649 B.R. 342
Bankr. S.D. Ga.2023Background
- Debtor Erica L. Bryant filed six Chapter 13 cases in the Southern District of Georgia between 2013 and 2022; five prior cases were dismissed (first for unpaid filing fee; four for plan-payment delinquencies).
- The sixth case was filed November 9, 2022; Debtor failed to make the § 1326(a)(1) pre‑confirmation payments required by her proposed plan, and the Chapter 13 Trustee moved to dismiss and to bar refiling for at least 180 days under 11 U.S.C. § 109(g).
- The Trustee relied on the Debtor’s history of serial filings to argue bad‑faith/willful conduct; no creditor sought stay relief and Debtor attended the § 341 meeting; counsel appeared at the dismissal hearing.
- The Court denied confirmation and announced dismissal of the case for failure to make payments but took under advisement whether dismissal should be with prejudice (i.e., bar refiling under § 109(g) or under § 349(a)/§105(a)).
- The Court concluded the Trustee failed to prove the statutory requirement of willfulness under § 109(g)(1), in part because several prior plans had been confirmed (implying prior findings of good faith and feasibility) and there was insufficient evidence of deliberate misconduct.
- The Court therefore denied the Trustee’s request to dismiss with prejudice and ordered dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal for failure to make § 1326 pre‑confirmation payments supports a 180‑day bar under § 109(g) | Trustee: repeated failures to prosecute/pay across six filings show intentional abuse and warrant § 109(g) ineligibility | Debtor: no willful failure shown; prior confirmed plans and attendance at § 341 weigh against bad faith | Court: § 109(g)(1) requires willfulness; Trustee failed to prove willfulness; no § 109(g) bar imposed |
| Whether failure to make § 1326 payments qualifies as a willful failure to "abide by orders" or to "prosecute" a case under § 109(g)(1) | Trustee: failure to make payments and serial filings suffice to infer willfulness | Debtor: failures were not shown to be deliberate or in bad faith; previous confirmations indicate good faith | Court: nonpayment can implicate § 109(g), but willfulness must be proved; here evidence insufficient to find willful conduct |
| Whether an adverse inference of willfulness may be drawn from serial filings and repeated dismissals | Trustee: repeated dismissals and prompt refilings permit inferring deliberate abuse | Debtor: prior confirmations and compliance with filing and disclosure obligations rebut inference | Court: repeated conduct can support an inference, but the totality of circumstances (confirmed plans, counsel, attendance) overcomes that inference here |
| Whether the court may impose a longer/preclusive bar under § 349(a) and § 105(a) beyond § 109(g)’s 180 days | Trustee: requests dismissal with prejudice (minimum 180 days) and invokes § 349(a)/§105(a) for longer bar | Debtor: no egregious or case‑specific misconduct shown to justify extraordinary § 349(a) relief | Court: § 349(a)/§105(a) require exceptional cause; none shown here; dismissal with prejudice denied |
Key Cases Cited
- In re Hall, 304 F.3d 743 (7th Cir. 2002) (dismissal normally does not bar refiling absent statutory exception)
- Johnson v. Home State Bank, 501 U.S. 78 (U.S. 1991) (Congress crafted express limits on serial filings, implying no categorical bar)
- Dos Anjos v. Bank of Am., N.A. (In re Das Anjos), 482 B.R. 697 (Bankr. D. Mass. 2012) (§ 109(g) may be applied either at dismissal or in a subsequent case; willfulness may be inferred from pattern)
- In re Wen Hua Xu, 386 B.R. 451 (Bankr. S.D.N.Y. 2008) (§ 109(g)(1) has two clauses and courts examine both for willful failure)
- In re Nix, 217 B.R. 237 (Bankr. W.D. Tenn. 1998) (failure to make payments can qualify under § 109(g) where court orders/standing rules support it)
- In re Mullinix, 597 B.R. 161 (Bankr. N.D. Fla. 2018) (willful means deliberate or intentional; repeated filings may permit adverse inference)
- In re Strongs, 569 B.R. 40 (Bankr. E.D.N.C. 2017) (failure to prosecute involves a totality‑of‑conduct inquiry; multiple failures can support § 109(g) relief)