Anthony A O'Brien

UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF OHIO
In re:
ANTHONY A. O’BRIEN,
Debtor.
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Case No. 12-17433
Chapter 11
Judge Arthur I. Harris
MEMORANDUM OF OPINION1
On October 10, 2012, Anthony A. O’Brien (“Debtor”) filed his 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 Debtor before July 17, 2013.
This opinion is not intended for official publication.1
different from its entry on the record.
the document set forth below. This document was signed electronically on October 16, 2012, which may be
The court incorporates by reference in this paragraph and adopts as the findings and orders of this court
Dated: October 16, 2012
IT IS SO ORDERED.
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BACKGROUND AND PROCEDURAL HISTORY
On February 22, 2012, Debtor filed a Chapter 13 voluntary petition
(Case No. 12-11174). The next day, February 23, 2012, creditor Darcy B.
Schwartz (“Creditor”) filed a motion for relief from stay, which the Court granted
on March 19, 2012. On July 17, 2012, the Court granted Debtor’s motion
voluntarily dismissing his case. Because Debtor requested and obtained voluntary
dismissal of his case after a motion for relief from stay was filed, that dismissal
automatically resulted in a 180-day filing bar. See 11 U.S.C. § 109(g)(2). On
October 10, 2012, Debtor filed his current case in violation of the 180-day filing
bar.
JURISDICTION
This matter is a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2) and
1344(b), which falls within the jurisdiction granted to this Court pursuant to Local
General Order No. 2012-7, dated April 4, 2012.
DISCUSSION
Bankruptcy Code subsection 109(g)(2) 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 -
. . .
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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.
11 U.S.C. § 109(g)(2).
In In re Andersson, 209 B.R. 76 (B.A.P. 6th Cir. 1997), the Bankruptcy
Appellate Panel of the Sixth Circuit affirmed the bankruptcy court’s dismissal of a
case filed in violation of subsection 109(g) and imposition of a new 180-day filing
bar. See In re Andersson, 209 B.R. 76. Debtor filed his most recent case in
violation of the filing bar imposed by subsection 109(g)(2). Accordingly, this case
will be dismissed with the imposition of a new 180-day filing bar.
In addition, while 11 U.S.C. § 1112(b) provides for notice and an
opportunity for a hearing when a bankruptcy court dismisses a case for cause, the
Court believes that notice and a hearing are unnecessary regarding this particular
dismissal for violation of subsection 109(g)(2). The record before the Court
indicates that Debtor filed this case in violation of a 180-day filing bar, making
Debtor ineligible to file for protection under the Bankruptcy Code. 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.
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Therefore, providing notice and a hearing serves no purpose under the
circumstances of this case.
Finally, the Court notes that, pursuant to 11 U.S.C. § 362(c)(4), the
automatic stay provided by 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. Given
Debtor’s dismissal of Case Number 12-11174 on July 17, 2012, and the dismissal
of the current case, Debtor will have two dismissals within a twelve-month period.
Therefore, pursuant to 11 U.S.C. § 362(c)(4), any new case which Debtor files
before July 17, 2013, will not trigger the automatic stay.
CONCLUSION
For the reasons stated above: (1) this case is dismissed with a new 180-day
filing bar, and (2) the automatic stay provided by 11 U.S.C. § 362(a) shall not
apply to any bankruptcy case filed by Debtor before July 17, 2013.
IT IS SO ORDERED.
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