§ 42.2     Consequences of Failure to File Required Information, Including “Automatic Dismissal”
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 42.2, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

BAPCPA imposes many new and changed duties and filing requirements on Chapter 13 debtors.1 To put teeth in these requirements, BAPCPA also imposes on Chapter 13 debtors new consequences and penalties for noncompliance.

[2]

For example, any failure to file or provide a tax return required by BAPCPA is likely to draw a motion to dismiss the Chapter 13 case that can only be defeated by a substantial showing of circumstances beyond the control of the debtor.2 A failure to file the proper certification and rent deposit with respect to a prepetition eviction will leave the debtor with no automatic stay and, probably, no place to live.3 A Chapter 13 debtor who fails to cooperate with an audit by the U.S. trustee faces criminal prosecution.4 A Chapter 13 debtor who fails to pay a postpetition domestic support obligation won’t confirm a plan,5 won’t get a discharge6 and will be a candidate for dismissal at any time during the case.7 The debtor who fails to complete an instructional course concerning personal financial management will not be granted a discharge.8

[3]

Perhaps the strangest new consequence imposed by BAPCPA for the failure of a Chapter 13 debtor to perform a statutory duty is in new § 521(i)(1):

[I]f an individual debtor in a voluntary case under chapter 7 or 13 fails to file all of the information required under [§ 521](a)(1) within 45 days after the date of the filing of the petition, the case shall be automatically dismissed effective on the 46th day after the date of the filing of the petition.9
[4]

As mentioned above,10 § 521(a)(1) requires a Chapter 13 debtor to file a list of creditors11 and, unless the court orders otherwise, the following other documents:

 1.
A schedule of assets and liabilities;12
 

 

 2.
A schedule of current income and current expenditures;13
 

 

 3.
A statement of financial affairs;14
 

 

 4.
A § 342(b) certificate;15
 

 

 5.
Copies of all payment advices or other evidence of payment received by the debtor from an employer within 60 days of the petition;16
 

 

 6.
A statement of monthly net income;17
 

 

 7.
A statement of any reasonably anticipated increase in income or expenditures over the 12-month period following the petition.18
 

 

[5]

The consequence described in § 521(i)(1) applies when a Chapter 13 debtor fails to file “all of the information required under [§ 521](a)(1) within 45 days after the date of the filing of the petition.” The list of required documents includes most of the schedules, the statement of affairs and several new statements, and the whole of that list runs to more than two dozen pages in the Official Bankruptcy Forms. The “information” contained in all of the filings required by § 521(a)(1) is an enormous quantum difficult or impossible to describe with precision.

[6]

For example, if a debtor fails to schedule a current expenditure for utilities but schedules liabilities showing prepetition debts for electricity, telephone and the like, has the debtor provided the “information” required by the schedule of current expenditures? If the statement of affairs shows that the debtor has the same job as last year and states the debtor’s total income for last year from that job, is the “information” that would be contained in “payment advices or other evidence of payment” received within 60 days before the petition filed or not filed? Would the omission of pet food from Schedule J to Official Form 6 produce an irreversible automatic dismissal when Fido is revealed at Line 31 on Schedule B?

[7]

What does Congress mean that the Chapter 13 case “shall be automatically dismissed effective on the 46th day” if a Chapter 13 debtor fails to file all of the information required by § 521(a)(1)? The next subsection, § 521(i)(2), provides that any party in interest “may request the court to enter an order dismissing the case.”19 This certainly suggests that automatic dismissal does not involve the entry of a court order.

[8]

If there is no court order when a Chapter 13 case is automatically dismissed by § 521(a)(1), how will anyone know that the Chapter 13 case has been dismissed? When a party in interest requests entry of an order of dismissal under § 521(i)(2), will the debtor or any other party in interest have an opportunity to contest entry of the order? Section 521(i)(2) mandates that the court “shall enter an order of dismissal not later than five days” after a request for an order memorializing an automatic dismissal. How can notice be given and a reasonable opportunity to object when the order of dismissal must be entered within five days of the request? Can anyone spell d-u-e p-r-o-c-e-s-s?

[9]

New § 521(i)(3) states that “upon request of the debtor made within 45 days after the date of the filing of the petition” the court “may allow the debtor an additional period of not to exceed 45 days” to file the information required by § 521(a)(1) “if the court finds justification.”20 The additional 45 days allowed by § 521(i)(3) is only available on request of the debtor made within 45 days after the petition. But there is no statutory time limit on when the bankruptcy court can “order[ ] otherwise” under § 521(a)(1)(B) with respect to any of the information requirements in § 521(a)(1). If the 45 days in § 521(i)(3) have passed without a request for extension from the debtor, it appears that the bankruptcy court can still relieve the debtor of a filing requirement under § 521(a)(1)(B). What becomes of an “automatic” dismissal in the interim?

[10]

Interim Bankruptcy Rule 1007(c) provides that most of the documents required by § 521(a)(1)(B) must be filed with the petition or within 15 days thereafter.21 The Interim Rule states that any extension of time for the filing of schedules, statements and other documents “may be granted only on motion for cause shown.”22 Would an extension of time under Interim Rule 1007(c) have any effect on the statutory time periods in § 521(i)(1) and (3)? An extension of time under Interim Rule 1007(c) would not extend the 45-day deadline to avoid automatic dismissal under § 521(i)(1). Would an extension for “cause” under Interim Rule 1007(c) be the equivalent of a court finding of “justification” for purposes of § 521(i)(3)?

[11]

Section 521(i)(4) contains this curiously worded exception to the automatic dismissal just described:

Notwithstanding any other provision of this subsection, on the motion of the trustee filed before the expiration of the applicable period of time specified in paragraph (1), (2), or (3), and after notice and a hearing, the court may decline to dismiss the case if the court finds that the debtor attempted in good faith to file all the information required by [§ 521](a)(1)(B)(iv) and that the best interests of creditors would be served by administration of the case.23
[12]

What does it mean that the bankruptcy court “may decline to dismiss” a Chapter 13 case that was “automatically dismissed” on the 46th day after a debtor failed to file information required by § 521(a)(1)? If the trustee’s motion must be filed before the expiration of the 45-day period specified in § 521(i)(1), how will the trustee know whether the debtor has or is going to fail to file all of the information required by § 521(a)(1)? Put another way, how would the Chapter 13 trustee figure out what cases in which to file the motion contemplated by § 521(i)(4) when the decision for § 521(i)(1) purposes has to be made before the deadline for filing required information has passed?

[13]

What would be the “applicable period of time” for a trustee’s intercession under § 521(i)(2)? A party in interest can request the entry of an order dismissing the case at any time after the 45 days has passed and the court must enter the order within five days of the request. To make sense of § 521(i)(4) in the § 521(i)(2) context, the trustee must request that the bankruptcy court not enter an order dismissing the Chapter 13 case within the (maximum) five days before the bankruptcy court is required to enter that order. To give meaning to all three subsections—§ 521(i)(1), (2) and (4)—it must be true that automatic dismissal means something different from entry of an order of dismissal, else declining to enter the order on a trustee’s timely motion is stripped of its statutory meaning.

[14]

If the debtor moves within 45 days and the court allows additional time to file the information required by § 521(a)(1)—the possibility described in § 521(i)(3)—what then is the “applicable period of time” within which the trustee must file a motion asking the court not to dismiss the case? It makes sense that the trustee at least would have whatever additional period the debtor has to file the information required by § 521(a)(1). Once again, the trustee won’t know until after expiration of the additional period whether the debtor is or isn’t in compliance with § 521(a)(1).

[15]

Notice that the trustee can make a timely request that the court decline to dismiss the case in response to the request of any party in interest for an order of dismissal under § 521(i)(2) and (4). Such a request from a party in interest could come at any time—days, months or even years after the 45th day after the petition. Until an order of dismissal is actually entered on the request of a party in interest, the trustee has a statutory right to defeat whatever effect an “automatic” dismissal has on the Chapter 13 case.

[16]

And what is this fixation in § 521(i)(4) with the information required by § 521(a)(1)(B)(iv)? You will recall that § 521(a)(1)(B)(iv) requires the debtor to file copies of all payment advices or other evidence of payment received from an employer within 60 days of the petition.24 Section 521(i)(4) says on timely motion of the trustee, the bankruptcy court can decline to dismiss a Chapter 13 case that has been automatically dismissed if the debtor attempted in good faith to file the information that was in the payment advices and the best interests of creditors would be served by administration of the case. What if the automatic dismissal was triggered by the debtor’s failure to file a schedule of assets or a statement of affairs? If the debtor made a good-faith effort to file payment advices, are other sins of omission under § 521(a)(1) forgiven?

[17]

What happens in a Chapter 13 case when the debtor fails to file all of the information required by § 521(a)(1) within 45 days of the petition and no party in interest moves for an order of dismissal? If the docket sheet is consulted, there is a pending Chapter 13 case after an automatic dismissal that is not memorialized by a court order. If the debtor continues to make payments and case administration proceeds through confirmation and distributions to creditors, good arguments can be made that the passage of time eventually generates an estoppel or some other equitable interference to any request for an order dismissing the case under § 521(i)(2). It could be relevant whether the party requesting the order knew or should have known that required information had not been filed within 45 days of the petition. These issues are likely to arise when automatic dismissal under § 521(i)(1) is raised by a creditor months or years into a Chapter 13 case as a defense or shield to some undesirable event and a review of court filings reveals that information required by § 521(a)(1) was not filed months or years earlier.

[18]

If a timely request of the debtor for an extension of time under § 521(i)(3) is no longer possible—which will often be the case because the debtor won’t know that automatic dismissal is in play until after a request by a party in interest for an order of dismissal—is the debtor’s available response a motion to reinstate the case or a motion under Bankruptcy Rule 9023 or 9024 for relief from the nonexistent “order” of dismissal? If dismissal was automatic, there is no order of dismissal with respect to which a motion under Rule 59 or Rule 60 of the Federal Rules of Civil Procedure would lie. It seems dangerous for the debtor to wait until after an order of dismissal is entered under § 521(i)(2) and then to move for relief from that order. Can a bankruptcy court relieve the debtor of the effect of an automatic dismissal based on “excusable neglect” or “surprise” under Bankruptcy Rule 9024? One reported decision granted a Chapter 13 debtor Rule 60 relief from an order of dismissal based on excusable neglect when the debtor’s former counsel failed to file payment advices that the debtor delivered to counsel.25

[19]

It would be prudent not to even speculate how a debtor appeals from the automatic dismissal of a Chapter 13 case. Of course, the appeal period under Bankruptcy Rule 8002 is counted from the date of entry of a judgment, order or decree.26 A notice of appeal filed before entry of the judgment or order is sometimes treated as if it was filed on the date of the subsequent entry of the judgment or order.27 If a party in interest requests an order dismissing a Chapter 13 case that was automatically dismissed on the 46th day after the petition, arguably the appeal period would be counted from the date of entry of the dismissal order, notwithstanding that “automatic” dismissal was effective at an earlier date. If no such order has been entered, it is not obvious that appellate review of the automatic dismissal is available under the current bankruptcy rules. There is no Interim Rule addressing this aspect of practice under BAPCPA.

[20]

Based on software and recommendations from the Administrative Office of the United States Courts, it is likely that many bankruptcy courts will establish “internal” procedures for tracking the documents filed in consumer bankruptcy cases to identify cases in which “information” is missing after the 45-day period in new § 521(i). It is quite likely that some bankruptcy courts will enter “administrative orders” dismissing bankruptcy cases in which a judgment is made by an employee of the clerk’s office that “information” is missing.

[21]

The implications here are troubling. The baffling concept of “automatic” dismissal does not contain an imperative that bankruptcy courts enter orders. In fact, it suggests just the opposite—that something has happened in a bankruptcy case that does not require court action. That automatic dismissal is unfamiliar and of uncertain content does not compel bankruptcy judges or court clerks to fill the voids in the absence of ordinary adversary process. To what liability are clerk’s office personnel exposed if a mistaken judgment is made whether “information” required by § 521(a)(1) is present somewhere in a bankruptcy file? Bankruptcy judges step out of the independent role of the judiciary when an order dismissing a case is entered without a motion by a litigant. There are too many difficult questions of statutory construction in the truly strange language of new § 521(i) for bankruptcy clerks or bankruptcy judges to jump in the direction of entering orders without meaningful procedural predicates.

[22]

There are alternatives to the internal monitoring and “administrative orders” advocated by the Administrative Office of the United States Courts. For example, some courts by local rule will permit debtors to file a “certificate of compliance” stating that the information required by § 521(a)(1) was filed within the 45 days permitted by § 521(i). When such a certificate is filed in a bankruptcy case, a rebuttable presumption arises (of the sort found in Bankruptcy Rule 3001(f)) that automatic dismissal is not appropriate under § 521(i). A party that disagrees can overcome the presumption after notice and a hearing in the bankruptcy court. In this manner, the § 521(i) issue is joined by opposing litigants and bankruptcy judges stay in their traditional role as judges. The clerk’s office is not exposed to any risk for attempting the judgments that underlie the automatic dismissal in § 521(i).

[23]

This alternative is presented only to suggest that the enigmatic provisions of new § 521(i) demand judicial attention in the usual way—through contest in open court, not through invisible administrative procedures.

[24]

Somewhat perversely, it can be argued that the new provision for automatic dismissal in § 521(i) invalidates inconsistent rules or orders in individual cases that require a consumer debtor to file the “information” in § 521(a) earlier than 45 days after the petition. Of course, there are various Bankruptcy Rules that require debtors to file information described in § 521(a)(1) either with the petition or within 15 days after the petition.28 And it is not uncommon that bankruptcy courts or clerks’ offices issue “notices of deficiency” or similar documents to alert debtors that papers are missing. Some bankruptcy courts monitor whether missing documents are filed and some action, including a “show cause” order or order of dismissal, results upon noncompliance. These practices may be inconsistent with the 45-day automatic dismissal now provided in § 521(i).

[25]

Honest and complete information is undeniably important in Chapter 13 cases. Most of the information required by § 521(a)(1), as amended by BAPCPA, is useful if not necessary to administration of a Chapter 13 case. Automatic dismissal as misconceived by BAPCPA in § 521(i) is a fatally flawed remedy for a debtor’s failure to file all of the information required by § 521(a)(1). Sane creditors will not act as if a pending Chapter 13 case was actually dismissed automatically without first requesting an order of dismissal from the bankruptcy court.

[26]

The problems with automatic dismissal under § 521(i) have quickly come to roost with respect to payment advices in Chapter 13 cases. Detailed elsewhere,29 unless the court orders otherwise, Chapter 13 debtors are required by § 521(a)(1) to file copies of all payment advices or other evidence of payment received from an employer within 60 days of the petition.30 Because this filing requirement is in § 521(a)(1), failure of a Chapter 13 debtor to file “all of the information” required with respect to payment advices triggers automatic dismissal on the 46th day after the petition. There are many traps in the interaction of § 521(a)(1)(B)(iv) and § 521(i)(1).

[27]

First, counsel has to know where to “file” payment advices or other evidence of payment. Because the payment advices filing requirement is in subpart (B) of § 521(a)(1), bankruptcy courts can “order[ ] otherwise” with respect to this filing requirement. By general order or local rule, many bankruptcy courts have directed that payment advices and other evidence of payment in Chapter 13 cases are “filed” with or “provided” to the Chapter 13 trustee. In such a district, failure to file payment advices with the court does not excite automatic dismissal under § 521(i)(1) if the debtor provided payment advices to the trustee consistent with local practice.31 In contrast, in a bankruptcy court that has not ordered otherwise, filing payment advices with the trustee does not satisfy § 521(a)(1) and does not prevent automatic dismissal under § 521(i)(1).32

[28]

Assuming you correctly determine where to file, the imperative becomes that what you filed contains all “information” that would be found in “all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition.” Defining “information” in this context requires some care and imagination.

[29]

For example, in In re Luders,33 consistent with local rule, the debtors filed payment advices with the trustee for most of the 60-day period before the petition, but three pay stubs were missing. The trustee filed notice of failure to comply with § 521(a)(1)(B)(iv) together with a request that the case be “automatically dismissed.” Wondering out loud what the proper procedure is for “automatic dismissal,” the bankruptcy court found the “year-to-date” information on the filed pay stubs revealed all of the missing payment information, precluding automatic dismissal:

[F]ailure to afford the debtors an opportunity to be heard would have adverse consequences to the debtors because refiling their petition would trigger the provisions of 11 U.S.C. § 362(c)(3) or (4) . . . . [T]he debtors could move the court to vacate the order of dismissal and reinstate the case. Using either approach results in time and expense to the debtors and potential confusion to creditors as to the status of the case. Equity dictates that the certification by the Trustee of noncompliance and the notice of a hearing thereon did not trigger automatic dismissal. This court can consider the merits of debtors’ position that there was sufficient information in the timely filed payment advices to meet the statutory requirements. . . . The pay stubs submitted to the Trustee, along with the year-to-date totals found on these pay stubs, constitute “other evidence of payment” sufficient to satisfy the requirements of 11 U.S.C. § 521(a)(1)(B)(iv). Therefore, the case is not to be dismissed under 11 U.S.C. § 521(i)(1).34
[30]

In contrast, consider the joint debtors in In re Cloud.35 Mrs. Cloud did not receive any payment advices during the 60 days before the petition. Mr. Cloud received payment advices and was required by § 521(a)(1)(B)(iv) to file payment advices for the 60-day period between March 3 and May 1, 2006. The 45th day after the petition was June 16, 2006.

[31]

On June 6, Mr. Cloud filed payment advices for April 30 through May 27, 2006. In November 2006, Mr. Cloud filed payment advices for March 5 through April 29. Without discussion whether the timely filed payment advices for the period April 30 through May 27 included the “information” late-filed in November, the bankruptcy court concluded that Mr. Cloud “failed to timely file copies of his payment advices . . . . As a result, the bankruptcy case as to William Cloud was automatically dismissed by operation of statute effective June 17, 2006.”36 Because Mrs. Cloud had no payment advices, her case was not dismissed.

[32]

The statutory requirements in § 521(a)(1)(B)(iv) and § 521(i)(1) are not the same. It is one thing to require a Chapter 13 debtor to file “copies of all payment advices or other evidence of payment.”37 It is quite another story altogether to automatically dismiss a Chapter 13 case when the “information” that would be found in those payment advices is missing. Luders demonstrates that bankruptcy courts must afford debtors an opportunity to prove that the “information” was filed even if all payment advices were not. Cloud demonstrates that debtors are at risk of automatic dismissal based on missing pay stubs and cannot count on bankruptcy courts to inquire whether the “information” has been filed when the pay stubs have not.

[33]

Procedural issues abound in this § 521(i)(1) context. The Luders court acknowledged the absence of clear logic how notices, hearings and the like fit into the “automatic” dismissal described in § 521(i)(1); yet the facts that emerged in Luders after inquiry illustrate why debtors must be given an opportunity to prove that automatic dismissal didn’t happen. Some rule making in this area would be useful, but it has to be admitted that it is hard to describe the rule that would straighten out the mess that is automatic dismissal under § 521(i).

[34]

Payment advices are not all there is in § 521(a)(1) that can trigger automatic dismissal under § 521(i)(1). In In re Latovljevic,38 an incarcerated debtor who failed to file various documents, including Form B22C, failed to satisfy duties in § 521(a)(1) and the Chapter 13 case was automatically dismissed under § 521(i)(1). In contrast, the bankruptcy court in In re Guidry39 pointed out that the requirement to file certain tax returns not later than seven days prior to the § 341 meeting of creditors40 was in § 521(e)(2), not in § 521(a)(1), so automatic dismissal under § 521(i) did not apply and a motion to dismiss must be filed. 41

[35]

There is a final twist created by BAPCPA with respect to conversion or dismissal before confirmation based on failure of the debtor to file documents. Under § 1307(c)(9), “only on request of the United States trustee,” the court may convert or dismiss a Chapter 13 case based on the failure of the debtor to file “within 15 days, or such additional time as the court may allow,” the “information required by paragraph (1) of section 521.”42

[36]

The cross-reference to “paragraph (1) of section 521” in § 1307(c)(9) does not make sense after BAPCPA. There is no “paragraph (1) in section 521.” Prior to BAPCPA, the reference to “paragraph (1) of § 521” meant § 521(1) and captured the debtor’s duty to file a list of creditors, schedules of assets and liabilities, a schedule of current income and expenditures and a statement of financial affairs. After BAPCPA, those items are spread out in § 521(a)(1)(A) and (B) and combined with many new debtor filing duties.

[37]

One guess is that the failed cross-reference in § 1307(c)(9) should be read as a reference to paragraph “(a)(1)” of § 521—the long list of filing duties as amended by BAPCPA.43 This reading is a bit awkward because § 521(a)(1) is the same cross-referenced list of filing duties that triggers automatic dismissal on the 46th day after the petition if information is missing under § 521(i). Only the U.S. trustee can raise the ground for conversion or dismissal in § 1307(c)(9) and, on the U.S. trustee’s motion, the debtor has 15 days or such other time as the court allows, in which to file the information required by § 521(a)(1). Inconsistently, § 521(i) mandates automatic dismissal on the 46th day after the petition if the information required by § 521(a)(1) has not been filed. Dismissal is the only option in § 521(i); dismissal or conversion is allowed on the U.S. trustee’s motion under § 1307(c)(9).

[38]

Are § 1307(c)(9) and § 521(i) inconsistent? If the U.S. trustee has filed a motion under § 1307(c)(9), does that motion interrupt automatic dismissal under § 521(i)? Under § 521(i)(3), on timely request of the debtor, a court can allow up to 45 additional days to file the information required by § 521(a)(1). Under § 1307(c)(9), there is no statutory limit to the additional time a court can allow a debtor when the U.S. trustee moves for conversion or dismissal based on the same ground—missing information under § 521(a)(1). There is no case trustee intervention with respect to a U.S. trustee’s motion under § 1307(c)(9) as there is in § 521(i)(4) with respect to automatic dismissal. Section 1307(c)(9) could be interpreted as a significant limitation on the bewildering new concept of automatic dismissal.


 

1  See § 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1  Filing Requirements and Other Duties: A List for a list of new duties and filing requirements.

 

2  See 11 U.S.C. §§ 521(e) and 1308(b), discussed in § 393.1 [ Consequences of Failure to File or Provide Tax Returns ] § 42.8  Consequences of Failure to File or Provide Tax Returns.

 

3  See 11 U.S.C. § 362(b)(22) and (l), discussed in § 382.1 [ Certification and Rent Deposit ] § 36.35  Certification About Eviction Judgment and Rent Deposit.

 

4  See 28 U.S.C. § 586(f), discussed in § 396.1 [ Audits by U.S. Trustee ] § 42.11  Audits by U.S. Trustee.

 

5  See 11 U.S.C. § 1325(a)(8), discussed in § 498.1 [ Domestic Support Obligations Must Be Current ] § 113.3  Domestic Support Obligations Must Be Current.

 

6  See 11 U.S.C. § 1328(a), discussed in § 545.1 [ New Domestic Support Obligation Certification ] § 156.4  Domestic Support Obligation Certification.

 

7  See 11 U.S.C. § 1307(c)(11), discussed in §§ 529.1 [ New Grounds for Conversion after BAPCPA ] § 141.4  Cause for Conversion Added or Changed by BAPCPA and 540.1 [ New and Changed Grounds for Dismissal ] § 152.3  Cause for Dismissal Added or Changed by BAPCPA.

 

8  See 11 U.S.C. § 1328(g)(1), discussed in § 546.1 [ Instructional Course Requirement ] § 156.5  Instructional Course Requirement.

 

9  11 U.S.C. § 521(i)(1).

 

10  See § 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1  Filing Requirements and Other Duties: A List.

 

11  See §§ 34.3 [ List of Creditors and Addresses ] § 36.4  List of Creditors and Addresses and 374.1 [ List of Creditors—DSOs and § 342 Considerations ] § 36.5  List of Creditors—DSOs and § 342 Considerations.

 

12  See §§ 35.5 [ Schedule D—Secured Claims ] § 36.11  Schedule D—Secured Claims35.7 [ Schedule F—Unsecured Claims ] § 36.13  Schedule F—Unsecured Claims.

 

13  See § 35.10 [ Schedules I and J—Income and Expenditures ] § 36.16  Schedules I and J—Income and Expenditures.

 

14  See § 36.1 [ Statement of Financial Affairs ] § 36.22  Statement of Financial Affairs.

 

15  See § 375.1 [ Certificate of § 342(b) Notice ] § 36.33  Certificate of § 342(b) Notice after BAPCPA.

 

16  See § 376.1 [ Payment Advices ] § 42.3  Payment Advices.

 

17  See § 377.1 [ Statement of Monthly Net Income ] § 36.17  Statement of Monthly Net Income.

 

18  See § 378.1 [ Statement of Anticipated Increase in Income or Expenditures ] § 36.18  Statement of Anticipated Increase in Income or Expenditures.

 

19  11 U.S.C. § 521(i)(2).

 

20  11 U.S.C. § 521(i)(3).

 

21  Interim Bankr. R. 1007(c).

 

22  Interim Bankr. R. 1007(c).

 

23  11 U.S.C. § 521(i)(4).

 

24  See § 376.1 [ Payment Advices ] § 42.3  Payment Advices.

 

25  In re Weinraub, 351 B.R. 779, 782–83 (Bankr. S.D. Fla. 2006) (“[T]he prejudice to the Debtor of the Dismissal Order . . . is substantial. . . . The neglect . . . appears to stem from counsel’s negligence. . . . [T]heir attorney failed to file the payment advices given to him by the Debtors nor did he file a chapter 13 plan or a motion to extend the deadline to file. . . . The failure to file any of the above, led to the dismissal . . . . [I]t is excusable neglect on the part of the Weinraubs to believe that documents given to their counsel would be filed in a timely fashion.”).

 

26  Fed. R. Bankr. P. 8002(a).

 

27  Fed. R. Bankr. P. 8002(a).

 

28  See Fed. R. Bankr. P. 1007(c).

 

29  See § 376.1 [ Payment Advices ] § 42.3  Payment Advices.

 

30  11 U.S.C. § 521(a)(1)(B)(iv), discussed in § 376.1 [ Payment Advices ] § 42.3  Payment Advices.

 

31  In re Luders, 356 B.R. 671 (Bankr. W.D. Va. 2006) (Consistent with local rule, debtors filed payment advices with Chapter 13 trustee.); In re Barajas, No. 06-10598-B-13, 2006 WL 3254483, at *7 (Bankr. E.D. Cal. Nov. 8, 2006) (Failure to file payment advices did not require automatic dismissal under § 521(i)(1) because general order in Eastern District of California provided that payroll information “shall not be filed with the court, but rather provided to the trustee not later than seven days before the first date set for the meeting of creditors.”).

 

32  See In re Rubio, No. 06-50065, 2006 WL 2792213, at *2–*3 (Bankr. S.D. Tex. Sept. 25, 2006) (Chapter 13 case was automatically dismissed on 46th day when debtor failed to file “employee records” until 90 days after petition; that debtor may have submitted payment advices to former case trustee does not change outcome. “Debtor stated that he had submitted the payment advices to the former trustee of this case. Debtor did not file the payment advices with the Court. . . . Debtor has not provided any support for the position that the Trustee may receive filings as an agent of the Court. . . . Filing must be done with the clerk’s office. . . . The only discretion given to judges in this matter is to permit filing with the judge, but even then, papers must be forwarded to the clerk. . . . Although the Bankruptcy Code provides that the Court may order that payment advices not be filed, the Court did not do so in this case. The Bankruptcy Code provides that if the advices must be filed, and they are not, then the case is automatically dismissed. Thus, by operation of law, this case was dismissed.”).

 

33  356 B.R. 671 (Bankr. W.D. Va. 2006).

 

34  356 B.R. at 673–74.

 

35  356 B.R. 544 (Bankr. N.D. Okla. 2006).

 

36  356 B.R. at 545.

 

37  11 U.S.C. § 521(a)(1)(B)(iv).

 

38  343 B.R. 817 (Bankr. N.D. W. Va. 2006).

 

39  354 B.R. 824 (Bankr. S.D. Tex. 2006).

 

40  See § 390.1 [ Tax Return Duties Seven Days before First Scheduled Meeting of Creditors ] § 42.5  Tax Return Duties Seven Days before First Scheduled Meeting of Creditors.

 

41  In re Guidry, 354 B.R. 824, 832–33 (Bankr. S.D. Tex. 2006) (“Under the revised Bankruptcy Code, the debtor’s failure to provide a tax return prior to the § 341 meeting of creditors has no immediate consequence. Congress mandated that the failure to provide a number of documents (those identified in 11 U.S.C. § 521(a)(1)), would result in the automatic dismissal of a bankruptcy case effective as of the 46th day after the petition. See 11 U.S.C. § 521(i). However, the requirement that a tax return be provided is not contained within § 521(a)(1). Instead, it is set forth in § 521(e)(2). . . . A motion to dismiss must be filed in order for the Court to consider dismissing a case on these grounds. However, § 521(e)(2)(B) allows a debtor to defeat a motion to dismiss if the debtor demonstrates that the failure to provide the return was due to circumstances beyond the debtor’s control. . . . If the debtor opposes the motion to dismiss, the Court must set and hold a hearing on the motion. Inasmuch as the confirmation hearing is to occur within 20-45 days after the § 341 meeting, the confirmation hearing will often occur prior to the dismissal hearing.”).

 

42  11 U.S.C. § 1307(c)(9), discussed in § 529.1 [ New Grounds for Conversion after BAPCPA ] § 141.4  Cause for Conversion Added or Changed by BAPCPA.

 

43  See 11 U.S.C. § 521(a)(1), discussed in § 387.1 [ New Filing Requirements and Other Duties: A List ] § 42.1  Filing Requirements and Other Duties: A List.