§ 25.1 — 180-Day Bar to Eligibility in 11 U.S.C. § 109(g)—In General

Revised: March 30, 2009

[1]

11 U.S.C. § 109(g)1 renders an individual ineligible for Chapter 13 within 180 days of the dismissal of a prior bankruptcy case (1) if the prior case was dismissed “for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case,” or (2) if the debtor “requested and obtained the voluntary dismissal” of the prior case “following the filing of a request for relief from the automatic stay.”2 Section 109(g) was added to the Code in 19843 to deal with perceived abuse of bankruptcy by debtors filing serial bankruptcy cases to avoid foreclosure or to overcome an adverse outcome in a prior bankruptcy case.4 Because dismissal of a prior case triggers the eligibility bar in § 109(g), this section does not prohibit the filing of a Chapter 13 case while a prior bankruptcy case for the same debtor is still pending.5

[2]

Ironically, § 109(g) was cited by the Supreme Court in Johnson v. Home State Bank6 as evidence that Congress did not intend to preclude all serial filings of Chapter 13 cases. The Supreme Court observed that the carefully crafted prohibition in § 109(g) was an explicit statutory treatment of serial filings, and thus a Chapter 13 case that did not fall within the 180-day bar to eligibility in § 109(g) could be used to manage liens that survived discharge in a prior Chapter 7 case. Johnson has been cited for the proposition that serial filings are permitted so long as each successive case falls outside the prohibition in § 109(g).7 That Congress imposed new limitations on the automatic stay8 and on discharge9 in serial case filings in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA)10 but did not amend the eligibility rules in § 109(g) supports the argument that the Code permits serial filings except as specifically limited by § 109(g). The reported decisions are in conflict whether other provisions of the Bankruptcy Code or Bankruptcy Rules or orders entered in a prior case can limit the eligibility of a Chapter 13 debtor who has filed a series of bankruptcy cases but whose most recent filing is not precluded by the 180-day bar in § 109(g).11

[3]

Section 109(g) generates many complicated strategic considerations. If the debtor has experienced a tainted dismissal, the debtor is not eligible to refile within the 180-day period and counsel must find other ways to deal with the debtor’s financial problems. If the debtor desires to dismiss a pending bankruptcy case, counsel must have one eye on § 109(g) to engineer the dismissal (if possible) without invoking the 180-day refiling prohibition and another eye on the new limits on the automatic stay upon refiling within a year imposed by BAPCPA.12 Simply filing another bankruptcy case in violation of § 109(g) is not a satisfying alternative—the U.S. Court of Appeals for the Fifth Circuit has held that both the debtor and debtor’s counsel are subject to sanctions under Bankruptcy Rule 9011 when, on advice of counsel, the debtor files a second bankruptcy case that violates § 109(g).13

[4]

Debtor’s counsel may be in a race to accomplish voluntary dismissal before the filing of a request for relief from the stay or before entry of an order dismissing for a cause that would bar refiling.14 If a request for relief from the stay has already been filed, the debtor cannot voluntarily dismiss without invoking § 109(g)(2),15 and it is likely that stay limitations will apply in any refiling within a year.16 If a motion for relief from the stay has been filed, counsel’s role may be difficult: to conceive of a strategy to accomplish dismissal other than through voluntary action by the debtor and without a “willful failure” within the meaning of § 109(g)(1).17 Debtors are sometimes tempted to intentionally stop making payments to provoke a trustee’s motion to dismiss. This strategy may deliver the debtor from § 109(g)(2) because the resulting dismissal is not voluntary, but § 109(g)(1) may then impose the same 180-day bar to eligibility based on the willful failure to make payments.18 If the debtor needs to stay in a bankruptcy case, counsel might consider filing another Chapter 13 case, without dismissing the pending bankruptcy case, thus avoiding the 180-day bar in § 109(g).19 However, the debtor will then be a debtor in simultaneously pending bankruptcy cases and may face eligibility, dismissal, or good-faith problems for that reason.20

[5]

Avoiding a finding of willful failure by the debtor at dismissal may require the debtor to attempt modification of the plan.21 If dismissal is imminent, debtor’s counsel should posture for inclusion in the order of dismissal that the dismissal is without prejudice.22 Keeping the dismissal order free of prejudicial language broader than the statutory 180 days maximizes refiling potential once the 180 days expire.23

[6]

Section 109(g)(2) encourages creditors to file requests for relief from the stay so that any subsequent voluntary dismissal will invoke the 180-day bar to refiling.24 The creditor seeking dismissal of a pending case is encouraged by § 109(g)(1) to argue for a finding of willful failure at the time of dismissal. For example, if the debtor has defaulted on payments into the plan, creditor’s counsel should argue for a dismissal order that recites a willful failure to abide by the order to make payments, triggering § 109(g)(1).25 If the debtor has failed to appear at a hearing, creditor’s counsel may insist that the debtor has willfully failed to properly prosecute the case within the meaning of § 109(g)(1).

[7]

In many jurisdictions, the Chapter 13 trustee moves to dismiss Chapter 13 cases in which funds have not been received consistent with the plan. Absent adequate explanation, motions to dismiss for failure to pay are routinely granted, and, in some jurisdictions, the form order of dismissal contains language with respect to willfulness that invokes the 180-day bar in § 109(g)(1).26 This practice is questionable. Motions to dismiss for failure to make payments rarely are worded to put debtors on notice of the jeopardy that flows from an uncontested finding of willfulness. It is inappropriate for a routine dismissal order to contain findings of willfulness without an evidentiary hearing after notice to the debtor. The finding of willfulness is not a necessary element of cause for dismissal of the pending case. As the U.S. Court of Appeals for the Eighth Circuit observed in Montgomery v. Ryan (In re Montgomery),27 findings with respect to willfulness are not necessary in the order dismissing a bankruptcy case because § 109(g) is “not at issue” until the motion to dismiss a subsequent petition.

[8]

Section 109(g) does not tell us how to count the 180-day period during which the debtor is ineligible to file another case. The problem arises when an especially aggressive debtor files a third bankruptcy case more than 180 days after dismissal of a first case, but within fewer than 180 days of a second case that was dismissed for a reason that would not invoke a new bar under § 109(g). In a three- (or more) case situation, if the 180-day period is counted from the dismissal of the first case, the debtor can benefit from the filing of the second case even though it was dismissed under § 109(g)(1) if the process of dismissing the second case buys the debtor enough time for the 180 days to elapse since dismissal of the first case. To avoid this outcome, the courts have come up with creative theories for counting the 180-day bar.

[9]

For example, courts have held that the 180-day bar is counted from the date of the order dismissing the second Chapter 13 case rather than from the date of dismissal of the first case to prevent the debtor from benefiting from the second prohibited filing.28 Other courts have held that the 180-day period in § 109(g) is tolled from the time of the filing of the second case until it is dismissed.29 Another court simply dismissed a third Chapter 13 case for violation of § 109(g)(2) notwithstanding that the third case was filed more than 180 days after a tainted voluntary dismissal of the first case when an intervening second case was filed and dismissed for violation of § 109(g)(2).30 This court acknowledged that the third case did not literally fit within the prohibition of § 109(g)(2), but to avoid enabling the debtor to benefit from the stay imposed by the improper second filing, the court dismissed the third case as if it was prohibited by § 109(g)(2). On unusual facts, the Bankruptcy Appellate Panel for the Ninth Circuit observed, “There are sound arguments in favor of renewal of the 180-day period, or a tolling of that period, to prevent abusive filings.”31

[10]

Charitably, these cases demonstrate that the spirit of § 109(g) is being enforced by the courts notwithstanding that the literal language can be avoided by the clever timing of serial filings. Another perspective is that the courts are inventing reasons why debtors are not eligible for Chapter 13 notwithstanding that the last in a series of cases is not prohibited by § 109(g) or by any other section of the Bankruptcy Code. The eligibility limitation in § 109(g) is unambiguous and should not be corrupted beyond its clear statutory terms. If a serially filing debtor is abusive of access to bankruptcy, that debtor’s last case can be dismissed for cause with conditions under §§ 1307 and 349.32 In particularly egregious cases, the debtor might be sanctioned under Bankruptcy Rule 9011.33 However, if § 109(g) does not apply, it does not apply. The debtor is eligible for Chapter 13, though relief might be appropriately denied for other reasons.

[11]

Local practice varies whether § 109(g) issues will be determined at the time of dismissal of the prior case or at the hearing on the challenge to eligibility in the subsequent case. It has been said that eligibility under § 109(g) can be determined either at the time of dismissal of the prior case or on a motion to dismiss the subsequent case.34 If the prior order of dismissal states that the debtor willfully failed to abide by an order or to appear in proper prosecution, the finding of willfulness is conclusive and bars a subsequent Chapter 13 petition without relitigation of willfulness.35 An order of dismissal reciting that the prior case was dismissed “without prejudice” was one factor cited by a court in support of the conclusion that the debtor’s failure to file a plan in the prior case did not invoke the bar to refiling in § 109(g)(1).36 Given that willfulness is a finding of fact that requires evidence, most bankruptcy courts are disinclined to conduct evidentiary hearings on the § 109(g) criteria at a routine dismissal hearing.

[12]

The U.S. Court of Appeals for the Eighth Circuit has held that findings of fact with respect to willfulness are not necessary in the order dismissing the first case because § 109(g) is “not at issue” until a creditor moves to dismiss a subsequent petition.37 The court observed that findings of willfulness “must be made when a sanction is imposed, but need not be made earlier.”38 This is a sensible view and if widely adopted would eliminate unnecessary evidentiary hearings with respect to debtors who suffer dismissal of a bankruptcy case but never attempt refiling within 180 days.

[13]

Another strategic consideration with respect to § 109(g) is the question whether a filing in violation of § 109(g) invokes the automatic stay. As mentioned above, BAPCPA limited the automatic stay when an individual refiles one or more times within one year of dismissal of a prior case.39 BAPCPA also created a statutory template for in rem stay relief for creditors with liens on real property.40 BAPCPA did not directly address whether there is a relationship between § 109(g) and the automatic stay.

[14]

As discussed elsewhere,41 it is now widely recognized that the eligibility limits in § 109(e) are not jurisdictional and thus a bankruptcy court acquires jurisdiction over a Chapter 13 estate, notwithstanding that the debtor is eventually determined to be ineligible for Chapter 13 relief. But the bar to refiling in § 109(g) goes further than the eligibility limitation in § 109(e)—§ 109(g) begins, “notwithstanding any other provision of this section, no individual . . . may be a debtor under this title.42 Section 109(e), in contrast, only defines the individuals who “may be a debtor under chapter 13 of this title.43 It is generally held that a debtor ineligible for Chapter 13 under § 109(e) can convert to another chapter and continue under the jurisdiction of the bankruptcy court.44 However, an ineligible debtor who files in violation of § 109(g) is subject to dismissal and cannot maintain a bankruptcy case under any chapter.

[15]

Supported by decent statutory construction, several courts have held that the bankruptcy papers filed by an individual who is disabled by § 109(g) to be a debtor under any chapter do not constitute a “petition” and do not give rise to an automatic stay.45 Applying this logic, a creditor that is certain of the debtor’s ineligibility under § 109(g) might choose to ignore a refiling within the 180-day period and simply continue collection action. The problem is that not all courts agree that ineligibility precludes commencement of a case.46 The courts are not unanimous with respect to the analogous question whether the automatic stay comes into effect when a debtor files a Chapter 13 petition without satisfying the prepetition briefing requirement for eligibility imposed by BAPCPA.47 The obvious risk is that the debtor will drag the creditor into bankruptcy court on a motion for sanctions for violation of the automatic stay.48 The creditor may have a good defense to the sanctions motion, but a motion for relief from the stay in the first instance is probably cheaper and more certain for the creditor.49 In any case, the creditor that believes the debtor is ineligible should not neglect to take some action before confirmation: it has been held that confirmation of a plan is preclusive of an eligibility challenge under § 109(g).50

[16]

Debtors who suffer a dismissal under § 109(g) face a mootness problem on appeal. In Fernandez v. GE Capital Mortgage Services, Inc. (In re Fernandez),51 the Bankruptcy Appellate Panel for the Ninth Circuit held that the bankruptcy court’s denial of all access to bankruptcy relief for 180 days under § 109(g)(1) was not reviewable on appeal because 180 days passed without a stay of the bankruptcy court’s order.52


 

1  11 U.S.C. § 109(g) is worded that “no individual . . . may be a debtor under this title . . . if . . . .” The section is thus an eligibility bar to bankruptcy relief of any kind under the circumstances stated.

 

2  11 U.S.C. § 109(g).

 

3  Although the passage of time has dulled the question, there was disagreement whether § 109(g) bars a refiling within 180 days of the dismissal of a bankruptcy case that was pending on October 8, 1984, the effective date of the 1984 amendments. It has been held that § 109(g)(1) is not applicable when the dismissed bankruptcy case was filed before the effective date of the 1984 amendments. In re Volpe, 48 B.R. 255 (Bankr. M.D. Fla. 1985). Other courts held that § 109(g)(2) prohibits refiling even if the voluntary dismissal took place before the effective date of the new section. In re Keziah, 46 B.R. 551 (Bankr. W.D.N.C. 1985). One court concluded that § 109(g) applies when a Chapter 13 case is dismissed after the effective date of the 1984 amendments, without regard to when the prior case was filed. In re Nelkovski, 46 B.R. 542 (Bankr. N.D. Ill. 1985).

 

4  See S. Rep. No. 98-65, at 74 (1983).

 

5  In re Cormier, 147 B.R. 285 (Bankr. D. Me. 1992). See § 19.1 [ Eligibility of a Simultaneous Filer ] § 22.1  Eligibility of a Simultaneous Filer.

 

6  501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991).

 

7  See In re Govan, 139 B.R. 1017 (Bankr. N.D. Ala. 1992) (Citing Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), the Code does not condition eligibility for Chapter 13 after the filing of a prior Chapter 7 or Chapter 13 petition. “Even though serial filings do not adversely affect the eligibility of the debtor, the fact of successive filings should be considered as a factor when the court determines the issue of good faith.”); In re Barker, 129 B.R. 287 (Bankr. M.D. Fla. 1991) (Citing Johnson v. Home State Bank, 501 U.S. 78, 111 S. Ct. 2150, 115 L. Ed. 2d 66 (1991), the debtor’s fourth Chapter 13 case in 12 months was not prohibited by § 109(g) because, though filed within 180 days of debtor’s voluntary dismissal of third case, third case was not dismissed for willful failure of the debtor to abide by court orders, nor was third case voluntarily dismissed following the filing of a request for relief from the stay. Neither debtor nor debtor’s counsel was subject to sanctions under Rule 9011 or any other provision of the Code or Rules for the fourth permitted filing.).

 

8  See 11 U.S.C. § 362(c)(3) and (4), discussed in §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith; 11 U.S.C. § 362(d), discussed in § 481.1 [ Elderly, Ill or Disabled ] § 95.24  Elderly, Ill or Disabled.

 

9  See 11 U.S.C. § 1328(f), discussed in § 543.1 [ New Limitations on Successive Discharges ] § 156.2  Limitations on Successive Discharges.

 

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

 

11  See §§ 19.2 [ Eligibility of a Serial Filer: “Chapter 20” and Beyond ] § 23.1  Eligibility of a Serial Filer: “Chapter 20” and Beyond, 20.1 [ Court-Imposed Restrictions on Eligibility to Refile ] § 24.1  Court-Imposed Restrictions on Eligibility to Refile, 82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay and 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

12  See §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

13  Moran v. Frisard (In re Ulmer), 19 F.3d 234 (5th Cir. 1994) (Sanctions are appropriate under Bankruptcy Rule 9011 where the debtor’s attorney filed a Chapter 7 case within 180 days of voluntary dismissal of a Chapter 13 case in which a creditor had filed a motion for relief from the stay. Section 109(g)(2) was applicable and the prohibited second filing subjects counsel and the debtor to sanctions.). See also Klein v. Ulster Sav. Bank (In re Stein), 127 F.3d 292 (2d Cir. 1997) (Failure to appear at meeting of creditors may constitute failure to abide by a court order for purposes of § 109(g)(1); but refiling 18 days after dismissal does not automatically support a $2,500 sanction against debtor’s counsel because bankruptcy court did not give counsel an opportunity to respond to claims of dishonesty and malfeasance.); Jeffries v. G.E. Capital Mortgage Serv., Inc. (In re Jeffries), No. 94-C2781, 1995 WL 12288 (N.D. Ill. Jan. 11, 1995) (unpublished) (Court affirms dismissal of seventh bankruptcy case (eighth, if you count debtor’s wife’s case), which was dismissed with prejudice to refiling for 180 days and with monetary sanctions for the filing of a frivolous bankruptcy case. Applying the “totality of the circumstances” test for bad-faith filing under § 1307, history of seven filings over a four-year period was “fundamentally unfair” to the mortgage company that was repeatedly delayed in its foreclosure sale. Two of the prior petitions were filed in violation of the 180-day bar in § 109(g), and the debtor failed to list the seven previous petitions in the eighth filing.); In re Casse, 219 B.R. 657, 663 (Bankr. E.D.N.Y. 1998) (Court retains jurisdiction to determine whether to impose sanctions for fourth Chapter 13 petition filed in violation of order that dismissed a prior Chapter 11 case “with prejudice.”), aff’d, 198 F.3d 327 (2d Cir. 1999); In re Robinson, 198 B.R. 1017 (Bankr. N.D. Ga. 1996) (Willful misconduct justifying the 180-day bar to refiling in § 109(g)(1) where second Chapter 13 case was filed to stop a foreclosure, and debtor failed to file statements and schedules, failed to appear at the meeting of creditors, failed to file a plan and failed to make payments. Debtor told attorney in the first 10 days of the case that debtor was refinancing residence and did not intend to reorganize. Attorney’s fees imposed on debtor and debtor’s attorney as sanctions in addition to 180-day bar to refiling.); In re Armwood, 175 B.R. 779 (Bankr. N.D. Ga. 1994) (Citing 11 U.S.C. § 105, fifth Chapter 13 case filed to frustrate foreclosure by car lender was dismissed with prejudice to the filing of any bankruptcy case for 180 days. Five hundred dollar sanction was imposed on the debtor and on the debtor’s attorney under Bankruptcy Rule 9011.). But see In re Tuckey, 222 B.R. 549, 551–52 (Bankr. N.D. Tex. 1998) (Sixth Chapter 13 bankruptcy filing in violation of dismissal “with prejudice to refiling for a period of 180 days” in fifth case does not warrant sanctions because no creditor appeared to present evidence of damages. “According to press reports, creditors complained bitterly to the National Bankruptcy Review Commission that they were being unfairly harassed by repeat filings, particularly repeat filings of Chapter 13 cases. In an attempt to be sensitive to those concerns, this court . . . issued similar notices to show cause . . . creditors were invited to appear and participate. . . . No creditors appeared in any of the cases. Thus, in the five cases in which the court issued a notice to show cause, not one creditor appeared to complain. In more than twelve years as a United States Bankruptcy Judge, this court cannot recall one instance of a creditor objecting to a repeat filing by a debtor. . . . The only conclusion the court can draw is that creditors are not concerned about repeat filings. If creditors are not concerned about repeat filings, should the court be concerned about them? I think not.”); In re Jones, 174 B.R. 8, 14 (Bankr. D.N.H. 1994) (Court refuses U.S. trustee’s request for monetary sanctions against a debtor at dismissal of a bad-faith filing. “This Court believes that, for sanctions to be meaningful, they must be enforceable. The Court has found that the debtor does not have the kind of stable income necessary to fund a chapter 13 plan and the debtor’s schedules show virtually no assets actually in the possession of the debtor. Monetary sanctions would further impose hardship upon the debtor’s family, which is not the purpose of imposing sanctions.”), aff’d per curiam, 77 F.3d 460 (1st Cir. 1996). See also § 24.1 [ Special Problems for Lawyers in Chapter 13 Cases ] § 26.1  Special Problems for Lawyers in Chapter 13 Cases.

 

14  See In re Whitmore, 225 B.R. 199, 201–02 (Bankr. D. Idaho 1998) (Second Chapter 13 filing within 180 days of dismissal of prior case is not barred by § 109(g)(1) because order dismissing prior case for cause on trustee’s motion under § 1307(c) was entered in error and court should have dismissed the prior case on the debtors’ voluntary motion under § 1307(b). “A trustee (or sometimes a creditor) will seek an order of dismissal of a chapter 13 case ‘for cause.’ § 1307(b). An order granted on such a motion might bar the filing of another bankruptcy petition for 180 days. § 109(g)(1). In order to avoid this potential bar, the debtor responds to the § 1307(c) motion by exercising the § 1307(b) ‘absolute right’ to dismiss voluntarily. This strategy works to avoid the § 109(g)(1) bar and, so long as the debtor has not yet faced a stay lift motion in the case, avoids the bar of § 109(g)(2). . . . [W]hen the court is faced with two competing motions, one the debtor’s under § 1307(b) and the other under § 1307(c), the court must give effect to the debtor’s motion so long as the requirements of § 1307(b) have otherwise been met.”).

 

15  See § 23.1 [ 11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay ] § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay, discussing whether withdrawal of the stay relief motion or its denial affect § 109(g)(2)’s bar.

 

16  See 11 U.S.C. § 362(c)(3) and (4), discussed in §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

17  See, e.g., Clifton Sav. Bank v. Jackson (In re Jackson), 184 B.R. 16 (D.N.J. 1995) (District court refuses Chapter 13 debtors’ efforts to engineer the dismissal of a Chapter 11 case in a manner that would permit the immediate refiling of a Chapter 13 case without running afoul of § 109(g).). See § 23.1 [ 11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay ] § 25.3  11 U.S.C. § 109(g)(2)—Voluntary Dismissal after Request for Relief from Stay.

 

18  See § 22.1 [ 11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution ] § 25.2  11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution.

 

19  See In re Cormier, 147 B.R. 285 (Bankr. D. Me. 1992) (Section 109(g) does not prohibit the filing of a second Chapter 13 case while a prior bankruptcy case is still pending.).

 

20  See § 19.1 [ Eligibility of a Simultaneous Filer ] § 22.1  Eligibility of a Simultaneous Filer.

 

21  See §§ 253.1 [ Standing, Timing and Procedure ] § 126.1  Standing, Timing and Procedure268.1 [ To Extend or Reduce the Time for Payments ] § 127.11  To Extend or Reduce the Time for Payments.

 

22  See In re Felts, 60 B.R. 736 (Bankr. W.D. Ky. 1986) (Section 109(g) does not bar the filing of a bankruptcy case within 180 days of dismissal of a prior case if the order of dismissal of the prior case recites that the dismissal is “without prejudice.”).

 

23  See In re Merayo, 319 B.R. 883 (Bankr. E.D. Ark. 2005) (In the absence of evidence of “egregious conduct,” order dismissing a prior case “with prejudice” means the bar to refiling for 180 days in § 109(g); debtor was eligible to refile more than 180 days after dismissal “with prejudice” of prior Chapter 13 case.).

 

24  BAPCPA also encourages creditors to file stay relief requests to limit the automatic stay in a refiling within a year. See 11 U.S.C. § 362(c)(3) and (4), discussed in §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

25  See § 22.1 [ 11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution ] § 25.2  11 U.S.C. § 109(g)(1)—Willful Failure to Abide by Court Order or to Appear in Proper Prosecution. See, e.g., In re Pike, 258 B.R. 876 (Bankr. S.D. Ohio 2001) (Deliberate failure to make payments in prior Chapter 13 case is a willful failure that bars eligibility under § 109(g).).

 

26  A finding of willful failure to comply with a confirmed plan would also raise a presumption of a lack of good faith in litigation with respect to the automatic stay upon refiling within a year. See §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

27  37 F.3d 413, 415 (8th Cir. 1994). See below in this section.

 

28  McIver v. Phillips (In re McIver), 78 B.R. 439 (D.S.C. 1987). Accord In re Roland, 224 B.R. 401, 404–05 (Bankr. E.D. Mo. 1997) (“Although section 109(g)(2), by its terms, bars a debtor from filing a successive petition within 180 days of the voluntary dismissal of a prior case . . . courts have applied the section to bar debtors from filing bankruptcy for 180 days from the date on which a filing barred by section 109(g)(2) is finally dismissed. . . . A failure to apply the 180 day period from the date of the final dismissal of the improperly filed successive bankruptcy case would defeat the purpose of the 180 day period because it frequently takes longer than 180 days for the process of dismissing the improperly filed case to occur.”); In re Ramos, 212 B.R. 29, 30 (Bankr. D.P.R. 1997) (“So that the debtors do not benefit from the second prohibited filing, the debtors will be prohibited from filing another petition in bankruptcy for 180 days from the date of the dismissal of this petition.”).

 

29  In re Wilson, 85 B.R. 72 (Bankr. N.D. Ill. 1988). Accord Chrysler Fin. Corp. v. Dickerson (In re Dickerson), 209 B.R. 703, 706–08 (W.D. Tenn. 1997) (“[T]he Court notes that the running of the 180 day period is tolled during the pendency of an improperly filed bankruptcy petition. . . . to prevent the practical repeal of § 109(g)(2). . . . This case was originally filed . . . just 35 days after the case was voluntarily dismissed. Accordingly, debtor must wait an additional 145 days from the date of dismissal in accordance with this Order before filing another bankruptcy petition.”); In re Rives, 260 B.R. 470, 471–72 (Bankr. E.D. Mo. 2001) (For eligibility purposes in third Chapter 13 case, 180-day bar in § 109(g)(2) was tolled for the time debtor was protected by the automatic stay in the second case filed within 180 days of dismissal of first case. “[T]he Debtors requested and obtained a voluntary dismissal of their first Chapter 13 case following the filing by the Movant of a request for relief from the automatic stay. The Debtors were therefore ineligible to be debtors for 180 days thereafter. Notwithstanding their ineligibility, the Debtors filed a second Chapter 13 petition . . . before the expiration of the 180 day period. . . . The Debtors were not eligible to be debtors under Title 11 when they filed the second Chapter 13 petition . . . . The second case remained open for approximately 128 days until the Chapter 13 Trustee’s oral motion to dismiss was granted. . . . If the original 180 day period were to apply here, the Debtors’ third petition . . . would not have been barred by Section 109(g). However, the purpose of Section 109(g) is to curb abusive repetitious filings. This purpose is frustrated if the 180 day period is not tolled during the pendency of any case that is improperly filed before the end of the period. . . . [T]he Debtors filed a second case eleven days after the first case had been dismissed. The 180 day period was tolled until the second case was dismissed. The day after the second case was dismissed . . . was the twelfth day of the resumed 180 day period. The third case was filed . . . approximately 57 days in the resumed 180 day period. The Debtors were not eligible under Section 109(g) to file this case.”).

 

30  In re Berts, 99 B.R. 363 (Bankr. N.D. Ohio 1989).

 

31  Greenwell v. Carty (In re Carty), 149 B.R. 601, 603–04 (B.A.P. 9th Cir. 1993) (Although “there are sound arguments in favor of renewal of the 180-day period, or a tolling of that period, to prevent abusive filings,” debtor is permitted to file a third Chapter 13 case where 180-day bar required dismissal of debtor’s second case, but the 180 days expired during the pendency of the second case. Debtor’s first Chapter 13 case was voluntarily dismissed after a request for relief from the stay on August 3, 1990. Debtor filed a second Chapter 13 petition 108 days after dismissal of the first, on November 19, 1990. Ten months later, on September 18, 1991, a creditor moved to dismiss the second case on the ground that it violated § 109(g)(2). The creditor “was denied the benefit of the full 180-day period because of the existence of the automatic stay during the period that the second Chapter 13 petition violating §109(g) was pending. . . . Under normal circumstances, renewal of the 180-day period or some sort of tolling should probably take place. This, however is not the case to decide if a definite rule should be adopted or whether a case-by-case analysis should be made. Here, because ten months passed from the filing and the motion to dismiss it would be unreasonable for the creditor to take advantage of his inaction. . . . [I]t would be inequitable to impose a tolling in this case.”).

 

32  See § 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal. See also § 81.2 [ Other Cause for Relief ] § 64.2  Other Cause for Relief for discussion of conditions and restrictions on the automatic stay in agreements, in court orders, or at dismissal of a Chapter 13 case.

 

33  See, e.g., In re Narod, 138 B.R. 478 (E.D. Pa. 1992) (Even if debtor’s fifth and sixth filings to prevent foreclosure fall outside the prohibitions in § 109(g)(1) and (g)(2), bankruptcy court can apply Bankruptcy Rule 9011 to preclude a Chapter 13 debtor from refiling for whatever time period the court deems reasonable.). See §§ 81.2 [ Other Cause for Relief ] § 64.2  Other Cause for Relief, 334.1 [ Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings ] § 152.4  Cause for Dismissal, Including Bad-Faith, Multiple and Abusive Filings and 339.1 [ Court-Imposed Conditions and Restrictions on Dismissal ] § 153.3  Court-Imposed Conditions and Restrictions on Dismissal.

 

34  In re Pike, 258 B.R. 876, 882 (Bankr. S.D. Ohio 2001) (“Section 109(g) does not specify the time when the finding of a willful failure by the debtor must be made . . . . [T]he vast majority of courts that have considered the issue have concluded that willfulness may be found either at the time of dismissal, or in a subsequent case, when the court is called upon to determine if the earlier dismissal renders the debtor ineligible under § 109(g).”).

 

35  In re Holder, 151 B.R. 725 (Bankr. D. Md. 1993) (On the court’s own “motion,” second filing was dismissed for ineligibility under § 109(g)(1) where order denying confirmation in a prior Chapter 13 case contained the following language: “[I]n the event this case is not converted to a case under another chapter within fourteen (14) days from the date of this Order or dismissed voluntarily by the Debtor(s), then pursuant to 11 U.S.C. § 105(a) in order to avoid any abuse of process by multiple or successive filings under Chapter 13, this case may be dismissed by the Court on account of Debtor(s)’ failure to prosecute the case properly, subject to 11 U.S.C. § 109(g), without further notice or hearing.” The debtor failed either to dismiss or to convert the prior case within the 14-day period.); In re Bono, 70 B.R. 339 (Bankr. E.D.N.Y. 1987). See Clinton State Bank v. Ward (In re Ward), 78 B.R. 914 (Bankr. E.D. Ark. 1987) (Although prior order of dismissal did not specifically find “willfulness,” dismissal of subsequent case is warranted under § 109(g) where prior order of dismissal made specific findings that the debtor failed to timely confirm a plan and failed to appear and defend at a hearing and that the testimony of the debtor was not believable.).

 

36  In re Burgart, 141 B.R. 90 (W.D. Pa. 1992). Accord In re Felts, 60 B.R. 736 (Bankr. W.D. Ky. 1986) (Section 109(g) does not bar case filed within 180 days of dismissal of prior case where order dismissing prior case recited that dismissal was “without prejudice.”).

 

37  Montgomery v. Ryan (In re Montgomery), 37 F.3d 413 (8th Cir. 1994).

 

38  37 F.3d at 415. Accord In re Faulkner, 187 B.R. 1019, 1023 (Bankr. S.D. Ga. 1995) (“Since the language of section 109(g) is set out as an eligibility requirement, the determination cannot be made until the filing of the successive case.”); In re Walker, 171 B.R. 197 (Bankr. E.D. Pa. 1994) (The question whether a filing violates § 109(g) is appropriately reserved until a subsequent filing.).

 

39  See 11 U.S.C. § 362(c)(3) and (4), discussed in §§ 431.4 [ In General ] § 59.1  In General434.2 [ Proof of Good Faith ] § 61.4  Proof of Good Faith.

 

40  See 11 U.S.C. § 362(d), discussed in § 431.1 [ Real Estate, Landlord and In Rem Exceptions ] § 58.9  Real Estate, Landlord and In Rem Exceptions after BAPCPA.

 

41  See § 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?.

 

42  11 U.S.C. § 109(g) (emphasis added).

 

43  11 U.S.C. § 109(e) (emphasis added).

 

44  See §§ 311.1 [ Conversion by Debtor ] § 141.1  Conversion by Debtor and 312.1 [ Cause for Conversion ] § 141.3  Cause for Conversion.

 

45  See §§ 6.1 [ Consequences of Ineligibility: Jurisdiction and the Automatic Stay ] § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse? and 82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay. See, e.g., Umali v. Dhanani (In re Umali), 345 F.3d 818, 823–24 (9th Cir. 2003) (Citing Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327 (2d Cir. 1999), filing of Arizona bankruptcy petition did not trigger automatic stay because Arizona petition was filed in violation of 180-day bar against refiling imposed by California bankruptcy court at dismissal of prior Chapter 13 case.); Casse v. Key Bank Nat’l Ass’n (In re Casse), 198 F.3d 327, 342 (2d Cir. 1999) (Citing Rowe v. Ocwen Fed. Bank & Trust (In re Rowe), 220 B.R. 591 (E.D. Tex. 1997), aff’d without published op., 178 F.3d 1290 (5th Cir. 1999), for the proposition that a filing in violation of § 109(g) is a “nullity” which does not give rise to an automatic stay, “We agree with that analysis, which is not affected by the fact that the bankruptcy court’s order in the case at bar was based upon sections of the Code other than § 109(g) and its 180-day ban.”); In re Lami, No. 02-36595DWS, 2003 WL 262484 (Bankr. E.D. Pa. Jan. 2, 2003) (unpublished) (Filing in violation of bankruptcy court order that barred debtor from filing bankruptcy without court permission did not trigger automatic stay because the debtor was not authorized to be a debtor under § 301.); In re Hollberg, 208 B.R. 755, 756 (Bankr. D.D.C. 1997) (Dismissal under § 109(g) precludes eligibility for 180 days, thus a filing within the 180-day period does not invoke the automatic stay. Under § 301, a voluntary bankruptcy case is commenced by the filing of a petition by “an entity that may be a debtor under such chapter.” Under § 109(g), “no individual . . . may be a debtor under this title” who has experienced a dismissal described in § 109(g)(1) and (2). “Thus, a § 109(g) dismissal . . . precludes a case from being commenced regarding the debtor during the 180 days following dismissal. Thus, any document labeled ‘petition’ that such a debtor files during the 180-day bar of a § 109(g) dismissal is not the filing of a petition as defined in § 101(42) and thus gives rise to no automatic stay under § 362(a).”); In re Prud’Homme, 161 B.R. 747 (Bankr. E.D.N.Y. 1993) (Filing in violation of § 109(g)(1) does not invoke the automatic stay. Creditor is not entitled to relief from the stay because the automatic stay is not invoked upon a filing by an ineligible debtor. “Where a debtor’s lack of entitlement under § 109(g) is clear and unquestioned, the filing is void ab initio and there exists no automatic stay for this court to address.”).

 

46  See, e.g., In re Flores, 291 B.R. 44 (Bankr. S.D.N.Y. 2003) (Refiling in violation of § 109(g)(1) does commence a new case and does invoke the automatic stay, and a foreclosure sale the day after the refiling was a violation of the automatic stay. Bankruptcy court has discretion to permit a bankruptcy case filed in violation of the 180-day bar in § 109(g). Here, automatic stay was erased by the bankruptcy court by dismissing the subsequent case nunc pro tunc as of the date of its filing.).

 

47  See 11 U.S.C. § 109(h), discussed in § 9.5  Consequences of Ineligibility: Jurisdiction; Automatic Stay; Strike, Dismiss or Excuse?.

 

48  See §§ 75.1 [ Examples of Stay Violations, and Not ] § 62.1  Examples of Stay Violations, and Not78.1 [ Remedies for Violation of Stay ] § 62.5  Remedies for Violation of Stay.

 

49  See §§ 79.1 [ Strategic Considerations ] § 63.1  Strategic Considerations82.1 [ Prospective, In Rem and Automatic Relief from Stay ] § 64.3  Prospective, In Rem and Automatic Relief from Stay. But see In re Prud’Homme, 161 B.R. 747 (Bankr. E.D.N.Y. 1993) (Creditor not entitled to relief from the stay because a filing by an ineligible debtor in violation of § 109(g)(1) does not invoke the automatic stay.).

 

50  See § 229.1 [ 11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors ] § 120.2  11 U.S.C. § 1327(a): Binding Effect on Creditors and Debtors. See, e.g., In re Estrella, 257 B.R. 114 (Bankr. D.P.R. 2000) (Although a motion to dismiss based on ineligibility can be filed at any time during the Chapter 13 case, the confirmation order is preclusive of an eligibility challenge under § 109(g).).

 

51  227 B.R. 174 (B.A.P. 9th Cir. 1998).

 

52  Accord In re Hamer, Nos. Civ. A. 00-1180, 99-16601DAS, 2000 WL 1230496 (E.D. Pa. Aug. 18, 2000) (unpublished) (Mortgage holder’s appeal of bankruptcy court order dismissing the debtor’s third Chapter 13 case but refusing to impose a 180-day bar to refiling was moot because more than 180 days elapsed since dismissal without prejudice.).