§ 25.3     11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 25.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

If the debtor voluntarily dismissed a bankruptcy case after a request for relief from the automatic stay of § 362, the debtor is ineligible to refile within 180 days.1 This statutory exception to eligibility for Chapter 13, enacted in 1984 and not amended since,2 bars eligibility for Chapter 13 when “the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title.”3

[2]

The prior dismissal must have been “voluntary” and must be “requested and obtained . . . following” the filing of a request for relief under § 362. Timing is critical. It has been held that § 109(g)(2) is not a bar to refiling when the motion for relief from the stay and a motion for voluntary dismissal were filed on the same day and the court was not able to determine which was filed first.4 Section 109(g)(2) does not bar refiling when the debtor moved for dismissal before a creditor requested relief from the stay, and dismissal was granted after the creditor’s request.5 When the debtor’s motion for voluntary dismissal was filed two weeks before a creditor filed its motion for relief from the stay, § 109(g)(2) was not applicable and the debtor was eligible to refile within 180 days.6 This is the correct outcome even when the order granting the debtor’s motion to dismiss is entered after the filing of a motion for relief from the stay: “109(g)(2) is explicit, and it requires that both the filing of a request for dismissal and an order dismissing the case follow the motion for relief from the stay.”7 A request for relief from the codebtor stay of § 13018 will not invoke the refiling bar of § 109(g)(2). A “procedurally deficient” motion for relief from the stay should not be allowed to create prejudicial effect under § 109(g)(2).9

[3]

Some courts have declined to apply § 109(g)(2) when the request for relief from the stay was resolved before dismissal or when the dismissal and the request for relief from the stay were widely separated in time or logic. For example, it has been held that § 109(g)(2) applies only if there is a contested request for relief from the stay pending at the time of the voluntary dismissal of the prior case; thus the 180-day bar is not triggered when a motion for relief from the stay was denied in 1986 and the debtors voluntarily dismissed in 1988.10 Similarly, it was held that § 109(g)(2) is not applicable when “legally speaking” there was no pending motion for relief from the stay at the time of the debtor’s voluntary dismissal because the parties orally reached an agreement resolving the request for relief from the stay.11 This same court stated the rule that § 109(g)(2) does not bar a subsequent filing when the debtor voluntarily dismissed before receiving notice of the motion for relief from the stay and when the motion for relief from the stay was fully resolved before the debtor voluntarily dismissed.12 Another court adopted a self-described “intermediate approach” that “enforcement of the prohibition against refiling may be suspended under special circumstances, such as where the request for relief from stay was resolved in favor of the debtor or where the request for relief from stay and the dismissal were separated in time.”13 Some courts simply find discretion in § 109(g)(2) when the stay relief motion has been settled, withdrawn or denied.14 Several courts have held that § 109(g)(2) applies only when there is a “causal relationship” between the motion for relief from the stay and the debtor’s voluntary dismissal of the prior case.15 Applying the causal connection theory, one court concluded that § 109(g)(2) was not a bar to refiling when the prior case was voluntarily dismissed after a request for relief from the stay, but the creditor seeking dismissal of the second case was not a creditor that moved for stay relief in the prior case.16 The court explained:

The word “following” in [§ 109(g)(2)] requires some relationship between the timing of the § 362 request and the voluntary dismissal. Furthermore, by requiring that the debtor both “request” and “obtain” the dismissal after the request for relief, the statute requires a causal connection such that the request for relief triggers the dismissal. . . . Here there is no connection between the dismissal of the 1992 case and the request for relief. Indeed in the 1992 case neither of the two requests for relief were filed by [the creditor that moved to dismiss the second case] and, in both of the requests, the Debtor surrendered the property at issue. The last request for relief was filed over three months prior to the voluntary dismissal. Given these facts there can be no argument that the requests for relief resulted in the Debtor seeking dismissal.17
[4]

On unusual facts, the Bankruptcy Appellate Panel for the Ninth Circuit went further and held that § 109(g)(2) is “discretionary” notwithstanding that the second filing technically fell within the 180-day period after the debtor voluntarily dismissed a prior Chapter 13 case in which a mortgage holder was granted relief from the stay.18

[5]

It has been said that there are three approaches to applying § 109(g)(2) ranging from “mandatory” to “discretionary” with “causal relationship” somewhere in between. In a decision adopting the mandatory or sequential approach, one court summarized the uncertainty this way:

[W]hile the language of § 109(g)(2) may appear to be straightforward, courts are divided on its proper application. . . . The first approach, and probably the majority view, holds that the term “following” means “after” and is plain and unambiguous, requiring only that the events identified in section 109(g)(2) occur chronologically or sequentially. . . . The second, or “causal connection” approach, holds that the term “following” means “as a result of” and requires a judicial determination of a causal relationship between two of the actions referenced in section 109(g)(2). . . . The third, or “discretionary” approach, endorses the chronological or sequential interpretation of “following”, but that a literal application of the statute is undesirable. . . . These courts would limit application of section 109(g)(2) to those cases where a voluntary dismissal and refiling constitutes an abuse of the bankruptcy process. . . . [T]his Court adopts the mandatory or sequential approach to the interpretation of § 109(g)(2).19

Some decisions acknowledge the conflicting interpretations of § 109(g)(2) then find that the facts lead to the same outcome with respect to eligibility under all approaches.20

[6]

A precise reading of § 109(g)(2) would invoke the 180-day bar to refiling after a voluntary dismissal of any bankruptcy case in which a stay relief request was filed without regard to whether the request for relief from the stay was pending at the time of the dismissal and without regard to who won the stay relief dispute. A majority of the reported decisions, including decisions from the United States Court of Appeals for the Fifth Circuit and the Bankruptcy Appellate Panel of the Sixth Circuit, have read the plain language of § 109(g)(2) to preclude a subsequent filing within 180 days without regard to disposition of the request for stay relief in the prior case.21 The contrary cases seem to be distorting the unambiguous language of the statute. That Congress easily could have written a “causation” requirement into § 109(g)(2) argues for application of the plain language and against the creative efforts by some courts to avoid the bar to refiling in § 109(g)(2). The legislative history to § 109(g)(2) is not helpful.22

[7]

A dismissal on the motion of a party other than the debtor cannot be a voluntary dismissal for § 109(g)(2) purposes. The debtor’s failure to oppose a motion to dismiss is not a voluntary dismissal and does not invoke § 109(g)(2).23 Multiple or serial Chapter 13 cases in an effort to avoid relief from the stay in a prior bankruptcy case eventually run afoul of § 109(g)(2).24

[8]

Efforts to “engineer” the dismissal of a Chapter 13 case in a manner that will not trigger the bar to refiling in § 109(g)(2) have generally been unsuccessful. For example, the debtor in In re Riddick25 was not allowed to avoid the intent of § 109(g)(2) by filing a second Chapter 13 case before voluntary dismissal of the first case—notwithstanding that a strict reading of § 109(g)(2) did not prevent the second filing.26

[9]

The debtors almost succeeded at avoiding § 109(g)(2) in Clifton Savings Bank v. Jackson (In re Jackson).27 In Jackson, the debtors were “forced” into Chapter 11 to manage a home mortgage reduced to a prepetition foreclosure judgment in a circuit that prohibited Chapter 13 debtors from curing defaults under § 1322(b)(5) after a prepetition foreclosure judgment.28 In 1994, Congress amended § 1322(c)(1) to clarify that Chapter 13 debtors can cure defaults, notwithstanding a prepetition foreclosure judgment, so long as the house has not been sold at a foreclosure sale before the petition.29 Five days after the 1994 enactment of § 1322(c)(1), the mortgage holder in Jackson moved for relief from the stay in the Chapter 11 case. The debtors responded with an “Application for Appropriate Action” that ambiguously asked the bankruptcy court to arrange the dismissal of the Chapter 11 case in a manner that would permit the debtors to refile a Chapter 13 case to take advantage of the 1994 amendments without invoking the bar to refiling in § 109(g)(2). The bankruptcy court accommodated the debtors and dismissed the Chapter 11 case. The debtors immediately refiled a Chapter 13 case.

[10]

On appeal, the district court found that the debtors’ motion was in reality a motion to convert the Chapter 11 case to Chapter 13. The district court treated the immediate refiling as a simultaneous filing and dismissed the Chapter 13 case: “[B]ecause we find that the Chapter 11 case was actually converted to a Chapter 13 proceeding, we must dismiss [the new Chapter 13 filing]. ‘If a bankruptcy action is pending, a bankruptcy action which purports to affect the same debt cannot be maintained.’”30

[11]

Nominally applying the mandatory view of § 109(g)(2), one court recognized two exceptions to literal application: (1) when the debtor did not receive notice of the stay relief motion prior to voluntarily dismissing, or (2) when the stay relief motion was fully resolved before the debtor dismissed the prior case.31 The second exception runs counter to a plain reading of the statute. Lack of notice of the stay relief motion arguably negates the evil § 109(g)(2) addresses, but there is no “lack of notice” exception in the statute.

[12]

Creditors should not assume that ineligibility under § 109(g)(2) will be self-executing in a refiling within 180 days. For example, although the debtor may be ineligible, if the second filing is not objected to and a plan is confirmed in the subsequent case, confirmation will preclude any later objection to eligibility.32

[13]

Notwithstanding ineligibility due to § 109(g)(2), some courts take the extra step of granting stay relief in the improperly filed case, rather than merely dismissing that case.33 These cases assume without deciding that the court has subject matter jurisdiction over the improperly filed case—a controversial assumption.34 Filing a case in violation of the 180-day bar to refiling in § 109(g)(2) has sometimes been remedied by a dismissal order with a new 180-day bar to refiling.35

[14]

Any dispute over the effect of a § 109(g)(2) dismissal will become moot if the debtor does not file again within the 180-day period.36 Similarly, if the court applies the mandatory dismissal theory, a creditor’s effort subsequent to dismissal to add teeth to the effect of dismissal may be pointless.37 Because the 180-day bar in § 109(g)(2) is statutory and unconditional, changed circumstances after the voluntarily dismissal should be irrelevant to whether § 109(g)(2) bars refiling for 180 days.38

[15]

In cases filed after the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA),39 a refiling within one year of dismissal of one or more prior cases triggers new restrictions on the automatic stay under § 362(c)(3) and (4).40 There is also a new “in rem” stay relief provision in § 362(d)(4).41 More directly addressing the relationship between eligibility and the automatic stay, BAPCPA added an exception to the § 362 stay in § 362(b)(21) when the debtor is “ineligible under § 109(g).”42 This exception is triggered by ineligibility under § 109(g)(2) and is an exception to the stay only with respect to liens and security interests in real property.43


 

1  11 U.S.C. § 109(g)(2).

 

2  See 11 U.S.C. § 109(g)(2), discussed in § 21.1  In General.

 

3  11 U.S.C. § 109(g)(2).

 

4  In re Rosenthal, 117 B.R. 710 (Bankr. M.D. Fla. July 19, 1990) (Paskay).

 

5  In re Ransom, 60 B.R. 19 (Bankr. E.D. Pa. Apr. 22, 1986) (Twardowski). But see In re Hamlin, No. 09-05272-8-SWH, 2010 WL 749809 (Bankr. E.D.N.C. Mar. 1, 2010) (Humrickhouse) (When motion for stay relief was filed after debtors made oral motion to dismiss but before entry of dismissal order, dismissal invoked 180-day bar to refiling under § 109(g)(2).).

 

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

 

7  In re Hicks, 138 B.R. 505 (Bankr. D. Md. Mar. 9, 1992) (Derby). Accord In re Ajunwa, No. 11-11363 (ALG), 2012 WL 3820638, at *5 (Bankr. S.D.N.Y. Sept. 4, 2012) (Gropper) (Section 109(g)(2) would not apply to bar refiling when debtors “requested” voluntary dismissal of Chapter 13 case before creditor filed a motion for relief from stay. “Hill filed a stay relief motion on February 3, 2011, but the Debtors had already ‘requested’ a dismissal of their Chapter 13 case and the order was signed on January 31, 2011. The dismissal order was not entered until February 3, 2011, which was the same date that the lift stay motion was filed; however, the dismissal order was entered first in time. In any event, even if there were a question concerning the timing of the dismissal, § 109(g)(2) uses the conjunctive, therefore the debtor must have both requested and obtained the voluntary dismissal after the creditor filed the lift stay motion for the section to apply. . . . [A]t a minimum, the Debtors requested the relief prior to Hill filing the motion to lift the stay.”).

 

8  The codebtor stay in 11 U.S.C. § 1301 is discussed beginning at § 65.1  Cosigners and Joint Obligors Are Protected.

 

9  In re Cross, 442 B.R. 681 (Bankr. N.D. Ind. Dec. 20, 2010) (Grant) (Procedurally deficient postconfirmation motion for stay relief is stricken, rather than denied, to avoid potential prejudicial effect under § 109(g)(2) in event of dismissal.).

 

10  Economy Motors, Inc. v. Jones (In re Jones), 99 B.R. 412 (Bankr. E.D. Ark. Jan. 9, 1989) (Mixon). Accord In re Richter, No. 10-01260, 2010 WL 4272915 (Bankr. N.D. Iowa Oct. 22, 2010) (Collins) (When debtors voluntarily dismissed prior case after filing of motion for stay relief, subsequent case will be barred within 180 days only if stay relief motion was pending or unresolved at time of voluntary dismissal—allowing court to address abusive dismissals but avoiding mechanical application of § 109(g)(2); In re Hutchins, 393 B.R. 257, 258 (Bankr. D. Me. Aug. 29, 2008) (Haines) (Motion to strike stay relief motion that was withdrawn by credit union was unnecessary because “the weight of case law holding that a debtor’s voluntary dismissal of a Chapter 13 case after a relief from stay motion has been filed, but when it is no longer pending, does not trigger the refiling prohibitions of 11 U.S.C. § 109(g)[.]”).

 

11  Fulton Fed. Sav. & Loan Ass’n v. Milton (In re Milton), 82 B.R. 637 (Bankr. S.D. Ga. Jan. 15, 1988) (Davis).

 

12  In re Moody, 336 B.R. 876 (Bankr. S.D. Ga. Mar. 4, 2005) (Davis) (Section 109(g)(2) is mandatory unless (1) debtor did not have notice of motion for stay relief prior to requesting dismissal; or (2) stay relief motion was fully resolved before debtor requested dismissal. Neither condition is satisfied here. It is not necessary that same creditor moving for stay relief in first case moves for dismissal of second case.); In re Stuart, 297 B.R. 665, 668–70 (Bankr. S.D. Ga. July 31, 2003) (Davis) (Voluntary dismissal of Chapter 13 case after motion for relief from the stay rendered the debtor ineligible to file a Chapter 7 case. “Section 109(g)(2) is stated in clear mandatory language not premised upon additional judicial findings into a debtor’s reasons for dismissing one case and refiling another. . . . This is not to say, however, that a strictly mechanical application of subsection (g)(2) is appropriate. . . . My holdings in [Fulton Federal Savings & Loan Ass’n v. Milton (In re Milton), 82 B.R. 637 (Bankr. S.D. Ga. Jan. 15, 1988) (Davis),] and [In re Murray, No. 486-00325 (Bankr. S.D. Ga. Aug. 21, 1986),] constitute narrow exceptions to a mechanical application of subsection (g)(2). . . . [T]hey require simple inquiries . . . whether the debtor had notice of the filing of the motion for relief prior to requesting dismissal, and whether the motion for relief was fully resolved at the time the debtor requested dismissal. . . . Debtor filed his present case within 180 days of voluntarily requesting dismissal of his prior case, he requested dismissal while a motion for relief from stay was pending, and he had notice of the motion for relief at the time he voluntarily requested dismissal; therefore, . . . under 11 U.S.C. § 109(g)(2), Debtor is not qualified to be a debtor in his present case.”).

 

13  In re Ramos, 212 B.R. 29, 30 (Bankr. D.P.R. Aug. 8, 1997) (Carlo). Accord In re Keefe, No. 03-10681, 2003 WL 22872152, at *3 (Bankr. D. Vt. Dec. 3, 2003) (Brown) (“[T]he [second] motion for relief from stay in the Debtors’ prior bankruptcy case . . . was granted almost six months prior to the voluntary dismissal of the case. While the dismissal of the Debtors’ case did ‘follow’ this motion for relief from stay, the Court finds that the relief from stay order was not sufficiently close in time to the date of the Debtors’ voluntary dismissal of that first case to be the motivation for the Debtors’ current bankruptcy filing. . . . [T]he abuse which § 109(g)(2) is intended to address is not present in this case.”).

 

14  See Grossman v. Beal (In re Beal), 347 B.R. 87, 92–93 (E.D. Wis. July 28, 2006) (Adelman) (Literal application of § 109(g)(2) produces a result demonstrably at odds with congressional intent in some situations; § 109(g)(2) should not be applied literally when the motion for relief from the stay in the prior case has been withdrawn, dismissed or denied. “In the case of § 109(g)(2), a literal application of the statute undoubtedly produces a result that is at odds with Congress’s intention in some situations. . . . Congress enacted § 109(g)(2) for the sole purpose of curbing abusive repetitive bankruptcy filings by debtors seeking to overcome the grant of relief to a creditor from a stay in a prior case. . . . [T]he statute applies in situations where debtors are not abusive . . . . [Section] 109(g)(2)’s plain language can be reconciled with Congress’s intent by applying the statute in all fact situations that fall within its terms . . . except for certain limited and clearly defined circumstances where it undeniably produces a result not intended by Congress. These circumstances are when the motion for relief from the stay has been withdrawn, dismissed or denied.”); In re Riekena, 456 B.R. 365, 369–70 (Bankr. C.D. Ill. Sept. 15, 2011) (Perkins) (Proper focus of § 109(g)(2) is not on debtor’s purpose in prior voluntary dismissal but on whether imposing new stay would adversely affect creditor that moved for stay relief in prior case. Voluntary dismissal in prior case rendered debtor/wife ineligible in subsequent joint petition, but husband was not debtor in prior case and lawfully obtained automatic stay. “This Court agrees with the district court in [Hogan v. Marshall (In re Hogan), No. 04 C 5960, 2004 WL 2806206 (N.D. Ill. Dec. 3, 2004) (Manning)], that the causal connection interpretation is contrary to the plain meaning of the statute and must be rejected. . . . This Court is sympathetic to the concerns raised in and the more flexible approach adopted by the district court in [Grossman v. Beal (In re Beal), 347 B.R. 87 (E.D. Wis. July 28, 2006) (Adelman),] as sensible and consistent with the provision’s purpose. . . . One could also make a case for reasonable exceptions where the moving creditor has completed its state law collateral enforcement action before the refiling . . . .”); In re Richter, No. 10-01260, 2010 WL 4272915 (Bankr. N.D. Iowa Oct. 22, 2010) (Collins) (Reviewing four approaches to interpretation of § 109(g)(2)—mandatory application, equitable or discretionary application, causal connection application and pending motion approach—court finds support for nonmechanical approach in Hamilton v. Lanning, 560 U.S. 505, 130 S. Ct. 2464, 177 L. Ed. 2d 23 (June 7, 2010). When debtors voluntarily dismissed prior case after filing of motion for stay relief, subsequent case will be barred within 180 days only if stay relief motion was pending or unresolved at time of voluntary dismissal—allowing court to address abusive dismissals but avoiding mechanical application of § 109(g)(2).).

 

15  In re Copman, 161 B.R. 821 (Bankr. E.D. Mo. Dec. 17, 1993) (Schermer). Accord In re Combs, 587 B.R. 481, 484–86 (Bankr. N.D. W. Va. May 11, 2018) (Flatley) (Adopting “causal connection” approach to § 109(g)(2), debtor dismissed prior case with intent to refile to overcome grant of stay relief to mortgagee in prior case—a clear causal connection that renders debtor ineligible to file current case. “[C]ourts are split regarding the interpretation of § 109(g)(2). . . . ‘[T]here are essentially two main divisions in the interpretative approach: (1) cases that find the strict interpretation is mandatory; and (2) those that allow for an exception to strict interpretation.’ . . . [C]ourts that permit an exception to the strict interpretation of § 109(g)(2) likewise have varying approaches. . . . ( . . . the ‘equitable-discretionary,’ ‘causal connection,’ and ‘pending motion’ approaches). . . . [T]he court finds that the ‘causal connection’ approach best enforces Congress’s intent to curb debtor abuse with § 109(g)(2).”); In re Lockett, No. 15-30700, 2015 WL 4055474 (Bankr. S.D. Ill. July 2, 2015) (Grandy) (Section 109(g)(2) does not trigger bar to refiling when there is no causal relationship between the stay relief motion, dismissal and refiling. Voluntary dismissal 674 days after motion for stay relief, coupled with intervening mortgage modification, breaks causal relationship.); In re Fisher, No. 14-61076, 2015 WL 1263354 (Bankr. W.D. Va. Mar. 19, 2015) (Black) (Voluntary dismissal is burdened with 180-day bar to refiling under § 109(g)(2) when stay relief was previously granted in the case and there is “sufficient causal nexus” between stay relief and debtor’s motion to dismiss.); In re Durham, 461 B.R. 139, 142 (Bankr. D. Mass. Oct. 25, 2011) (Hoffman) (Adopting “causal connection” approach to § 109(g)(2), debtors were ineligible in second case filed two months after voluntary dismissal of first case when first case had been voluntarily dismissed six days after stay relief was granted to car and mortgage lenders. Causal connection approach interprets § 109(g)(2) to require “some relationship between a debtor’s request for a voluntary dismissal and a creditor’s request for relief from the automatic stay.”); In re Bullock, No. 08-43724-MGD, 2008 WL 7880894 (Bankr. N.D. Ga. Nov. 18, 2008) (Diehl) (Section 109(g)(2) requires causal connection between motion for stay relief and voluntary dismissal of prior case. Prior Chapter 13 case had been filed when debtor was ineligible because of debt limits. Dismissal and subsequent filing of Chapter 11 did not prejudice party that filed motion for stay relief. Debtor had significant equity in property and moving party’s attempted foreclosure would be harmful to other creditors.); In re Keefe, No. 03-10681, 2003 WL 22872152, at *2–*3 (Bankr. D. Vt. Dec. 3, 2003) (Brown) (Section 109(g)(2) does not bar refiling because one motion for stay relief in prior case was resolved by the creditor repossessing its collateral and a second motion was filed six months before the voluntary dismissal and lacks temporal proximity to the voluntary dismissal. “[I]n this instance, while one of Debtor’s creditors, Chrysler Financial, was granted relief from stay just prior to the dismissal of the Debtors’ previous case, it also obtained possession of the underlying collateral. Hence, the Debtors’ second filing cannot thwart Chrysler Financial from proceeding to enforce its rights under state law against said collateral. Therefore, the Court finds the Debtors’ filing clearly was not motivated by a desire to avoid the consequences of the earlier order granting relief from the stay. . . . [T]he [other] motion for relief from stay in the Debtors’ prior bankruptcy case . . . was granted almost six months prior to the voluntary dismissal of the case. While the dismissal of the Debtors’ case did ‘follow’ this motion for relief from stay, the Court finds that the relief from stay order was not sufficiently close in time to the date of the Debtors’ voluntary dismissal of that first case to be the motivation for the Debtors’ current bankruptcy filing. . . . [T]he abuse which § 109(g)(2) is intended to address is not present in this case.”); In re Flores, 291 B.R. 44, 52 & n.2 (Bankr. S.D.N.Y. Mar. 21, 2003) (Hardin) (Arguably in dicta, “a voluntary dismissal that technically falls within Section 109(g)(2) may in particular circumstances not implicate the objective of subsection (2).” In a footnote, “[e].g., a case where the party that had filed a request for relief from the automatic stay (such as the lessor of an automobile) had long since been fully satisfied (such as by payment for or relinquishment of the automobile.”). Compare In re Roland, 224 B.R. 401, 404–05 (Bankr. E.D. Mo. Oct. 14, 1997) (McDonald) (Acknowledging the split of authority with respect to whether § 109(g)(2) is “mandatory” or “discretionary,” under either approach the debtors’ filing is barred. United Companies moved for relief from the stay. Debtors and United stipulated that if debtors failed to make payments, United would give notice and be entitled to relief from stay. On March 6, 1997, United was granted relief from stay. On March 10, debtors filed a motion to dismiss, which was granted on March 13, 1997. In the meantime, on March 10, 1997, debtors filed a new Chapter 13 case. “Regardless of whether one applies the view that a court may utilize discretion in applying section 109(g)(2) or, the alternative view that the section’s application is mandatory, it is apparent that section 109(g)(2) applies and bars the Rolands’ successive bankruptcy petition. The Rolands voluntarily dismissed their prior bankruptcy case after UCLC moved for relief from the automatic stay. In fact, Debtors dismissed their prior case immediately after UCLC obtained relief from the automatic stay and filed this successive petition to thwart an imminent foreclosure. . . . [T]he dismissal of the first case was causally linked with the request for and subsequent grant of relief from the stay to UCLC. Therefore, whether one views section 109(g)(2) as a section to be mandatorily applied or discretionarily applied, it barred the Rolands from filing a successive bankruptcy petition within 180 days of the voluntary dismissal of their first case.”).

 

16  In re Copman, 161 B.R. 821 (Bankr. E.D. Mo. Dec. 17, 1993) (Schermer). Contra In re Moody, 336 B.R. 876 (Bankr. S.D. Ga. Mar. 4, 2005) (Davis).

 

17  In re Copman, 161 B.R. at 823–24.

 

18  Home Sav. of Am., F.A. v. Luna (In re Luna), 122 B.R. 575 (B.A.P. 9th Cir. Jan. 17, 1991) (Jones, Ollason, Volinn) (Section 109(g)(2) is discretionary. Mechanical application of § 109(g)(2) would reward mortgage company “for acting in bad faith” by failing to furnish debtor with statement of funds necessary to reinstate and pay off the mortgage, a condition in the order granting mortgage company relief from the stay in a prior case. Discretion is appropriately exercised to refuse dismissal of a second filing within 180 days of the voluntary dismissal of a prior Chapter 13 case, notwithstanding that technically second case falls within § 109(g)(2).); In re Hieter, 414 B.R. 665, 669–70 (Bankr. D. Idaho Mar. 13, 2009) (Pappas) (Citing Home Savings of America, F.A. v. Luna (In re Luna), 122 B.R. 575 (B.A.P. 9th Cir. Jan. 17, 1991) (Jones, Ollason, Volinn), § 109(g) is not mechanically applied but allows discretion whether to dismiss Chapter 13 case filed within 180 days of voluntary dismissal of prior case in which a motion for relief from stay was filed; when subsequent case is filed to render debtors eligible for discharge under § 1328(f) and does not relate to the creditor or stay relief in prior case, § 109(g)(2) does not bar refiling. Motion for relief from stay was filed and granted in Chapter 13 case filed in February 2008 and dismissed on December 17, 2008. Debtors refiled on December 23, 2008. “[I]n this case, Debtors’ voluntary dismissal of the Feb. 2008 case appears to have had no connection to the stay relief requested by and granted to Creditor. Indeed, in their Dec. 2008 case, Debtors propose to reject the lease on the car and return it to Creditor. Thus, there is no evidence that the Debtors refiled this case after obtaining a voluntary dismissal of the Feb. 2008 case to again invoke the automatic stay to stop Creditor from repossessing their car. . . . [I]t does not appear that Debtors are engaging in the sort of abuse Congress was attempting to prevent in enacting § 109(g)(2). Instead, . . . the sole motivation for Debtors’ voluntary dismissal of the Feb. 2008 case, and filing of the Dec. 2008 case, was the ripening of their opportunity to obtain a discharge.”); In re King, No. 2:16-bk-26635-WB, 2017 WL 1944123 (Bankr. C.D. Cal. May 9, 2017) (Brand) (Citing Home Savings of America, F.A. v. Luna (In re Luna), 122 B.R. 575 (B.A.P. 9th Cir. Jan. 17, 1991) (Jones, Ollason, Volinn), in seventh bankruptcy case, voluntary dismissal four days before hearing on motion for relief from the stay that was certain to be granted is ground for dismissal with bar to refiling for 180 days.). Compare Leafty v. Aussie Sonoran Capital, LLC (In re Leafty), 479 B.R. 545, 550–51 (B.A.P. 9th Cir. Oct. 10, 2012) (Jury, Brand, Dunn) (Dismissal and refiling on same day after grant of stay relief in first case triggers § 109(g)(2) and no stay arose under § 362(b)(21)(A) in second case. Dismissal of second case was not illogical or unjust. “Section 109(g)(2) is not jurisdictional in nature and, therefore, the bankruptcy court has discretion to suspend the application of the statute and not dismiss a debtor’s case under certain circumstances. . . . [T]he narrow, equitable exception to dismissal under § 109(g)(2) in [Home Savings of America, F.A. v. Luna (In re Luna), 122 B.R. 575, 577 (B.A.P. 9th Cir. Jan. 17, 1991) (Jones, Ollason, Volinn),] has no application in this case. There is nothing in the record that shows dismissal of debtor’s second bankruptcy case was illogical or unjust under the circumstances. Debtor had the opportunity to challenge the request for relief from stay with respect to her property in her first bankruptcy case, and she did not prevail. That order became final. On the morning of the scheduled foreclosure sale, debtor voluntarily dismissed her case and filed the instant case to stop the sale. This is exactly the kind of abuse that § 109(g)(2) was designed to address.”)

 

19  In re Gill, 584 B.R. 63, 66–69 (Bankr. W.D. Okla. Jan. 22, 2018) (Loyd).

 

20  See, e.g., Rivera v. Matos (In re Rivera), 494 B.R. 101, 107 (B.A.P. 1st Cir. June 26, 2013) (Hillman, Deasy, Bailey) (By any theory, debtor was ineligible under § 109(g)(2) when stay relief was granted in prior case, debtor voluntarily dismissed and immediately refiled to stop foreclosure. “The Debtor admittedly dismissed his case and refiled the same day in order to overcome the grant of relief from the stay in his prior case, which is exactly the practice § 109(g)(2) was intended to defeat. The Debtor was not eligible to file the second case under the mandatory language of § 109(g).”); In re Brown, 534 B.R. 673 (Bankr. E.D. Va. July 28, 2015) (Phillips) (Under any of the three approaches to § 109(g)(2), when purpose of current case is to stop foreclosure by creditor granted stay relief in prior case, § 109(g)(2) prohibits filing of current case within 180-day period and “waiver” of § 109(g)(2) is not appropriate.); In re Tune, 361 B.R. 466 (Bankr. E.D.N.C. Feb. 15, 2007) (Doub) (Whether applying the “equitable, strict, [or] causal” approach, sixth bankruptcy filing within 180 days of voluntary dismissal of prior case in which a motion for relief from the stay was filed must be dismissed because debtor is ineligible under § 109(g)(2).).

 

21  Moran v. Frisard (In re Ulmer), 19 F.3d 234 (5th Cir. Apr. 22, 1994) (King, Higginbotham, Barksdale) (That the bankruptcy court had declined to act on the motion for relief from the stay pending a hearing on the debtor’s homestead exemption claim did not interfere with the ordinary operation of § 109(g)(2). Fifth Circuit acknowledged that some courts had found a “good faith” exception to the strict application of § 109(g)(2). Debtor failed to offer evidence that the Chapter 7 case was filed for any purpose other than delaying creditor action. Filing a second bankruptcy case to stop collection action by the creditor that moved for relief from the stay in the prior case was precisely what Congress intended to prohibit through § 109(g)(2).); Andersson v. Security Fed. Sav. & Loan of Cleveland (In re Andersson), 209 B.R. 76 (B.A.P. 6th Cir. June 13, 1997) (Lundin, Rhodes, Waldron) (Section 109(g)(2) is mandatory and requires dismissal of second Chapter 13 case filed within 180 days of the voluntary dismissal of a prior Chapter 13 case in which a request for relief from the stay was filed notwithstanding that the stay motion was resolved by the parties prior to a hearing); Lancett v. Tadlock (In re Lancett), No. 3:14-cv-175-RJC, 2015 WL 1137459, at *2 (W.D.N.C. Mar. 12, 2015) (Conrad) (Second Chapter 13 case filed 58 days after dismissal of first case in which bank filed motion for relief from the stay was properly dismissed because the debtor was ineligible under § 109(g)(2). “[T]he plain language of Section 109(g)(2) bars Appellant from filing this case. . . . Prior to Appellant obtaining a voluntary dismissal, U.S. Bank National Association filed a request for relief from automatic stay . . . . This case was filed only 58 days following the date of entry of the order dismissing the Appellant’s previous case. . . . Appellant was ineligible under Section 109(g)(2) to be a debtor under Title 11.”); Erickson v. Ford Motor Credit Co., No. 2:05-CV-987 TS, 2006 WL 528414, at *2 (D. Utah Feb. 10, 2006) (Stewart) (Citing split of authority, dismissal is mandatory when prior case was voluntarily dismissed subsequent to filing of motion for stay relief. “Under that plain language, subsection (g)(2) does not require a showing of bad intent, improper motive, or prejudice to any creditor. Nor may subsection (g)(2) be suspended because a debtor did not understand its operation or the consequences of a dismissal when he or she moved to voluntarily dismiss their case following the filing of a motion for relief from the automatic stay.” It does not matter whether prior case was dismissed with or without prejudice. Because second case is subject to dismissal for ineligibility under § 109(g)(2), second case cannot be converted to Chapter 11. Section 109(g)(2) affects eligibility to file under any chapter.); In re Steele, 319 B.R. 518 (E.D. Mich. Jan. 27, 2005) (McIvor) (Debtors were ineligible to file Chapter 13 when they filed a petition within 180 days of the voluntary dismissal of their previous Chapter 13 following a motion for relief from stay. The debtors’ initial Chapter 13 case was filed in September of 2002, and GMAC had filed a motion for relief from stay in March of 2003. The debtors and GMAC negotiated a stipulation requiring the debtors to stay current, and if they failed to do so, the stay would be lifted upon submission of an affidavit. In July of 2004, GMAC filed such an affidavit. In August of 2004, the debtors dismissed their Chapter 13 case and filed a second case on October 28, 2004. Court strictly construed the provisions of § 109(g)(2) and held that the debtors were ineligible to file the second Chapter 13 case and it must be dismissed.); In re Munkwitz, 235 B.R. 766, 768 (E.D. Pa. May 14, 1999) (Ludwig) (“The cases that hold application of § 109(g)(2) to be mandatory are persuasive. . . . [T]he plain, ordinary meaning of the word ‘following’ is ‘coming after or next in order of time.’ . . . While causality—‘to be the result of’—is a subsidiary dictionary definition, given the statutory wording and context, that interpretation would be incongruous.”); Chrysler Fin. Corp. v. Dickerson (In re Dickerson), 209 B.R. 703, 706–08 (W.D. Tenn. May 30, 1997) (McCalla) (Section 109(g)(2) is mandatory and bankruptcy court should not accept petition within 180 days of a voluntary dismissal after a request for relief from the stay in the prior bankruptcy case without regard to any causal connection between the stay relief request and dismissal; proper remedy is to start the 180-day period again from the dismissal of the second case. “[T]his Court has previously held that the language of § 109(g)(2) is mandatory. . . . [T]here is no basis, either in the text itself or in the legislative history, for requiring that the creditor establish a causal connection between the request for relief and the voluntary dismissal. . . . By including this limitation in § 109, . . . Congress clearly intended the 180 day limitation to be a mandatory bar to the filing of any subsequent petition. . . . If [the preconditions in § 109(g)(2)] are met, then the debtor is barred from filing the second petition for 180 days after the voluntary dismissal, and the Bankruptcy Court is prohibited from accepting the petition for filing.”); In re Turner, 583 B.R. 910 (Bankr. E.D. Mich. Mar. 30, 2018) (Tucker) (For § 109(g)(2) purposes, not necessary to show nexus between stay relief motion in prior case and refiling within 180 days; second case is barred by fact that stay relief motion was filed in prior case and debtor subsequently voluntarily dismissed prior case.); In re Gill, 584 B.R. 63, 66–69 (Bankr. W.D. Okla. Jan. 22, 2018) (Loyd) (Adopting “mandatory” or “sequential” approach to § 109(g)(2), debtor is ineligible because prior Chapter 13 case was voluntarily dismissed after filing of stay relief motion and within 180 days of current filing. Does not matter that stay relief in prior case was resolved by stipulation. Current case is dismissed with prejudice to refiling for 180 days to give effect to § 109(g)(2). “[W]hile the language of § 109(g)(2) may appear to be straightforward, courts are divided on its proper application. . . . The first approach, and probably the majority view, holds that the term ‘following’ means ‘after’ and is plain and unambiguous, requiring only that the events identified in section 109(g)(2) occur chronologically or sequentially. . . . The second, or ‘causal connection’ approach, holds that the term ‘following’ means ‘as a result of’ and requires a judicial determination of a causal relationship between two of the actions referenced in section 109(g)(2). . . . The third, or ‘discretionary’ approach, endorses the chronological or sequential interpretation of ‘following’, but that a literal application of the statute is undesirable. . . . These courts would limit application of section 109(g)(2) to those cases where a voluntary dismissal and refiling constitutes an abuse of the bankruptcy process. . . . [T]his Court adopts the mandatory or sequential approach to the interpretation of § 109(g)(2).”); In re Guerrero, 540 B.R. 270 (Bankr. S.D. Tex. Sept. 9, 2015) (Rodriguez) (After conversion from Chapter 13 to Chapter 11, dismissal of Chapter 11 case triggered 180-day bar to refiling in § 109(g)(2) because dismissal chronologically “followed” a motion for stay relief. No causal relationship is required by § 109(g)(2).); In re Teets, No. 14-34168, 2015 WL 1263226, at *2 (Bankr. N.D. Ohio Mar. 16, 2015) (Whipple) (No causal relationship is required by the eligibility bar in § 109(g)(2). Use of the word “following” rather than “after” is “a distinction without a difference. . . . If Congress intended the focus of the statute to be on cause instead of timing, the statute would make a debtor ineligible for relief in another case filed within 180 days if the debtor requested and obtained dismissal of a prior case ‘as a result of’ or ‘because of’ the filing of a request for relief from the automatic stay. Instead Congress has effectively established in § 109(g)(2) its statutory irrebuttable presumption of causation, albeit perhaps an imperfect one, by focusing on the relative clarity of timing rules.”); In re Parten, No. 07-10255-JDW, 2007 WL 788883 (Bankr. M.D. Ga. Mar. 13, 2007) (Walker) (Because debtor voluntarily dismissed a Chapter 12 case after the filing of a motion for relief from the stay and then refiled current Chapter 13 case within 180 days, debtor was ineligible under § 109(g)(2) and lienholder was entitled to expedited relief from stay.); In re Tune, 361 B.R. 466 (Bankr. E.D.N.C. Feb. 15, 2007) (Doub) (Whether applying the “equitable, strict, [or] causal” approach, sixth bankruptcy filing within 180 days of voluntary dismissal of prior case in which a motion for relief from the stay was filed must be dismissed because debtor is ineligible under § 109(g)(2).); In re Sakhrani, No. 06-16563 (DHS), 2006 WL 3483928, at *2–*5 (Bankr. D.N.J. Nov. 29, 2006) (not for publication) (Steckroth) (Chapter 13 filed 70 days after dismissal of Chapter 11 in which relief from stay was granted is dismissed under § 109(g)(2) with prospective relief from automatic stay for future bankruptcy filings. “The Third Circuit reads § 109(g) literally, as it is patently unambiguous, interpreting the word ‘following’ as subsequent in time. The 180-day provision is applied without regard to the circumstances or equities of the case, or a causal relationship between the motion for relief from the automatic stay and voluntary dismissal. . . . [T]his Court lacks subject matter jurisdiction over the instant bankruptcy petition pursuant to 11 U.S.C. § 109(g)(2).”); In re Rives, 260 B.R. 470 (Bankr. E.D. Mo. Mar. 15, 2001) (Barta) (Although the language of § 109(g)(2) is “mandatory,” bankruptcy court addresses and rejects debtors’ argument that equitable grounds save third Chapter 13 petition from ineligibility when second petition was filed in violation of 180-day bar that arose when debtors voluntarily dismissed the first petition after the filing of a request for relief from the stay.); In re Richardson, 217 B.R. 479 (Bankr. M.D. La. Feb. 4, 1998) (Phillips) (After exhaustive review of four different interpretations of § 109(g)(2), adopts “plain meaning” approach of Andersson v. Security Federal Savings & Loan of Cleveland (In re Andersson), 209 B.R. 76 (B.A.P. 6th Cir. June 13, 1997) (Lundin, Rhodes, Waldron), and dismisses Chapter 13 case filed 20 days after voluntary dismissal of a prior Chapter 13 case in which mortgage holder’s motion for relief from the stay was resolved by a consensual modification of the stay.); In re Jarboe, 177 B.R. 242, 245 (Bankr. D. Md. Jan. 19, 1995) (Mannes) (Section 109(g)(2) is unambiguous and precludes refiling within 180 days of a voluntary dismissal after a request for relief from the stay without regard to why the motion was filed or its disposition. During prior Chapter 13 case, mortgage holder filed and withdrew motion for relief from the stay without a hearing. The debtor later voluntarily dismissed the Chapter 13 case. The order of dismissal contained a clerk’s notation that § 109(g) was applicable. The debtor moved to amend the order of dismissal, alleging, without contradiction, that the motion for relief from the stay was filed “in error” based on the mortgage holder’s mistaken belief that direct payments had been missed. This “misapprehension of the facts” did not neutralize § 109(g)(2): “It is uncontradicted that the debtor requested and obtained dismissal of the case following the filing of Berkeley’s motion. The statute read literally permits no other decision than denial of the instant motion.”); In re Rist, 153 B.R. 79, 80 (Bankr. M.D. Fla. Mar. 29, 1993) (Proctor) (Section 109(g)(2) is a bar to refiling without regard to disposition of the request for relief from the stay in the prior case. Third Chapter 13 petition filed within 180 days of voluntary dismissal of second petition is in violation of § 109(g)(2) where a motion for relief from the stay was made in the prior case and an order lifting the stay was entered before dismissal of the prior case. The provisions of § 109(g) are “mandatory. . . . [N]either the purpose nor the intent of the voluntary dismissal [is] relevant in considering the validity of the subsequent petition.”).

 

22  See S. Rep. No. 98-65, at 74 (1983) (S. Rep. accompanying S. 445, Omnibus Bankruptcy Improvements Act of 1983, forerunner to Bankruptcy Act of 1984). There are comments in the floor debate to the 1984 enactment of § 109(g) that the new section was intended to “curb abuses of the Bankruptcy Code and make its use truly a last resort.” 130 Cong. Rec. 8894 (daily ed. June 29, 1984) (statement of Senator Hatch).).

 

23  In re Walker, 171 B.R. 197, 203 (Bankr. E.D. Pa. Aug. 11, 1994) (Scholl) (Section 109(g)(2) “applies only when a debtor voluntarily dismisses a case after a motion for relief from the stay has been filed against the debtor. Here, the Debtor consented to our dismissal of the case. . . . [T]he Debtor’s failure to oppose our dismissal of his case was not tantamount to a voluntary dismissal. . . . Nor do we find that the Debtor contrived to have the court dismiss the First Case, which might constitute a violation of § 109(g)(2).”); In re Nelkovski, 46 B.R. 542 (Bankr. N.D. Ill. Jan. 31, 1985) (Eisen). But see In re Jerome, No. 09-00183, 2009 WL 2868816, at *1 (Bankr. D.D.C. Sept. 3, 2009) (not for publication) (Teel) (When motion for stay relief had been filed and debtor could not voluntarily dismiss without triggering bar to refiling in § 109(g)(2), trustee’s motion to dismiss is granted but with prejudice to refiling for 180 days. “[D]ebtor ought not be allowed to obtain pursuant to a trustee’s motion to dismiss that which the debtor would be unable to obtain if he himself moved for dismissal.”).

 

24  See Smith v. First Fed. Sav. & Loan Ass’n of Carnegie, 58 B.R. 603 (W.D. Pa. Mar. 11, 1986) (Weber) (Third petition violated 180-day bar of § 109(g).).

 

25  No. 08-00926-8-JRL, 2008 WL 2762261 (Bankr. E.D.N.C. July 14, 2008) (Leonard).

 

26  See also In re Clark, No. 10-40215-JJR-13, 2010 WL 774141, at *1 n.4 (Bankr. N.D. Ala. Mar. 5, 2010) (Robinson) (Filing Chapter 13 petition while prior Chapter 13 case is still pending could be construed as effort to avoid application of § 109(g)(2); citing § 1325(a)(7), filing while prior case was still pending was per se bad faith, and second case must be dismissed. In a footnote: “By filing the 2010 case before the 2008 case was dismissed, the Debtors also avoided the possible application of Section 109(g)(2) . . . . A voluntary dismissal of the 2008 case could have triggered Section 109(g)(2) and prevented Debtors from filing a new case until the expiration of the 180-day period since the stay had recently been lifted in the 2008 case. The 2010 filing could be construed as an attempt to sidestep the operation of Section 109(g)(2), further evidencing bad faith.”).

 

27  184 B.R. 16 (D.N.J. July 17, 1995) (Irenas).

 

28  See First Nat’l Fid. Corp. v. Perry (In re Perry), 945 F.2d 61, 65 (3d Cir. Oct. 8, 1991) (Stapleton, Greenberg, Higginbotham) (Chapter 13 debtor cannot pay prepetition foreclosure judgment over three- to five-year plan because even full payment over time would be a modification in violation of § 1322(b)(2). Under New Jersey law, after foreclosure judgment, a debtor may redeem the house by tendering the full amount due within 10 days, and bankruptcy extends that right for 60 days. “[F]orcing a home lender to accept payment of a foreclosure judgment over the three to five years of a Chapter 13 plan goes far beyond that.”). See § 82.1  Prepetition Defaults—When is Property “Sold” at Foreclosure?

 

29  See 11 U.S.C. § 1322(c)(1), discussed beginning at § 82.1  Prepetition Defaults—When is Property “Sold” at Foreclosure?

 

30  Clifton Sav. Bank v. Jackson (In re Jackson), 184 B.R. 16, 21 (D.N.J. July 17, 1995) (Irenas). See also In re Walker, 171 B.R. 197 (Bankr. E.D. Pa. Aug. 11, 1994) (Scholl) (If the debtor “contrived to have the court dismiss the first case,” refiling within 180 days “might constitute a violation of § 109(g)(2).”). But see In re Elrod, 178 B.R. 5 (Bankr. N.D. Okla. Feb. 23, 1995) (Covey) (That debtors dismissed Chapter 13 case and refiled nine days later is not cause for dismissal where first petition was filed when the debtors were not eligible under former § 109(e) and refiling on November 10, 1994, permitted debtors to use the higher eligibility limits in the Bankruptcy Reform Act of 1994.). See § 22.1  Eligibility of a Simultaneous Filer for discussion of simultaneous filing.

 

31  In re Moody, 336 B.R. 876 (Bankr. S.D. Ga. Mar. 4, 2005) (Davis) (Neither condition was satisfied. Court also holds that it was not necessary that same creditor moving for stay relief in first case moves for dismissal of second case.).

 

32  See Rosetti v. Chase Home Fin. LLC (In re Rosetti), Nos. 06-43810-DML-13, 07-04063-DML, 2007 WL 2669265 (Bankr. N.D. Tex. Sept. 6, 2007) (Lynn) (Although debtor voluntarily dismissed prior case after Chase Home Finance filed motion for stay relief, res judicata effect of confirmation precludes Chase from now asserting ineligibility.). See also In re Covelli, 550 B.R. 256, 264, 264–65 (Bankr. S.D.N.Y. May 13, 2016) (Morris) (When motion to dismiss based on ineligibility under § 109(g)(2) was settled by agreed order granting stay relief, creditor cannot later argue ineligibility as a defense to violation of discharge injunction. Debtor filed then voluntarily dismissed a Chapter 13 case before receiving a discharge. A few days later, debtor filed a Chapter 7 case. Creditor moved to dismiss based on ineligibility under § 109(g)(2). Motion was settled with an order granting relief from stay with prejudice. Same creditor later violated discharge injunction in Chapter 7 case by seeking default judgment against debtor. Creditor defended that Chapter 7 petition should “somehow be treated as non-existent based on § 109(g)(2).” “This Court rejects the mandatory interpretation of [§ 109(g)(2)]. A debtor is not automatically ineligible to file a bankruptcy case within 180 days of a previous voluntary dismissal that was obtained after a motion for relief from the stay was filed. . . . The debtor’s eligibility under § 109 is a determination of whether the debtor is eligible for the relief afforded by the Bankruptcy Code and not whether the Debtor was eligible to file a petition in the first place. . . . Clement moved to dismiss Debtors’ chapter 7 bankruptcy case on the grounds that Debtors were ineligible for bankruptcy under § 109(g). Instead of allowing the Court to rule on the motion, the parties settled the motion by agreeing to lift the stay. This Court never ruled on the Debtors’ eligibility under § 109(g). . . . Clement cannot now argue that Debtor was not eligible to receive the discharge under chapter 7. That time has passed. Res judicata precludes Clement from relitigating this issue even though the motion to dismiss was never ruled upon by this Court.”).

 

33  See, e.g., Thomas v. Wimmer, No. 4:05-CV-58, 2005 WL 1796148 (E.D. Tex. July 27, 2005) (Clark) (Although debtor was ineligible under § 109(g)(2), bankruptcy court properly lifted automatic stay in rem in favor of creditor that received stay relief in prior case.); In re Parten, No. 07-10255-JDW, 2007 WL 788883 (Bankr. M.D. Ga. Mar. 13, 2007) (Walker) (Because debtor voluntarily dismissed a Chapter 12 case after the filing of a motion for relief from the stay and then refiled current Chapter 13 case within 180 days, debtor was ineligible under § 109(g)(2) and lienholder was entitled to expedited relief from stay.).

 

34  See, e.g., In re Sakhrani, No. 06-16563 (DHS), 2006 WL 3483928, at *2–*5 (Bankr. D.N.J. Nov. 29, 2006) (not for publication) (Steckroth) (“The Third Circuit reads § 109(g) literally, as it is patently unambiguous, interpreting the word ‘following’ as subsequent in time. . . . [T]his Court lacks subject matter jurisdiction over the instant bankruptcy petition pursuant to 11 U.S.C. § 109(g)(2).”).

 

35  See, e.g., In re Sanchez-Gordon, No. 09-11355, 2009 WL 1587413 (Bankr. N.D. Ohio Feb. 26, 2009) (Harris) (When debtor filed case in violation of 180-day bar from prior case, current case is dismissed with new 180-day bar.).

 

36  See Hogan v. Marshall (In re Hogan), Nos. 04 C 5960, 04 B 16385, 2004 WL 2806206, at *4 (N.D. Ill. Dec. 3, 2004) (Manning), vacated and remanded, 138 F. App’x 838 (7th Cir. June 29, 2005) (Cudahy, Easterbrook, Kanne) (Dismissal under § 109(g)(2) is moot on appeal when the 180-day period runs and the debtor chooses not to refile.).

 

37  See In re Herring, No. 05-35118 (CGM), 2005 WL 3782587 (Bankr. S.D.N.Y. Apr. 22, 2005) (Morris) (Creditor’s motion to reopen Chapter 13 case on the ground that dismissal was with prejudice and to include in rem relief is futile; case was voluntarily dismissed after creditor filed stay relief motion, and debtor is ineligible for 180 days.).

 

38  See In re Redwood, No. 10-14437, 2011 WL 2456785 (Bankr. D.R.I. June 16, 2011) (Votolato) (Changed circumstances are irrelevant to § 109(g)(2) prohibition against refiling within 180 days after voluntary dismissal following filing of stay relief motion.).

 

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

 

40  See 11 U.S.C. § 362(c)(3) and (4), discussed beginning at § 59.1  In General. See, e.g., In re O’Brien, No. 12-17433, 2012 WL 4928915 (Bankr. N.D. Ohio Oct. 16, 2012) (Harris) (Refiling by ineligible debtor in violation of § 109(g)(2) is dismissed with new 180-day bar to refiling. No stay will arise in any future filing within a year under § 362(c)(4).).

 

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

 

42  11 U.S.C. § 362(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; and § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA.

 

43  See § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA. See, e.g., Leafty v. Aussie Sonoran Capital, LLC (In re Leafty), 479 B.R. 545 (B.A.P. 9th Cir. Oct. 10, 2012) (Jury, Brand, Dunn) (Dismissal and refiling on same day after grant of stay relief in first case triggers § 109(g)(2) and no stay arose under § 362(b)(21)(A) in second case.); In re Brown, No. 12-34822-KRH, 2013 WL 2318414 (Bankr. E.D. Va. May 28, 2013) (Huennekens) (Ineligibility under § 109(g)(2) triggered exception to stay in § 362(b)(21)(A); postpetition foreclosure did not violate stay.).