petition was filed in good faith. . . . We have previously held that the debtor’s burden to prove good faith is ‘especially heavy’ when a ‘superdischarge’ is sought.”), aff’d on other grounds, 171 F.3d 1219 (9th Cir. 1999). See also In re Privitera, No. 03-1460DWS, 2003 WL 21460027 (Bankr. E.D. Pa. June 12, 2003) (unpublished) (On creditor’s motion to dismiss eighth bankruptcy filing, once creditor puts debtor’s good faith in question, burden shifts to debtor to establish that the petition was filed in good faith. Moving creditor shifted burden by proving the filing of eight prior cases, the debtor’s failure to disclose the prior cases and the debtor’s failure to make the first payment in the current case.).