Cite as: Keith M. Lundin, Lundin On Chapter 13, § 6.3, at ¶ ____, LundinOnChapter13.com (last visited __________).
Added to the Bankruptcy Code in 1984, § 109(g) bars the eligibility of an individual to be a debtor in any bankruptcy case within 180 days of the dismissal of a prior case under two circumstances: (1) the prior case was dismissed for “willful failure” of the debtor to abide by orders of the court or to appear in proper prosecution of the case;1 or (2) the debtor requested and obtained voluntary dismissal of the prior case following the filing of a request for relief from the automatic stay.2
Section 109(g) has spawned many strategic considerations at dismissal of a Chapter 13 case and at refiling. Engineering the dismissal of a Chapter 13 case in a manner that will not invoke the 180-day bar of § 109(g) is a focus for debtor’s counsel. Creditors’ counsel must understand § 109(g), especially the danger in seeking dismissal of a pending bankruptcy case rather than seeking relief from the automatic stay to permit completion of collection action that would be interrupted by an immediate refiling.
The 180-day bar to refiling in § 109(g) is an eligibility barrier that should not be confused with limitations on the automatic stay added to § 362(c)(3)3 and (c)(4)4 by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).5 After BAPCPA, an individual with prior bankruptcy experience who is eligible to refile notwithstanding the 180-day bar in § 109(g) will have a limited automatic stay6 and no automatic say7 if the refiling is within one year of one or more prior cases.
3 See § 60.1 When Does § 362(c)(3) Apply?, § 60.2 Which Stays Terminate?, § 60.3 Timing, Procedure and Form for Extension of Stay, § 60.4 (Rebuttable) Presumption of Lack of Good Faith and § 60.5 Proof of Good Faith.
5 Pub. L. No. 109-8, 119 Stat. 23 (2005).
6 See § 60.1 When Does § 362(c)(3) Apply?, § 60.2 Which Stays Terminate?, § 60.3 Timing, Procedure and Form for Extension of Stay, § 60.4 (Rebuttable) Presumption of Lack of Good Faith and § 60.5 Proof of Good Faith.