§ 24.1     Court-Imposed Restrictions on Eligibility to Refile
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 24.1, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Frustration with repeat bankruptcy filers1 has motivated many courts to order (and to enter agreed orders) that limit or deny eligibility for Chapter 13. Prohibitions on future Chapter 13 filings are sometimes found as a condition in an order resolving a request for relief from the automatic stay,2 or, more often, as a provision in an order dismissing a prior case.3 The court-ordered restriction on eligibility is tested, often before the same court that entered it, when the debtor refiles in violation of the prior order and a motion to dismiss challenges eligibility based on the prior order. The reported decisions interpreting court-ordered restrictions on Chapter 13 eligibility have scoured the Code, the Rules and “inherent equity powers” without finding a firm foundation.

[2]

The fundamental problem with judge-made restrictions on Chapter 13 eligibility is that the Code itself contains a comprehensive treatment of the subject. Section 109(e) quite specifically defines the individuals eligible for Chapter 13.4 Section 109(g) defines in much detail when the dismissal of a prior bankruptcy case renders an individual ineligible for future bankruptcy relief.5 And by unambiguous cross-reference, § 349(a) states, “nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.”6 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)7 added one eligibility requirement—that the debtor complete a prepetition briefing consistent with § 109(h)—but BAPCPA did not otherwise change the eligibility rules for Chapter 13.8

[3]

Powerful canons of statutory interpretation support the conclusion that Congress has fully circumscribed the conditions under which individuals may refile a bankruptcy petition, and it is thus inappropriate for bankruptcy courts to fashion orders that alter the statutory scheme. In an often cited but less often followed 1991 decision, the United States Court of Appeals for the Tenth Circuit analyzed §§ 109(g) and 349 and concluded “a bankruptcy court may not deny future access to bankruptcy court, except under the circumstances of § 109(g).”9 One bankruptcy court observed that language in an agreed order purporting to restrict a debtor’s eligibility to refile “may be irrelevant, because it would be unenforceable as to any new filing by [the debtor] in any event.”10

[4]

In 2005, BAPCPA added the prepetition briefing requirement just mentioned, but BAPCPA did not otherwise alter the statutory permissiveness toward eligibility to refile. Instead, BAPCPA added provisions limiting the automatic stay in second or more filings within one year of a prior dismissal,11 and it specifically authorized in rem relief from the stay for a creditor with a lien on real property “if the court finds that the filing of the petition was part of a scheme to delay, hinder, and [now, ‘or’12] defraud creditors.”13

[5]

But there are many reported decisions that impose or enforce conditions and restrictions on refiling a Chapter 13 petition that are different than the rules in § 109(g).14 Showing little respect for the specific treatment of refiling eligibility in §§ 109(g) and 349(a), some of these decisions cite general Code provisions and rules of procedure, such as 11 U.S.C. § 10515 and Bankruptcy Rule 9011,16 to support hand-crafted eligibility rules.17 Some decisions bar Chapter 13 eligibility altogether for a period of time or until the occurrence of a specified event.18 Many of these decisions impose eligibility conditions that directly conflict with the bar to eligibility in § 109(g).19 Similar conflicts arise in cases that condition refiling on payment of filing fees unpaid in prior cases: requiring payment of all fees in advance is inconsistent with the debtor’s right to seek payment of filing fees by installments under Bankruptcy Rule 1006(b)20 and could conflict with the right to seek a waiver of filing fees in Bankruptcy Rule 1006(c) if the future filing is a Chapter 7 case.21

[6]

Other decisions, on somewhat firmer statutory ground, do not impose outright ineligibility but instead condition the effect of a future filing—for example, that no automatic stay will arise,22 or that some or all debts will not be dischargeable in a future case.23 As mentioned above, BAPCPA added specific limitations on the automatic stay in subsequent filings in new § 362(c)(3) and (c)(4) and provided a new mechanism for statutory, in rem stay relief in future cases in § 362(d)(4).24 By negative implication, these new enactments put in doubt bankruptcy court authority to fashion nonstatutory restrictions on future stays or in rem relief.25

[7]

Courts occasionally have conditioned refiling by serial filers on the debtor’s seeking permission before filing again.26 The Code suggests no such eligibility procedure, and enforcement is problematic—even a refiling without permission is a filing. The test for when “permission” should or should not be granted to allow a refiling is not much more well developed than “totality of circumstances” analysis.27

[8]

The cases cited above illustrate a recurring fact pattern particularly frustrating to creditors: serial filings by a debtor and the debtor’s spouse, sometimes jointly and sometimes separately. When joint debts are involved or when both spouses have an interest in the collateral, complete relief for the creditor means relief with respect to both spouses. When only one spouse is a debtor in the pending case, the issue becomes: what procedure will support a court-imposed restriction on eligibility for refiling with respect to both the debtor and the nonfiling spouse?

[9]

In In re Roeben,28 the spouses had been debtors in at least six filings in six years. A repeatedly frustrated mortgage holder requested an injunction barring both the debtor and the nonfiling spouse from further bankruptcy filings. The bankruptcy court concluded that with respect to the nonfiling spouse, injunctive relief was only available in an adversary proceeding that named the nonfiling spouse as a defendant. This is sound advice, though several of the decisions cited above extend injunctions to nonfiling spouses without discussion whether the procedural platform is adequate.

[10]

Once a bankruptcy court has rendered a debtor ineligible to refile, it has been held that the court is without authority to reduce the length of the disability. In In re Fritts,29 the debtors’ first case was dismissed with a 90-day injunction to refiling based on the debtors’ failure to make payments. Counsel miscounted and filed a second Chapter 13 petition two days before expiration of the 90-day period. Two days after the second filing, a mortgage holder foreclosed. The bankruptcy court held it was without authority to rescue the debtors’ home from the foreclosure sale:

This Court researched the point and can find no cases that have allowed an injunction to be reduced nunc pro tunc. The circumstances of this case might warrant the granting of the requested relief if there was authority to do so, since the debtors’ homestead is at stake and no evidence was presented that debtors have abused the bankruptcy system. The debtors’ attorney made an understandable mistake. However, this Court is aware of no basis upon which to grant a nunc pro tunc reduction of the injunction period.30
[11]

It is easy to understand the frustration of creditors and courts too often faced with a serially filing Chapter 13 debtor whose only apparent purpose for refiling is delay.31 But bad cases truly make bad law when the rules being modified by the courts are the statutory principles of eligibility fundamental to all bankruptcy practice. Courts should be encouraged to find remedies for serial filings that do not involve tampering with the statutes that define eligibility for Chapter 13.

[12]

A subsequent filing in violation of a court-imposed or statutory bar can be a problem for the attorney filing the case. Reported decisions have sanctioned attorneys who file a case in conflict with a refiling bar and attorneys who failed to sufficiently investigate whether the debtor was eligible to refile.32


 

1  See § 22.1  Eligibility of a Simultaneous Filer; § 23.1  Eligibility of a Serial Filer: “Chapter 20” and Beyond; § 104.2  Frequency of Filing Bankruptcy—Chapter 20 and Beyond; and § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings.

 

2  See § 64.3  Prospective, In Rem and Automatic Relief from Stay.

 

3  See § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

4  See § 9.1  Summary of Eligibility Requirements.

 

5  See § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General.

 

6  11 U.S.C. § 349(a) (emphasis added). See § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

7  Pub. L. No. 109-8, 119 Stat. 23 (2005).

 

8  See 11 U.S.C. § 109(h), discussed beginning at § 18.1  In General.

 

9  Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1103 (10th Cir. July 10, 1991) (McKay, Seth, Seymour), cert. denied, 502 U.S. 191, 112 S. Ct. 1161, 117 L. Ed. 2d 408 (Feb. 24, 1992). Accord Society Nat’l Bank v. Barrett (In re Barrett), 964 F.2d 588 (6th Cir. May 21, 1992) (Martin, Milburn, Contie) (In dicta, in the context of reviewing a good-faith objection to confirmation, creditor’s request for an injunction prohibiting the debtor from refiling a bankruptcy case exceeds the “powers properly invoked by a bankruptcy court.”); In re Jones, 192 B.R. 289, 290 (Bankr. M.D. Ga. Feb. 16, 1996) (Hershner) (Bankruptcy court is without authority to dismiss debtor’s third bankruptcy case with prejudice. Citing Frieouf, “[s]ection 349(a) does not permit a bankruptcy court, for cause, to dismiss a bankruptcy case with prejudice.”); In re Merrill, 192 B.R. 245 (Bankr. D. Colo. Oct. 16, 1995) (Krieger) (Citing Frieouf, neither § 105, § 349, nor Bankruptcy Rule 9011 authorizes a bankruptcy court to dismiss a Chapter 13 case with prejudice to refiling.). See also § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

10  In re Fallon, 244 B.R. 589, 591–94 (Bankr. E.D. Pa. Feb. 14, 2000) (Scholl) (Mortgage holder submitted an order that granted relief from the automatic stay and contained a stipulation by the debtor that if the Chapter 13 case was dismissed prior to confirmation, “the Debtor shall thereafter be barred from further bankruptcy filings for a period of six months from the date of dismissal. . . . ‘Enforcement of even an agreement which only temporarily waives . . . rights [to file a bankruptcy case] would appear sufficient to us to undermine the Congressionally-expressed public policy underpinning the Bankruptcy Code.’ . . . [T]he presence of the bar language . . . may be irrelevant, because it would be unenforceable as to any new filing by [the debtor] in any event. . . . [R]estrictions on future filings, if permitted at all, should be attached to the new cases during their pendency, rather than tacked onto orders in prior cases. . . . [N]either Debtors’ conduct was proven to be abusive of the bankruptcy system such as would justify the extraordinary remedies of bars on either Debtors’ future filings.”).

 

11  See 11 U.S.C. § 362(c)(3) and (4), discussed in § 23.2  Eligibility of Repeat Filers after BAPCPA and beginning at § 59.1  In General.

 

12  11 U.S.C. § 362(d)(4) was further amended in 2010 to change “and” to “or.” See Bankruptcy Technical Corrections Act of 2010, Pub. L. No. 111-327, 124 Stat. 3557 (Dec. 22, 2010).

 

13  11 U.S.A. § 362(d)(4), discussed in § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA.

 

14  See cases and discussion at § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

15  11 U.S.C. § 105 provides in part:

(a) The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.

 

16  Federal Rule of Bankruptcy Procedure 9011 authorizes the bankruptcy court to sanction parties and attorneys who file or sign papers that are frivolous, improper of purpose, unsupported by facts or law, etc.

 

17  See, e.g., Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 333, 335–40 & n.4 (2d Cir. Dec. 10, 1999) (Kearse, Calabresi, Haight) (Dismissal “with prejudice” of prior Chapter 11 case rendered the debtor ineligible to file Chapter 13 case, thus foreclosure sale after Chapter 13 petition did not violate stay and dismissal nunc pro tunc to the date of filing of the Chapter 13 case was appropriate. Debtor and debtor’s wife filed three prior Chapter 11 cases to prevent a foreclosure sale. Bankruptcy court found that the serial filings were in bad faith and dismissed third Chapter 11 case “with prejudice.” Fourth case was filed two months after the dismissal with prejudice and mortgage holder went ahead with foreclosure sale. Interpreting its own order of dismissal with prejudice, the bankruptcy court held “‘[t]he Debtor was thus ineligible to file under any chapter of the Bankruptcy Code. Therefore, this Chapter 13 case is dismissed as a nullity.’” The Second Circuit affirmed. “To bar future filings, an order of dismissal must be ‘with prejudice’; and bankruptcy courts look to §§ 105(a) and 349(a) for their authority to impose that sanction. . . . [M]any bankruptcy cases [hold] that ‘§ 105 empowers this Court to enjoin future filings to prevent abuse of the bankruptcy process.’ . . . Section 349(a) also empowers bankruptcy courts to enjoin future filings, although there is a conflict among the circuits as to the scope of that empowerment, and whether the provisions of § 349(a) contradict those of § 105. The distinctly minority view on these questions is that of the Tenth Circuit, which held in Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1103 (10th Cir. [July 10,] 1991) [(McKay, Seth, Seymour)], that while § 349(a) ‘gives bankruptcy courts discretion to determine whether there is “cause” to dismiss a case with prejudice,’ the section ‘does not deny a debtor all future access to bankruptcy court, except as provided in § 109(g),’ which in turn contains a 180-day temporal limit. . . . [I]n all circuits but the Tenth, bankruptcy courts and district courts invariably derive from § 105(a) or § 349(a) of the Code, or from both sections in some cases, the power to sanction bad-faith serial filers such as the Casses by prohibiting further bankruptcy filings for longer periods of time than the 180 days specified by § 109(g). . . . We take this opportunity to ally ourselves with the Fourth Circuit [Colonial Auto Center v. Tomlin (In re Tomlin), 105 F.3d 933 (4th Cir. Feb. 3, 1997) (Ervin, Wilkins, Motz),] and the great majority of lower courts which derive from §§ 105(a) and 349(a) of the Code a bankruptcy court’s power, in an appropriate case, to prohibit a serial filer from filing petitions for periods of time exceeding 180 days. We join those courts in concluding that § 109(g) does not impose a temporal limitation upon those other sections. . . . ‘[T]he qualifying phrase in § 349(a) applies both to the clause preceding the semi-colon and the clause following the semi-colon. . . . This reading of § 349(a) means that a debtor may be prejudiced from filing subsequent bankruptcy petitions under two circumstances: (1) if the court, for cause, so orders, or (2) if the terms of § 109(g) apply to the debtors’ case.’ . . . We find these constructions preferable to that of the Tenth Circuit in Frieouf, which derives from § 349(a)’s reference to § 109(g) the temporal limitation of 180 days upon the bankruptcy courts’ equitable power to preclude future filings for cause under §§ 105(a) and 349(a). . . . [I]t is perverse to construe the section as striking from the courts’ hands other sections of the Code which may remedy the same problem.”); Javens v. Ruskin, No. 99-74189, 2000 WL 1279189, at *2 (E.D. Mich. Aug. 24, 2000) (Edmunds) (Bankruptcy court has authority and did not abuse its discretion in dismissing Chapter 13 case with bar to refiling for 18 months. “As the Second Circuit Court of Appeals has recognized, the Tenth Circuit’s construction of the statute is the minority view. [Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 336 (2d Cir. Dec. 10, 1999) (Kearse, Calabresi, Haight)]. In Casse, the Second Circuit expressly declined to follow [Frieouf v. United States (In re Frieouf), 938 F.2d 1099 (10th Cir. July 10, 1991) (McKay, Seth, Seymour)]. . . . This Court declines to follow Frieouf, and in keeping with the majority of the circuits and the case law, concludes that the Bankruptcy Court had the authority to bar future filings in excess of 180 days. . . . Based on the findings of fact made by the Bankruptcy Court, and in the absence of evidence that the findings are clearly erroneous, the Court did not abuse its discretion by ordering an eighteen month bar to future filings.”), aff’d, 23 F. App’x 456 (6th Cir. Nov. 9, 2001) (not for publication) (Martin, Batchelder, Sargus); In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496, at *6 (E.D. Pa. Aug. 18, 2000) (Kauffman) (Arguably in dicta, “Section 349(a) of the Bankruptcy Code provides that a case may be dismissed with prejudice where cause exists. . . . Together, therefore, §§ 105(a) and 349(a) enable the bankruptcy court to restrict a debtor’s ability to file subsequent petitions.”); In re Meints, 222 B.R. 870, 871–72 (D. Neb. July 27, 1998) (Minahan) (District court found authority in § 105(a) for bankruptcy court’s sua sponte dismissal without a hearing and conditions that debtor was barred from filing another bankruptcy case “after 180 days . . . unless Meints ‘(i) pays the filing fee for the new case in cash or certified funds; (ii) files an affidavit demonstrating that he has paid the costs and expenses awarded to Gage County in connection with this bankruptcy case; and (iii) files fully completed bankruptcy schedules and statements of financial affairs.’”); In re Williams, No. 02-31639, 2002 WL 1477634, at *1 (Bankr. W.D.N.C. May 31, 2002) (Hodges) (Fourth bankruptcy case in less than two years is dismissed with an injunction prohibiting the debtor “for a period of one year from filing a petition for relief in any United States Bankruptcy Court.”); In re Robertson, 206 B.R. 826 (Bankr. E.D. Va. Dec. 5, 1996) (Adams) (Court orders dismissal of third Chapter 13 case with prejudice to refiling for 417 days based on §§ 105(a), 109(g) and 349(a).); In re Koval, 205 B.R. 72 (Bankr. N.D. Tex. Oct. 24, 1996) (Abramson) (Chapter 13 case is dismissed with an injunction under 11 U.S.C. § 105(a) enjoining the debtor from filing a bankruptcy “anywhere in the United States for two years.”); In re Spear, 203 B.R. 349 (Bankr. D. Mass. Dec. 13, 1996) (Boroff) (Bankruptcy court has authority under § 105(a) to dismiss Chapter 13 case with prejudice to refiling for 180 days based on debtor’s filing of three serial Chapter 13 petitions without statements and schedules and debtor’s concession that she intentionally filed the three petitions to stay foreclosure with the intent to dismiss when necessary.); In re Greenberg, 200 B.R. 763 (Bankr. S.D.N.Y. Sept. 4, 1996) (Bernstein) (Second Chapter 13 case filed to stop state court litigation is dismissed with prejudice based on 11 U.S.C. §§ 105(a) and 349(a) and Federal Rule of Bankruptcy Procedure 9011. Future bankruptcy filing will not invoke automatic stay with respect to specified creditor except on application from the debtor or the debtor’s trustee.); In re Armwood, 175 B.R. 779 (Bankr. N.D. Ga. Dec. 13, 1994) (Murphy) (Citing 11 U.S.C. § 105, fifth Chapter 13 case filed for the sole purpose of frustrating foreclosure by car lender dismissed with prejudice to the filing of any bankruptcy case for a period of 180 days.); In re Dami, 172 B.R. 6, 11 (Bankr. E.D. Pa. Aug. 23, 1994) (Sigmund) (Fourth bankruptcy case in three and one-half years dismissed with prejudice, and debtor barred from filing bankruptcy for 180 days without leave of court. Power to impose this sanction at dismissal is found in Bankruptcy Rule 9011 and in “discretionary power under § 349.”); Stathatos v. United States Tr. (In re Stathatos), 163 B.R. 83 (N.D. Tex. Dec. 6, 1993) (McBryde) (Bankruptcy court acted within its discretion to prevent abuse of the bankruptcy process under § 105(a) and within its authority under Bankruptcy Rule 9011 by dismissing pro se debtors’ third petition with prejudice to the refiling of a bankruptcy case for 24 months and ordering the debtors to pay $500 to the bankruptcy clerk as a sanction.); In re Earl, 140 B.R. 728 (Bankr. N.D. Ind. Jan. 10, 1992) (Lindquist) (Bankruptcy court has equitable power under § 105 to enjoin future filings to prevent abuse of the bankruptcy process. Court enjoins debtor from filing another Chapter 13 case for six months.); In re Dyke, 58 B.R. 714 (Bankr. N.D. Ill. Feb. 19, 1986) (Schmetterer) (Section 105 empowers bankruptcy court to condition dismissal on injunction against refiling of any Chapter 13 case in any court for 180 days where debtor filed a second Chapter 13 case before dismissal of first case and debtor’s counsel admitted that dismissal of the first case was sought on an emergency basis to avoid the effect of § 109(g).).

 

18  See, e.g., Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 334 n.4 (2d Cir. Dec. 10, 1999) (Kearse, Calabresi, Haight) (Dismissal “with prejudice” of prior Chapter 11 case rendered the debtor ineligible to file Chapter 13 case. In a footnote, “although the bankruptcy court’s order did not provide a time after which the debtor could once again file a bankruptcy petition, . . . it is clear from the bankruptcy court’s decision . . . that it only intended to bar temporarily the debtor from filing another petition before Key Bank had an opportunity to foreclose on the Property. . . . We therefore need not reach the question of whether a bankruptcy court could permanently preclude a serial filer from filing bankruptcy petitions.”); Alfaro v. Vazquez (In re Alfaro), 221 B.R. 927 (B.A.P. 1st Cir. June 10, 1998) (Votolato, Hillman, Vaughn) (Condition in order dismissing prior bankruptcy case that prohibited the debtor’s sister, mother, and a related company from filing bankruptcy for at least one year was effective against those other entities but did not include a prohibition on filing by the debtor; bankruptcy court appropriately granted relief from the stay for cause with respect to the debtor.); Javens v. Ruskin, No. 99-74189, 2000 WL 1279189, at *2 (E.D. Mich. Aug. 24, 2000) (Edmunds) (Affirms dismissal of Chapter 13 case with bar to refiling for 18 months.), aff’d, 2001 WL 1450676 (6th Cir. Nov. 9, 2001) (not for publication) (Martin, Batchelder, Sargus); In re Meints, 222 B.R. 870, 871–72 (D. Neb. July 27, 1998) (Minahan) (Bankruptcy court properly dismissed Chapter 13 case sua sponte and without a hearing based on order that dismissed prior bankruptcy case and barred the debtor from filing another bankruptcy case “after 180 days . . . unless Meints ‘(i) pays the filing fee for the new case in cash or certified funds; (ii) files an affidavit demonstrating that he has paid the costs and expenses awarded to Gage County in connection with this bankruptcy case; and (iii) files fully completed bankruptcy schedules and statements of financial affairs.’”); In re Ortiz, 200 B.R. 485 (D.P.R. Sept. 23, 1996) (Perez-Gimenez) (Affirms dismissal with prejudice to refiling for one year of debtors’ third Chapter 13 case filed within a five-year period to stop execution on a judgment.); Jeffries v. G.E. Capital Mortg. Serv., Inc. (In re Jeffries), No. 94-C2781, 1995 WL 12288 (N.D. Ill. Jan. 11, 1995) (Holderman) (Affirms dismissal of seventh bankruptcy case (eighth if you count debtor’s wife’s case), dismissed with prejudice to refiling for 180 days.); Stathatos v. United States Tr. (In re Stathatos), 163 B.R. 83 (N.D. Tex. Dec. 6, 1993) (McBryde) (Bankruptcy court acted within its discretion to prevent abuse of the bankruptcy process by dismissing pro se debtors’ third petition with prejudice to the refiling of a bankruptcy case for 24 months.); In re Jackson-Rone, No. 10-10024-WHD, 2010 WL 2036520 (Bankr. N.D. Ga. Jan. 6, 2010) (Drake) (Case filed in violation of prior dismissal order barring refiling for 180 days was void ab initio; debtor was barred from filing another petition in district for two years.); In re Scruggs, 320 B.R. 94, 97 (Bankr. D.S.C. Nov. 23, 2004) (Waites) (Ineligible debtor’s Chapter 13 case is “dismissed with prejudice to bar a further filing under Chapter 13 for a period of forty-five (45) days from the entry of this Order.”); In re Williams, No. 02-31639, 2002 WL 1477634, at *1 (Bankr. W.D.N.C. May 31, 2002) (Hodges) (Fourth bankruptcy case in less than two years is dismissed with an injunction prohibiting the debtor “for a period of one year from filing a petition for relief in any United States Bankruptcy Court.”); In re Buchanan, 225 B.R. 672, 678 (Bankr. D. Minn. Aug. 27, 1998) (Kressel) (Petition filed in bad faith is dismissed and debtor is “barred from filing another bankruptcy petition under any chapter of the Bankruptcy Code for 180 days from the date of this Order.”); In re Graffy, 216 B.R. 888, 891–92 (Bankr. M.D. Fla. Jan. 16, 1998) (Baynes) (Tax protestor’s third Chapter 13 case is voluntarily dismissed with prejudice conditioned that “the Debtor is barred from filing any future bankruptcy case in any jurisdiction which seeks relief from any claim filed by the IRS concerning the Debtor’s tax obligations for a period of two years from the date this Order becomes final.”); In re Martin, 215 B.R. 119 (Bankr. N.D. Tex. Dec. 8, 1997) (Akard) (Third Chapter 13 case filed by the debtor to stop a mortgage foreclosure is dismissed with prejudice to refiling by the debtor or by any relative or girlfriend or related entity of the debtor for a period of 180 days.); In re Inmon, 208 B.R. 455 (Bankr. E.D. Ark. Nov. 27, 1996) (Mixon) (Second Chapter 13 case is dismissed “with prejudice.”); In re Robertson, 206 B.R. 826 (Bankr. E.D. Va. Dec. 5, 1996) (Adams) (Debtor’s third Chapter 13 case is dismissed with prejudice to refiling for 417 days.); In re Koval, 205 B.R. 72, 76 (Bankr. N.D. Tex. Oct. 24, 1996) (Abramson) (Chapter 13 case is “dismissed with an injunction under 11 U.S.C. § 105(a) enjoining Debtors from filing a bankruptcy anywhere in the United States for two years.”); In re Spear, 203 B.R. 349 (Bankr. D. Mass. Dec. 13, 1996) (Boroff) (Bankruptcy court has authority to dismiss Chapter 13 case with prejudice to refiling for 180 days based on debtor’s filing of three serial Chapter 13 petitions without statements and schedules and debtor’s concession that she intentionally filed the three petitions to stay foreclosure with the intent to dismiss when convenient.); In re Hartley, 187 B.R. 506 (Bankr. D.S.C. July 24, 1995) (Waites) (Chapter 13 case is dismissed with prejudice to the refiling of any bankruptcy case for 180 days where debtor’s husband filed two prior Chapter 13 cases, both dismissed, the debtor’s case was filed to frustrate a foreclosure and before expiration of a 180-day bar to refiling imposed on husband at dismissal of his second case, and debtor failed to demonstrate substantial change of circumstances after the dismissal of husband’s second case.); In re Aichler, 182 B.R. 19, 22 (Bankr. S.D. Tex. Apr. 10, 1995) (Clark) (Chapter 13 case dismissed with prejudice to refiling for 180 days was appropriate “to prevent abuse of the bankruptcy process” where debtor filed Chapter 13 petition after discharge but while complaints challenging the dischargeability of debts were still pending in prior Chapter 7 case and schedules show a “prosperous lifestyle.”); In re Armwood, 175 B.R. 779 (Bankr. N.D. Ga. Dec. 13, 1994) (Murphy) (Fifth Chapter 13 case filed for the sole purpose of frustrating foreclosure by car lender dismissed with prejudice to the filing of any bankruptcy case for a period of 180 days.); In re Gros, 173 B.R. 774, 777 (Bankr. M.D. Fla. Oct. 20, 1994) (Funk) (Fifth bankruptcy case in two years and 22 days filed to stop collection by the IRS is dismissed under § 349(a) with prejudice: “[T]he debtor should be barred from filing another bankruptcy petition within the United States of America for a period of two years without specific permission from this Court.”); In re Dami, 172 B.R. 6 (Bankr. E.D. Pa. Aug. 23, 1994) (Sigmund) (Fourth bankruptcy case in three and one-half years dismissed with prejudice and debtor barred from filing bankruptcy for 180 days without leave of court.); In re Maurice, 167 B.R. 114 (Bankr. N.D. Ill. Mar. 31, 1994) (Squires) (Chapter 13 case is dismissed “with prejudice to filing any subsequent bankruptcy case without prior court approval.”); In re Standfield, 152 B.R. 528 (Bankr. N.D. Ill. Mar. 18, 1993) (Squires) (Dismissal with prejudice to any future filings for 180 days is appropriate remedy when debtors filed a second Chapter 13 case after the prior Chapter 13 was converted to Chapter 7.); Simmons v. Simmons (In re Simmons), 149 B.R. 586 (Bankr. W.D. Mo. Jan. 14, 1993) (Federman) (On creditor’s motion to dismiss, conditions dismissal that the pro se debtor is prohibited to file another bankruptcy petition under Chapter 11, 12, or 13 for 180 days and the clerk of the bankruptcy court is directed not to accept any filing that violates the terms of the injunction.); In re Belden, 144 B.R. 1010 (Bankr. D. Minn. Sept. 16, 1992) (Kressel) (Bankruptcy court conditions dismissal that the debtor is ineligible to file a petition for approximately two years.); In re Earl, 140 B.R. 728 (Bankr. N.D. Ind. Jan. 10, 1992) (Lindquist) (Debtor enjoined from filing another Chapter 13 case for six months.); In re Dilley, 125 B.R. 189 (Bankr. N.D. Ohio Feb. 11, 1991) (Snow) (Debtor is prohibited to file a Chapter 11 or Chapter 13 case within 12 months without first obtaining court approval, and approval will only be granted upon a showing by the debtor that his circumstances have changed.); In re Hepburn, 84 B.R. 855 (Bankr. S.D. Fla. Mar. 3, 1988) (Britton) (Case dismissed with debtor’s consent but on condition that debtor is not eligible to file another bankruptcy petition for at least one year.); In re Dyke, 58 B.R. 714 (Bankr. N.D. Ill. Feb. 19, 1986) (Schmetterer) (Dismissal of Chapter 13 case with injunction against refiling of any Chapter 13 case in any court for 180 days.).

 

19  See, e.g., In re Jerome, No. 09-00183, 2009 WL 2868816 (Bankr. D.D.C. Sept. 3, 2009) (not for publication) (Teel) (Trustee’s motion to dismiss was granted with prejudice to refiling for 180 days when motion for stay relief had been filed and debtor could not voluntarily dismiss without triggering 180-day bar in § 109(g)(2).)

 

20  See Tennant v. Rojas (In re Tennant), 318 B.R. 860, 867 (B.A.P. 9th Cir. Dec. 10, 2004) (Montali, Perris, Brandt) (Appeal of court-imposed restriction on refiling—that debtor must pay filing fee in full and file complete schedules, statement of affairs and plan—was moot, but BAP observed: “These restrictions on Debtor’s right to file a new bankruptcy petition abridged Debtor’s rights to pay the filing fee in installments according to Rule 1006(b)(1) and to file the other documents within 15 days after the commencement of his case pursuant to Rule 1007(c). However, this part of Debtor’s appeal is also moot, now that 180 days have passed.”). See also § 35.8  Bankruptcy Rule 1006: Filing Fee and Installments and § 37.5  Filing Fee and Option to Pay in Installments.

 

21  See Fed. R. Bankr. P. 1006(c), permitting waiver of filing fees in a Chapter 7 case (only) under 28 U.S.C. § 1930(f).

 

22  See § 64.3  Prospective, In Rem and Automatic Relief from Stay. See, e.g., In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496 (E.D. Pa. Aug. 18, 2000) (Kauffman) (In third Chapter 13 filed by debtor or husband to stop foreclosure, district court modified bankruptcy court order granting relief from the stay to provide that no future bankruptcy filing by the debtor would raise an automatic stay to foreclosure.); In re Barr, 263 B.R. 496, 498 (Bankr. E.D. Pa. June 22, 2001) (Carey) (Debtor’s sixth bankruptcy filing for “the exclusive purpose of delaying or preventing the debtor’s only creditor, GE Capital, from exercising its mortgage rights under state law,” is dismissed with the condition that “[n]o subsequent bankruptcy filing by the Debtor shall stay the pursuit by GE Capital Mortgage Services, Inc. of its remedies under applicable law.”); In re Fernandez, 212 B.R. 361, 364 (Bankr. C.D. Cal. Aug. 29, 1997) (Donovan), aff’d, 227 B.R. 174 (B.A.P. 9th Cir. Nov. 5, 1998) (Brandt, Klein, Meyers), aff’d, 208 F.3d 220 (9th Cir. Feb. 10, 2000) (Goodwin, Leary, Tashima) (An “in rem” order for relief from the stay provided “any relief from stay granted Movant herein be deemed binding and of full force and effect in this case and in any case filed by the Debtor or any other entity claiming an interest in the subject project within 180 days of the date of entry of this order granting relief from stay.”); In re Hric, 208 B.R. 21, 26 (Bankr. D.N.J. Apr. 22, 1997) (Stripp) (Mortgage holder is entitled to “prospective relief from the automatic stay in the event of future bankruptcies.”); In re Greenberg, 200 B.R. 763 (Bankr. S.D.N.Y. Sept. 4, 1996) (Bernstein) (Second Chapter 13 case filed to stop state court litigation is dismissed with prejudice that future bankruptcy filing will not invoke automatic stay with respect to the specified creditor except on application from the debtor or the debtor’s trustee.); In re Felberman, 196 B.R. 678, 679 (Bankr. S.D.N.Y. Oct. 17, 1995) (Hardin) (Order granting relief from the stay provided “any future filing by the debtor, or any other person or entity with an interest in the subject property, [shall] not operate as an automatic stay against Movant except upon separate order of this court.”); Ulster Sav. Bank v. Kizelnik (In re Kizelnik), 190 B.R. 171, 184 (Bankr. S.D.N.Y. Dec. 14, 1995) (Hardin) (Chapter 13 petition filed to stop foreclosure on debtor’s grandparents’ house is dismissed with provision “that any further filing under the Bankruptcy Code by any person claiming an interest in the Stein House will not operate as an automatic stay on USB’s right to foreclose in the absence of a further order by this Court on notice to USB.”); In re Prud’Homme, 161 B.R. 747, 751 (Bankr. E.D.N.Y. Dec. 20, 1993) (Holland) (In dicta, bankruptcy court “will entertain a dismissal pursuant to § 349(b)(3) with a direction that upon such dismissal, the property of the estate shall not revest in the debtor. The effect of such an order upon a further filing would be to avoid the invocation of the automatic stay with regard to any property owned by the Debtor at the time he filed this case.”).

 

23  See § 153.3  Court-Imposed Conditions and Restrictions on Dismissal. See, e.g., Leavitt v. Soto (In re Leavitt), 209 B.R. 935 (B.A.P. 9th Cir. June 4, 1997) (Ollason, Hagan, Ryan), aff’d, 171 F.3d 1219 (9th Cir. Mar. 26, 1999) (B. Fletcher, Tashima, Bryan) (Section 349(a) authorizes the bankruptcy court to dismiss a Chapter 13 case with prejudice to the discharge of the debtor’s current debts in any future bankruptcy case.); Cooper v. Kramer (In re Cooper), 139 B.R. 736 (D. Colo. May 1, 1992) (Kane) (At dismissal, bankruptcy court may preclude discharge of debts in any future bankruptcy case.), after remand, 153 B.R. 898 (D. Colo. May 5, 1993) (Kane) (Condition on dismissal of Chapter 13 case that debtors are permanently enjoined from seeking to discharge $65,000 debt to creditor is within the bankruptcy court’s discretion under § 349(a).), aff’d, 13 F.3d 404 (10th Cir. Dec. 16, 1993) (not for publication) (McKay, Seth, Barrett).

 

24  See § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA and discussion beginning at § 59.1  In General.

 

25  See § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA. See, e.g., Johnson v. TRE Holdings LLC (In re Johnson), 346 B.R. 190 (B.A.P. 9th Cir. July 7, 2006) (Klein, Pappas, Brandt) (Enactment of § 362(b)(20) and (d)(4) confirms that pre-BAPCPA Code did not authorize “in rem” stay relief that would trump automatic stay in future bankruptcy cases; although BAPCPA is not applicable, in rem order in prior bankruptcy case would not satisfy new conditions because bankruptcy court did not determine that prior filing was part of a scheme to delay, hinder and defraud creditors nor was it an opportunity afforded to establish changed circumstances or other cause.).

 

26  See, e.g., In re Patton, No. 07-13996bf, 2009 WL 2905750 (Bankr. E.D. Pa. Apr. 17, 2009) (Fox) (Motion to file fourth petition since 2005 was denied based on prior dismissal order that barred future filing without leave of court; debtor offered no explanation for failing to appeal prior dismissal and no evidence that new filing would result in feasible plan or that any circumstance had changed since prior dismissal.); In re Dawson, No. 07-15741DWS, 2007 WL 4190772 (Bankr. E.D. Pa. Nov. 20, 2007) (Sigmund) (In eighth case, when court previously conditioned refiling on debtor’s moving for permission, no positive change in circumstances was offered to justify filing again.); In re Lee, No. 03-33604, 2006 WL 3859134 (Bankr. E.D. Pa. Nov. 8, 2006) (Fox) (Consent order in prior case barred debtor from refiling without court permission; after considering reasons prior six cases did not succeed and similarity of debtor’s financial condition, court denied request to file seventh case.).

 

27  See, e.g., In re Cipriotti, No. 05-15898ELF, 2006 WL 6659551, at *6 (Bankr. E.D. Pa. June 23, 2006) (Frank) (Bar to refiling without court approval in order dismissing fourth case was procedural barrier that debtors must surmount under totality-of-circumstances analysis; permission to file fifth case was refused when debtors’ efforts to sell business had been unsuccessful for many months and prior case was characterized by contentious litigation. “Any one of a number of different facts might have affected the outcome: fewer prior cases; less contentious and less lengthy litigation in the prior cases; the absence of the post-dismissal Forbearance Agreement designed to give the Debtors a final deadline for concluding a sale; a present sale process that had advanced further than the issuance of a letter of intent one day before the court hearing; a more well developed roadmap of the case the Debtors propose to file.”).

 

28  294 B.R. 840 (Bankr. E.D. Ark. June 23, 2003) (Evans).

 

29  280 B.R. 710 (Bankr. S.D. Ala. Apr. 13, 2001) (Mahoney).

 

30  280 B.R. at 711. See also In re Skolnick, 363 B.R. 626 (Bankr. S.D. Fla. Mar. 7, 2007) (Olson) (In seventh bankruptcy case filed by debtor and/or spouse, bankruptcy court refuses relief from dismissal order that prohibited debtors from refiling for 180 days; debtors failed to prove good faith to support relief from condition on eligibility.).

 

31  See § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings.

 

32  See, e.g., In re Oliver, 323 B.R. 769, 773–75 (Bankr. M.D. Ala. May 2, 2005) (Sawyer) (Filing of a seventh Chapter 13 petition in violation of an injunction entered at dismissal of sixth case subjects counsel to sanctions under Bankruptcy Rule 9011 and debtor is barred from refiling for two years. Debtor’s seventh case was filed three weeks after dismissal of sixth case. Debtor’s counsel conceded that it was not her policy to check PACER or other court records with respect to prior cases but rather she relied upon the representations of the debtor that there were three prior cases. Debtor did not mention the dismissal of the sixth case three weeks earlier, with an injunction to refiling for 180 days. “[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. . . . A lawyer may not take his client’s word concerning previous bankruptcy filings when it is so easy to check the Court’s records. . . . [A] lawyer who files a petition in bankruptcy, in violation of an injunction against refiling, violates Rule 9011 if she does not make a PACER search of the Court’s records, notwithstanding the fact that the Debtor has misrepresented facts concerning prior bankruptcy filings. As PACER searches are simple, inexpensive and take only a minimal amount of time, the failure to conduct such a search is not reasonable under almost any circumstances.”); In re Bailey, 321 B.R. 169, 181–84 (Bankr. E.D. Pa. Mar. 3, 2005) (Sigmund) (In a chronicle of 10 bankruptcy filings by the debtor and the debtor’s husband, including the tenth filing for the husband when the wife was barred from refiling, debtor’s last counsel violated Bankruptcy Rule 9011 by failing to run a PACER check that would have revealed the prior filing history and violated Rule 9011 by filing the tenth case for the husband to circumvent an order barring refiling by the wife. “The problem of serial filing of Chapter 13 cases is epidemic in no small part because of lawyers who will take any case at the request of a debtor . . . . Given the requirement that the petition identify all cases filed within the last six years by location, case number and date filed, I believe a PACER search should be done by every lawyer prior to filing a petition with this court. Where the client identifies a prior case, and in particular where a review of the docket in that case discloses a bar order, failure to further investigate the client’s bankruptcy history, is inexcusable. . . . Had Iseman continued his electronic search . . . he would have easily discovered eight prior cases and the Second Bar Order. That was the reasonable inquiry required by Rule 9011 before he filed the petition for Mrs. Bailey. When Iseman joined Mrs. Bailey in signing her Chapter 13 petition, he certified that she was eligible to file, had disclosed her prior cases and was entitled to the benefits of the federal bankruptcy laws. . . . His failure to identify the prior cases on the petition he filed and his filing of the prohibited petition itself, which would have been apparent had he undertaken a reasonable inquiry, violated Rule 9011. . . . [A]n attorney is not an insurer of the accuracy of his client’s financial information. However, when the petition to be filed represents a tenth automatic injunction on the exercise of a creditor’s state law rights, an attorney has a heightened duty of inquiry. . . . I will order Iseman to conduct a PACER search of every potential debtor’s bankruptcy history prior to filing any new bankruptcy petition. His filing of a petition is a certification that he has done so. Failure to discover and disclose in the bankruptcy petition prior filings will be a contempt of this Court’s Order. . . . I find the award of $1,650 allocable $1,000 to Iseman and $650 jointly and severally to Mr. and Mrs. Baily reasonable.”). See also § 26.1  Special Problems for Lawyers in Chapter 13 Cases.