In re Brown

534 B.R. 673, 2015 Bankr. LEXIS 2474, 2015 WL 4556294
CourtUnited States Bankruptcy Court, E.D. Virginia
DecidedJuly 28, 2015
DocketCase No. 15-33447-KLP
StatusPublished
Cited by2 cases

This text of 534 B.R. 673 (In re Brown) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Brown, 534 B.R. 673, 2015 Bankr. LEXIS 2474, 2015 WL 4556294 (Va. 2015).

Opinion

MEMORANDUM OPINION

Keith L. Phillips, United States Bankruptcy Judge

Before the Court is the motion of Debt- or Larry Dexter Brown, Sr., for a waiver [674]*674of the requirement of § 109(g)(2) of the Bankruptcy Code, which provides that an individual may not be a debtor in any chapter of the Bankruptcy Code within 180 days of that debtor’s voluntary dismissal of a bankruptcy case “following the filing of a request for relief from the automatic stay provided by section 362 of this title.” 11 U.S.C. § 109(g)(2). It is undisputed that the Debtor filed this chapter 13 case within the 180-day period following his voluntary dismissal of a prior case filed in this Court and following a creditor’s request for relief from the automatic stay in that case.1 A hearing on the motion was held on July 15, 2015, after which the Court took the matter under advisement and gave the parties the opportunity to submit further memoranda of law on the issue.

The Previous case. . The Debtor’s prior case, No. 11-30048-KRH, was a chapter 13 case filed in this Court on January 5, 2011. The history of the Debtor’s prior chapter 13 case is complex. In relevant part, on August 24, 2011, creditor Bayview Loan Servicing, LLC, (“Bayview”) filed a motion for relief from the automatic stay with respect to certain real property located at 17 Holly Hill Drive, Petersburg, YA. On October 17, 2011, the parties entered into a consent order under the terms of which the Debtor would cure his payment arrear-age and maintain the payments on the property. However, the Debtor defaulted on the terms of the consent order and the Court entered an order granting Bayview relief from' the stay on March 7, 2012.2

On Noy ember 21, 2013, creditor Specialized Loan Servicing, LLC, as Servicer for the Bank of New York Mellon, as Trustee for the Certificateholders of the CWABS, Inc., Asset-backed Certificates, Series 2007-9 (“Specialized Loan Servicing”), filed a motion for relief from the automatic stay with respect to real property located at 12805 Nightingale Dr., Chester, VA. The Debtor, through counsel Darryl A. Parker, filed a response to the motion. A hearing on the motion was held on December 18, 2013, at which time the Court granted the motion. Parker did not appear at the hearing, and an order granting the motion was entered on December 31, 2013.

On January 6, 2015, a year after the entry of the Court’s order granting relief [675]*675from the automatic stay to Specialized Loan Servicing, the Debtor pro se filed a motion to reconsider that order. At the January 28, 2015, preliminary hearing on the motion to reconsider, the Debtor was represented by attorney Corine Bailey. The Court held an evidentiary hearing on the motion to reconsider on March 11, 2015, at which Ms. Bailey also represented the Debtor. At the hearing, the Court denied the motion to reconsider, and an order denying the motion was entered on March 18, 2015.

Finally, on April 28, 2015, Virginia State University Federal Credit Union filed a motion for relief from the automatic stay with respect to real property located at 33 Liberty St., Petersburg, VA. The Debtor, through counsel, objected to the motion, and the Court held a hearing on the motion on May 20, 2015, at which Ms. Bailey appeared as counsel for the Debtor. The hearing was continued for a final hearing that was scheduled to be held on July 29, 2015.

The Court further notes that during the pendency of the chapter 13 case, the Chapter 13 trustee filed three separate motions to dismiss the Debtor’s case for the Debt- or’s failure to make the required plan payments. The last such motion was pending when the Debtor filed his voluntary motion to dismiss. Further, the Debtor filed six separate chapter 13 plans in the previous case, three of which were confirmed, the first on September 29, 2011 and the last on February 22, 2013.

The Debtor voluntarily dismissed the previous case by motion filed July 1, 2015.

The current case. The current case was filed on July 9, 2015, immediately prior to Bayview’s scheduled foreclosure on the Debtor’s real property, based upon the March 2012 order granting Bayview relief from the automatic stay. Also on July 9, 2015, the Debtor filed the § 109(g)(2) motion, and on July 14, 2015, the Debtor filed a motion under § 362(c)(3)(B) of the Bankruptcy Code to extend the automatic stay to all creditors.

At the hearing on the motion for waiver of § 109(g)(2), counsel for the Debtor conceded that stopping Bayview’s pending foreclosure was the reason for the Debt- or’s dismissal of his previous case and subsequent filing of the current case. Nonetheless, the Debtor urges that despite the facial applicability of § 109(g)(2) to his case, the equities of the case support a finding that the application of § 109(g)(2) be waived. Bayview has objected to the motion for waiver of § 109(g)(2), arguing that § 109(g)(2) is clear in its terms and that its application is mandatory.

Section 109(g)(2) was enacted to address the problem caused by a debtor who voluntarily dismisses his case and then refiles in response to a creditor’s motion for relief from the automatic stay. As summarized in In re Patton:

[Sjection 109(f)(2) is intended to address the situation in which the debtor files a bankruptcy case to stay a foreclosure, and when the creditor seeks relief from the automatic stay, the case is then voluntarily dismissed by the debtor. The debtor then refiles prior to the creditor’s completing his next attempt to foreclose, and through this scheme, the debtor can continually frustrate the creditor’s attempts to foreclose.

In re Patton, 49 B.R. 587, 589 (Bankr.M.D.Ga.1985).3

[676]*676There are several approaches to the application of § 109(g)(2). One approach is to strictly construe the provision according to its plain meaning, which in this case would result in a finding that the Debtor is ineligible to file the current case. In In re Stuart, 297 B.R. 665 (Bankr.S.D.Ga.2003), the court reiterated the Supreme Court’s admonition that a court seeking to determine Congressional intent should consult the statutory language itself, and “if the statute is clear and unambiguous, that is the end of the matter, for the court ... must give effect to the unambiguously expressed intent of Congress.” Id. at 668 (quoting Mobil Oil Exploration & Producing S.E. Inc. v. United Distribution Cos., 498 U.S. 211, 223, 111 S.Ct. 615, 112 L.Ed.2d 636 (1991)). See also In re Steele, 319 B.R. 518 (E.D.Mich.2005); Andersson v. Security Fed. Sav. and Loan of Cleveland (In re Andersson), 209 B.R. 76 (6th Cir. BAP 1997).

Another approach is to see whether there is a causal connection between the motion for relief and the dismissal of the case. In 1998, Judge Adams of this Court adopted that approach in In re Sole, 233 B.R. 347 (Bankr.E.D.Va.1998). Judge Adams found that:

the proper approach to Section 109(g)(2) is to examine the circumstances surrounding a creditor’s motion for relief from stay and a debtor’s subsequent motion to dismiss.

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Related

In re Fletcher
599 B.R. 282 (E.D. Virginia, 2019)
In re Combs
587 B.R. 481 (N.D. West Virginia, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
534 B.R. 673, 2015 Bankr. LEXIS 2474, 2015 WL 4556294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brown-vaeb-2015.