§ 152.5     Cause Not Found
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 152.5, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Dismissal is a drastic remedy. The reported decisions demonstrate that bankruptcy courts take dismissal seriously, allowing the remedy only when the facts are compelling and other remedies aren’t available or won’t solve the problem in the Chapter 13 case.

[2]

One bankruptcy court acknowledged that dismissal is the proper remedy when a debtor is ineligible for Chapter 13, but when only one spouse is ineligible in a joint case, the eligible spouse can continue the Chapter 13 case.1 Debtors have important responsibilities to file accurate and complete schedules, plans and other documents, but typically it is appropriate to allow Chapter 13 debtors some opportunity to correct deficiencies in documents before dismissing the case. Allegations of inaccurate schedules are “very serious,” but when the errors “were not intentional or fraudulent” the mistakes do not constitute bad faith.2 In Minkes v. LaBarge (In re Minkes),3 a pro se debtor’s first draft of the plan was “incomplete and incomprehensible.” The bankruptcy court dismissed the Chapter 13 case without giving the debtor notice of the deficiencies or affording an opportunity to correct the plan. On appeal, the Bankruptcy Appellate Panel for the Eighth Circuit reversed:

[W]hile we agree wholeheartedly with the bankruptcy court’s assessment that the debtor’s plan was “incomplete and incomprehensible” and agree that the plan was not confirmable, we disagree that the filing of one unconfirmable plan, in and of itself, is sufficient cause for dismissal of a Chapter 13 case.4
[3]

Although ordinarily it might be cause for dismissal that the debtor failed to list a social security number, when the debtor does not have a social security number and is not eligible to get one, nothing in the Code or Rules requires dismissal of the Chapter 13 case.5 Failure to list a source of income could be cause for dismissal, but when the unlisted source is the debtor’s live-in girlfriend and she moved out before confirmation, failure to list income from the girlfriend is not cause for dismissal.6 The debtor’s failure to appear personally at the new meeting of creditors after conversion from Chapter 13 to Chapter 7 is not necessarily cause for dismissal because bankruptcy court had discretion to permit the debtor to appear by telephone or videoconference.7

[4]

Although dismissal under § 1307(c) is the appropriate remedy when the debtor fails to commence making timely payments required by § 1326(a),8 it has been held that § 1307(c) is discretionary, and a delay in the commencement of payments can be excused by the bankruptcy court.9

[5]

A default in payments under a confirmed plan can be cause for dismissal under § 1307(c)(6), but default after confirmation does not require dismissal; the moving party has the burden of demonstrating the materiality of the default, and even a substantial default may not be material if the creditor is otherwise protected, for example, by the value of its collateral.10 When the confirmed plan provides that a nonfiling cosigner will pay a debt, default by the cosigner is not cause for dismissal of the Chapter 13 case.11 Incurring debt after confirmation—for example, failing to pay postpetition taxes—can quickly frustrate the Chapter 13 plan and lead to dismissal, but when the postpetition debt is not provided for through the plan, dismissal of the Chapter 13 case is not necessarily the appropriate remedy.12

[6]

Several courts have observed that § 1307(c) contains no requirement that the Chapter 13 petition be filed in good faith and thus have refused dismissal despite facts cited by other courts in support of bad-faith dismissals.13 Even in jurisdictions that recognize bad faith as a cause for dismissal, not every pre- or postpetition misconduct justifies dismissal. For example in In re Lilley,14 the U.S. Court of Appeals for the Third Circuit held there is a good-faith requirement for the filing of a Chapter 13 petition, violation of which can be a ground for dismissal; however, tax fraud is not cause for dismissal because a Chapter 13 debtor can discharge a liability created by tax fraud upon the completion of payments through a plan.15 Many reported decisions deny motions to dismiss for bad faith notwithstanding evidence of nondischargeable debt or misconduct by the debtor before or during the Chapter 13 case.16

[7]

Filing a Chapter 13 petition on the eve of a foreclosure is not necessarily “bad faith.”17 That the debtor has filed multiple or successive bankruptcy cases is not cause for dismissal when circumstances change and the current filing is a good-faith effort by the debtor.18 Not every “litigation strategy” or delay caused by the filing of a Chapter 13 case constitutes cause for dismissal when the debtor demonstrates legitimate rehabilitative intent or underlying interests of creditors that might be served through the Chapter 13 case.19 For example, one bankruptcy court found it was a “creative, permissible use” of Chapter 13, not bad faith, when the debtor filed the Chapter 13 case after discharge but before closing of a Chapter 7 case as a strategy to keep possession of a car after the Chapter 7 trustee avoided an unperfected lien.20 A one-payment, one-creditor Chapter 13 case is not necessarily bad faith for purposes of dismissal under § 1307(c).21 A $10 dividend to unsecured creditors over the life of a 36-month plan is not bad faith when $10 is all the debtor can pay.22

[8]

That the debtor received a discharge in bankruptcy within six years is not a ground for dismissal of a Chapter 13 case.23

[9]

The five-year maximum duration for a plan, found in § 1322(d),24 has produced inconsistent outcomes as a ground for dismissal of a Chapter 13 case.25 In In re Black,26 the court held that § 1322(d) does not require dismissal if at the time of confirmation, the plan would complete within five years, but the failure of the debtor to make all payments pushed the plan beyond 60 months. On very similar facts in In re White,27 the court held that dismissal was appropriate when the debtor’s default caused the plan to exceed the five years allowed by § 1322(d). Modification after confirmation28 or hardship discharge29 may be a remedy for the debtor who cannot complete payments within five years. Although exhaustion of the duration limitation is often cited as a cause for dismissal,30 it has been held that if the debtor is current in payments under the plan, the bankruptcy court has discretion to refuse dismissal and allow the plan to continue beyond five years.31 Some courts have observed that Congress would have included “drop dead” language somewhere in § 1322(d) or § 1307(c) if dismissal was required when a Chapter 13 plan exceeded the five years allowed at confirmation.32

[10]

Sometimes the denial of a motion to dismiss is in the best interests of some or all creditors. For example, in In re McDaniels,33 the Chapter 13 trustee moved to dismiss when the debtors stopped making payments. A bank opposed the trustee’s motion to dismiss, asking the bankruptcy court to continue the case for a time sufficient to permit the bank to complete a foreclosure sale. The debtors argued that it was “unfair” for the court to assist the creditor in the exercise of its nonbankruptcy remedies. The bankruptcy court concluded that it was in the best interests of creditors to deny the trustee’s motion to dismiss and instead, the court granted relief from the stay to all creditors.

[11]

In an opinion with messages for Chapter 13 trustees and their computer programmers, one court held that laches is a defense to a trustee’s motion to dismiss for cause. In In re Cutillo,34 the plan confirmed in 1988 required payments of $400 for six months and then $600 per month for 54 months. The debtors made monthly payments of $400 until the Chapter 13 trustee moved to dismiss in September of 1994. Notwithstanding the enormous default by the debtor, the court refused to dismiss:

Laches is available as a defense. . . . [T]he Trustee had a fiduciary duty to supervise the Debtors’ compliance with their plan and to take appropriate action if and when the Debtors failed to make the required payments. . . . Having made payments of $400 for well over five years without any action on the part of the Trustee to remedy the situation, the Court finds that the Debtors lacked any knowledge that the Trustee would later allege a default on their part. . . . Debtors relied on the lack of any assertion by the Trustee to the contrary and continued to make monthly payments of $400. . . . [T]here have been no allegations of bad faith on the part of the Debtors and no assertions that they missed any payments to the Trustee. . . . [T]he Court does not believe that the interests of the creditors and the estate would be better served if it were to grant the relief sought by the Trustee in light of the fact that the Debtors’ payments to date have resulted in repayment of approximately 88% of the monies due under the plan.35
[12]

Along the same lines, creditors must be diligent to prosecute a motion to dismiss lest other events during the Chapter 13 case will overrun dismissal. In Forbes v. Forbes (In re Forbes),36 the debtor’s ex-spouse’s motion to dismiss the Chapter 13 case was continued to permit a sale of property. The property was sold and a modified Chapter 13 plan was confirmed. The debtor completed payments under the modified plan and the bankruptcy court entered discharge. The ex-spouse then moved to vacate the discharge order to address the motion to dismiss. The Bankruptcy Appellate Panel for the Eighth Circuit was troubled that the bankruptcy court never ruled on the motion to dismiss, but the BAP concluded that the motion to dismiss was moot. The BAP assigned fault to the ex-spouse for failing to prosecute the motion to dismiss: “the record does not reveal any effort on [the ex-spouse’s] part to seek a hearing or call the pending motion to the court’s attention, or to otherwise obtain a decision on the motion to dismiss.”37

[13]

One reported decision finds that misbehavior, or at least confusing behavior, by a creditor can supply a defense to the creditor’s motion to dismiss. In In re Plymouth,38 the debtor filed nine bankruptcy cases between 1993 and 1998. It was clear to the bankruptcy court from just the filing history that “this most recent filing could be dismissed with little or no additional showing of bad faith.”39 But the bankruptcy court denied a mortgage holder’s motion to dismiss with prejudice based on this account of the debtor’s efforts to pay the mortgage:

[B]eginning in 1992 debtor was unable to locate any entity that owned the note and that would accept his mortgage payments. In September 1995 debtor and his wife, as part of divorce proceedings, attempted to sell their home but could not; no one could locate a mortgagee to acquire a payoff figure and who would accept the payoff, including, apparently, debtor’s closing attorney involved in the sale. In March 1996 debtor was contacted by Wilshire Credit Corporation, the current holder of the note . . . . Wilshire demanded payment in full . . . . [D]ebtor attempted to make arrangements to pay off the arrearages . . . . Wilshire refused. . . . Debtor did not make any of his monthly regular mortgage payments of $367.20 during the time he was in bankruptcy . . . . Debtor testified that he did not make payments because Wilshire would not accept any monthly payments.40
[14]

Cause for dismissal after confirmation cannot be based upon the failure of the plan to comply with the confirmation requirements of § 1325(a).41 The debtor, the trustee and all creditors are bound by the order of confirmation under § 1327(a), and any objection to the plan must be raised before confirmation.42 A creditor cannot use a postconfirmation motion to dismiss as a collateral attack on confirmation of the plan.43 For example, eligibility for Chapter 13 relief is a (nonjurisdictional) issue that must be raised by motion before confirmation or by objection to confirmation.44 Confirmation precludes a motion to dismiss based on ineligibility of the debtor.45

[15]

In one of the more bizarre Chapter 13 cases ever reported, the Bankruptcy Court for the Northern District of California concluded that the Fugitive Disentitlement Doctrine was not cause for dismissal. A little background is necessary.

[16]

In In re Henson,46 Religious Technology Center held judgments against the debtor for infringement of copyrights, for nearly a million dollars of attorneys’ fees and for several hundred thousand dollars for various sanctions and costs. The debtor filed Chapter 13 in part to escape these judgments.

[17]

During the Chapter 13 case, the debtor was charged criminally for violating California law by “intimidating, threatening, and oppressing Scientologists on account of their religious beliefs.”47 Debtor was convicted but fled to Canada before sentencing. Debtor was sentenced in absentia to incarceration for 365 days. The Religious Technology Center then moved to dismiss the Chapter 13 case based on the Fugitive Disentitlement Doctrine.

[18]

The bankruptcy court explained the Fugitive Disentitlement Doctrine:

[F]ederal courts . . . have authority to dismiss an appeal or writ of certiorari if the party seeking relief is a fugitive while the matter is pending. . . . [W]e have said an appellant’s escape “disentitles” him “to call upon the resources of the court for determination of his claims.”. . . Disentitlement “discourages the felony of escape and encourages voluntary surrenders,” and “promotes the efficient, dignified operation” of the courts.48
[19]

The Religious Technology Center argued that the doctrine required dismissal of the Chapter 13 case because “the bankruptcy case was a step in Debtor’s longstanding fight against the Church of Scientology.”49 The bankruptcy court made a more careful distinction, finding that the Chapter 13 case was not connected to the debtor’s (subsequent) fugitive status:

[T]here is no showing that Debtor filed bankruptcy solely, or even primarily, in order to harm the Church—creditor (which insists that it is distinct from the Church) received a large judgment against Debtor, and Debtor’s bankruptcy schedules show no significant assets other than his home—on the surface it appears that Debtor filed bankruptcy to deal with the economic consequences of creditor’s judgment, i.e., to reorganize his financial affairs, which is the very purpose of Chapter 13. . . . [D]ismissal of Debtor’s bankruptcy case is not necessary to address the concerns underlying the disentitlement doctrine. . . . If Debtor does not attend trial, he risks losing, since he bears the burden of demonstrating the good faith that is required [for] . . . plan confirmation. . . . [I]t is entirely possible that [Debtor] will decide that bankruptcy relief is sufficiently important to warrant his appearance—if he does not, the chips will fall where they may.50

 

1  In re Tabor, 232 B.R. 85, 91–92 (Bankr. N.D. Ohio 1999) (Not cause for dismissal of Mrs. Tabor’s Chapter 13 petition that Mr. Tabor is ineligible. “Mr. Tabor’s ineligibility to be a chapter 13 debtor under 11 U.S.C. § 109(e) does not compel the dismissal of Mrs. Tabor as a chapter 13 debtor in the pending case. The impact of the ineligibility of one spouse on a joint chapter 13 case which could have been separately initiated by the other spouse appears not to have been addressed in any reported decision. However, when creditors have improperly initiated a joint involuntary case, the court has allowed the involuntary case to proceed by dismissing one spouse or allowing the commencement of a separate involuntary case against the second spouse. . . . The Court cannot compel Mr. Tabor to continue as a chapter 13 debtor. . . . However, if Mrs. Tabor chooses to proceed with this chapter 13 case despite the dismissal of Mr. Tabor, the Court will allow Mrs. Tabor to do so.”).

 

2  In re Edwards, No. 03-10018, 2003 WL 22016324 (Bankr. D. Vt. Aug. 26, 2003) (unpublished). Accord Suggitt v. French (In re French), Nos. 01-10603, 01-1058, 2003 WL 21288644 (Bankr. D. Vt. May 30, 2003) (unpublished) (Evidence of bad faith was insufficient to warrant dismissal when amendments to schedules were explained.).

 

3  237 B.R. 476 (B.A.P. 8th Cir. 1999).

 

4  237 B.R. at 478. Accord In re McNichols, 249 B.R. 160, 181 (Bankr. N.D. Ill. 2000) (Although there are many reasons why the plan cannot be confirmed, dismissal is not appropriate because the debtor deserves a second opportunity to propose a confirmable plan. “This is a first filing for the Debtor. It is not at all uncommon for a Chapter 13 petition to be filed on the heels of adverse litigation. Rather than post a supersedeas bond with the state court while the Debtor appeals Equity’s judgment, she chose to file in this Court and seeks to reorganize her debts to all her creditors, rather than deal just with Equity . . . . The Plan at bar is a flawed attempt to deal with all of her creditors. The Court concludes, however, that the Debtor has been forthcoming and is not attempting to abuse the system or her creditors. She should be afforded the opportunity to propose a facially confirmable plan.”).

 

5  In re Merlo, 265 B.R. 502 (Bankr. S.D. Fla. 2001).

 

6  In re Gress, 257 B.R. 563 (Bankr. D. Mont. 2000).

 

7  In re Henson, 302 B.R. 884 (Bankr. N.D. Cal. 2003).

 

8  See § 44.4  Consequences of Failure to Commence Payments and § 44.6  Preconfirmation Payments after BAPCPA.

 

9  In re Smith, 85 B.R. 729 (E.D. Va. 1988). Accord In re Haning, 252 B.R. 799 (Bankr. M.D. Fla. 2000) (In a case “on the border of use of the process and abuse of the process,” bankruptcy court denies motion to dismiss notwithstanding that debtors delayed payments to creditors and failed to commence timely payments under § 1326.). See also In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. 1998) (Failure to commence payments consistent with § 1326 in two prior Chapter 13 cases is a failure to abide by court order for purposes of the 180-day bar to refiling in § 109(g)(1); however, the absence of evidence of willfulness in the failure to commence payment in prior cases precludes dismissal of third Chapter 13 filing).

 

10  See Sievers v. Green, 64 B.R. 530 (B.A.P. 9th Cir. 1986) (Default in payments after confirmation does not require automatic dismissal.); In re Midkiff, 85 B.R. 467 (Bankr. S.D. Ohio 1988) (Postconfirmation default in payments may be cause for dismissal, but trustee or creditor has burden of presenting competent evidence of the existence and extent of the default.); In re Brown, 70 B.R. 10 (Bankr. S.D. Ohio 1986) ($8,786 default in payments is not a material default justifying dismissal under § 1307(c)(6) where equity remains in most of the collateral subject to liens and the debtor has cooperated with the trustee to cure the postconfirmation default. Relief from the stay is appropriate as to other collateral in which the debtor has no equity.); In re Snider, 50 B.R. 311 (Bankr. S.D. Ohio 1985) (There is no material default and thus no cause exists when farm debtors make payments consistent with the confirmed plan but inconsistent with the expectations of the creditors apparently based on private correspondence between debtors and creditors. Implied terms of the plan and private agreements cannot be the basis for dismissal.).

 

11  In re Rosenthal, 233 B.R. 815, 818–19 (Bankr. C.D. Ill. 1999) (Not cause for dismissal under § 1307(c)(6) that cosigner defaulted after confirmation of a plan that provided cosigner would pay a debt. “[Section 1307(c)(6)] does not help the CREDITOR and there was no default by the DEBTOR. Under the confirmed plan, MILLWOOD was to pay the CREDITOR. It was MILLWOOD who defaulted. . . . The CREDITOR here could have protected itself by filing a claim for the MILLWOOD co-signed loan and objecting to confirmation on the grounds that it was entitled to look to the DEBTOR for payment. Having failed to do so, it is now too late.”). Accord In re Wallace, 259 B.R. 646 (Bankr. E.D. Tenn. 2001) (Not cause for dismissal that debtors’ daughter defaulted on payments to car lender and surrendered wrecked car with major mechanical problems when confirmed plan provided that car lender’s debt would be paid “outside the plan by the Debtors’ daughter” and the creditor acquiesced to this treatment without objection.).

 

12  See In re Robertson, No. 697-61956-FRA13, 2000 WL 33716977, at *2 (Bankr. D. Or. Jan. 7, 2000) (unpublished) (Although failure to pay postpetition taxes can be cause for dismissal, the failure to pay taxes does not violate prohibition in confirmation order against incurring credit; when the amount of unpaid taxes is small, dismissal is not required. There is no general order in the District of Oregon requiring the filing of postpetition tax returns in Chapter 13 cases. 28 U.S.C. § 959 is not applicable because of the vesting of property in the debtor at confirmation under § 1327(b). But “[w]illful avoidance by a debtor of legal obligations as they become due postpetition is inconsistent with Congress’ purpose in establishing Chapter 13.”); In re Jagours, 236 B.R. 616 (Bankr. E.D. Tex. 1999) (Not cause for dismissal that four years into plan, IRS filed large “amended” claim for postpetition taxes—“amended” claim was a postpetition claim under § 1305, not a priority claim. The trustee’s motion to dismiss on the ground of “infeasibility” was denied because the “amended” claim was not entitled to full payment under § 1322(a)(2) and was not provided for by the debtor under § 1322(b)(6).); In re Parffrey, 264 B.R. 409, 413 (Bankr. S.D. Tex. 2001) (Not cause for dismissal that debtor failed to file returns or pay federal income taxes during the Chapter 13 case when IRS did not file a postpetition claim and the debtor tendered the completion of payments one day before the hearing on the IRS’s motion to dismiss. Although the failure to file postpetition tax returns can be cause for dismissal, incurring postpetition debt is not by itself cause for dismissal: “The Bankruptcy Code specifically provides for postpetition debt: Bankruptcy Code Section 1305. The consequences, set forth in that section, appear to be a comprehensive treatment of postpetition debt. Dismissal is not one of those consequences. Therefore the mere fact that postpetition debt was incurred, without more, would not seem to be grounds for dismissal.”). See also Department of Treasury of P.R. v. Pagàn (In re Pagàn), 279 B.R. 43, 48 (D.P.R. 2002) (Failure to file Commonwealth tax returns was not unreasonable delay warranting dismissal under § 1307(c). “There was no conduct by the debtors to unreasonably delay the bankruptcy cases. . . . Treasury participated in the creditors’ meeting for each debtor. . . . Treasury could have objected to the plans and raised the issue of filing tax returns prior to the debtors’ confirmation. It, however, did not. . . . [T]he failure of Chapter 13 debtors to file tax returns poses a problem. It is not, however, a problem without solutions. In other jurisdictions, bankruptcy courts have issued standing orders or promulgated local rules requiring Chapter 13 debtors to timely file tax returns. . . . Alternatively, the tax authority may object to a plan if the debtor has not yet filed his tax returns.”).

 

13  See, e.g., In re Siciliano, 167 B.R. 999, 1015 (Bankr. E.D. Pa. 1994) (Court refuses bad-faith dismissal of debtor’s fourth Chapter 13 case. “The major thrust of Prudential’s Motion and Memorandum is precisely the sort of assertion that the Debtor’s Plan was not filed in good faith which the Szostek II Court expressly states is foreclosed by the confirmation Order. . . . [T]here is no ‘good faith’ filing requirement, specifically in Chapter 13 cases. . . . The only good faith requirement for Chapter 13 cases is set forth in 11 U.S.C. § 1325(a)(3), requiring that a Chapter 13 plan be filed in good faith. Any argument that the Debtor’s Plan was filed in bad faith falls with our conclusion that confirmation of the plan cannot be revoked.”); In re Scott, 166 B.R. 459, 461 (Bankr. M.D. Fla. 1994) (“Neither research of counsel nor independent research revealed any authority to support the proposition that a Chapter 13 case may be dismissed for lack of good faith unlike a Chapter 11 case which, of course, could be dismissed in the very beginning for the Debtor’s bad faith in seeking relief under a chapter. . . . [I]t is premature to consider dismissal albeit the denial of the Motion [to Dismiss] should be without prejudice . . . to object to confirmation of the current plan or any other amended plan which may be filed . . . on the basis that the plan has not been proposed in good faith.” Court denies motion to dismiss where debtor converted cash into exempt life insurance policies the day after a creditor was awarded a large jury verdict and debtor filed Chapter 13 case four days before trial in fraudulent conveyance action to undo the purchase of the insurance policies.); In re Oglesby, 161 B.R. 917, 924 (Bankr. E.D. Pa. 1993) (“There is no good faith filing requirement” in Chapter 13 cases.); In re Ford, 78 B.R. 729 (Bankr. E.D. Pa. 1987) (Section 1307(c) contains no requirement that the petition be filed in good faith, though there is a requirement that the plan be proposed in good faith in § 1325(a)(3). It is not cause for dismissal that the debtor has failed to make some postpetition payments, that the debtor has failed to list an ex-spouse as a creditor, that the list of expenditures may be inaccurate or that the debtor has acted oppressively toward his former spouse.); In re Mountcastle, 68 B.R. 305 (Bankr. M.D. Fla. 1986) (Although nothing in Code requires good faith as a condition precedent to petition, the absence of good faith may constitute cause for dismissal pursuant to § 1307. Petition and statements reflected only two unsecured creditors, and the primary unsecured creditor was engaged with the debtor in state court litigation. Creditor failed to prove that petition was merely a litigation tactic.); In re McConnell, 60 B.R. 310 (Bankr. W.D. Va. 1986) (In the absence of prejudice to creditors, it is not cause when debtor failed to file plan within the time prescribed by Bankruptcy Rule 3015.); In re Neary, 54 B.R. 94 (Bankr. E.D. Pa. 1985) (No cause is found when plan was filed on the 17th day rather than within the 15-day period prescribed by Bankruptcy Rule 3015.); In re Kopfstein, 35 B.R. 656 (Bankr. N.D. Ohio 1983) (Applying good-faith standards set forth in Memphis Bank & Trust Co. v. Whitman, 692 F.2d 427 (6th Cir. 1982), no cause is shown for dismissal prior to confirmation.).

 

14  91 F.3d 491 (3d Cir. 1996).

 

15  91 F.3d at 494–96 (“We conclude that tax fraud is not ‘cause’ for dismissal of a Chapter 13 petition, and therefore that the district court erred in reversing the bankruptcy court. . . . If Mr. Lilley is entitled to a discharge of the tax liabilities created by his prepetition conduct upon the completion of his Chapter 13 plan payments, then that same prepetition conduct should not result in a dismissal of his Chapter 13 case. . . . The same normative considerations regarding tax fraud are involved at the dismissal and discharge stages. It is therefore wholly implausible that Congress would hold that the type of conduct in which Mr. Lilley admittedly engaged is so egregious as to warrant dismissal of his petition, but benign enough that the debt incurred as a result of this conduct would be dischargeable if no effort to dismiss his petition were made. . . . The Seventh, Ninth and Tenth Circuits have held that lack of good faith in filing is sufficient cause for dismissal under section 1307(c). . . . We agree. . . .  [T]he good faith of Chapter 13 filings must be assessed on a case-by-case basis in light of the totality of the circumstances. . . . Accordingly, we . . . remand . . . for a determination whether, in light of the totality of the circumstances, Mr. Lilley filed his Chapter 13 petition in good faith.”).

 

16  See In re Edwards, No. 03-10018, 2003 WL 22016324, at *6 (Bankr. D. Vt. Aug. 26, 2003) (unpublished) (Creditor failed to demonstrate bad faith with respect to debtor’s 30% plan that would discharge 70% of a debt declared nondischargeable in prior Chapter 7 case. That plan would discharge a portion of $75,000 debt to FSA declared nondischargeable in a prior Chapter 7 case “is one of the factors that must be considered in determining a debtor’s good faith, it is not a determinative factor.” The debtor is “judgment proof” because all of his property is owned as a tenant by the entirety, but “the quest for relief offered by the statute, without more, does not constitute bad faith.”); In re Lancaster, 280 B.R. 468, 477 (Bankr. W.D. Mo. 2002) (Although burning down estranged wife’s boyfriend’s house was egregious misconduct for which the debtor was charged criminally, totality of circumstances favored allowing the debtor to attempt a Chapter 13 plan. That prosecuting attorney charged the debtor with burglary rather than attempted murder, that the debtor promptly confessed and completed criminal probation and that the jury in related civil case declined to award substantial punitive damages evidenced that the debtor’s behavior was not “so egregious, standing alone, as to foreclose him completely from seeking protection and relief under Chapter 13.” Debtor’s failure to make payments to the victim before the bankruptcy was not a ground for dismissal: “If a failure to pay prepetition judgment creditors were to be considered bad faith in the filing of a bankruptcy, many cases would be subject to dismissal.”); In re McGovern, 278 B.R. 888, 893 (Bankr. S.D. Fla. 2002) (Not cause for dismissal that an attorney with a salary of $75,000 proposed a 36-month plan that would pay 11% of a substantial debt that would be nondischargeable in a Chapter 7 case. Although the debtor’s “high income, short plan period and unreasonable expenses combine to illustrate that this debtor is not exerting an exhaustive effort to satisfy the claims of his creditors,” the debtor was “genuinely contrite” about his desire to repay his debts.), rev’d on other grounds, 297 B.R. 650 (S.D. Fla. 2003); In re Dickerson, 232 B.R. 894, 897–98 (Bankr. E.D. Tex. 1999) (Creditor failed to carry its burden to prove bad faith in support of dismissal. “The fact that a debtor uses Chapter 13 to obtain discharge of a debt that would not be dischargeable in a prior Chapter 7 case is not bad faith as a matter of law.” That the debtors are paying $1,500 per month to live in a house and have taken employment that pays less than a previous job is not proof of bad faith when there is no evidence that $1,500 is “out of line or unusual for a family of five,” previous job was a “dead-end position,” and new job has “greater potential in the long run.” There are no substantial discrepancies or extravagancies in the debtors’ budget, and 36-month plan was increased to 42 months.); In re Nipper, 224 B.R. 756, 758, 759 (Bankr. E.D. Mo. 1998) (Not bad faith that debtor proposed and confirmed a 10% plan that compromises a claim for embezzlement that was declared nondischargeable in a prior Chapter 7 case. “The Court finds this case to be distinguishable from [Noreen v. Slattengren, 974 F.2d 75 (8th Cir. 1992),] and [Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346 (8th Cir. 1990),] in that the wrongful conduct giving rise to Thomas Nipper’s debt to Automation Service, embezzlement, is not as morally repugnant as either attempted murder or sexual assault of a minor. . . . Nipper did not file his case in an anticipation of an adverse verdict in a civil case. . . . Nipper proposed paying his entire disposable income to his creditors. . . . Unlike LeMaire, who failed to schedule a contingent liability, Nipper has not been alleged to have failed to schedule a significant liability. Additionally, Nipper has not included any debts on his schedules, like LeMaire’s debt to his parents, that cause the Court to question the accuracy of his schedules.”); In re Barnett, 216 B.R. 202, 204–05 (Bankr. N.D. Ohio 1997) (Applying good-faith factors from Hardin v. Caldwell (In re Caldwell), 895 F.2d 1123 (6th Cir. 1990), not bad faith justifying dismissal where Chapter 13 case was filed solely to manage wage garnishment by creditor with claim declared nondischargeable in a prior Chapter 7 case. “The policy of good faith is the same regardless of whether the issue is raised under Section 1307(c) or 1325(a). . . . Thus, similar analysis can be used to determine good faith under both sections. Under Caldwell, the Sixth Circuit suggested twelve factors that could be examined to determine if good faith is present . . . . Most of these factors are also relevant to the issues of dismissal for lack of good faith. . . . Star Bank will bear the burden of proving [the debtor’s] lack of good faith. . . . The record contains no evidence that Ms. Barnett does not intend to effectuate her proposed plan. . . . [There is] no indication that the proposed repayment plan is unreasonable. . . . [M]onthly expenses . . . are reasonable . . . . [S]he is a single parent with a dependent child. . . . [T]he plan does not appear to be an effort to seek a nominal repayment that abuses the spirit of the Bankruptcy Code. . . . [F]iling her petition for relief under Chapter 13 to discharge a debt previously held nondischargeable in her Chapter 7 case because it was incurred by fraud does not alone constitute bad faith. . . . The Court finds no other factors to support Star Bank’s position . . . . [H]er sole reason for seeking Chapter 13 relief was to prevent wage garnishment which, if allowed, would leave her unable to support herself or her daughter. . . . Ms. Barnett has met the good faith requirement of § 1325(a)(3) . . . . Ms. Barnett’s case will not be dismissed.”); In re Corino, 191 B.R. 283 (Bankr. N.D.N.Y. 1995) (It is appropriate for the bankruptcy court to consider the best interests of the debtor and of creditors upon a motion to dismiss by a creditor. Court refuses to dismiss debtor’s fourth Chapter 13 case filed between 1987 and 1995 to deal with a civil judgment for embezzlement of $101,917.33.); In re Cottle, 189 B.R. 591, 595 (Bankr. E.D. Pa. 1995) (Refuses dismissal of Chapter 13 case that will pay only $10 per month for 36 months where the debtor acknowledges a debt of $6,785 for prepetition utilities incurred because the debtor failed to use a utility allowance as intended. “With respect to the use of the [allowance for utilities] for other purposes, . . . we do not think the remedy for her past conduct is to preclude her from bankruptcy relief.”); In re Moore, 188 B.R. 671, 678–79 (Bankr. D. Idaho 1995) (Court declines to dismiss notwithstanding evidence that the debtors had not been honest during the Chapter 13 case. Debtors failed to tell the trustee of $17,300 in cash received from the sale of timber. “The Debtors creditability, however, throughout this entire proceeding has been suspect. This record indicates sufficient evidence of lack of good faith upon which to grant FMCC’s motion to dismiss. However, under the totality of circumstances test of [Goeb v. Heid (In re Goeb), 675 F.2d 1386 (9th Cir. 1982),] . . . I decline to do so on the assumption the Debtors can continue to fund their chapter 13 plan as originally confirmed, and that they ought to be given the opportunity to do so regardless of their post-confirmation transgressions.”).

 

17  See In re Hollis, 150 B.R. 145, 149 (D. Md. 1993) (Bad-faith dismissal of a Chapter 13 case must be based on a showing of objective and subjective bad faith by the debtor. “Objective bad faith is demonstrated through the futility of the reorganization plan. Subjective bad faith refers to the debtor’s improper motive in filing the petition. . . . [F]iling a petition immediately prior to foreclosure does not necessarily constitute bad faith.”).

 

18  See Tsafaroff v. Taylor (In re Taylor), 884 F.2d 478 (9th Cir. 1989) (There is no per se rule against multiple Chapter 13 filings. It is the rule in the Ninth Circuit that successive filings may be evidence of bad faith, but multiple filings are permitted if each new plan is proposed in good faith.); Mortgage Mart, Inc. v. Rechnitzer (In re Chisum), 68 B.R. 471 (B.A.P. 9th Cir. 1986) (It is not an abuse of discretion to refuse to impose sanctions when debtor dismissed three consecutive Chapter 13s and finally filed a Chapter 7 case with the admitted purpose of avoiding a foreclosure sale. Debtor demonstrated good-faith belief that circumstances had changed at the time of each dismissal, rendering the bankruptcy cases unnecessary.), aff’d, 847 F.2d 597, 599 (9th Cir.) (“Multiple Chapter 13 bankruptcy filings are legally justified ‘as long as each new plan is proposed in good faith.’”), cert. denied, 488 U.S. 892, 109 S. Ct. 228, 102 L. Ed. 2d 218 (1988); Homeside Lending, Inc. v. Walker (In re Walker), No. 01-31235-T, 2001 WL 770801, at *2 (Bankr. E.D. Va. June 12, 2001) (Motion to dismiss fifth bankruptcy case with prejudice denied because mortgage holder failed to object to confirmation. “The court agrees with Homeside that debtor’s and codebtor’s filing histories suggest a pattern of abuse. However, the facts and circumstances of the present case do not justify a dismissal with prejudice, particularly in light of the recent confirmation of debtor’s chapter 13 plan without objection.”); In re Cornelius, 195 B.R. 831, 836 (Bankr. N.D.N.Y. 1995) (Not cause for dismissal that debtor files a second Chapter 13 case to deal with a large unsecured medical debt that arose during prior Chapter 13 case but with respect to which the creditor refused to file a postpetition claim. “Plaza is the only unsecured creditor. There is nothing in the Code, however, which requires that a debtor have a specific number of unsecured creditors. . . . Plaza does not deny that it is a bona fide unsecured creditor. Furthermore, an examination of the Debtor’s income and expenses makes it clear that she is unable to pay Plaza’s claim of approximately $26,650 without the benefits afforded to her by the Code. Admittedly, this is the Debtor’s second filing of a Chapter 13 petition. . . . While completing the payments under the 1989 plan, she incurred a substantial postpetition debt to Plaza. Unless an entity holding such a post-petition claim against the debtor which is a consumer debt elects to file a proof of claim, the Code does not permit a Chapter 13 debtor to file a claim on the creditor’s behalf. . . . It was on that basis that the Court entered its Order . . . denying the Debtor’s motion to add Plaza as a creditor and modify the 1989 plan to provide for a 1% dividend to Plaza. Under the circumstances, the Court finds nothing improper in the Debtor now seeking to discharge the debt to Plaza.”); In re Corino, 191 B.R. 283, 287–88 (Bankr. N.D.N.Y. 1995) (“[D]ismissal is only appropriate when it serves the best interest of the creditors and the debtor. . . . [T]he interests of [the bank] would be better served by dismissal as it could continue to garnish Debtor’s wages for what seems, from her perspective, to be an indefinite period of time. However, it is because of this same reason that dismissal would not be in Debtor’s interest. . . . [The bank] has not met the heavy burden of proof required for success on a Code § 305(a) motion for abstention and dismissal.” Debtor filed four Chapter 13 petitions between 1987 and 1995 to deal with a civil judgment for embezzlement of $101,917.33. Court confirmed fourth plan that would pay 10% over five years.); In re Siciliano, 167 B.R. 999 (Bankr. E.D. Pa. 1994) (Court refuses bad-faith dismissal of debtor’s fourth Chapter 13 case.); In re Hornlein, 130 B.R. 600, 602–03 (Bankr. M.D. Fla. 1991) (After Supreme Court’s decision in Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), it is clear that a debtor who received a discharge in a recent Chapter 7 case and who is no longer personally liable may still seek relief under Chapter 13 “provided there is nothing in the record to indicate that the debtor acted in bad faith. . . . Based on the facts of this case, this court is satisfied that it is appropriate to give this debtor an opportunity to save her home provided she immediately cure all pre- and post-petition defaults. . . . Considering the fact that now the debtor is a sole petitioner, that her husband is no longer involved, that she is in control of her funds and claims that she is able to cure the defaults, this court is satisfied that it is appropriate to permit her to seek confirmation of her Chapter 13 plan in order to save her home.”); In re Barker, 129 B.R. 287 (Bankr. M.D. Fla. 1991) (Citing Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), debtor’s fourth Chapter 13 case in 12 months was not prohibited by § 109(g) because, though filed within 180 days of debtor’s voluntary dismissal of third case, third case was not dismissed for willful failure of debtor to abide by court orders, nor was third case voluntarily dismissed following the filing of a request for relief from the stay. Neither debtor nor debtor’s counsel was subject to sanctions under Rule 9011 or any other provision of the Code or Rules for the fourth permitted filing.); In re Manderson, 121 B.R. 617 (Bankr. N.D. Ala. 1990) (Chapter 13 case filed two days after discharge in a Chapter 7 case, though debtor’s third bankruptcy case in three years, was a permissible effort to cure the arrearages on a lien that survived discharge; Jim Walter Homes, Inc. v. Saylors (In re Saylors), 869 F.2d 1434 (11th Cir. 1989), would permit the use of Chapters 7 and 13 in this manner.); In re Samuel, 77 B.R. 520, 524 (Bankr. E.D. Pa. 1987) (“Unreasonable delay” under § 1307(c)(1) is not shown when motion to dismiss is filed within a month of filing of debtor’s fourth Chapter 13 case “before the debtor even had an opportunity to ‘reasonably delay’ the proceeding.”); In re Smith, 43 B.R. 319 (Bankr. E.D.N.C. 1984) (Court confirms fourth Chapter 13 case filed to stop foreclosure. Debtors did not treat the mortgage holder fairly in prior three cases, dismissed for failure to maintain payments, but circumstances have changed and debtors can now make the payments. Court conditions confirmation on automatic dismissal and automatic relief from the stay if debtors fail to make payments during first 18 months of plan.).

 

19  See, e.g., Ho v. Dowell (In re Ho), 274 B.R. 867, 876 (B.A.P. 9th Cir. 2002) (Bankruptcy court inappropriately dismissed Chapter 13 case based on “the timing of Debtor’s filing, just prior to the establishment of a trial date by the state court for litigation.” Bankruptcy court failed to consider totality of the circumstances, including the option of conversion rather than dismissal.); Brugger v. Brugger (In re Brugger), 254 B.R. 321 (Bankr. M.D. Pa. 2000) (Although Chapter 13 case was filed days after domestic relations court awarded ex-spouse one-half interest in debtor’s business, debtor had legitimate reasons for filing bankruptcy, including inability to pay the domestic relations claims.); Cox v. Cox (In re Cox), 247 B.R. 556, 563–65 (Bankr. D. Mass. 2000) (In a contentious ongoing domestic relations dispute, ex-spouse’s motion to dismiss the debtor’s Chapter 13 case is denied. “[T]his Court has recognized that bad faith may constitute cause for dismissal. . . . [T]here is no evidence of the Debtor’s lack of intent to perform her obligations under the Bankruptcy Code. She has filed her schedules and plan . . . . The Debtor’s declaration of homestead recorded within a few days prior to her bankruptcy filing does not appear to be in violation of the Probate Court’s injunction against any encumbrance of the Debtor’s assets. A declaration of homestead is not an encumbrance. . . . [T]he Debtor filed the case to obtain the benefit of the automatic stay and prevent the Probate Court from considering the Motion to Restore . . . . However, many debtors postpone filing until they are on the brink of disaster. A finding of good faith does not demand that a debtor file a bankruptcy case only when he or she does not need the automatic stay. . . . [Keach v. Boyajian (In re Keach), 243 B.R. 851 (B.A.P. 1st Cir. 2000),] counsels against grounding a bad faith determination on the Debtor’s prepetition conduct. . . . The schedules . . . do appear to undervalue her assets, but the Plaintiff does not allege that she omitted any material assets, and the Plaintiff is free to challenge the valuation.” With respect to the debtor’s failure to pursue a potential legal malpractice claim against an attorney who represented her in the state divorce proceedings, “it would be unfair to ground a bad faith determination on the Debtor’s failure to sue a third party.”); Cardillo v. Andover Bank (In re Cardillo), 169 B.R. 8 (Bankr. D.N.H. 1994) (Although lack of good faith can be cause for dismissal of a Chapter 13 case, it is not sufficient bad faith that the debtor failed to pay the proceeds from the prepetition sale of the debtors’ residence to the holder of a second mortgage. There was conflicting testimony that the debtor advised the second mortgage holder of the sale of the property, that the debtor advised the closing agent of the mortgage and that the debtor was misinformed that the mortgage had been released. That the debtor failed to comply with “due-on-sale” clause in the second mortgage is not alone cause for dismissal of the Chapter 13 case.); In re Kjellsen, 155 B.R. 1013 (Bankr. D.S.D. 1993) (It is not bad faith that the debtor’s daughter, acting pursuant to a partially revoked durable power of attorney, may have filed the Chapter 13 petition as a litigation strategy to assist in her appellate attack upon state court orders with respect to guardianship of her father. Allegation that the debtor is solvent is not cause for dismissal.).

 

20  In re Cowan, 235 B.R. 912, 918–21 (Bankr. W.D. Mo. 1999) (In the Eighth Circuit, lack of good faith as a ground for dismissal “is an interesting hybrid of two complimentary ‘components.’” The first component is the 11 nonexclusive factors in United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir. 1982). The second component is the narrower inquiry described in Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir. 1987). Here, the debtor demonstrated a change in circumstances—the failure of the car lender to perfect its lien. “The Debtors . . . were now facing the loss of their source of transportation—a significant change in their circumstances. . . . Under the currently proposed ‘Chapter 20’ plan, the general unsecured creditors from the Chapter 7 case will get as much as they would have received under a straight Chapter 7, more than what they would have received in a Chapter 13, about the same as if the Debtors had converted and the Debtors get to keep their car. Therefore, the only ‘functional effect’ that is different under the present circumstances and the currently proposed plan is that the Debtors definitely get to keep their car. The Court does not consider the fact that the Debtors will get to keep their car an indicia of bad faith, but instead a creative, permissible use of the bankruptcy process.”).

 

21  See Brugger v. Brugger (In re Brugger), 254 B.R. 321 (Bankr. M.D. Pa. 2000) (That ex-spouse is the only listed creditor is indicative of bad faith, but weighing the totality of the circumstances, case was not filed “for a greedy and unworthy purpose.”); In re Klevorn, 181 B.R. 8, 11–12 (Bankr. N.D.N.Y. 1995) (It was not cause for dismissal that debtor proposed to surrender collateral to the only secured claim holder in full satisfaction of its claim and proposed to pay the only unsecured claim holder in full with a single monthly payment of $185. “The courts generally apply the same standards in evaluating whether a petition has been filed in bad faith or whether a plan has been proposed in bad faith. . . . The weight of the factors favors a finding of good faith on the part of the Debtor in filing his Petition. There is no evidence of any hidden agenda. Yet, the Court has some difficulty rationalizing how a Chapter 13 plan of one month’s duration constitutes a ‘reorganization’ of the Debtor. . . . Congress clearly provided a debtor, who seeks to reorganize, with the option of proposing a plan by which he/she may surrender property securing the claim of a creditor. That is exactly what the Debtor did in this case.”).

 

22  See In re Cottle, 189 B.R. 591, 594–95 (Bankr. E.D. Pa. 1995) (Not cause for dismissal that Philadelphia Housing Authority tenant proposes to pay only $10 per month for 36 months and acknowledges a debt of $6,785 for prepetition utilities due to her failure to use utility allowance as intended. There is no evidence of delay in the filing of the Chapter 13 case. All required documents were timely filed. “Nor can we find that the Debtor’s Plan was filed in bad faith or that the utility indebtedness presents an obstacle to confirmation. . . . [W]e refuse to dismiss Debtor’s case on the grounds that her Plan is in bad faith because it proposes a $10.00 dividend to unsecured creditors. . . . With respect to the use of the [allowance for utilities] for other purposes, Debtor testified that she was not told it should be used to pay her utility bills. . . . [W]e do not think the remedy for her past conduct is to preclude her from bankruptcy relief.”).

 

23  In re Baker, 736 F.2d 481 (8th Cir. 1984); Gayton v. Haney, 61 B.R. 612 (B.A.P. 9th Cir. 1986); In re Lewis, 63 B.R. 90 (Bankr. E.D. Pa. 1986).

 

24  See discussion beginning at § 112.1  General Rule: Three Years, More or Less.

 

25  See also discussion beginning at § 152.2  Cause for Dismissal—In General.

 

26  78 B.R. 840 (Bankr. S.D. Ohio 1987).

 

27  126 B.R. 542 (Bankr. N.D. Ill. 1991).

 

28  See discussion beginning at § 126.1  Standing, Timing and Procedure and § 127.1  To Suspend Payments.

 

29  See discussion beginning at § 160.1  In General.

 

30  See § 152.3  Cause for Dismissal Added or Changed by BAPCPA and § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings.

 

31  See In re Moore, 188 B.R. 671, 678–79 (Bankr. D. Idaho 1995) (Declines to dismiss notwithstanding evidence that the debtors cannot complete their plan and evidence that the debtors have not been honest after confirmation. Debtors failed to tell the trustee of $17,300 cash received from the sale of timber. “Here, the Debtors have submitted evidence showing that they are unable to complete the present plan and the Court has denied confirmation of two modifications of the present plan. However, confirmation of the Debtors’ plan has not been revoked . . . and the Debtors have not actually defaulted on their plan. Accordingly, the case may not be dismissed pursuant to § 1307(c)(5) or (7). . . . The Debtors creditability, however, throughout this entire proceeding has been suspect. This record indicates sufficient evidence of lack of good faith upon which to grant FMCC’s motion to dismiss. However, under the totality of circumstances test of [Goeb v. Heid (In re Goeb), 675 F.2d 1386 (9th Cir. 1982),] . . . I decline to do so on the assumption the Debtors can continue to fund their chapter 13 plan as originally confirmed, and that they ought to be given the opportunity to do so regardless of their post-confirmation transgressions.”).

 

32  See Linzy v. Keeton (In re Linzy), Nos. 4:96-BK-42297 E, 4:01-AP-4001, 2002 WL 32114564, at *4 (Bankr. E.D. Ark. Aug. 30, 2002) (unpublished) (Not cause for dismissal that plan has exceeded five-year maximum in § 1322(d). Plan provided for 36 monthly payments. Debtor completed payments, but trustee failed to submit a certificate of completion. Case remained open for several years until debtor filed an adversary proceeding for a declaration of entitlement to discharge. “While [§ 1322(d)] mandates a maximum length for chapter 13 plans before they can be confirmed, it does not provide that Chapter 13 cases must be dismissed if they do in fact extend beyond a five-year period. . . . [A] plan’s extension beyond a term of five years does not alone warrant dismissal.”); In re Harter, 279 B.R. 284, 288 (Bankr. S.D. Cal. 2002) (That confirmed five-year plan required one additional month for the debtor to make a final payment is not cause for dismissal. “[Section] 1322(d) does not contain a ‘drop dead’ provision that mandates dismissal of the case after five years. . . . [S]ince the Debtor tendered the amount to complete the minimum plan payments within a reasonable period of time after the Plan Completion Date, the Court will deem the plan cured.”).

 

33  213 B.R. 197 (Bankr. M.D. Ga. 1997).

 

34  181 B.R. 13 (Bankr. N.D.N.Y. 1995).

 

35  181 B.R. at 15–16.

 

36  218 B.R. 48 (B.A.P. 8th Cir. 1998).

 

37  218 B.R. at 50.

 

38  223 B.R. 910 (Bankr. E.D. Va. 1998).

 

39  223 B.R. at 910.

 

40  223 B.R. at 910–11.

 

41  See § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors. See, e.g., In re Stewart, 247 B.R. 515, 522 (Bankr. M.D. Fla. 2000) (That confirmed plan fails to provide for mortgage arrearage claim in violation of § 1322(b)(2) is not a ground for dismissal when the creditor failed to object to confirmation and failed to timely file a proof of claim. “EMC’s inability to collect the pre-petition arrearage owed it during the pendency of the plan is a delay precipitated by First Union’s failure to file its own proof of claim and to participate in Debtor’s case, not by any action taken by Debtor. The plan’s failure to provide for payment of the pre-petition arrearage does not constitute cause to justify dismissal of the case pursuant to § 1307(c)(1).”); In re Szostek, 93 B.R. 399 (Bankr. E.D. Pa. 1988), aff’d, 886 F.2d 1405 (3d Cir. 1989). But see In re Escobedo, 28 F.3d 34 (7th Cir. 1994) (Dismissal five years after confirmation is appropriate when plan failed to comply with the mandatory requirement in § 1322(a)(2) that priority claim holders be provided for in full.), discussed in § 152.3  Cause for Dismissal Added or Changed by BAPCPA and § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings.

 

42  See §§ 228.1 [ 11 U.S.C. § 1327: Overview ] § 120.1  11 U.S.C. § 1327: Overview and 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors.

 

43  See, e.g., Department of Treasury of P.R. v. Pagàn (In re Pagàn), 279 B.R. 43, 48 (D.P.R. 2002) (Failure to file Commonwealth tax returns was not unreasonable delay warranting dismissal under § 1307(c). “Treasury could have objected to the plans and raised the issue of filing tax returns prior to the debtors’ confirmation. It, however, did not.”); Homeside Lending, Inc. v. Walker (In re Walker), No. 01-31235-T, 2001 WL 770801, at *2 (Bankr. E.D. Va. June 12, 2001) (unpublished) (Motion to dismiss fifth bankruptcy case with prejudice denied because mortgage holder did not “exhaust procedural remedies for creditor relief, such as the timely filing of an objection to confirmation of debtor’s chapter 13 plan. The court agrees with Homeside that debtor’s and codebtor’s filing histories suggest a pattern of abuse. However, the facts and circumstances of the present case do not justify a dismissal with prejudice, particularly in light of the recent confirmation of debtor’s chapter 13 plan without objection.”).

 

44  See §§ 5.3 [ How to Challenge Eligibility ] § 9.3  How to Challenge Eligibility, 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse? and 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors.

 

45  See Jones v. United States (In re Jones), 134 B.R. 274 (N.D. Ill. 1991) (It is not cause for dismissal that the debtor may be ineligible where IRS waited 19 months after confirmation and 10 months after completion of payment and discharge before challenging eligibility. IRS had timely notice of filing and ample opportunity to contest the debtor’s eligibility before confirmation and before discharge; the IRS cannot use a motion to dismiss to cure its failure to timely raise the eligibility issue.); United States v. Edmonston (In re Edmonston), 99 B.R. 995 (E.D. Cal. 1989) (It is not cause for dismissal that the debtor is ineligible for Chapter 13 where ineligibility is evident from the face of the petition and the moving creditor failed to raise ineligibility until four months after plan was confirmed.). But see Ekeke v. United States, 133 B.R. 450 (S.D. Ill. 1991) (That the debtor had in excess of $100,000 of unsecured debt and the confirmed plan proposed to pay the IRS only 10% of its priority claim were “cause” for dismissal after confirmation. No creditor objected to confirmation. IRS filed a preconfirmation proof of claim for $104,000, but eligibility and treatment of IRS were first raised in government’s motion to dismiss after confirmation. Opinion includes no discussion of § 1327.).

 

46  289 B.R. 730 (Bankr. N.D. Cal. 2002).

 

47  289 B.R. at 731.

 

48  289 B.R. at 732 (quoting Degen v. United States, 517 U.S. 820, 824, 116 S. Ct. 1777, 135 L. Ed. 2d 102 (1996) (citations omitted).

 

49  289 B.R. at 737.

 

50  289 B.R. at 737–40.