§ 25.2     11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 25.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Section 109(g)(1) is broadly worded that the 180-day bar to eligibility is triggered when a bankruptcy case for an individual debtor “was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case.”1 This section contains several important terms of art. The failure of the debtor must be “willful.” Not just any willful failure will do—it must be a willful failure to abide by a “court order,” or a willful failure to appear “before the court” in “proper prosecution” of the case. Proper prosecution of a Chapter 13 case would make a good topic for a book.

[2]

“Willful” in § 109(g)(1) is not defined by the Code. It can be expected that courts will define willful to mean “intentional” consistent with cases interpreting willful elsewhere in the Code.2 One court explained that willful for § 109(g)(1) purposes means “intentional, knowing and voluntary, as opposed to conduct which is accidental or beyond the person’s control. . . . A willful failure to do a required act requires a showing that the person had notice of his responsibility and intentionally disregarded it or demonstrated ‘plain indifference.’”3 As explained by the United States Court of Appeals for the Fourth Circuit in Houck v. Substitute Trustee Services, Inc.,4 the statute requires a separate finding of fact with respect to willfulness, not just a finding that the debtor failed to perform in one of the required ways:

While Houck’s second bankruptcy petition was filed within 180 days after the dismissal of her first petition, the Substitute Trustee has not shown that the first petition was dismissed because Houck willfully failed to abide by the bankruptcy court’s orders or to appear in proper prosecution of her case. Indeed, the record shows to the contrary. The bankruptcy court dismissed Houck’s first petition, which she filed pro se, because she “failed to file certain schedules, statements, or other documents.” It made no mention of Houck’s failure being willful— i.e., knowing and deliberate. And tellingly, the bankruptcy court did not dismiss her case with prejudice, which bankruptcy courts “frequently” do when imposing the 180-day filing ban authorized by § 109(g).5
[3]

Willfulness is a question of fact, proof of which “involves more than a mere failure to take some action.”6 It has been said that willfulness may be established by “‘(1) an admission of intentional conduct by the debtor; (2) a conclusion that denials of intentional conduct by the debtor lack credibility; or (3) our drawing adverse inferences from all of the circumstances attendant to the filing.’”7

[4]

It has been held that willful applies to both forms of conduct described in § 109(g)(1)—failure to abide by a court order and failure to appear before the court in proper prosecution of the case.8 Because the meeting of creditors is not an appearance “before the court,” failure to attend a meeting of creditors constitutes § 109(g)(1) conduct only if found to be a willful failure to abide by a court order.9 Because the local rules of the bankruptcy court are not “court orders” for purposes of § 109(g)(1), a pro se debtor’s failure to follow a local rule, which resulted in dismissal of the prior case, was not the willful violation of a court order.10 In contrast, one court found cause for dismissal with prejudice to refiling for 180 days when the debtor failed to file tax returns as required by a local “duties order.”11 “Indifference” to hearings and other responsibilities can constitute willfulness for § 109(g)(1) purposes.12

[5]

Once a willful failure is found, § 109(g)(1) mandates that the debtor is ineligible under any chapter of the Bankruptcy Code for 180 days.13 Discussed in more detail with respect to the bar to refiling in § 109(g)(2),14 the mandatory language of § 109(g)(1) has not always been interpreted to preclude bankruptcy court discretion to allow a refiling in the teeth of a willful failure in a prior case. For example, in In re Flores,15 the prior bankruptcy case was dismissed with prejudice for 180 days based on the debtor’s failure to comply with court orders. When the debtor refiled within 180 days, the bankruptcy court observed that dismissal of the second case was not automatic: “[T]he burden falls on the debtor to seek modification of or relief from the 180-day bar of the dismissal order and permission to proceed with the subsequent bankruptcy case.”16 The bankruptcy court does not explain the source of this discretion nor is any discretion obvious in the wording of § 109(g)(1). There is certainly much room for discretion with respect to whether the prior dismissal involved a willful failure of the sort required by § 109(g)(1); but once a willful failure is found, § 109(g)(1) does not give bankruptcy courts discretion to find the debtor eligible within the 180-day period.

[6]

Willfulness is a state of mind that courts are reluctant to find absent an evidentiary hearing.17 On the other hand, several courts have observed that a well-pleaded motion to dismiss under § 109(g) may be granted without an actual hearing if the debtor fails to respond or fails to come forward with evidence in support of eligibility.18

[7]

Several courts have held that the creditor moving to dismiss has the burden to prove that a prior dismissal fits the conditions in § 109(g)(1).19 In Montgomery v. Ryan (In re Montgomery),20 the United States Court of Appeals for the Eighth Circuit held to the contrary that the debtor has the burden to prove that the prior dismissal was not based on “willful failure,” notwithstanding that the § 109(g)(1) issue arises on a creditor’s motion to dismiss the subsequent case.

[8]

In Montgomery, the order dismissing the first case provided without embellishment, “Debtor(s) having failed to show cause, after notice, IT IS ORDERED AND YOU ARE HEREBY NOTIFIED THAT this Chapter 13 case is DISMISSED for Debtor’s failure to appear for examination at the 11 U.S.C. § 341 Creditors Meeting.”21 The Eighth Circuit rejected the debtor’s argument that the absence of a finding of “willful failure” in the order dismissing the first case precluded the creditor’s argument that the subsequent case was filed in violation of § 109(g)(1). The court noted that “[n]o specific finding of willfulness was necessary in the order dismissing the first petition. Section 109(g) was not at issue until [a creditor] moved to dismiss the second petition. A finding of willfulness must be made when a sanction is imposed, but need not be made earlier.”22

[9]

The Eighth Circuit then stated the basic premise that “the burden of establishing eligibility in bankruptcy lies with the party filing the bankruptcy petition.”23 Applying this principle, the court held, “[W]here a § 109(g) issue is properly raised, the filing party must establish that the failure to obey a court order was not willful. . . . In this case, the burden was on [the debtor] to explain his failure to attend the creditors’ meeting. Since he has offered no evidence on this point, the bankruptcy court’s finding [of ineligibility] was not clearly erroneous.”24 The Montgomery rule that the debtor has the burden to prove eligibility has been applied even when eligibility is raised as an objection to confirmation rather than on a motion to dismiss.25

[10]

Applying Montgomery, it would be the debtor’s burden at any hearing on a motion to dismiss under § 109(g)(1) to prove that the prior dismissal was not based on willful failure to abide by a court order or to appear in proper prosecution of the prior case. Excuses will be the order of the day—the debtor will almost always have to testify that some condition or event prevented regular performance in the prior case.

[11]

Judge Arnold of the Eighth Circuit, concurring in Montgomery, would assign the ultimate burden of persuasion to the creditor that moved to dismiss under § 109(g)(1).26 Courts adopting Judge Arnold’s view would first require the debtor to explain the failure to prosecute or to abide by a court order in the prior case. Once an explanation was offered, the objecting creditor would bear the burden of convincing the court of willfulness. Judge Arnold’s view is a reasonable accommodation of the debtor’s traditional burden to prove eligibility and the creditor’s usual burden to prove cause for dismissal of a bankruptcy case.27

[12]

Notice of the potential for prejudice under § 109(g)(1) is a problem for debtors. It is not always clear from the notice of a hearing on a motion to dismiss that the trustee or creditor will ask the court for a finding of a willful failure that triggers ineligibility under § 109(g)(1). For example, in Badalyan v. Holub (In re Badalyan),28 the debtor failed to appear at a hearing on the trustee’s motion to dismiss. The bankruptcy court’s order recited that “because Debtor has failed to appear before the Court in proper prosecution of this case, Debtor shall be prohibited from filing another case under title 11 for 180 days from the entry of this Order.”29 On appeal, the Bankruptcy Appellate Panel for the Sixth Circuit held that the debtor’s failure to appear at the hearing on the trustee’s motion to dismiss could not be a failure to appear in proper prosecution of the case for purposes of § 109(g)(1) because “the record does not show that the Debtor was given notice . . . that the court was considering imposing a 180-day bar.”30

[13]

Willfulness sufficient to bar refiling requires more than an isolated failure by the debtor in the prior case and is generally refuted by evidence of an intervening event or misfortune beyond the debtor’s immediate control. For example, it has been held that failure to make payments required by court orders in a prior Chapter 13 case is not willful for § 109(g)(1) purposes absent evidence of some intentional misconduct.31 A pro se debtor’s failure to make a $300 deposit with the trustee required by a local bankruptcy rule occurred through ignorance and was not willful for purposes of § 109(g)(1).32 On the other hand, that the debtor is pro se does not alone prevent a willfulness finding.33 Failure to file a plan in a prior Chapter 13 case did not invoke the bar to refiling in § 109(g)(1) when an inexperienced courier filed the petition but failed to inform debtor’s counsel that other documents were needed to avoid dismissal of the case.34 Denial of confirmation in a prior case or the failure to confirm amended plans offered after denial of confirmation was not sufficient to invoke § 109(g)(1).35 “Almost unbelievable” medical problems resulting in dismissal of a prior Chapter 13 case were not willful.36 When mail was intercepted by a family member and the debtor was unaware of the meeting of creditors and confirmation hearing, failure to attend was not willful.37 That the debtor failed to prosecute two previous Chapter 13 petitions was not alone sufficient to invoke § 109(g)(1) when the moving party presented no evidence of willfulness.38 A debtor’s fourth bankruptcy case, filed within 180 days of the voluntary dismissal of the third case, was not barred by § 109(g)(1) when the third case was voluntarily dismissed and could not be characterized as a dismissal based on any willful failure by the debtor.39 “[A]n intelligent young man” without any special “sophistication in bankruptcy” did not willfully fail to file statements and schedules as directed in a form order because he had to attend a job-training session out of town during the time within which the order required the filing of documents.40 One district court held it was error to refuse an evidentiary hearing on the issue of willfulness where the debtor claimed that the failure to make payments in a prior Chapter 13 case was caused by creditor harassment, by ineffective assistance of counsel, and by medical problems.41 The failure to make payments consistent with a consent order between the debtor and the IRS was not a willful failure to abide by a court order when slow business during the Christmas season disabled the debtor from making payments.42

[14]

Willfulness for purposes of § 109(g)(1) has been demonstrated in reported decisions by direct and circumstantial evidence of misconduct without adequate excuse, often including a pattern of actions or failures to act by the debtor. A debtor’s decision not to appear at a meeting of creditors because he was afraid he would be arrested on state criminal charges was a willful failure to abide by a court order for purposes of § 109(g)(1).43 The repeated failure to attend meetings of creditors, to produce financial information and to disclose a foreclosure constitute a pattern of inattention indicative of intentional misconduct.44 A series of Chapter 13 cases in which the debtor failed to pay filing fees or failed to make payments to the trustee raises the § 109(g)(1) bar to refiling.45 “Repeated failure to appear or lack of diligence” evidenced by a “pattern of dismissals and refilings and unchanged circumstances” is inferential of willfulness and sufficient to support § 109(g)(1) dismissal.46 Multiple filings and multiple dismissals are especially probative for § 109(g)(1) purposes.47 The filing of incomplete documents and the failure to complete paperwork notwithstanding notice of deficiencies are indicative of willfulness.48

[15]

In a jurisdiction that assigns the burden of proof to the party moving to dismiss,49 once that burden is met, the debtor must respond with a convincing excuse to avoid the 180-day bar. For example, the debtor’s failure to comply with the confirmation order and order to make payments in a prior case was willful when the debtor failed to deny the ability to make payments under the prior plan.50 Once it was shown that the debtor failed to appear at the § 341 hearing in a prior Chapter 13 case, the burden of proof shifted to the debtor to show that failure was not willful; when the debtor failed to come forward with evidence of lack of willfulness, it was appropriate to dismiss the second filing.51 Ignorance of statutory responsibilities or reliance on relatives or an attorney may not avoid dismissal.52 The argument that the debtor was addicted to drugs and unable to form the intent required by § 109(g)(1) has met with little success.53

[16]

Don’t forget that after BAPCPA, filing within one year of the dismissal of a prior case may limit the effect of the automatic stay—without regard to “willful” conduct or misconduct in the prior case. Detailed elsewhere,54 new § 362(c)(3) and (c)(4) limit the stay and raise presumptions with respect to continuation or imposition of the stay in a Chapter 13 case filed within a year of the dismissal of one or more prior cases. After BAPCPA, no automatic stay arises with respect to a lien or security interest in real property (only) if the debtor is ineligible because of § 109(g).55 Other consequences of ineligibility—including whether a stay arises when an ineligible debtor files a Chapter 13 petition—are discussed elsewhere.56

[17]

Administrative changes within the federal court system have conspired with changing technology to enlarge the threat to eligibility posed by § 109(g)(1). Prior to the advent of the Electronic Case Filing system in bankruptcy courts, Chapter 13 trustees were the principal source of motions to dismiss based on failures by debtors to file statements, schedules and other documents required to commence or maintain a Chapter 13 case. As ECF has become more robust, the Administrative Office of the United States Courts has encouraged bankruptcy court clerks to use the search and reporting protocols within ECF to vet the incoming stream of filings to determine whether documents are missing or incomplete and to issue warnings to debtors and their counsel. As demonstrated in many of the cases cited above, the warnings and notices of insufficiencies issued by bankruptcy courts often include language that the Chapter 13 case will be dismissed if the offending omission is not cured within a specified time.

[18]

Putting aside for the moment whether it is appropriate for the bankruptcy court to be the party moving for dismissal, when a Chapter 13 case is dismissed pursuant to a “warning” or a “notice” of some insufficiency from the clerk’s office, § 109(g)(1) is implicated because that dismissal is arguably a failure to abide by a court order or a failure to appear before the court in proper prosecution of the case. Good arguments in response include that a clerk’s “notice” or “warning” is not a “court order” and the failure to file documents is an uncomfortable stretch of the notion of a failure to “appear . . . before the court.” As more and more bankruptcy courts buy into the (mis)conception that the bankruptcy court clerk’s office is a proper policeman of the consumer bankruptcy system, § 109(g)(1) becomes a superhighway to bar the eligibility of debtors snared by the clerk’s net.


 

1  11 U.S.C. § 109(g)(1).

 

2  See, e.g., 11 U.S.C. § 1328(a)(4), discussed in § 159.7  Willful or Malicious Injury: § 1328(a)(4).

 

3  McIver v. Phillips (In re McIver), 78 B.R. 439 (D.S.C. Apr. 2, 1987) (Houck). Accord In re Estrella, 257 B.R. 114, 117 (Bankr. D.P.R. Dec. 7, 2000) (Lamoutte) (“A willful failure requires a finding that the person, with notice of the responsibility to act, intentionally disregarded it or demonstrated plain indifference.”); In re Yensen, 187 B.R. 676, 677–78 (Bankr. D. Idaho July 17, 1995) (Hagen) (“‘The term “willful” as used within the meaning of 11 U.S.C. § 109(g)(1) means deliberate or intentional rather than accidental or beyond the debtor’s control.’”); In re Walker, 171 B.R. 197, 203, 205 (Bankr. E.D. Pa. Aug. 11, 1994) (Scholl) (“Willful” for § 109(g)(1) purposes means “‘intentional, knowing and voluntary, as opposed to conduct which is accidental or beyond the person’s control.’”).

 

4  791 F.3d 473 (4th Cir. July 1, 2015) (Niemeyer, Diaz, Floyd).

 

5  Houck v. Substitute Tr. Servs., Inc., 791 F.3d at 487. Accord In re Grason, No. 09-71353, 2013 WL 3781766 (Bankr. C.D. Ill. July 18, 2013) (Gorman) (Dismissal under § 521(e)(2) for failure to provide document does not satisfy § 109(g)(1) without other evidence of willfulness. Bar to filing in § 109(g)(1) requires extensive and specific finding of willfulness.).

 

6  In re Burgart, 141 B.R. 90 (W.D. Pa. June 2, 1992) (Lewis).

 

7  In re Walker, 171 B.R. 197, 203 (Bankr. E.D. Pa. Aug. 11, 1994) (Scholl).

 

8  In re Arena, 81 B.R. 851 (Bankr. E.D. Pa. Jan. 25, 1988) (Scholl).

 

9  In re Arena, 81 B.R. 851 (Bankr. E.D. Pa. Jan. 25, 1988) (Scholl). See Klein v. Ulster Sav. Bank (In re Stein), 127 F.3d 292 (2d Cir. Oct. 20, 1997) (Parker, Altimari, Keith) (Failure to appear at meeting of creditors may constitute failure to abide by a court order for purposes of § 109(g)(1).); Montgomery v. Ryan (In re Montgomery), 37 F.3d 413 (8th Cir. Oct. 6, 1994) (Arnold, Wollman, Beam) (Debtor’s failure to appear at § 341 meeting of creditors in prior bankruptcy case can be a ground for dismissal of subsequent case under § 109(g)(1).).

 

10  In re Hollis, 150 B.R. 145 (D. Md. Feb. 2, 1993) (Nickerson) (Pro se debtor’s failure to make $300 deposit with trustee required by local rules occurred through ignorance and was not willful for purposes of § 109(g)(1). The failure to follow a local rule of the bankruptcy court does not constitute the willful violation of a court order: “Taken to its logical extreme, this argument would subject any debtor who violates any Bankruptcy Rule to the 180-day bar to refiling. This does not appear to be in keeping with the purpose of section 109.”). Compare In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. Jan. 29, 1998) (Boswell) (Failure to make payments as required by local rules and § 1326 can be a failure to abide by a court order for purposes of the 180-day bar in § 109(g)(1).).

 

11  In re Maclean, 200 B.R. 417 (Bankr. M.D. Fla. Aug. 6, 1996) (Briskman). Accord In re Loren, No. 99 Civ. 3001 (BSJ), 2000 WL 640667 (S.D.N.Y. May 18, 2000) (Jones) (Dismissal with prejudice to refiling under § 109(g) was appropriate when debtor ignored court order to file tax returns and other documents.). See discussion of the debtor’s duties to file tax returns and new consequences for the failure to timely file tax returns imposed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Pub. L. No. 109-8, 119 Stat. 23 (2005), beginning at § 42.4  Tax Return Duties—In General.

 

12  See In re Welling, 102 B.R. 720 (Bankr. S.D. Iowa June 30, 1989) (Hill) (Late filing of statement and schedule of affairs “demonstrated plain indifference to the bankruptcy time requirements. Debtors chose to follow their own time schedule and file the required documents when it was to their convenience. Their conduct displays an intentional and knowing disregard of the court’s order and the Bankruptcy Code and Rules.”).

 

13  See, e.g., In re Jones, No. 04-47861DRD, 2005 WL 486758, at *3 (Bankr. W.D. Mo. Feb. 4, 2005) (Dow) (Debtor is ineligible in a Chapter 7 case under § 109(g)(1) because prior Chapter 13 case was dismissed for failure to comply with court order to file plan. “Debtor willfully failed to obey the Court’s order to file a plan in her fourth bankruptcy case and the case was dismissed as a direct result of this failure. Thus, Debtor was ineligible to be a debtor in a case under the Bankruptcy Code, pursuant to § 109(g)(1), at the time she filed this Chapter 7 proceeding.”).

 

14  See § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay.

 

15  291 B.R. 44 (Bankr. S.D.N.Y. Mar. 21, 2003) (Hardin).

 

16  In re Flores, 291 B.R. at 47.

 

17  See In re Bradley, 152 B.R. 74 (E.D. La. Mar. 8, 1993) (Schwartz) (Bankruptcy court has discretion whether to conduct an evidentiary hearing on the question of willfulness for purposes of § 109(g)(1); however, it was error to refuse an evidentiary hearing where the debtor asserted that the failure to make payments in a prior Chapter 13 case was caused by creditor harassment, by ineffective assistance of counsel and by medical problems.); In re Estrella, 257 B.R. 114 (Bankr. D.P.R. Dec. 7, 2000) (Lamoutte) (A hearing must be scheduled to permit the debtor to persuade the court that § 109(g) is not applicable.). See also § 159.7  Willful or Malicious Injury: § 1328(a)(4) for discussion of new exception to discharge for willful or malicious injury.

 

18  See, e.g., In re Loren, No. 99 Civ. 3001 (BSJ), 2000 WL 640667 (S.D.N.Y. May 18, 2000) (Jones) (Bankruptcy court did not abuse its discretion in ordering dismissal with prejudice to refiling under § 109(g) when court order required the debtor to file tax returns and payroll stubs, debtor did not file the required documents, the trustee gave notice that the case would be dismissed with prejudice under § 109(g) and the debtor did not respond. It was not necessary for the bankruptcy court to conduct a hearing on dismissal under these circumstances.); In re Estrella, 257 B.R. 114, 117 (Bankr. D.P.R. Dec. 7, 2000) (Lamoutte) (“A well-pled and supported motion to dismiss under section 109(g)(1) may be granted without an actual hearing if the debtor fails to oppose the same, when the moving party has made a prima facie case, and the court can infer that the failure to appear at a hearing and make the required payment was willful.”).

 

19  See § 9.4  Burden of Proof in an Eligibility Dispute. See, e.g., In re Estrella, 257 B.R. 114, 117–18 (Bankr. D.P.R. Dec. 7, 2000) (Lamoutte) (“Generally, a party moving for dismissal has the burden of proof to present evidence in support of its averments. . . . A . . . party that relies on section 109(g)(1) and avers failure to appear at a hearing and/or make payments to the Chapter 13 trustee (facts that are readily ascertainable from the prior case’s record or docket sheet) makes a prima facie case and the burden then shifts to the debtor to establish eligibility to file a petition because its failure to appear at a hearing and/or make payments to the Chapter 13 trustee were not willful.”); In re Halas, 249 B.R. 182 (Bankr. N.D. Ill. June 2, 2000) (Schmetterer) (Willful failure to make payments and to attend the meeting of creditors in a prior case could bar refiling within 180 days under § 109(g)(1); but the creditors moving to dismiss the second case did not prove willfulness at dismissal of the prior case and presented no evidence of willfulness in support of the motion to dismiss the second case.); In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. Jan. 29, 1998) (Boswell) (Because creditor failed to present any evidence that the debtor’s failures to make payments in two prior dismissed Chapter 13 cases were “willful,” not appropriate to bar the debtor’s third filing.); In re Arena, 81 B.R. 851 (Bankr. E.D. Pa. Jan. 25, 1988) (Scholl) (Failure to make payments, failure to attend the § 341 meeting and failure to appear at dismissal hearing were not willful, notwithstanding two prior filings, where only evidence presented was debtor’s testimony that he forgot about the § 341 meeting and mail was discarded by estranged wife.); In re Ristich, 57 B.R. 568 (Bankr. N.D. Ill. Jan. 31, 1986) (Schmetterer) (Party moving for dismissal has burden to establish willfulness under § 109(g)(1).).

 

20  37 F.3d 413 (8th Cir. Oct. 6, 1994) (Arnold, Wollman, Beam).

 

21  In re Montgomery, 37 F.3d at 414 n.2.

 

22  In re Montgomery, 37 F.3d at 415.

 

23  In re Montgomery, 37 F.3d at 415.

 

24  In re Montgomery, 37 F.3d at 415–16. Accord In re Yensen, 187 B.R. 676, 677 (Bankr. D. Idaho July 17, 1995) (Hagan) (“The burden of proof is on the debtor to show the failure to abide by a court order was not ‘willful.’” Debtor’s failure to attend the meeting of creditors was “willful” failure to abide by a court order where the debtor chose not to attend because he was afraid of being arrested on state criminal charges.).

 

25  See In re Smith, 286 B.R. 104, 106 (Bankr. W.D. Ark. Dec. 4, 2002) (Mixon) (When ineligibility is raised as an objection to confirmation, burden is on the debtor to prove that dismissal of prior case did not trigger bar to refiling in § 109(g). Citing Montgomery v. Ryan (In re Montgomery), 37 F.3d 413 (8th Cir. Oct. 6, 1994) (Arnold, Wollman, Beam), “the debtor has the burden of proof to explain that the dismissal of the previous case was not the result of a willful violation of the court’s order. . . . Here, the Debtor has failed to offer any evidence to establish his eligibility once the issue was raised. . . . [T]his case is dismissed because the Debtor failed to establish that he is eligible.”).

 

26  In re Montgomery, 37 F.3d at 416.

 

27  See discussion of cause for dismissal beginning at § 152.1  Procedure, Timing and Form.

 

28  236 B.R. 633 (B.A.P. 6th Cir. Aug. 13, 1999) (Rhodes, Stosberg, Waldron), aff’d, 221 F.3d 1333 (6th Cir. June 26, 2000) (not for publication) (Nelson, Boggs, Daughtrey).

 

29  In re Badalyan, 236 B.R. at 637.

 

30  In re Badalyan, 236 B.R. at 637. Accord Fuccione v. Solomon (In re Fuccione), No. MB 99-083, 2000 WL 35916011 (B.A.P. 1st Cir. Feb. 24, 2000) (Goodman, Haines, Carlo) (Dismissal with § 109(g)(1) bar to refiling based on failure to timely file plan was not appropriate when debtor had no notice that dismissal might be with prejudice.); Cote v. Solomon (In re Cote), No. MB 99-084, 2000 WL 35916012 (B.A.P. 1st Cir. Feb. 24, 2000) (Goodman, Haines, Carlo) (Dismissal with § 109(g)(1) bar to refiling based on failure to timely file plan was not appropriate when debtor had no notice that dismissal might be with prejudice.).

 

31  See In re Pike, 258 B.R. 876, 882 (Bankr. S.D. Ohio Feb. 9, 2001) (Hoffman) (Although “‘[m]ere failure to pay under a confirmed plan, even though payment under the plan is an order of the Court, does not cause a former debtor to be ineligible,’” willfulness sufficient to trigger § 109(g)(1) can be shown by evidence of deliberate or intentional failure to pay.); In re Halas, 249 B.R. 182 (Bankr. N.D. Ill. June 2, 2000) (Schmetterer) (A willful failure to make payments could bar refiling under § 109(g)(1), but creditor presented no evidence of willfulness in support of motion to dismiss.); In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. Jan. 29, 1998) (Boswell) (Failure to make payments as required by local rules and § 1326 can be a failure to abide by a court order for purposes of the 180-day bar in § 109(g)(1); however, because creditor failed to present any evidence that the debtor’s failures to make payments in two prior dismissed Chapter 13 cases were “willful,” not appropriate to bar the debtor’s third filing.); In re Faulkner, 187 B.R. 1019, 1023–25 (Bankr. S.D. Ga. Oct. 24, 1995) (Walker) (Dismissal of prior Chapter 13 case based on “strict compliance” or “drop dead” order requiring the debtor to make payments to the trustee is not a “willful” failure to abide by a court order. In prior Chapter 13 case, in settlement of a trustee’s motion to dismiss, the debtor agreed to “strictly comply” with a schedule of payments. The debtor defaulted under the strict compliance order, and the case was dismissed. The debtor refiled within 180 days. “In order for a court to find that section 109(g)(1) applies to bar future filings, a court must find that the actions of the debtor in the previous case support a dismissal with prejudice. Hall v. Vance, 887 F.2d 1041, 1045 (10th Cir. [Oct. 16,] 1989) [(Logan, Moore, Anderson)]. . . . Dismissal with prejudice is a severe sanction to which the courts should resort only infrequently. . . . The operation of section 109(g)(1) must be reserved for those situations in which the dismissal was an exercise of the Court’s contempt power undertaken to punish the bad faith defiance of a court order. Failure to comply with a court order does not rise to the level of contempt without aggravating factors evidencing bad faith. . . . Debtor failed to make the payments due to a medical problem. . . . However, by failing to fund the plan, Debtor did not commit a sanctionable violation meriting more than an administrative dismissal. . . . Violation of a salary order is not likely to be the basis of a finding of bad faith defiance. . . . While the defiance of a court order could evoke the application of section 109(g)(1), it is equally clear that orders calling for automatic dismissal of a case cannot, as a matter of law, form the basis of a dismissal with prejudice. The exercise of the Court’s contempt power requires that the debtor be given notice and the opportunity to be heard before such a dismissal can be ordered. . . . Thus, automatic dismissals which do not give the debtor the opportunity to be heard prior to the dismissal cannot form the basis of a dismissal with prejudice barring a debtor from refiling for 180 days.”); In re Chmura, 63 B.R. 12 (Bankr. D.N.J. Feb. 20, 1986) (Gindin); Bank of Louisville v. Morris, 49 B.R. 123 (Bankr. W.D. Ky. Apr. 2, 1985) (Brown); In re Nelkovski, 46 B.R. 542 (Bankr. N.D. Ill. Jan. 31, 1985) (Eisen). But see In re Prud’Homme, 161 B.R. 747 (Bankr. E.D.N.Y. Dec. 20, 1993) (Holland) (Dismissal is appropriate under § 109(g)(1) where prior case was dismissed in part because the debtor failed to make preconfirmation payments.); In re Holder, 151 B.R. 725, 726 (Bankr. D. Md. Feb. 25, 1993) (Derby) (Second filing is dismissed under § 109(g)(1) where prior Chapter 13 case was dismissed because the debtor “demonstrated conclusively that she was unable to fund Chapter 13 plan payments,” and the order denying confirmation in the prior case said: “[I]n the event this case is not converted to a case under another chapter within fourteen (14) days from the date of this Order or dismissed voluntarily by the Debtor(s), then pursuant to 11 U.S.C. § 105(a) in order to avoid any abuse of process by multiple or successive filings under Chapter 13, this case may be dismissed by the Court on account of Debtor(s)’ failure to prosecute the case properly, subject to 11 U.S.C. § 109(g), without further notice or hearing.” The debtor failed either to dismiss or to convert within the 14-day period.).

 

32  In re Hollis, 150 B.R. 145 (D. Md. Feb. 2, 1993) (Nickerson). See In re Williams, No. A12-00620-GS, 2012 WL 5879275 (Bankr. D. Alaska Nov. 20, 2012) (Spraker) (Dismissal of first case for failure to file plan or attend meeting of creditors was without prejudice and not for willful failure to abide by court orders. Debtors were pro se and did not understand requirements.).

 

33  See In re Jones, No. 04-47861DRD, 2005 WL 486758, at *3 (Bankr. W.D. Mo. Feb. 4, 2005) (Dow) (That the debtor filed prior (fourth) Chapter 13 case pro se was not an excuse; debtor is ineligible under § 109(g)(1) because prior Chapter 13 case was dismissed for failure to comply with a court order to file a plan.).

 

34  In re Burgart, 141 B.R. 90 (W.D. Pa. June 2, 1992) (Lewis).

 

35  In re Wamsganz, 54 B.R. 759 (Bankr. E.D. Mo. Nov. 1, 1985) (Barta). See In re Limpert, 155 B.R. 793 (Bankr. M.D. Fla. July 2, 1993) (Paskay) (Chapter 7 case filed within 180 days of the dismissal of a prior Chapter 13 case is not a prohibited refiling under § 109(g)(1) where the previous Chapter 13 case was dismissed merely because the plan did not meet the confirmation requirements in § 1322.).

 

36  In re Chmura, 63 B.R. 12 (Bankr. D.N.J. Feb. 20, 1986) (Gindin). See In re Bradley, 152 B.R. 74 (E.D. La. Mar. 8, 1993) (Schwartz) (It is error for bankruptcy court to refuse evidentiary hearing on issue of willfulness where debtor alleged that failure to make payments in prior Chapter 13 case was caused in part by medical problems.); In re Huckeba, No. 05-17339-WHD, 2006 WL 6589886 (Bankr. N.D. Ga. Sept. 9, 2006) (Drake) (Dismissal with prejudice under § 109(g)(1) was not appropriate when creditor did not prove willful failure to obey court order or to prosecute case. Debtors had not filed schedules or plan and failed to make payments to Chapter 13 trustee, but this was their first Chapter 13 case and their attorney had been ill.).

 

37  In re Lewis, 67 B.R. 274 (Bankr. E.D. Tenn. Oct. 31, 1986) (Stair).

 

38  In re Ristich, 57 B.R. 568 (Bankr. N.D. Ill. Jan. 31, 1986) (Schmetterer). See In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. Jan. 29, 1998) (Boswell) (Because creditor failed to present any evidence that the debtor’s failures to make payments in two prior dismissed Chapter 13 cases were “willful,” not appropriate to bar the debtor’s third filing.); In re Arena, 81 B.R. 851 (Bankr. E.D. Pa. Jan. 25, 1988) (Scholl) (Failure to make payments, failure to attend the § 341 meeting and failure to appear at dismissal hearing were not willful, notwithstanding two prior filings, where only evidence presented was debtor’s testimony that he forgot about the § 341 meeting and mail was discarded by estranged wife.). See also In re Dodge, 86 B.R. 535 (Bankr. S.D. Ohio May 24, 1988) (Cole).

 

39  In re Barker, 129 B.R. 287 (Bankr. M.D. Fla. July 5, 1991) (Paskay).

 

40  In re Walker, 171 B.R. 197 (Bankr. E.D. Pa. Aug. 11, 1994) (Scholl).

 

41  In re Bradley, 152 B.R. 74 (E.D. La. Mar. 8, 1993) (Schwartz) (Harassment or intimidation by creditors, attorney neglect, or medical conditions can affect the ability of a debtor to make payments into a plan in ways that will not be “willful” for purposes of § 109(g)(1).).

 

42  In re Jones, 192 B.R. 289 (Bankr. M.D. Ga. Feb. 16, 1996) (Hershner).

 

43  In re Yensen, 187 B.R. 676, 677–78 (Bankr. D. Idaho July 17, 1995) (Hagan) (“Failure to attend a section 341 meeting is ‘failure to abide by a court order’ within the meaning of § 109(g). . . . ‘The term “willful” as used within the meaning of 11 U.S.C. § 109(g)(1) means deliberate or intentional rather than accidental or beyond the debtor’s control.’ . . . Here the debtor’s only excuse for his failure to attend the hearing is that he was afraid he might be lawfully arrested. . . . [F]ear (even legitimate fear) of arrest is not valid excuse for failure to abide by court orders.”).

 

44  In re Correa, 58 B.R. 88 (Bankr. N.D. Ill. Feb. 25, 1986) (Ginsberg). See Allen v. Wayside Transp. Corp. (In re Allen), No. MB 00-115, 2001 WL 36381911 (B.A.P. 1st Cir. June 15, 2001) (Lamoutte, Vaughn, Carlo) (Dismissal of third petition with bar to refiling for 180 days under § 109(g)(1) was appropriate when debtor failed to appear at meeting of creditors in second case and failed to appear at dismissal hearing in current case.); In re Burroughs, No. 14-50559-WLH, 2014 WL 1689969, at *3 (Bankr. N.D. Ga. Apr. 29, 2014) (Hagenau) (Cause for dismissal with 180-day refiling bar when debtor had “failed to properly prosecute this case and [ ] three prior Chapter 13 cases. . . . Debtor has failed to attend his 341 hearing and has failed to file a plan which can be properly administered by the Chapter 13 Trustee. . . . Debtor has filed this case . . . to facilitate the filing of an adversary proceeding against [mortgage lender that foreclosed]. . . . [B]ankruptcy court is not the proper place for the litigation of these issues[.]”); In re Robinson, 198 B.R. 1017 (Bankr. N.D. Ga. July 25, 1996) (Murphy) (Willful misconduct justifying the 180-day bar to refiling in § 109(g)(1) when second Chapter 13 case was filed to stop a foreclosure, and debtor failed to file statements and schedules, failed to appear at the meeting of creditors, failed to file a plan and failed to make payments.); In re Neill, 158 B.R. 93 (Bankr. N.D. Ohio Aug. 23, 1993) (Krasniewski) (Debtor’s failure to submit an affidavit with respect to the payment of a home mortgage constituted willful failure to abide by orders of the court. The court found a “repeated pattern of misconduct” when the debtor misstated the amount of mortgage arrearages in the statements and schedules and failed to file a required affidavit with respect to the mortgage arrearages in the debtor’s second Chapter 13 case filed on the eve of foreclosure.); In re Smail, 129 B.R. 676 (Bankr. M.D. Fla. May 22, 1991) (Paskay) (It is a violation of § 109(g)(1) to refile within 180 days of dismissal of prior Chapter 13 case, when debtor failed to attend § 341 meeting in prior case and failed to timely file Chapter 13 statement or plan.).

 

45  In re Cottrell, No. 2:16-bk-20545, 2017 WL 2544135 (Bankr. S.D. W. Va. June 9, 2017) (Volk) (In fifth bankruptcy case in four years, dismissal with 180-day bar to refiling was appropriate under § 109(g)(1) when debtor failed to appear at rescheduled meetings of creditors, failed to file schedules, failed to provide tax returns and failed to make payments to trustee.); In re Smith, 395 B.R. 711 (Bankr. D. Kan. Sept. 11, 2008) (Nugent) (That debtor failed to obey court order to pay filing fee and to file missing documents in prior Chapter 11 case renders the debtor ineligible for relief for 180 days under § 109(g)(1).); In re Williams, No. 02-31639, 2002 WL 1477634 (Bankr. W.D.N.C. May 31, 2002) (Hodges) (Section 109(g)(1) requires dismissal of fourth case in two years when third case was dismissed for failure to pay filing fees as ordered by the court and second case was dismissed for failure to abide by order to make payments.).

 

46  In re Nelkovski, 46 B.R. 542 (Bankr. N.D. Ill. Jan. 31, 1985) (Eisen). Accord Cannon v. Wells Fargo Bank, N.A. (In re Cannon), No. 2:15CV303 DS, 2015 WL 7312900 (D. Utah Nov. 19, 2015) (Sam) (180-day bar to refiling under § 109(g)(1) applies in third case in three years when each case was filed on eve of foreclosure, debtor was ineligible for Chapter 13 and no change of circumstances or improved prospects were shown.); In re Haggerty, 57 B.R. 384 (S.D. Miss. Jan. 15, 1986) (Barbour); In re Baker, No. 14-37087-H3-13, 2015 WL 1515287, at *5 (Bankr. S.D. Tex. Mar. 30, 2015) (Paul) (In seventh Chapter 13 case, debtors were ineligible because at least two prior bankruptcy cases were dismissed for failure to comply with the Bankruptcy Code for § 109(g)(1) purposes. “The fifth and sixth cases each were pending during the 180-days preceding the date of filing of the petition in the instant case. Each of the previous five cases was dismissed, based on failure of the Debtors to comply with the applicable provisions of the Bankruptcy Code and Bankruptcy Rules. The court infers from the pattern of dismissals and re-filing in unchanged circumstances that Debtors’ failure to properly prosecute the fifth and sixth cases, as well as the instant case, was willful. . . . Thus, on the petition date in the instant case, Debtors were not eligible to be debtors under Title 11, pursuant to Section 109(g)(1) of the Bankruptcy Code.”); In re Robinson, No. 10-01610, 2010 WL 4668980 (Bankr. N.D. Iowa Nov. 9, 2010) (Kilburg) (Debtors were not eligible to file current case 23 days after prior case was dismissed for willful failure to comply with orders. Prior case was dismissed for failure to abide by court order. Four previously dismissed Chapter 13 cases established pattern of dismissals for failure to comply with plan payments and requests for documents.); In re Herrera, 194 B.R. 178, 189 (Bankr. N.D. Ill. Mar. 28, 1996) (Squires) (“Debtors’ repeated conduct of failing to appear at the § 341 creditors’ meetings, their repeated failure to make payments under the previous plans, and the refilings in unchanged circumstances constitute willful failure to abide by orders of the Court and is an abuse of the bankruptcy process. This conduct suggests a pattern of repeated failures which the Court can construe as willful conduct and a failure to appear before the Court in proper prosecution of the case. Accordingly, the Court hereby dismisses the instant serial Chapter 13 case under § 109(g)(1).”); In re Arena, 81 B.R. 851 (Bankr. E.D. Pa. Jan. 25, 1988) (Scholl).

 

47  In re King, No. 2:16-bk-26635-WB, 2017 WL 1944123 (Bankr. C.D. Cal. May 9, 2017) (Brand) (Dismissal with 180-day bar to refiling under § 109(g)(1) is appropriate in seventh bankruptcy case filed to retain possession of a residence that was foreclosed upon prepetition. Pattern of serial filings demonstrated bad faith, and dismissal of several prior cases with 180-day bars to refiling was further proof of bad faith.); In re Pike, 258 B.R. 876, 882–84 (Bankr. S.D. Ohio Feb. 9, 2001) (Hoffman) (“Courts generally have inferred willfulness from a series of dismissals and refilings without a showing of changed circumstances. . . . Debtor has made a series of Chapter 13 filings, failed to make meaningful progress toward the completion of her confirmed Chapter 13 plans, thereby resulting in dismissal due to nonpayment and, following dismissal, repeated the cycle by refiling after Ford repossessed the Automobile. . . . Debtor intentionally failed to remit payments to the Trustee knowing that the dismissal of the Fifth Case would inevitably follow. Thus, by her own admission, the Debtor willfully failed to abide by Court orders entered in the Fifth Case, which required the Debtor to make regular payments to the Trustee.”); In re Green, 214 B.R. 503 (Bankr. N.D. Ala. Oct. 7, 1997) (Cohen) (Seventh bankruptcy case in seven years filed to defeat ex-spouse’s child support collection is dismissed under § 109(g) for “willful failure to abide by prior orders of this Court.” Child support arrearages of $46,000 were the only debt, prior cases had been dismissed after the debtor’s failure to make payments and debtor’s conduct was “contemptible.”); In re Herrera, 194 B.R. 178, 189 (Bankr. N.D. Ill. Mar. 28, 1996) (Squires) (Fourth Chapter 13 case in eight months dismissed for willful failure to appear in proper prosecution under § 109(g)(1).); In re Prud’Homme, 161 B.R. 747 (Bankr. E.D.N.Y. Dec. 20, 1993) (Holland) (Dismissal of debtor’s third Chapter 13 filing is appropriate under § 109(g)(1) where third case was filed 138 days after dismissal of second case and second case was dismissed because the debtor failed to make preconfirmation payments and failed to appear at the § 341 meeting.); In re King, 126 B.R. 777 (Bankr. N.D. Ill. Apr. 23, 1991) (Schmetterer) (Fourth bankruptcy case filed nine days after dismissal of Chapter 11 case violates eligibility proscription in § 109(g)(1), when Chapter 11 case was dismissed on motion of U.S. trustee for willful failure of debtors to file schedules and statement of affairs. “‘[W]illful failure . . . to appear before the court in proper prosecution of the case’ includes willful and deliberate failure of the debtor[s] to perform their duties whether in Chapter 11 to file schedules and Statement of Affairs, or in Chapter 13 to make Plan payments to the Trustee, or in any case to attend statutory meetings of creditors.” Debtors were enjoined from filing any bankruptcy petition within 180 days.); In re Pappalardo, 109 B.R. 622 (Bankr. S.D.N.Y. Jan. 29, 1990) (Schwartzberg) (Failure to appear at meeting of creditors in third Chapter 13 case was deliberate or with reckless indifference sufficient to bar refiling under § 109(g)(1).); In re Bono, 70 B.R. 339 (Bankr. E.D.N.Y. Feb. 10, 1987) (Goetz) (Third petition is barred.); In re Correa, 58 B.R. 88 (Bankr. N.D. Ill. Feb. 25, 1986) (Ginsberg) (discussing failure to attend three creditors’ meetings); In re Patel, 48 B.R. 418 (Bankr. M.D. Ala. Feb. 14, 1985) (Steele) (involving three Chapter 13 petitions, the first two dismissed for failure to pay).

 

48  In re Watkins, Nos. 06-CV-1341 (DGT), 06-CV-597 (DGT), 2008 WL 708413, at *5 (E.D.N.Y. Mar. 14, 2008) (Trager) (Bankruptcy court “properly applied § 109(g) when it found . . . , [f]irst, on numerous occasions to file amendments, the debtor failed to abide by the bankruptcy court’s orders to file a satisfactory petition. . . . Second, the debtor failed to abide by the bankruptcy court’s repeated Orders to make adequate post-petition rental payments and Chapter 13 plan payments.”); In re Loren, No. 99 Civ. 3001 (BSJ), 2000 WL 640667 (S.D.N.Y. May 18, 2000) (Jones) (Dismissal with prejudice to refiling under § 109(g) is appropriate when debtor ignored court order to file tax returns, payroll stubs and other required documents.); In re Gullikson, No. 17-20208, 2017 WL 4417814, at *1 (Bankr. D. Me. Oct. 3, 2017) (Cary) (Debtor not entitled to relief from order dismissing Chapter 13 case with 180-day bar to refiling when debtor failed to timely pay third installment of filing fee and order allowing installment payment of filing fee warned that § 109(g)(1) dismissal would result if debtor missed an installment. “[T]he inclusion of the § 109(g)(1) warning in the Installment Payment Order and the Proposed Dismissal Order is part of the Court’s attempt to underscore the importance of complying with a prerequisite to bankruptcy relief . . . . [Debtor] did not present any evidence that an unforeseen circumstance beyond her control occurred that would have prevented her from making the third payment or requesting relief from the Court. . . . [N]ewly discovered evidence of her medical condition is insufficient to establish that relief under Rule 60(b)(2) is appropriate.”); In re Jones, No. 04-47861DRD, 2005 WL 486758, at *3 (Bankr. W.D. Mo. Feb. 4, 2005) (Dow) (Debtor is ineligible to be a debtor in a Chapter 7 case under § 109(g)(1) because debtor’s fourth Chapter 13 case was dismissed for failure to comply with a court order to show cause why the debtor had failed to file a plan. “Debtor willfully failed to obey the Court’s order to file a plan in her fourth bankruptcy case and the case was dismissed as a direct result of this failure. Thus, Debtor was ineligible to be a debtor in a case under the Bankruptcy Code, pursuant to § 109(g)(1), at the time she filed this Chapter 7 proceeding.”); In re Nassar, 216 B.R. 606 (Bankr. S.D. Tex. Jan. 21, 1998) (Clark) (Debtor’s failure to file complete statements and schedules for a year is a willful failure to appear in proper prosecution of the case. Debtor amended schedules in response to requests from creditors and the Chapter 13 trustee but confessed that statements and schedules remained inaccurate and incomplete, including failure to account for wholly owned corporations, failure to accurately reveal income and expenses and failure to fully explain conveyance of assets to the debtor’s wife without consideration.); In re Hollberg, 208 B.R. 755, 755 n.1 (Bankr. D.D.C. Apr. 30, 1997) (Teel) (“[T]he debtor’s willful and intentional failure to notify the trustee (as was required by the order of confirmation) of the name and address of the debtor’s current employer” justifies dismissal under § 109(g)(1).); In re Neill, 158 B.R. 93 (Bankr. N.D. Ohio Aug. 23, 1993) (Krasniewski) (Chapter 13 case is dismissed for willful failure to abide by court order that the debtor file an affidavit with respect to mortgage arrearages.); In re Ellis, 48 B.R. 178 (Bankr. E.D.N.Y. Apr. 9, 1985) (Parente).

 

49  See above in this section and § 9.4  Burden of Proof in an Eligibility Dispute.

 

50  McIver v. Phillips (In re McIver), 78 B.R. 439 (D.S.C. Apr. 2, 1987) (Houck).

 

51  In re Basile, 142 B.R. 931 (Bankr. D. Idaho July 16, 1992) (Hagan).

 

52  See In re Ellis, 48 B.R. 178 (Bankr. E.D.N.Y. Apr. 9, 1985) (Parente) (Case was dismissed under § 109(g)(1) notwithstanding the debtor’s claim of ignorance of her responsibilities and notwithstanding reliance on attorneys and relatives.). But see In re Bradley, 152 B.R. 74 (E.D. La. Mar. 8, 1993) (Schwartz) (Debtor’s assertion that the failure to make payments in a prior Chapter 13 case was caused, in part, by ineffective assistance of counsel required bankruptcy court to hold an evidentiary hearing on the question of willfulness under § 109(g)(1).); In re Hollis, 150 B.R. 145 (D. Md. Feb. 2, 1993) (Nickerson) (Pro se debtor’s failure to make $300 deposit with trustee required by local rules occurred through ignorance and was not willful for purposes of § 109(g)(1). The failure to follow a local rule of the bankruptcy court does not constitute the willful violation of a court order: “Taken to its logical extreme, this argument would subject any debtor who violates any Bankruptcy Rule to the 180-day bar to refiling. This does not appear to be in keeping with the purpose of section 109.”); In re Burgart, 141 B.R. 90 (W.D. Pa. June 2, 1992) (Lewis) (Failure of debtors to file plan in prior Chapter 13 case does not invoke the bar to refiling in § 109(g)(1) when in the prior case an inexperienced courier filed the petition but failed to inform debtor’s counsel that the filing was incomplete and that further documents were needed to avoid dismissal of the case.).

 

53  See In re Correa, 58 B.R. 88 (Bankr. N.D. Ill. Feb. 25, 1986) (Ginsberg).

 

54  See discussion of 11 U.S.C. § 362(c)(3) and (c)(4) beginning at § 59.1  In General.

 

55  11 U.S.C. § 363(b)(21)(A), discussed in § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?; § 25.1  180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General; § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay; and § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA.

 

56  See § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse? See, e.g., Goldenberg v. Deutsche Bank Nat’l Tr. Co. (In re Papazov), No. CC-12-1584-KiClD, 2013 WL 2367802, at *8 (B.A.P. 9th Cir. May 30, 2013) (not for publication) (Kirscher, Clement, Dunn) (No stay arose to interfere with foreclosure sale during Chapter 13 case filed in violation of § 109(g)(1). “[N]o stay even existed in Lukashin’s chapter 13 case preventing the foreclosure because she was not an eligible debtor under § 109(g). . . . Prior to the filing of her chapter 13 case on April 22, 2011, Lukashin’s chapter 7 case had been dismissed just a few weeks before on March 29, 2011, for her willful failure to attend § 341(a) meetings of creditors. That dismissal was clearly within the 180-days prescribed in § 109(g)(1), precluding her from eligibility as a debtor.”).