§ 60.5     Proof of Good Faith
Cite as:    Keith M. Lundin, Lundin On Chapter 13, § 60.5, at ¶ ____, LundinOnChapter13.com (last visited __________).
[1]

Chapter 13 debtors who refile within one year of dismissal of a prior bankruptcy case may face termination of parts of the automatic stay1 30 days after the current petition under § 362(c)(3).2 When § 362(c)(3) is in play, the debtor must act quickly to seek extension of the stay—the hearing on any motion to extend the stay must be concluded within 30 days of the current petition.3

[2]

To extend the stay beyond 30 days, the debtor must demonstrate that the filing of the current case “is in good faith as to the creditors to be stayed.”4 Under the circumstances detailed in § 362(c)(3)(C), the current case is “presumptively filed not in good faith” and that presumption can be rebutted by “clear and convincing evidence to the contrary.”5 In other words, when § 362(c)(3) applies, the debtor must demonstrate good faith either by a preponderance of the evidence or when the presumption applies, by clear and convincing evidence, else stay termination looms 30 days after the current petition. The issue for the proponent of extension is: What does “good faith” mean to extend the stay beyond 30 days with respect to some or all creditors?

[3]

The obvious first place to look for an answer is in § 362(c)(3) itself. Section 362(c)(3)(B) tells us that the party seeking to extend the stay must demonstrate “good faith,” but § 362(c)(3)(B) does not define good faith. Section 362(c)(3)(C) details facts that give rise to a presumption that the current case is filed not in good faith.6 By negative implication, proof of facts contrary to the conditions in § 362(c)(3)(C) might suggest the meaning of good faith itself. For example, if the presumption that the current case is filed not in good faith arises as to all creditors because the debtor failed to file a required document in the prior case under § 362(c)(3)(C)(i)(II)(aa),7 perhaps demonstration of good faith would be evidence that the debtor filed all required documents in the current case.

[4]

Continuing this logic leads to the presumption in § 362(c)(3)(C)(i)(III) that the current case is filed not in good faith when “there has not been a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case . . . or any other reason to conclude that the [current] case will be concluded . . . with a discharge; or . . . a confirmed plan that will be fully performed.”8 Though not without some controversy, it has been said that the burden of proof is on the debtor in the first instance to prove by a preponderance of the evidence that there has been a substantial change in personal or financial affairs else the presumption arises that the current case is filed not in good faith and the elevated burden of clear and convincing proof applies.9

[5]

If the debtor cannot prove a substantial change in personal or financial affairs or “other reason” to expect a confirmed and consummated plan by the lesser burden of a preponderance of the evidence, then the presumption will arise and it is hard to see how the debtor would then overcome the presumption by clear and convincing evidence. In other words, absent a preponderance of evidence of a substantial change in personal or financial affairs or “other reason” to conclude that a plan will be confirmed and consummated, a Chapter 13 refiling will be presumptively filed not in good faith as to all creditors under § 362(c)(3)(C)(i)(III) and stay extension will require clear and convincing evidence of good faith that may have to be “contrary” to a condition that arose because the debtor already failed in a lesser burden of proof. Tough situation for the debtor.

[6]

The disjunctive “or any other reason” in § 362(c)(3)(C)(i)(III) might be interpreted to allow a debtor to prove good faith with respect to all creditors notwithstanding the absence of substantial change in personal or financial affairs. What would that proof look like? It is hard to think of evidence bearing on good faith at refiling that does not relate to the personal or financial affairs of the debtor since dismissal of a prior case.

[7]

Perhaps similar logic has led some courts to prescribe proof of the likelihood of successful completion of a Chapter 13 plan as a necessary condition for success on a motion to extend the stay beyond 30 days. The Bankruptcy Court for the Southern District of Texas tracked this route by defining a “threshold” or “objective” requirement for extension of the stay that the debtor prove that the current case is likely to be confirmed and result in a discharge.10

[8]

This construct is not entirely true to the statute. Clear and convincing proof of good faith unrelated to the likelihood of plan success is hard to describe, but the statute does not mandate clear and convincing evidence of plan success as a necessary condition for overcoming the presumption in § 362(c)(3)(C)(i)(III). Clever debtors will eventually come up with proof of good faith that is “contrary” for § 362(c)(3)(C) purposes without directly addressing the condition that raises the presumption.

[9]

Looking beyond § 362 for evidence of what Congress meant by good faith in § 362(c)(3)(B), there are several statutory analogues and not a few judge-made candidates. The maxim that similar words in similar statutory contexts should convey similar meanings will be tested in this context. “Good faith” appears in at least the following other contexts that might be relevant to extension of the stay under § 362(c)(3)(B) in Chapter 13 cases:

 

  
To accomplish confirmation under § 1325(a)(3), the plan must be “proposed in good faith.”11
 

 

 

 

  
To confirm a plan under § 1325(a)(7), “the action of the debtor in filing the petition” must be in good faith.12
 

 

 

 

  
Section 707(b)(3) requires bankruptcy courts to consider “whether the debtor filed the petition in bad faith” when assessing substantial abuse in Chapter 7 cases.
 

 

 

 

  
Many courts hold that lack of good faith is a ground for conversion or dismissal of a Chapter 13 case under § 1307(c).13
 

 

 

 

  
Many courts hold that lack of good faith is cause for relief from the stay under § 362(d)(1).14
 

 

 

[10]

There is no perfect fit for a definition of good faith under new § 362(c)(3)(B) by analogy to any of the other places in the Bankruptcy Code the same or similar phrase appears. It is too much to expect courts to ignore the identical phrase in § 1325(a)(3) and (a)(7) plans, but the courts have quickly pointed out that considerations of good faith at confirmation are different from considerations of good faith at refiling after dismissal of a prior bankruptcy case. As explained in In re Tomasini,15 the “totality-of-circumstances test” of good faith appropriate to assess good faith at confirmation under § 1325(a)(7) is similar but not identical to the test of good faith on a motion to extend the automatic stay under § 362(c)(3):

The entirety of § 362(c)(3) indicates a focus on a debtor’s creditors. . . . In contrast to § 362(c)(3), the context of the good faith analysis under § 1325 seems to place far more emphasis on the nature of the debtor. . . . [Sections] 362(c)(3) and 1325(a)(7), although both governed by a totality of the circumstances test, are not governed by identical analyses.16
[11]

There is a two-edged sword here for debtors: “good faith” with respect to extension of the automatic stay under § 362(c)(3)(B)—whether proven or not—is not preclusive of “good faith” for any other purpose in the Chapter 13 case. A debtor who fails to prove good faith for purposes of extending the automatic stay under § 362(c)(3)(B) may still be able to confirm a plan.17 This would be true both because good faith has a different meaning and because the burden of proof with respect to good faith may be different at confirmation than when the elevated standard of clear and convincing evidence applies in the face of a presumption under § 362(c)(3)(C). And confirmation of a Chapter 13 plan would not be dispositive of good faith for purposes of extension of the automatic stay under § 362(c)(3)(B).18

[12]

Not surprisingly, the reported decisions interpreting good faith in § 362(c)(3)(B) are hard to characterize and hard to organize. This was inevitable because compelling statutory construction is foiled by multiple uses of the same words and good faith in any context is fact bound. But there are some themes emerging.

[13]

A substantial number of courts have reviewed the good-faith cases at confirmation under § 1325(a)(3) and concluded that the “totality-of-circumstances” test—sometimes with and sometimes without modifications—is the appropriate approach to determine good faith for purposes of § 362(c)(3)(B).19 Many courts—including some of the courts just mentioned—have culled through the good-faith factors and produced modified lists containing six or seven or eight that should be considered to determine good faith under § 362(c)(3)(B). As explained by the bankruptcy court in In re Galanis:20

[T]he 10th Circuit Court of Appeals . . . developed two different sets of factors to consider in determining whether good faith exists under § 1325(a) (“[Flygare v. Boulden, 709 F.2d 1344 (10th Cir. 1983)] factors”) or under § 1307(c) (“[Gier v. Farmers State Bank of Lucas (In re Gier), 986 F.2d 1326 (10th Cir. 1993)] factors”). . . . The Flygare standards are largely inapplicable to whether the debtor had good faith at the time of filing. . . . [T]he Gier factors seem appropriate for determining whether the debtor filed a petition in good faith. . . . In recognition of the differences between the focus of the Gier factors and the focus of § 362(c)(3)(B), the Court’s totality of the circumstances analysis must consider the Gier factors with some reservations, and must also consider other relevant factors. . . . [T]he following factors are relevant to the analysis of good faith under § 362(c)(3)(B): 1) the timing of the petition; 2) how the debt(s) arose; 3) the debtor’s motive in filing the petition; 4) how the debtor’s actions affected creditors; 5) why the debtor’s prior case was dismissed; 6) the likelihood that the debtor will have a steady income throughout the bankruptcy case, and will be able to properly fund a plan; and 7) whether the Trustee or creditors object to the debtor’s motion.21

All of these cases use the language of “good faith factors” from decades of confirmation cases that preceded BAPCPA, but the factors applied to determine whether to extend the automatic stay under § 362(c)(3)(B) are modified in subtle and not so subtle ways, dropping some factors and shuffling the importance of others.22

[14]

Risking oversimplification, nearly all courts offer special weight to evidence of changed circumstances that materially impacts some important aspect of the refiling—that explains why the prior case failed; or that portends in favor of success in the current case.23 When there is insufficient evidence of change in the personal or financial circumstances of the debtor since dismissal of the prior case, the reported decisions consistently find a lack of good faith for purposes of extending the automatic stay beyond 30 days under § 362(c)(3)(B).24 When circumstances have changed but the debtor’s new plan is not consistent with those changes, good faith goes lacking.25

[15]

Some factors considered relevant to § 362(c)(3)(B) good faith make obvious sense. To assess good faith at refiling, debtors can expect bankruptcy courts to want some explanation why the prior case failed and why the causes of that prior failure won’t repeat.26 Lack of evidence of progress toward a confirmable plan supports denial of a motion to extend the stay under § 362(c)(3).27 The delay between dismissal of the prior case and filing of the current case has been often cited as a factor bearing on good faith, but how this factor cuts is less clear. Refiling quickly has been characterized as bad-faith gaming of the system and as a laudable effort to “save” creditors from expensive collection effort.28

[16]

The absence of objection from creditors has been cited by several courts as a factor favoring good faith at refiling under § 362(c)(3)(B).29 When the debtor incurs new debt between dismissal of the prior case and filing of the current case, the courts are less inclined to find good faith absent special explanation.30

[17]

Within the universe of good-faith factors and changed circumstances, medical events have special purchase. Debtors who experienced significant medical expenses and/or disruptive illness or injury who can claim to be healed or on the mend have had success convincing bankruptcy courts to extend the automatic stay beyond 30 days under § 362(c)(3)(B).31 “Shaky health status” that puts feasibility in doubt weighs against extension of the automatic stay.32

[18]

It is trite to say that the good-faith cases under § 362(c)(3)(B) are “fact cases,” but they are fact cases. Debtors’ counsel should prepare a § 362(c)(3) stay extension hearing with focus on proving the changes in personal or financial circumstances that bear on why the prior case failed and why the current case will succeed. Along the way, touch as many other factors cited above as possible. Failure to prove changed circumstances is likely to be fatal to an extension of the stay. Look particularly for untoward events for which the debtor is less blamable such as illness of the debtor or a family member, cars that broke down, bad weather, pestilence and the like. Then be prepared to prove those “unexpected” circumstances are not expected to continue or recur. If there are medical bills, bring them to court. If the debtor was laid off, bring the pink slip and prove the efforts to find employment between the two cases. If there has been a divorce, a birth, a death—any personal event that affected performance under the plan—bring proof and support that proof with whatever corroboration there is.

[19]

Refiling sooner rather than later looks better from the reported cases, but generalizations are dangerous in this area. Buying a new car between the two cases is a bad idea. Offering up the debtor’s best effort at curing whatever default there was in the prior case is an excellent idea. The absence of evidence of effort to make payments during the prior Chapter 13 case and no evidence of effort to fix that problem is a formula for failure to prove good faith.33 If the presumption that the current case was filed not in good faith has arisen with respect to a creditor that moved for relief from the stay in the prior case,34 a peace offering toward that creditor is helpful. Proof that the debtor has reduced expenses is sometimes the only immediately available evidence to brighten prospects for success in the current case.

[20]

A few words about “clear and convincing evidence.” When the presumption arises that the current case was filed not in good faith,35 the debtor’s burden of proof with respect to good faith is elevated to clear and convincing evidence. It is not always easy to distinguish ordinary evidence from evidence that is clear and convincing. The courts of appeals in every circuit have at one time or another stated the clear and convincing standard. The most common formulation is something like this:

Clear and convincing evidence is evidence that produces in your mind a firm belief or conviction as to the matter at issue. Clear and convincing evidence involves a greater degree of persuasion than is necessary to meet the preponderance of the evidence standard. This standard does not require proof to an absolute certainty, since proof to an absolute certainty is seldom possible in any case.36

 

1  For discussion of which stays terminate in 30 days under § 362(c)(3), see § 432.2 [ Which Stays Terminate? ] § 60.2  Which Stays Terminate?.

 

2  See 11 U.S.C. § 362(c)(3), discussed in § 432.1 [ When Does § 362(c)(3) Apply? ] § 60.1  When Does § 362(c)(3) Apply?.

 

3  See § 432.3 [ Timing, Procedure and Form for Extension of Stay ] § 60.3  Timing, Procedure and Form for Extension of Stay.

 

4  11 U.S.C. § 362(c)(3)(B).

 

5  11 U.S.C. § 362(c)(3)(C), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

6  These circumstances are discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

7  11 U.S.C. § 362(c)(3)(C)(i)(II)(aa), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

8  11 U.S.C. § 362(c)(3)(C)(i)(III), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

9  See § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

10  See In re Collins, 335 B.R. 646, 652–54 (Bankr. S.D. Tex. 2005) (“[T]his Court has set forth factors for considering good faith: Threshold Factors (1) The position taken by creditors against whom an extension of the stay is sought; (2) The likelihood that the new case will result in a bankruptcy discharge; Additional Factors (3) The nature of the debt held by the creditor; (4) The nature of the collateral held by the creditor; (5) Eve of bankruptcy purchases; (6) The debtor’s conduct in the present case; (7) The reasons why the debtor wishes to extend the automatic stay; and (8) Any unique facts or circumstances particular to a case. . . . [A] finding that the new case is unlikely to result in a discharge means that the case fails an objective good faith standard and ends the inquiry. . . . This case is simply not feasible. . . . Failure to meet the objective good faith requirement ends the analysis. . . . Mr. Collins supports three children—including an infant—as a single-parent without child support. Mr. Collins does not make luxury purchases or live an extravagant lifestyle. His only major assets are his house and a car that is at least six years old. Unfortunately for this Debtor, good faith under the Code is not only based on one’s lifestyle or family affairs. Being a good father and a hard worker is not enough under § 362(c)(3)(C).”); In re Charles, 334 B.R. 207, 223 (Bankr. S.D. Tex. 2005) (Debtor has burden of proof with respect to good faith and that burden will be either a preponderance or clear and convincing evidence depending on whether the presumption of a lack of good faith arises; objective and subjective good faith are measured against a list of factors. The threshold objective test is whether the case is likely to be confirmed and result in a discharge. Subjective good faith is tested against the totality of the circumstances using these factors: (1) nature of the debt; (2) nature of the collateral; (3) eve of bankruptcy purchases; (4) debtor’s conduct in the present case; (5) reasons why the debtor wishes to extend the stay; and (6) other circumstances that weigh on the wisdom of the extension. Debtor must pass objective test of feasibility before subjective totality of circumstances factors are reached. If debtor passes the good faith test, then debtor must demonstrate “sufficient equitable factors to justify the court’s exercise of its discretion.”). See also In re Carr, 344 B.R. 776, 780, 781 (Bankr. N.D. W. Va. 2006) (To extend automatic stay under § 362(c)(3), a modified totality- of-circumstances test is appropriate that focuses on six non-exclusive factors. “The Bankruptcy Code does not define ‘good faith’ . . . . [S]ection 1325(a)(3) is of limited value because it focuses on the date of confirmation and the proposed plan.” Good-faith analysis under § 707(a) is imperfect because the “severe sanction of dismissal” is not at issue. Good faith under § 1307(c) is a “broad inquiry” that is not consistent with § 362(c)(3)(A). “Accordingly, no perfect analytical carryover from another part of the Bankruptcy Code exists regarding the good faith inquiry to be undertaken in section 362(c)(3)(B) cases. . . . [T]he totality of the circumstances test applies . . . . [T]his court will focus on six, non-exclusive factors. First, and most importantly, the debtor’s present case should have a reasonable probability of success. . . . Second, the court will consider why the prior case was dismissed. . . . Third, the debtor should demonstrate what has changed, if anything, in the time between the dismissal of the prior case and the commencement of the current case. . . . Fourth, the debtor should demonstrate that creditors have not suffered any untoward prejudice due to the lapse of time . . . . Fifth, the debtor should show how the debts arose and what the debtor’s motivation is for filing bankruptcy. . . . Sixth, the lack of any objection from the trustee or any creditor is some indication.”); In re Whitaker, 341 B.R. 336, 345–47 (Bankr. S.D. Ga. 2006) (Upon clear and convincing evidence of a substantial change in circumstances, § 105(a) is available to reimpose the automatic stay when a one-time repeat filer fails to make a timely request for extension of the stay under § 362(c)(3). “[T]he chief means of rebutting the presumption of bad faith requires the movant to establish ‘a substantial change in the financial or personal affairs of the debtor . . . or any other reason to conclude’ that the instant case will be successful. . . . Because I find that the statute provides the evidentiary burden required to rebut the presumption of bad faith, I do not apply the tests of good faith developed under § 1325(a) . . . or § 1307(c) . . . . Not only are these tests superceded by the language of § 362(c)(3)(C), their application here would result in considerable confusion. They deal with very different provisions of the Bankruptcy Code, generally implemented later in the case. . . . Although the Debtors meet the statutory burden of good faith, their opportunity to use the § 362(c)(3)(B) safe harbor has passed. My only authority for reinstating the stay is to use the equitable powers conferred by § 105(a). . . . [R]e-imposition of the automatic stay is appropriate, and necessary to ensure an orderly payment to creditors under the Debtors’ chapter 13 plan.”).

 

11  11 U.S.C. § 1325(a)(3), discussed beginning at § 103.1  In General.

 

12  11 U.S.C. § 1325(a)(7), discussed in § 496.1 [ Good-Faith Filing Requirement ] § 110.1  Good-Faith Filing Requirement after BAPCPA.

 

13  11 U.S.C. § 1307(c), discussed in §§ 312.1 [ Cause for Conversion ] § 141.3  Cause for Conversion, 333.1 [ Cause for Dismissal—In General ] § 152.2  Cause for Dismissal—In General and 334.1 [ Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings ] § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings.

 

14  See § 81.2 [ Other Cause for Relief ] § 64.2  Other Cause for Relief.

 

15  339 B.R. 773 (Bankr. D. Utah 2006).

 

16  339 B.R. at 778–82.

 

17  See In re Tomasini, 339 B.R. 773 (Bankr. D. Utah 2006) (Debtor who failed to overcome presumption of lack of good faith under § 362(c)(3) is not precluded by § 1325(a)(7) from confirming a plan.).

 

18  See In re Garrett, 357 B.R. 128, 132–33 (Bankr. C.D. Ill. Dec. 7, 2006) (“[T]here is nothing in the confirmation order which addresses the continuation or termination of the automatic stay . . . . The stay issue remained pending despite confirmation of the Debtors’ Chapter 13 plan . . . . [I]t was appropriate for the Bank to rely on its pending objection to the continuation of the automatic stay to preserve that issue despite confirmation of the Debtors’ Chapter 13 plan. . . . [C]onfirmation of the Debtors’ plan was merely binding on the Bank as to the treatment of its claim in the event of a finding by the Court that the automatic stay should be continued as to the Bank. . . . Numerous factors are used to determine good faith, including the nature of the debt, the timing of the petition, how the debt arose, the debtor’s motive in filing the petition, the reason the prior petition was dismissed, any change in debtor’s financial circumstances, and whether a plan will be adequately funded. Additionally, the debtor’s actions are considered as to the effect on the creditor, the debtor’s treatment of creditors both before and after the petition was filed, and whether the debtor has been forthcoming with the Bankruptcy Court and creditors. . . . While it is apparent that the Debtors are earning increased income, . . . unlike debtors in cases where the stay has been reimposed, the Debtors in this instant case offer only a de minimis dividend to their unsecured creditors.”).

 

19  See, e.g., In re Morgan, No. 06-52183-MM, 2006 WL 3838412, at *3 (Bankr. N.D. Cal. Nov. 16, 2006) (“To determine whether the debtor has established the requisite good faith under § 362(c)(3), courts have looked to the totality of the circumstances.”); In re Hunt, No. 06-50835, 2006 WL 2431554 (Bankr. M.D.N.C. Aug. 18, 2006) (applying totality-of- circumstances test as modified in In re Havner, 336 B.R. 98 (Bankr. M.D.N.C. 2006).); In re Carr, 344 B.R. 776 (Bankr. N.D. W. Va. 2006) (To extend automatic stay under § 362(c)(3), a modified totality-of-circumstances test is appropriate that focuses on six non-exclusive factors.); In re Montoya, 342 B.R. 312, 317 (Bankr. S.D. Cal. 2006) (“[T]he Court will utilize the ‘totality of circumstances’ test to assist its determination of whether the Debtor filed her new case in good faith as to the creditors she seeks to stay.”); In re Castaneda, 342 B.R. 90 (Bankr. S.D. Cal. 2006) (applying pre-BAPCPA totality-of- circumstances test); In re Tomasini, 339 B.R. 773 (Bankr. D. Utah 2006) (Totality-of- circumstances test of good faith on a motion to extend the automatic stay is similar but not identical to totality-of-circumstances test for good faith at confirmation under §1325(a)(7).); In re Baldassaro, 338 B.R. 178 (Bankr. D.N.H. 2006) (applying totality-of-circumstances test); In re Ball, 336 B.R. 268, 274 (Bankr. M.D.N.C. 2006) (applying totality-of- circumstances test from Gier v. Farmers State Bank of Lucas, Kan. (In re Gier), 986 F.2d 1326 (10th Cir. 1993), as modified by In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005); In re Havner, 336 B.R. 98 (Bankr. M.D.N.C. 2006) (applying totality-of-circumstances test from Gier v. Farmers State Bank of Lucas, Kan. (In re Gier), 986 F.2d 1326 (10th Cir. 1993), as modified by In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005).); In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005) (To overcome presumption in § 362(c)(3), totality-of- circumstances test is applied with modified factors.).

 

20  334 B.R. 685 (Bankr. D. Utah 2005).

 

21  334 B.R. at 691–93. Accord In re Montoya, 333 B.R. 449, 457–58, 460–61 (Bankr. D. Utah 2005) (Applying factors from Gier v. Farmer State Bank (In re Gier), 986 F.2d 1326 (10th Cir. 1993), debtor failed to rebut presumption of lack of good faith because creditors received no payments for 15 months, collateral depreciated and current plan was no better than prior failed plan. The factors bearing on good faith under Gier are: “the nature of the debt, including the question of whether the debt would be nondischargeable in a Chapter 7 proceeding; the timing of the petition; how the debt arose; the debtor’s motive in filing the petition; how the debtor’s actions affected creditors; the debtor’s treatment of creditors both before and after the petition was filed; and whether the debtor has been forthcoming with the bankruptcy court and the creditors.” The nature of the debt and whether it would be nondischargeable are less meaningful factors after BAPCPA because the superdischarge has been largely eliminated. That the debtor is receiving a significant benefit managing priority and unsecured claims through a Chapter 13 plan is a factor that weighs against the debtor. The timing of the petition cuts against the debtor because the debtor refiled six days after dismissal of the prior case, preventing creditors from taking any action to collect their debt or repossess collateral. That new medical debts were incurred and the debtor testified to a desire to repay her creditors favor a finding of good faith. The debtor “has not presented proof by clear and convincing evidence that her creditors have not suffered as a result of her repeat filings. . . . [N]o distribution was made to any non-administrative creditor during the fourteen months of [the prior] case. She used depreciating collateral without compensation . . . the collateral has declined in value. . . . [N]o evidence was presented that the treatment of her creditors both before and after the petition was filed, was in good faith. . . . Section 362(c)(3)(B) requires this Court to view this issue from the creditors’ perspective. . . . [T]he Court awards more weight to the . . . Gier factors which presumptively establish that the Debtor’s repeat filings have negatively affected creditors. The Debtor needed to come forward with clear and convincing evidence showing the Court that the negative impact on the creditors has now somehow been overcome. . . . [F]rom the creditors’ perspective, the Debtor has not filed in good faith.”); In re Davis, No. 06-50966, 2006 WL 2462895 (Bankr. M.D.N.C. Aug. 23, 2006) (Applying seven factors from In re Havner, 336 B.R. 98 (Bankr. M.D.N.C. 2006), debtor presented clear and convincing evidence of good faith when current case was filed two weeks after previous case was dismissed, debts were not result of luxury spending, current case was filed to save home from foreclosure, prior dismissal was caused by failure of an employer to pay the debtor and by car repairs and debtor would be able to fund a plan.); In re Hunt, No. 06-50835, 2006 WL 2431554 (Bankr. M.D.N.C. Aug. 18, 2006) (Applying totality-of-circumstances test as modified in In re Havner, 336 B.R. 98 (Bankr. M.D.N.C. 2006), debtor failed to overcome presumption of lack of good faith when debtor recently purchased a low-mileage car, debtor listed significant new unsecured debts in third case and debtor could not explain income increase between second and third cases—leading to conclusion that debtor was not likely to be able to fund plan.); In re Ball, 336 B.R. 268, 274, 275 (Bankr. M.D.N.C. 2006) (Applying totality-of-circumstances test from Gier v. Farmers State Bank of Lucas, Kan. (In re Gier), 986 F.2d 1326 (10th Cir. 1993), as modified by In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005), good faith for purposes of § 362(c)(3) includes: “1) the timing of the petition; 2) how the debt(s) arose; 3) the debtor’s motive in filing the petition; 4) how the debtor’s actions affected creditors; 5) why the debtor’s prior case was dismissed; 6) the likelihood that the debtor will have a steady income throughout the bankruptcy case, and will be able to properly fund a plan; and 7) whether the Trustee or creditors object to the debtor’s motion.” A debtor who waits a long time before refiling causes creditors to incur additional costs; this and is evidence of bad faith. Whether the debts arose from luxury spending or unavoidable costs such as medical bills is a factor. Debtor’s motive in filing the present case is “a wholly subjective inquiry.” Prejudice to creditors is almost always present in a refiling. Dismissal of the previous case as part of an attempt “to manipulate the system or some other bad conduct” would be indicative of a lack of good faith. Feasibility must be established with clear and convincing evidence.); In re Havner, 336 B.R. 98, 104–05 (Bankr. M.D.N.C. 2006) (Applying totality-of-circumstances test from Gier v. Farmers State Bank of Lucas, Kan. (In re Gier), 986 F.2d 1326 (10th Cir. 1993), as modified by In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005), debtor failed to rebut presumption. “The Present Case was filed only twenty-one days after the Previous Case was dismissed. . . . [T]his factor weighs in favor of granting the Debtor’s Motion. . . . Although the total amount of unsecured debt decreased in the Present Case, the decrease is due to substantial and unexplained differences in the amounts owed to two unsecured creditors . . . . This factor weighs against the granting of the Debtor’s Motion. . . . [T]he Court is convinced that [the debtor’s] motive in filing the Present Case was to responsibly address his debts and to pay as much of them as possible. . . . [T]here are depreciating assets . . . . [C]reditors are prevented from exercising their rights while their collateral depreciates. This factor weighs against granting the Debtor’s Motion. . . . The Previous Case was dismissed for the Debtor’s failure to make timely plan payments, and the Debtor made no attempt to cure the delinquency. This factor weighs against granting the Debtor’s Motion. . . . [T]he Court is left with little confidence, given the Debtor’s performance in the recent past, that the Debtor will be able to fund a [sic] maintain a chapter 13 plan. . . . Debtor has failed to establish feasibility with clear and convincing evidence. . . . [N]either the Trustee nor any creditors objected to the Debtor’s motion . . . . [U]nder a totality of the circumstances analysis the Debtor has failed to carry his burden to show by clear and convincing evidence that he filed the Present Case in good faith.”).

 

22  See, e.g., In re Morgan, No. 06-52183-MM, 2006 WL 3838412, at *3 (Bankr. N.D. Cal. Nov. 16, 2006) (“Courts look specifically at the same factors for determining good faith in confirmation of a chapter 13 plan, as well as to the objective futility of the case and the subjective bad faith of the debtor. . . . A number of courts, recognizing that certain factors, such as the type of debt and the debtor’s conduct in the second case, are less significant under the more limited superdischarge under the BAPCPA, have modified the test for good faith to include additional factors . . . . [T]he debtors have met their burden of showing that this case was filed in good faith.”); In re Garrett, 357 B.R. 128, 133 (Bankr. C.D. Ill. 2006) (“Numerous factors are used to determine good faith, including the nature of the debt, the timing of the petition, how the debt arose, the debtor’s motive in filing the petition, the reason the prior petition was dismissed, any change in debtor’s financial circumstances, and whether a plan will be adequately funded. Additionally, the debtor’s actions are considered as to the effect on the creditor, the debtor’s treatment of creditors both before and after the petition was filed, and whether the debtor has been forthcoming with the Bankruptcy Court and creditors.”); In re Carr, 344 B.R. 776, 780, 781 (Bankr. N.D. W. Va. 2006) (To extend automatic stay under § 362(c)(3), a modified totality-of-circumstances test is appropriate that focuses on six non-exclusive factors. “The Bankruptcy Code does not define ‘good faith’ . . . . [S]ection 1325(a)(3) is of limited value because it focuses on the date of confirmation and the proposed plan.” Good-faith analysis under § 707(a) is imperfect because the “severe sanction of dismissal” is not at issue. Good faith under § 1307(c) is a “broad inquiry” that is not consistent with § 362(c)(3)(A). “Accordingly, no perfect analytical carryover from another part of the Bankruptcy Code exists regarding the good faith inquiry to be undertaken in section 362(c)(3)(B) cases. . . . [T]he totality of the circumstances test applies . . . . [T]his court will focus on six, non-exclusive factors. First, and most importantly, the debtor’s present case should have a reasonable probability of success. . . . Second, the court will consider why the prior case was dismissed. . . . Third, the debtor should demonstrate what has changed, if anything, in the time between the dismissal of the prior case and the commencement of the current case. . . . Fourth, the debtor should demonstrate that creditors have not suffered any untoward prejudice due to the lapse of time . . . . Fifth, the debtor should show how the debts arose and what the debtor’s motivation is for filing bankruptcy. . . . Sixth, the lack of any objection from the trustee or any creditor is some indication.”); In re Montoya, 342 B.R. 312, 317 (Bankr. S.D. Cal. 2006) (“In this circuit, the ‘totality of circumstances’ test for determining whether a debtor filed a chapter 13 case in good faith includes: 1) whether debtor misrepresented facts in the petition or the plan, unfairly manipulated the Code or otherwise filed the current chapter 13 plan or petition in an inequitable manner; 2) debtor’s history of filings and dismissals; 3) whether debtor only intended to defeat state court litigation; and 4) whether egregious behavior is present.”); In re Baldassaro, 338 B.R. 178, 187–92 (Bankr. D.N.H. 2006) (“[T]he Court must look to the decisions on good faith under the pre-BAPCPA Bankruptcy Code. . . . [T]he totality of the circumstances test is applied to determine whether a chapter 13 petition has been filed in good faith. . . . [T]he determination of good faith for purposes of § 362(c)(3) is similar to, but not congruent with, the determination of good faith in connection with a motion to dismiss under § 707(b)(3) or § 1307. . . . The determination of good faith under the totality of circumstances test is subjective. However, the provisions of § 362(c)(3)(C)(i)(III) suggest that the good faith contemplated by Congress in § 362(c)(3) includes, in part, an objective test on the likelihood of success in the later case. . . . [T]he factors to be considered by the Court in applying the totality of the circumstances test to determine good faith under § 362(c)(3) include: . . . [F]irst . . . the timing of the Debtor’s petition . . . . If the Debtor waited for a significant portion of the one year period imposed by § 362(c)(3) with no intention to remain out of bankruptcy and pay creditors, he would be acting in bad faith. . . . [F]orty-seven days . . . weighs in the Debtor’s favor. . . . [S]econd . . . how the debts scheduled in the 2006 Case arose. . . . [T]he evidence does not reflect any incursion of additional debt since the filing of the 2005 Case. . . . [T]hird . . . why the 2005 Case was dismissed and the Debtor’s conduct in that case. . . . [T]he 2005 Case was dismissed because of his inability to make plan payments due to his illness. . . . [C]ircumstances beyond the Debtor’s control . . . . [F]ourth . . . how the Debtor’s actions affected creditors who are stayed. . . . [T]he automatic stay will almost always prejudice creditors. . . . [F]ifth . . . the Debtor’s motive in filing the petition in 2006 and whether he is manipulating the bankruptcy system. The Debtor . . . filed . . . to prevent the loss of his home to foreclosure after he was unable to reach an out-of-court agreement with MERS. . . . [S]ixth . . . whether the Debtor’s circumstances have changed . . . and whether he is likely to be able to fund his proposed plan. . . . [H]is non-debtor spouse’s income has increased . . . . [H]is doctors are using a new outpatient treatment for his chronic disease . . . . The final factor is whether the chapter 13 trustee or any creditors object to the Motion. . . . The only creditor that responded was MERS . . . . The Court finds it significant that the chapter 13 trustee attended the hearing but did not object. . . . [A]s a condition to the extension of the automatic stay with respect to MERS, the Court shall order the Debtor . . . to make the mortgage payments . . . on or before the fifteenth day of each month, failing which MERS may obtain relief from the automatic stay by filing an affidavit.”); In re Kurtzahn, 337 B.R. 356, 364–67 (Bankr. D. Minn. 2006) (Citing United States v. Estus (In re Estus), 695 F.2d 311 (8th Cir. 1982), and Education Assistance Corp. v. Zellner, 827 F.2d 1222 (8th Cir. 1987), it is appropriate to consider the “developed jurisprudence on good faith” under other provisions of pre-2005 bankruptcy law in the § 362(c)(3) context. “[A] debtor’s patent failure to establish as a matter of fact that her plan is feasible may support a finding of lack of good faith . . . . In enacting § 362(c)(3)(C) . . . Congress clearly intended to make a debtor in a successor case under Chapter 13 prove early that she could perform through the end of the term of her plan, and to establish that by compelling evidence. . . . The evidence must be ‘“so clear, direct and weighty and convincing as to enable the factfinder to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”’ . . . [T]he Kurtzahns’ ages [71 and 72] and shaky health status are enough to cast a general doubt on their ability . . . . [T]he lack of budgeting for emergency or ‘contingency’ expenditures shows just how tenuous this household’s grasp on security is.”); In re Mark, 336 B.R. 260, 267 (Bankr. D. Md. 2006) (Clear and convincing evidence of good faith includes subjective intent to pay creditors and objective ability to do so. “[T]he court will look to the factors announced in [Neufeld v. Freeman, 794 F.2d 149 (4th Cir. 1986)] as well as the objective futility standard and subjective intent standards pronounced in . . . [Carolin Corp. v. Miller, 886 F.2d 693 (4th Cir. 1989)].” Evidence of good faith included a 100% plan and a new business from which the debtor was receiving more income.).

 

23  See, e.g., In re Morgan, No. 06-52183-MM, 2006 WL 3838412 (Bankr. N.D. Cal. Nov. 16, 2006) (Changed circumstances support finding of good faith for § 362(c)(3) purposes. Prior case failed because of unanticipated medical expenses, unemployment and illness in the debtors’ extended family. Circumstances changed. Debtors do not anticipate further medical expenses. Extended family is returned to good health. One of the debtors is receiving unemployment benefits while looking for full-time employment and the other debtor has stable employment.); In re Thomas, 352 B.R. 751, 758 (Bankr. D.S.C. 2006) (Proof of good faith sufficient to overcome presumption included that previous Chapter 13 case failed when former employer failed to remit plan payments, debtor has little unsecured debt and new stable employment, debtor cured defaults and tendered monthly payments on home mortgage and debtor “presented a coherent story and a plan for dealing with his financial problems.”); In re Castaneda, 342 B.R. 90, 95–96 (Bankr. S.D. Cal. 2006) (Debtor overcomes presumption with evidence that circumstances have improved since dismissal of prior case. “Section 362(c)(3)(B) directs that a court may continue the stay ‘only if the party in interest [movant] demonstrates that the filing of the later case is in good faith.’ . . . This necessarily means a court must make its own determination of good faith under the applicable evidentiary standard before it may continue the stay. . . . [M]ere statements by the movant in the motion do not carry any evidentiary weight. . . . The movant must provide detailed, competent, evidence sufficient to satisfy all elements of § 362(c)(3)(B) and, if applicable, to rebut the presumption of bad faith in §§ 362(c)(3)(C)(i) and (ii). The evidence must be filed and served with the motion so that creditors can evaluate the integrity of the current case, and so that the Court can determine under the applicable evidentiary standard whether the later case was filed in good faith. . . . [T]he Court will follow the reasoning of other courts that have imported pre-BAPCPA case law into § 362(c)(3)(B). Accordingly, the Court will utilize the ‘totality of circumstances’ test to assist its determination of whether the Debtor filed her new case in good faith.”); In re Baldassaro, 338 B.R. 178, 188 (Bankr. D.N.H. 2006) (“[T]he provisions of § 362(c)(3)(C)(i)(III) suggest that the good faith contemplated by Congress in § 362(c)(3) includes, in part, an objective test on the likelihood of success in the later case.”); In re Moore, 337 B.R. 79, 81–82 (Bankr. E.D.N.C. 2005) (Although prior case was not “pending” within one year of commencement of present Chapter 13 case, if § 362(c)(3) applies, the debtor “has demonstrated that he has had a substantial change in circumstances since his prior filing, in that he now has a second job. . . . [H]is inability to make payments in his first chapter 13 case was due to his inadequate income. That problem has now been corrected. . . . [I]f § 362(c)(3)(B) operates to terminate the stay 30 days after filing, the debtor has demonstrated grounds to extend the stay as to all creditors, and his case was filed in good faith.”); In re Phillips, 336 B.R. 818 (Bankr. E.D. Okla. 2006) (Loss of job and divorce are circumstances beyond control of the debtor that support clear and convincing evidence of good faith when debtor has new job and can make payments.); In re Warneck, 336 B.R. 181 (Bankr. S.D.N.Y. 2006) (When presumption is not in play, reduced burden of proving good faith is satisfied by evidence that financial circumstances have improved.).

 

24  See, e.g., Naper v. Carroll, Nos. Civ. 06 10378, 05 89520, 2006 WL 2990241 (E.D. Mich. Oct. 16, 2006) (unpublished) (That debtor’s live-in boyfriend had recovered from a work-related accident and would become a source of income was not a substantial change in debtor’s financial circumstances for purposes of good-faith test in § 362(c)(3).); In re Levens, No. 07-40052-JWV-13, 2007 WL 609844 (Bankr. W.D. Mo. Feb. 23, 2007) (Debtor failed to rebut presumption that good faith was lacking with evidence of new employment and wage deduction because recurring monthly expenses exceeded even new income.); In re Landaverde, No. 06-33438-H3-13, 2006 WL 2505269 (Bankr. S.D. Tex. Aug. 25, 2006) (Debtor failed to rebut presumption of lack of good faith with clear and convincing evidence when only change in circumstance was that debtor was driving a truck in town instead of out of town; schedules in second case were filed late and were inaccurate and second case was filed one day after first case was dismissed based on same deficiencies.); In re Penland, No. 06-11895, 2006 WL 2089893, at *2 (Bankr. E.D. Tenn. July 21, 2006) (Debtor failed to prove by clear and convincing evidence that there had been substantial change in circumstances since dismissal of prior Chapter 13 case for nonpayment. Debtor was working same job and belatedly tendered first payment in second case after asking for extension of stay. “[I]t was incumbent upon the debtor to clearly and convincingly prove that his financial affairs had so substantially changed that he would be able to obtain a confirmed plan that would be fully performed. The debtor’s proof simply did not meet the clear and convincing standard.”); In re Harris, 342 B.R. 274, 278 (Bankr. N.D. Ohio 2006) (Self-serving statements that prior case was dismissed because of excusable neglect to file amended plan and schedules do not rebut presumption of lack of good faith. “Aside from the self-serving declarations by debtor in her motion and by debtor’s counsel during the hearing on the motion, no evidence was presented to rebut the presumption . . . . Accordingly, this Court is without any basis to find that debtor ‘demonstrate[d] [by clear and convincing evidence] that the filing of the later case is in good faith as to the creditors to be stayed.’”).

 

25  See In re Chaney, 362 B.R. 690, 694–95 (Bankr. E.D. Va. 2007) (Citing Deans v. O’Donnell, 692 F.2d 968 (4th Cir. 1982), and Neufeld v. Freeman, 794 F.2d 149 (4th Cir. 1986), good faith for purposes of § 362(c)(3) includes consideration of non-exclusive factors, inquiry whether circumstances indicate abuse of provisions, purpose or spirit of Chapter 13 and overlay of consideration whether debtor has experienced change in financial or personal affairs. “[T]he court must be satisfied that the plan in the new case will succeed where the plan in the prior case did not. Usually this will require a finding that some change in the financial or personal affairs of the debtor has occurred that will allow the debtor to perform under the terms of the plan in the new case. But the inquiry does not end there. The court needs to determine that the repetitive filing does not violate the spirit of the Bankruptcy Code. . . . No substantial change has occurred in the Debtor’s financial or personal affairs since the Immediately Prior Case. . . . [T]he Debtor testified that he received a promotion and a raise of approximately $200 per month . . . . [T]he Debtor should be in a better position to perform the terms of the plan in the new case than he was in the Immediately Prior Case. However, the totality of the circumstances reveals that this case actually represents an abuse of the spirit and purpose of chapter 13 of the Bankruptcy Code. In spite of the increase in the Debtor’s income and the decrease in his expenses . . . the Debtor’s plan payments in this case have been reduced significantly. The plan payments in the Immediately Prior Case . . . would have yielded an 82% dividend to his unsecured creditors. The Debtor now proposes . . . only 4% to the Debtor’s unsecured non-priority creditors. . . . [T]he reduced proposed repayment in the new case and the improvement in the Debtor’s financial situation between the two filings are not indicia of good faith. . . . In light of the fact that there has been no adverse change in the Debtor’s circumstances, the Court is left to wonder why the Debtor’s disposable income in the Immediately Prior Case allowed him to pay so much more to his creditors than he is proposing to pay in this case. . . . [T]he presumption has not been rebutted.”).

 

26  See, e.g., In re Elliott-Cook, 357 B.R. 811, 815–16 (Bankr. N.D. Cal. 2006) (Debtor presented clear and convincing evidence that second case was filed in good faith. “[T]wo issues are very significant for purposes of determining good faith under § 362(c)(3): 1) why the previous plan failed, and 2) what has changed so that the present plan is likely to succeed. . . . [U]nexpected and unavoidable medical expenses and car repair bills led to the dismissal of the debtor’s prior case. . . . [S]he filed this case almost immediately after the dismissal of her first case . . . . Other than the medical expenses associated with her illness, debtor did not accumulate any debt in the time between her two bankruptcy cases. . . . With the return of good health, she has been able to return to her job . . . . [T]he unexpected cost of repairing the debtor’s vehicle is now behind her . . . . The debtor waited only seventeen days from the dismissal of her prior case before filing this case. . . . [N]o creditor has objected to this motion and any adverse consequence is far out-weighed by the other factors.”).

 

27  See, e.g., In re Ellis, 339 B.R. 136 (Bankr. E.D. Pa. 2006) (Motion to extend stay under § 362(c)(3) in third bankruptcy case is denied when sheriff’s sale of debtor’s property occurred before the petition, debtor’s adversary proceeding to set aside that sale lacks merit, the debtor’s testimony was not credible and schedules do not indicate any reasonable prospect of a plan.).

 

28  See In re Elliott-Cook, 357 B.R. 811, 815 (Bankr. N.D. Cal. 2006) (That “[t]he debtor waited only seventeen days from the dismissal of her prior case before filing this case” is a factor that favors good faith for § 362(c)(3) purposes.); In re Landaverde, No. 06-33438-H3-13, 2006 WL 2505269 (Bankr. S.D. Tex. Aug. 25, 2006) (That second case was filed only one day after first case was dismissed supports finding that the debtor failed to rebut presumption of a lack of good faith with clear and convincing evidence.); In re Davis, No. 06-50966, 2006 WL 2462895 (Bankr. M.D.N.C. Aug. 23, 2006) (Clear and convincing evidence of good faith included that current case was filed two weeks after previous case was dismissed.); In re Baldassaro, 338 B.R. 178, 189 (Bankr. D.N.H. 2006) (“If the Debtor waited for a significant portion of the one year period imposed by § 362(c)(3) with no intention to remain out of bankruptcy and pay creditors, he would be acting in bad faith. . . . [F]orty-seven days . . . weighs in the Debtor’s favor.”); In re Ball, 336 B.R. 268 (Bankr. M.D.N.C. 2006) (A debtor who waits a long time before refiling causes creditors to incur additional costs and is evidence of bad faith.); In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005) (A delay of 13 days in filing the second case weighs in favor of extending the stay. A longer delay of 120 days might infer a lack of good faith, but the delay was explained due to medical problems.); In re Montoya, 333 B.R. 449 (Bankr. D. Utah 2005) (The timing of the petition cuts against the debtor because the debtor refiled six days after dismissal of the prior case, preventing creditors from taking any action to collect their debt or repossess collateral.).

 

29  See, e.g., In re Elliott-Cook, 357 B.R. 811, 816 (Bankr. N.D. Cal. 2006) (One element of clear and convincing evidence that second case was filed in good faith is that “no creditor has objected to this motion.”); In re Carr, 344 B.R. 776, 781 (Bankr. N.D. W. Va. 2006) (“[T]he lack of any objection from the trustee or any creditor is some indication.”); In re Montoya, 342 B.R. 312, 318 (Bankr. S.D. Cal. 2006) (“It is . . . unfortunate she had to pay counsel to attend a hearing on an unopposed motion where there is simply no reason to question her good faith.”); In re Baldassaro, 338 B.R. 178, 191 (Bankr. D.N.H. 2006) (“The final factor is whether the chapter 13 trustee or any creditors object to the Motion. . . . The only creditor that responded was MERS . . . . The Court finds it significant that the chapter 13 trustee attended the hearing but did not object.”).

 

30  See, e.g., In re Hunt, No. 06-50835, 2006 WL 2431554 (Bankr. M.D.N.C. Aug. 18, 2006) (Applying totality-of-circumstances test, debtor failed to overcome presumption of lack of good faith when debtor recently purchased a low-mileage car and debtor listed significant new unsecured debts in third case.); In re Galanis, 334 B.R. 685 (Bankr. D. Utah 2005) (A substantial increase in unsecured debt between the two cases suggested a lack of good faith, but new medical bills explained the debt and support an extension of the automatic stay.).

 

31  See, e.g., In re Elliott-Cook, 357 B.R. 811, 815 (Bankr. N.D. Cal. 2006) (“[U]nexpected and unavoidable medical expenses and car repair bills led to the dismissal of the debtor’s prior case. . . . With the return of good health, she has been able to return to her job . . . . [T]he unexpected cost of repairing the debtor’s vehicle is now behind her.”); In re Morgan, No. 06-52183-MM, 2006 WL 3838412 (Bankr. N.D. Cal. Nov. 16, 2006) (Prior case failed because of unanticipated medical expenses, unemployment and illness in the debtors’ extended family. Circumstances changed, debtors do not anticipate further medical expenses and the extended family is now in good health.); In re Baldassaro, 338 B.R. 178, 190–91 (Bankr. D.N.H. 2006) (“[T]he 2005 Case was dismissed because of [the debtor’s] inability to make plan payments due to his illness. . . . [R]easons for the dismissal . . . were related to circumstances beyond the Debtor’s control . . . . [H]is doctors are using a new outpatient treatment for his chronic disease.”); In re Ball, 336 B.R. 268 (Bankr. M.D.N.C. 2006) (Unavoidable costs such as medical bills are a factor.); In re Galanis, 334 B.R. 685, 691–93 (Bankr. D. Utah 2005) (A long delay between dismissal of the prior case and filing of the current case would indicate a lack of good faith except that the delay was explained due to medical problems. Similarly, a substantial increase in unsecured debt between the two cases suggests a lack of good faith, but new medical bills explain the new debt and support an extension of the stay.); In re Montoya, 333 B.R. 449 (Bankr. D. Utah 2005) (That new medical debts were incurred and the debtor testified to a desire to repay her creditors favor a finding of good faith.).

 

32  In re Kurtzahn, 337 B.R. 356, 366 (Bankr. D. Minn. 2006) (“[T]he Kurtzahns’ ages [71 and 72] and shaky health status are enough to cast a general doubt on their ability.”).

 

33  See In re Maxey, No. 06 36773, 2006 WL 3834218 (Bankr. S.D. Tex. Dec. 27, 2006) (In chronicle of nine bankruptcy cases by debtor and spouse, debtor failed to carry burden of proof of good faith for § 362(c)(3) purposes when debtor made no mortgage payments for more than three years, debtor has $90,000 in family income and significant disposable income and the only purpose of filing is to continue to defeat foreclosure.).

 

34  See 11 U.S.C. § 362(c)(3)(C)(ii), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

35  See 11 U.S.C. § 362(c)(3)(C), discussed in § 432.4 [ (Rebuttable) Presumption of Lack of Good Faith ] § 60.4  (Rebuttable) Presumption of Lack of Good Faith.

 

36  3 Kevin F. O’Malley, Jay E. Grenig, Hon. William C. Lee, Federal Jury Practice & Instruction § 104.02 (5th ed. Supp. 2007). See also Heartland Fed. Sav. & Loan Ass’n v. Briscoe Enters., Ltd., II (In re Briscoe Enters., Ltd., II), 994 F.2d 1160, 1164 (5th Cir. 1993) (“‘Preponderance’ means that [the existence of a fact] is more likely than not. ‘Clear and convincing’ is a higher standard and requires a high probability of success.”).