In re Jordan

598 B.R. 396
CourtUnited States Bankruptcy Court, E.D. Louisiana
DecidedFebruary 26, 2019
DocketCASE NO. 18-11653
StatusPublished
Cited by7 cases

This text of 598 B.R. 396 (In re Jordan) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, E.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Jordan, 598 B.R. 396 (La. 2019).

Opinion

(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) non payment of any fees and charges required under chapter 123 of title 28;
(3) failure to file a plan timely under section 1321 of this title;
(4) failure to commence making timely payments under section 1326 of this title; ...
(9) only on request of the United States trustee, failure of the debtor to file, within fifteen days, or such additional time as the court may allow, after the filing of the petition commencing such case, the information required by paragraph (1) of section 521(a)...74

Lack of good faith constitutes "cause" for dismissal under Chapter 13.75 Good faith is the policing mechanism to assure that those who invoke the reorganization provisions of Chapter 13 do so only to accomplish the aims and objective of bankruptcy philosophy and policy.76 To determine good faith, courts use a totality of the circumstances test, with no single factor being conclusive.77 Both subjective and objective factors determine if a chapter 13 petition for relief has been filed in good faith or if a proposed plan is offered in good faith.78 The standard for good faith applicable to repeat filers is similar to the standard of good faith required for confirmation,79 which focuses on a debtor's intention to perform the obligations under the plan and not abuse the bankruptcy process.80

The Bankruptcy Code's legislative history shows that Congress intended debtors to achieve the goals of bankruptcy through one (1) case.81 "The bankruptcy court must be concerned whether or not there was a strategy behind the subsequent filings to frustrate statutory requirements and abuse the bankruptcy process."82 Thus, a determination of good faith involves weighing whether or not there has been abuse of the provisions, purpose, or spirit of chapter 13.83 While a debtor's serial filings do *407not necessarily constitute bad faith, a debtor's prepetition conduct, including his conduct in prior cases, is a valid consideration in determining a debtor's good faith in filing a subsequent case and confirmation of a proposed plan.84

Since good faith involves the assessment of a debtor's subjective intention to comply with and complete a plan, evaluating the past is also important.85 Specific and material misrepresentations or omissions in connection with a debtor's prior case administration are relevant to a debtor's assertion of good faith in a subsequent case, as well as, his intent to comply with the terms of his plan and the requirements of the Bankruptcy Code.86 Other factors that indicate the Debtor's intention include: the proximity of serial filings, the debts listed, the amounts paid, and the income and expenses listed in successive cases.87 Courts have also considered the timing of the bankruptcy petition, the debtor's motive in filing the petition, the debtor's treatment of creditors, and how the debtor's actions affect creditors.88

For example, in Casse v. Key Bank Nat'l Ass'n (In re Casse) , the Second Circuit upheld the dismissal of a case because of the "undisputed chronology of scheduled property foreclosure sales and bankruptcy filings."89 The Second Circuit relied on In re Felberman , which stated:

The filing of a bankruptcy petition merely to prevent foreclosure, without the ability or the intention to reorganize, is an abuse of the Bankruptcy Code. Serial filings are a badge of bad faith, as are petitions filed to forestall creditors.90

The Second Circuit found the debtors acted in bad faith, concluding that serial filings, paired with the strategic timing of those filings, greatly favors a finding of bad faith.91

The current case provides overwhelming support that Debtor did not act in good faith when he filed his fifth Chapter 13 bankruptcy. Like the debtors in Casse , there is no other way to describe the Debtor except as a serial filer.92 This is the fifth time Debtor has filed for Chapter 13 bankruptcy relief, in addition to his codebtor status in his wife's Chapter 7 bankruptcy. Through a review of each prior case, it is clear that the Debtor used the system to evade a foreclosure originally filed in 2002, and later refiled by Chase on May 28, 2016. According to Chase's Proof of Claim, Debtor has remained in default for over seventeen years. This alone leans heavily towards finding the Debtor acted in bad faith.93

*408Debtor's conduct in previous cases confirms his disdain for the requirements of the Code. His failure to attend § 341 meetings of creditors, promptly file certificates of credit counseling and plans, make payments, and provide supporting documents for his case in a timely manner illustrate a continuing lack of commitment to rectify his financial issues. Debtor continues this familiar pattern in this case. He filed for bankruptcy without filing a credit counseling certificate. He failed to attend the first scheduled § 341 meeting of creditors. He also failed to timely file schedules, the statement of financial affairs, his six month history of payment advices, and other supporting documents. Once he did finally file his schedules, deficiencies were evident and had to be noticed for correction. His chapter 13 plan ("Plan") was filed two and a half months after employing counsel and after three (3) order to show cause hearings. Even when filed, the Plan was wholly deficient because it failed to list any debt to Chase or treatment of other class claims.94 Debtor also failed to make any of the payments promised in that Plan.

Since Debtor has previously filed a number of Chapter 13 bankruptcy cases, he should have been aware of the basic requirements of bankruptcy filing. Despite the ultimate dismissal of each case prior to confirmation, Debtor failed to rectify his deficiencies in a following case. Instead because his series of case filings contained incomplete or missing documents, Debtor has been able to extend his time in bankruptcy while the Trustee, Court, and creditors were forced to pursue multiple motions or orders to show cause. Thus, it appears Debtor willfully and intentionally chose to disregard these requirements to postpone foreclosure on the Property. Debtor's egregious misuse and manipulation of the bankruptcy system more than adequately constitute "cause" to dismiss his Chapter 13 case.

C. Bar from Refiling

If "cause" exists, bankruptcy courts have discretion to dismiss with prejudice and bar the filing of subsequent bankruptcies.95 "Where there exists a multiplicity of factors which would be sufficient to meet the cause requirement of § 1307, the cumulative effect will be considered in determining whether there exists sufficient cause for a dismissal with prejudice pursuant to § 349(a)."96

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Cite This Page — Counsel Stack

Bluebook (online)
598 B.R. 396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jordan-laeb-2019.