George C. Montgomery appeals from an order of the district court 1 affirming the section 109(g) dismissal of his second bankruptcy petition. We affirm.
I. BACKGROUND
On March 24, 1992, Montgomery filed for bankruptcy protection under Chapter 13 of the Bankruptcy Code. The case was dismissed оn June 8,1992, because Montgomery did not attend a section 341 creditors meeting. On August 11, 1992, Montgomery filed a second Chapter 13 petition. Nоrah Ryan, a creditor, moved to dismiss the second petition arguing that Montgomery was not eligible for bankruptcy relief because he was not a “debtor” within the meaning of 11 U.S.C. § 109. After a hearing, the bankruptcy court granted Ryan’s motion to dismiss and the district court affirmed.
II. DISCUSSION
Under 11 U.S.C. § 109(g)(1), no individual may be a “debtor” if he or she has been a debtor in the preceding 180 days and the previous case was dismissed for “willful failure ... tо abide by orders of the court....” Failure to attend a creditors meeting is a failure to obey a court order within the meaning of section 109(g)(1).
See, e.g., In re Pappalardo,
Montgomery’s first argument is without merit. No specific finding of willfulness was necessary in the order dismissing the first petition. Section 109(g) was not at issue until Ryan moved to dismiss thе
second
petition. A finding of willfulness must be made when a sanction is imposed, but need not be made earlier. Here, a finding of willfulness was necessаry only when the bankruptcy court dismissed the second petition.
3
Montgomery’s arguments to the contrary amount to “no more than teсhnical and/or semantic game playing.”
In re Ward,
The remaining issue involves allocation of the burden of proving (or disproving) willfulness under section 109(g)(1). There is no evidence in the record (other than a copy of the first dismissal order of the bankruptcy court) regarding the сircumstances of Montgomery’s failure to attend the creditors meeting. Thus, the allocation issue is dispos-itive. If the burden is Montgomery’s, his appeal fails. If the burden falls to Ryan, we must reverse.
The district court found that Montgomery bears the burden of showing that his failure to attеnd the creditors meeting was
not
willful.
5
We agree. The burden of establishing eligibility in bankruptcy lies with the party filing the bankruptcy petition. In
In re Tim Wargo & Sons, Inc.,
As Montgomery asserts, some lower courts have placed the burden on the creditor to show willfulness when the issue is raised by the creditor in a motion to dismiss.
See, e.g., In re Arena,
Thus, we hold that where a section 109(g) issue is properly raised, the filing party must establish that the failure to obey а court order was not willful. This result is sup
In this ease, the burden was on Montgomery to explain his failure to attend the creditors meeting. Since he has offered no evidenсe on this point, the bankruptcy court’s finding was not clearly erroneous.
III. CONCLUSION
For the foregoing reasons, the order of the district court is affirmed.
RICHARD S. ARNOLD, Chief Judge, concurring in the judgment.
I agree with the Court that, in the special circumstances of this case, it is fair to put the burden of proof on the filing debtоr on the issue of fact of willfulness. I would limit this holding, however, to the burden of production, the burden of going forward initially with evidence.
Here, оnly the debtor knows why he did not attend the creditors’ meeting at the time of the prior proceeding. He was given a chance tо explain and did not take it. He has still offered no explanation for this violation of a court order. One suspects that the bankruptcy process is being abused. If the debtor had produced some evidence tending to show that his default was not willful, I would probably require the objecting creditor to go forward with rebutting evidence, and place the burden of persuasion on the creditor. But that did not happen here. We could require the creditor, I suppose, to depose the debtor and explore thе reasons for the latter’s default, but that seems to me to put too much of a burden on the one party in this case that we know to be innocent.
I therefore agree that the judgment should be affirmed.
Notes
. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.
. The order of dismissal provided as follows:
Debtor(s) having failed to show cause, after notice, IT IS
ORDERED AND YOU ARE HEREBY NOTIFIED THAT this Chapter 13 case is DISMISSED for Debtor(s) failure to appear for examination at the 11 U.S.C. § 341 Creditors Meeting....
. This finding was made when the bankruptcy court found that “the facts herein warrant imposition оf sanctions pursuant to 11 U.S.C. § 109(g).” Though the term “willful” was not used, we agree with the district court that this language is properly read to constitute a finding of willfulness.
. Montgomery contends that the court in
In re Lawless,
. Specifically, the district court held that Montgomery "bears the burden of demonstrating that jurisdiction in the bankruptcy court is proper.” To the extent the district court charactеrized section 109(g)(1) as a jurisdictional provision, it was in error. We have held that 11 U.S.C. § 109 is not meant to restrict the jurisdiction of the federal courts.
Rudd v. Laughlin,
.Also without discussion, some courts have placed the burden on the debtor.
See In re Huerta,