Marshall v. McCarty (In re Marshall), 596 B.R. 366

Theresa Marshall filed a Chapter 13 petition and checked the petition box stating she received court-approved credit counseling within 180 days, but did not attach the counseling certificate.
Trustee moved to dismiss for failure to satisfy 11 U.S.C. § 109(h) (no certificate, no exigent-circumstances certification, no waiver request).
Marshall later filed a counseling certificate showing counseling occurred four weeks after filing and offered explanations (forgot requirement; believed older counseling sufficed).
Bankruptcy court held a hearing, denied Marshall’s recusal motion, heard Trustee’s witness, and dismissed the case with a 180-day bar to refiling; Marshall appealed.
The panel affirmed dismissal and the 180-day bar, finding Marshall did not meet § 109(h) exceptions and noting Marshall’s history of multiple pre-foreclosure filings that had been deemed abusive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether case should be dismissed for failure to meet § 109(h) credit-counseling requirement	Marshall: she received counseling (albeit outside 180 days) or forgot/misread petition; later produced certificate	Trustee: Marshall did not meet § 109(h) or any exception (no timely certificate, no exigent-circumstances certification, no waiver)	Held: Affirmed dismissal — Marshall failed to satisfy § 109(h) and no exception applied
Whether 180-day refiling bar was improper	Marshall: challenges sanction as excessive and raises unrelated procedural complaints (standing, fraud, notice, recusal)	Trustee: court may bar refiling to prevent abusive, serial filings; sanction appropriate here given history	Held: Affirmed — 180-day bar reasonable given prior pattern of filings and abuse

Marshall v. McCarty (In re Marshall), 407 B.R. 359 (8th Cir. BAP 2009) (upholding bar on refiling for abusive serial bankruptcy filings)
Dixon v. LaBarge (In re Dixon), 338 B.R. 383 (8th Cir. BAP 2006) (confirming dismissal for failure to satisfy eligibility requirements under § 109(h))
City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 702 F.3d 1147 (8th Cir. 2013) (abuse-of-discretion standard explained)