In re Bryant
| Decision Date | 29 March 2023 |
| Docket Number | 22-40822-EJC |
| Parties | In re: ERICA LATRELLE BRYANT, Debtor. |
| Court | United States Bankruptcy Courts. Eleventh Circuit. U.S. Bankruptcy Court — Southern District of Georgia |
OPINION ON MOTION TO DISMISS WITH PREJUDICE
This is the sixth Chapter 13 case filed by Debtor Erica Latrelle Bryant in this Division since 2013. Her first five cases were all dismissed, the first for failure to timely pay the filing fee and the other four for failure to make plan payments. On November 9, 2022, the Debtor filed the instant case, her sixth. (Dckt. 1). When she failed to make pre-confirmation payments as required by 11 U.S.C. § 1326(a)(1), the Chapter 13 Trustee moved to dismiss the case under § 1307(c). (Dckt. 18). And, based on the Debtor's history of unsuccessful cases, the Trustee seeks dismissal with prejudice for a minimum of 180 days under § 109(g). At a hearing on January 18, 2023, the Court announced that the case would be dismissed based on the Debtor's failure to make payments but took under advisement whether such dismissal would be with prejudice. For the reasons set forth below, the dismissal of this case will be without prejudice.
This Court has subject matter jurisdiction pursuant to 28 U.S.C § 1334(a), 28 U.S.C. § 157(a), and the Standing Order of Reference signed by then Chief Judge Anthony A. Alaimo on July 13, 1984. This is a "core proceeding" under 28 U.S.C. § 157(b)(2)(A). The Court makes the following findings of fact and conclusions of law pursuant to Rules 9014(c) and 7052 of the Federal Rules of Bankruptcy Procedure, the latter of which incorporates Rule 52 of the Federal Rules of Civil Procedure.
In seeking dismissal with prejudice, the Chapter 13 Trustee does not allege any wrongful conduct by the Debtor in the instant case. Rather, the Trustee argues that the Debtor has engaged in bad-faith serial filing because she has filed six unsuccessful Chapter 13 cases since 2013. To determine whether the Debtor has acted in bad faith, a brief history of those prior cases is in order.[1]
A. The First Case (2013)
The Debtor filed her first case, No. 13-41310-EJC, on July 23, 2013. .[2] In that case, attorney Jeffrey S. Hanna represented the Debtor. On the petition date, the Debtor applied to pay the $281.00 filing fee in four installments, with the final installment due by November 26, 2013. (2013 Dckt. 2). The Debtor stated in Schedule I that her combined average monthly income was $1,636.56 and that her average monthly expenses were $1,485.00, for monthly net income of S151.56.[3] (2013 Dckt. l,pp. 19-20). In her Chapter 13 plan, the Debtor proposed to make payments of $150.00 for a minimum of 36 months, reflecting the commitment of all her disposable income as required by § 1325(b)(2). (2013 Dckt. 5, p. 1, (¶ 1).
As for the claims in her case, the Debtor listed in Schedule D a single secured claim by TitleMax of Georgia, Inc. ("TitleMax") in the amount of $1,400.00 and secured by a 2000 Ford Expedition. (2013 Dckt. 1, p. 13). TitleMax filed a proof of claim in the amount of $1,901.41 secured by the vehicle (2013 Claim No. 4-1), and no other secured claims were filed. The unsecured claims listed in the Debtor's Schedule E and Schedule F totaled $594.00 (2013 Dckt. l,pp. 15-16), and the claims register reflects unsecured claims totaling $692.61.
On September 17, 2013, the Chapter 13 Trustee moved to confirm the Debtor's plan subject to her payment of the filing fee. (2013 Dckt. 22). Under an Order on Confirmation entered on September 20, 2013, the Debtor was required to pay the filing fee in full by November 23, 2013. (2013 Dckt. 23). On December 19, 2013, the Chapter 13 Trustee filed a notice of noncompliance with the September 20, 2013 Order on Confirmation and requested dismissal of the case; an attachment to that notice reflects that the filing fee remained unpaid. (2013 Dckt. 27). The case was dismissed with prejudice on January 6, 2014, barring refiling within 180 days or until the filing fee was paid. (2013 Dckt. 29).
After dismissal, the Chapter 13 Trustee remitted funds, previously paid to the Trustee by the Debtor, toward the filing fee in separate installments of $46.00 and $230.92 on January 31, 2014. The Trustee listed these payments, totaling $276.92, in his Final Report and Account. (2013 Dckt. 33, p. 2). On November 30, 2015, the Debtor paid the remaining filing fee balance of $4.08. Apart from the filing fee, the Debtor made no payments during the brief pendency of the case.
B. The Second Case (2015)
The Debtor, represented by John E. Pytte, filed her second case, No. 15-40543-EJC, on April 14, 2015. (2015 Dckt. 1). She disclosed combined monthly income of $2,075.28 in her Schedule I and monthly expenses of $1,763.00 in her Schedule J, for monthly net income of $312.28. (2015 Dckt. 1, pp. 19-22). Consistent with this figure, she proposed to make plan payments of $312.00 for a minimum of 36 months. (2015 Dckt. 2, p. 1, ¶ 1).
In her Schedule D, the Debtor listed two secured claims: one by Loan South Finance of Douglas in the amount of $67.00 and one by TitleMax in the amount of $5,000.00 secured by a 2004 Chevrolet Suburban. (2015 Dckt. 1, p. 13). The only claim of any kind filed on the claims register was that of Loan South Finance of Douglas; the proof of claim states that the $67.00 claim was secured by personal property and household goods. (2015 Claim No. 1-1, p. 1). The Debtor's Schedules E and F reflect unsecured claims totaling $7,227.00. (2015 Dckt. 1, pp. 15-16).
On May 19, 2015, the Debtor paid the $310.00 filing fee in full. Following the Trustee's Motion on Plan Confirmation, which specified that the plan term would be 38 months , the Court confirmed the Debtor's plan on August 14, 2015. (2015 Dckt. 32). But on October 20, 2015, the Chapter 13 Trustee moved to dismiss the case based on a $936.00 delinquency. (2015 Dckt. 33). The Debtor did not respond to the motion to dismiss, and the Court dismissed the case on November 24, 2015. (2015 Dckt. 35). According to the Chapter 13 Trustee's Final Report and Account, the Debtor paid $936.00 into the case. (2015 Dckt. 37, p. 2). C. The Third Case (2017)
Over twenty months after the dismissal of her second case, the Debtor, again represented by Mr. Pytte, filed her third case, No. 17-41200-EJC, on August 14, 2017. (2017 Dckt. 1). In her Schedule I, she disclosed combined monthly income of $2,173.87, and in her Schedule J she disclosed monthly expenses of $1,929.00, for net monthly income of $244.87. (2017 Dckt. 1, pp. 25-28). She proposed to make plan payments of $244.00 per month for 60 months. (2017 Dckt. 2, p. 1, ¶ 1).
In her Schedule D, the Debtor listed a secured claim of Farmers Furniture in the amount of $1,174.00, indicating that she was a co-signer on the loan, and a secured claim of TitleMax in the amount of $5,173.97 secured by a 2004 Chevy Suburban. (2017 Dckt. 1, p. 17). In Her Schedule E/F, the Debtor disclosed a total of $9,423.00 in unsecured claims. (2017 Dckt. 1, pp. 19-22). The claims register reflects a single secured claim, that of TitleMax in the amount of $4,859.53 (2017 Claim No. 5-1) and unsecured claims totaling $2,102.28.
On December 1,2017, the Debtor paid in full the $310.00 filing fee. The Court confirmed her plan on December 7, 2017. (2017 Dckt. 22). About nineteen months later, the Chapter 13 Trustee filed a motion to dismiss based on a $577.83 delinquency. . The motion to dismiss was resolved by a consent order requiring the Debtor's strict compliance in making payments of $244.00 per month beginning in September of 2019. (2017 Dckt. 52). On December 9,2019, the Trustee filed a notice of noncompliance with the provisions of the consent order , and the Court dismissed the case on January 13, 2020. (2017 Dckt. 64). The Trustee's Final Report and Account reflects payments by the Debtor of $5,071.72. (2017 Dckt. 67, p. 2).
D. The Fourth Case (2020)
After the dismissal of her third case, the Debtor waited only two days before filing her fourth case, No. 20-40068-EJC, on January 15, 2020, again with Mr. Pytte as her bankruptcy counsel. (2020 Dckt. 1). She disclosed combined monthly income of $2,083.76 in her Schedule I and monthly expenses of $1,759.00 in her Schedule J, for monthly net income of $324.76. (2020 Dckt. 1, pp. 27-30). In her plan, she proposed to make payments of $324.00 for a minimum of 36 months. (2020 Dckt. 7, p. 1, ¶ 2). Under the Trustee's Motion to Confirm Plan as Amended, the plan term was specified as approximately 51 months. (2020 Dckt. 26, p. 1).
In her Schedule D, the Debtor disclosed three secured claims: an $11,157.54 claim by Aaron's Automotive secured by a 2010 Ford Edge, a $1,174.00 claim by Farmers Furniture secured by property in the possession of a third party, and a $4,859.00 claim by TitleMax secured by a 2004 Chevy Suburban. (2020 Dckt. 1, pp. 19-20). Her Schedule E/F reflects a total of $9,423.00 in unsecured claims. (2020 Dckt. 1, pp. 21-24). The only secured claim filed in the case was that of Capital Asset Recovery, which acquired the claim of Aaron's Automotive, in the amount of $8,697.51. (2020 Claim No. 2-1). Unsecured claims totaling $3,357.12 appear on the claims register.
The Debtor paid the $310.00 filing fee in full on May 27, 2020 and the Court confirmed her plan on June 26, 2020. (2020 Dckt. 27). Just over seven months later, on January 29, 2021, the Chapter 13 Trustee moved for dismissal based on a $1,131.69 delinquency. (2020 Dckt. 37). That motion was resolved by a consent order on April 2, 2021, which required the Debtor to continue making payments of $324.00 per month beginning in March of 2021 and extended the plan term to...
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