In Re Nelkovski
MEMORANDUM AND ORDER
Presently before the court are three creditors’ motions to dismiss the above-captioned Chapter 13 proceedings. All three motions are brought pursuant to section 109(f) which is part of the July, 1984 amendments to the Bankruptcy Code of 1978. All motions involve the construction which this court will place upon section 109(f) of the Code.
DISCUSSION
Section 109(f) of the Bankruptcy Code provides:
(f) Notwithstanding any other provisions of this section, no individual may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if—
(1) the case was dismissed by the court 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) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title.
The purposes behind Chapter 13 and
Second, Congress sought to prevent abuse of the Bankruptcy Code by successive filings when it amended the Code by adding
The Nfilkovski case involves a history of repeated filings under various chapters of the Code. No mortgage payments have been made to one creditor since 1981. Another has received no payments since 1983. Zora Nelkovski filed a Chapter 11 proceeding in which no plan has been proposed although the action had been pending for over two years. That proceeding was dismissed on November 28, 1984. On that same date, the previous Chapter 13 petition of Todor Nelkovski was dismissed for failure to make mortgage payments during the pendency of the proceeding, failure to file a plan, and failure to attend the first meeting of creditors.
Although not alleged in the pleadings, the debtor’s attorney has asserted that
One creditor herein, Home Federal, has alternatively moved for denial of confirmation on the grounds that the plan has not been proposed in good faith as mandated by § 1325(a)(3). While this court notes that the standards of
Various creditors herein have argued that following a motion to lift the stay, a debtor’s failure to oppose a motion to dismiss constitutes a voluntary dismissal “requested and obtained” by the debtor as set forth in subsection 109(f)(2). This construction would prevent refiling if the debt- or did not oppose or otherwise object to the motion to dismiss after the creditor had moved to lift the stay. On November 28, 1984, the Nelkovskis appeared and offered no objection to the dismissal of their eases.
The court disagrees with the creditors’ construction of the statute. Failure to oppose a motion to dismiss cannot be reasonably presumed to equal requesting and obtaining a dismissal. Conversely, the clear language of the subsection seems to indicate that the debtor must move for dismissal in order to make this subsection operative. Upon a creditor’s motion, the debtor must at least request dismissal. Failure to oppose dismissal, without more, is not enough to bar the debtor from refiling within the 180-day period of 109(f).
The creditor’s motions to dismiss are also directed to subjection (1) which prohibits refiling by a debtor who has “willfully” failed to abide by orders of court or to properly prosecute his case. Although the definition of willful has been frequently discussed, at the least, the term means “deliberate.”
E.g., United Bank of Southgate v. Nelson,
On the other hand, the court will construe repeated failure to appear or lack of diligence as willful conduct. Repeated conduct strengthens the inference that the conduct was deliberate. Additionally, the court will infer from a pattern of dismissals and refilings in unchanged circumstances willful failure to abide by orders of the court and an abuse of the bankruptcy process which this amendment was designed to prevent.
See, e.g., In re Jones,
The court finds that this repeated failure to perform under previous plans and failure to appear at the first meeting with no explanation and no showing of changed circumstances constitutes willful failure to abide by orders of the court under
IT IS THEREFORE ORDERED that the Chapter 13 plan of Todor and Zora Nelkov-ski is hereby dismissed pursuant to
Notes
"The number of consumer bankruptcy cases filed has risen dramatically each year since the Bankruptcy Code was last amended in 1978. Several witnesses before the Senate Judiciary Committee pointed to these changes in the Code as the principal cause for the increase. The 1978 amendments generally eased a debtor’s access to bankruptcy to avoid excessive indebtedness. Title II contains over 30 substantive amendments to curb abusers of the bankruptcy code and make its use truly a last resort.
An example of the types of reform included in Title III is the provision which addresses the subject of repetitive filings. A debtor would not be eligible for bankruptcy relief if a prior case filed by the same debtor had been dismissed within 180 days for failure to appear at a meeting of creditors or for failure to follow orders.”
The debtors assert an enormous equity in some 27 parcels of real property, which may have contributed to their lack of diligence in proposing a plan. The Bankruptcy laws are not intended for asset rich — cash poor debtors to mark time indefinitely, waiting for prices to go up.