Constance Miles

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
In re:
CONSTANCE MILES,
Debtor.
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Case No. 10-10030
Chapter 13
Judge Arthur I. Harris
MEMORANDUM OF OPINION 1
On January 5, 2010, the debtor, Constance Miles, filed her most recent
bankruptcy case in violation of the 180-day filing bar imposed under
11 U.S.C § 109(g)(2). For the following reasons: (1) this case is dismissed with a
new 180-day filing bar; and (2) pursuant to 11 U.S.C. § 362(c)(4), the automatic
stay shall not apply to any new bankruptcy case filed by this debtor before
October 28, 2010.
BACKGROUND AND PROCEDURAL HISTORY
On May 1, 2009, the debtor filed a Chapter 13 case (#09-13829). On
1 This opinion is not intended for official publication.
The court incorporates by reference in this paragraph and adopts as
the findings and orders of this court the document set forth below.
This document was signed electronically on January 07, 2010, which
may be different from its entry on the record.
IT IS SO ORDERED.
Dated: January 07, 2010
_____________________________
Arthur I. Harris
United States Bankruptcy Judge
__________________________________________________________________________________________
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October 27, 2009, the debtor filed a motion to dismiss her case (Docket # 43),
which the Court granted on October 28, 2009. Prior to the debtor’s motion for
dismissal, creditors JP Morgan Chase and Aurora Loan Services filed motions for
relief from stay (Docket #s 19 and 40). Because the debtor requested and obtained
voluntary dismissal of her case after a motion for relief from stay had been filed, a
180-day filing bar was automatically imposed. See 11 U.S.C. § 109(g)(2). 	On
January 5, 2010, the debtor filed her current case, in violation of the 180-day filing
bar.
JURISDICTION
The Court has jurisdiction to hear this matter pursuant to 28 U.S.C.
§ 1344(b) and Local General Order No. 84, entered on July 16, 1984, by the United
States District Court for the Northern District of Ohio. This is a “core” proceeding
pursuant to 28 U.S.C. § 157(b)(2).
DISCUSSION
Subsection 109(g) of the Bankruptcy Code provides:
Notwithstanding any other provision of this section, no individual or
family farmer 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 of the case; or
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(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 Sixth Circuit Bankruptcy Appellate Panel affirmed the decision of a
bankruptcy court that dismissed a case filed in violation of 109(g) and imposed a
new 180-day bar. See In re Andersson, 209 B.R. 76 (B.A.P. 6th Cir. 1997). 	The
debtor filed her most recent case in violation of the filing bar imposed under
subsection 109(g)(2). Accordingly, this case will be dismissed with the imposition
of a new 180-day filing bar.
In addition, while dismissals for cause under 11 U.S.C. § 1307(c) provide
for notice and an opportunity for a hearing, the Court believes that notice and an
opportunity for a hearing are unnecessary regarding this particular dismissal for
violation of 11 U.S.C. § 109(g)(2). The record already before the Court indicates
that this case was filed in violation of a 180-day filing bar, making Ms. Miles
ineligible to be a debtor. Furthermore, 11 U.S.C. § 105(a) provides in pertinent
part:
No provision of this title providing for the raising of an issue by a party in
interest shall be construed to preclude the court from, sua sponte, taking any
action or making any determination necessary or appropriate to enforce or
implement court orders or rules, or to prevent an abuse of process.
Therefore, no purpose would be served by providing notice and hearing under the
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particular circumstances of this case.
Finally, the Court notes that, pursuant to 11 U.S.C. § 362(c)(4), the
automatic stay of 11 U.S.C. § 362(a) shall not go into effect if a debtor had two or
more pending cases dismissed within the previous year. With the dismissal of case
#09-13829 on October 28, 2009, and the dismissal of the current case, the debtor
will have had two dismissals within a twelve-month period. 	Therefore, pursuant
to § 362(c)(4), any new case which the debtor files before
October 28, 2010, will not trigger the automatic stay.
CONCLUSION
For the above reasons, (1) this case is dismissed with a new 180-day filing
bar; and (2) the automatic stay of 11 U.S.C. § 362(a) shall not apply to any
bankruptcy case filed by this debtor before October 28, 2010.
IT IS SO ORDERED.
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