In re Morris, Bankruptcy No. 3-84-02446(B).

• Decision Date: 02 April 1985
• Docket Number: Bankruptcy No. 3-84-02446(B).
• Citation: 49 BR 123
• Parties: In re Curtis Lane MORRIS, Debtor. BANK OF LOUISVILLE, Plaintiff, v. Curtis Lane MORRIS, Defendant.
• Court: U.S. Bankruptcy Court — Western District of Kentucky

49 B.R. 123 (1985)

In re Curtis Lane MORRIS, Debtor BANK OF LOUISVILLE, Plaintiff, v. Curtis Lane MORRIS, Defendant.

Bankruptcy No. 3-84-02446(B).

United States Bankruptcy Court, W.D. Kentucky.

April 2, 1985.

Stephen J. Tillman, Louisville, Ky., for Bank of Louisville.

Henry M. Burt, Louisville, Ky., for debtor/defendant.

James S. Goldberg, Lisa Porta, Louisville, Ky., for Cumberland Federal Savings & Loan Assoc.

William W. Lawrence, Louisville, Ky., Trustee.

MEMORANDUM-OPINION

G. WILLIAM BROWN, Bankruptcy Judge.

This matter comes before the court on motions by two secured creditors to dismiss this proceeding pursuant to 11 U.S.C. 109(f).

It is established that the present petition for Chapter 13 relief was filed November 9, 1984. A previous Chapter 13 petition was dismissed by this court on October 12, 1984 due to debtor's default of the plan payments. At issue is whether the present petition is permissible under § 109(f) which reads:

(f) Notwithstanding any other provision 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.

Petitioning creditors allege that the debtor's failure to make plan payments as required in the Confirmation Order and subsequent dismissal invokes the restrictive provisions of § 109(f) in that said failure is a "willful failure of the debtor to abide by orders of the court."

It is unquestioned that debtor's failure to make payments as required was in derogation of his responsibilities under the Confirming Order. This finding, however, merely denotes the cause of the dismissal and does not definitively establish the "willful" standard of section 109(f).

It bears noting that every Chapter 13 proceeding is a voluntary petition for relief and any non-voluntary dismissal following Confirmation is for a technical non-adherence to the terms thereof. Such grounds for dismissal while justifying such action does not necessarily equate to a "willful" violation. Historically, debtors striving to address creditors' claims in a Chapter 13 extending over a prolonged plan term will experience impediments to their payment efforts. Unemployment, sickness, strikes, emergencies, the need to replace vehicles or appliances, (a non-exclusive litany of impediments), may impede or deter the debtors' best efforts. Whether such cause is a "willful" failure can best be ascertained by the Bankruptcy Judge entering the dismissal order. Such finding will clearly establish whether section 109(f) is applicable in a subsequent filing, allows all interested parties to know the collateral effect of the dismissal, and minimizes imposing of the automatic stay on a refiled case pending determination of whether § 109(f) applies.

It must further be recognized, even where section 109(f) does not preclude a refiling within 180 days of an earlier dismissal, the...