Opinion
Case No. 14-11061
08-08-2014
In Re PAUL E. JONES JERLIAN JONES Debtors
Chapter 13
ORDER SUSTAINING OBJECTION TO CONFIRMATION OF PLAN
I. Procedural History
Presently before the Court is the objection, filed by the creditor, First Financial Bank, N.A. ("FFB"), to the confirmation of the Debtor's amended chapter 13 plan (hereinafter the "Plan") and the Debtor's response, thereto. See Docs. 35 and 39. A hearing on FFB's objection to the Debtor's chapter 13 plan was held June 10, 2014. The Court reserved its decision until a later date.
II.Facts
Ms. Jones, filed a petition for relief under chapter 13 on February 4, 2014. On February 21, 2014, FFB filed a motion for relief from stay as to the real property 4945-4949 Paddock Road, Cincinnati, Ohio 45243 ( "the Property"). On March 13, 2014, Ms. Jones filed a motion for voluntary dismissal of the case. The Court on March 17, 2014 granted two orders: the first granting FFB's relief from automatic stay, and the second granting Ms. Jones's motion for voluntary dismissal. The case was closed on May 29, 2014.
After the voluntary dismissal of Ms. Jones's first chapter 13 case, the Debtors, jointly filed the present chapter 13 case on March 19, 2014. On March 28, 2014, FFB filed a motion for relief from stay as to the Property. The Court granted FFB's motion for relief from stay as to the Property on April 23, 2014. On May 22, 2014, FFB filed an objection to the confirmation of the Debtors' plan of reorganization. Specifically, FFB stated that the "Debtor Jerlian Jones (hereinafter individually 'Ms. Jones') is not eligible for bankruptcy relief, under any chapter, pursuant to 11 U.S.C. § 109(g)(2) . . . [and therefore] no relief can be afforded Ms. Jones as she is ineligible for any relief under title 11 of the United States Code at this juncture, and the Plan cannot be confirmed, since the case and Plan are violative of 11 U.S.C. § 1325(a)(1)." The Debtor filed a response to FFB's objection on June 4, 2014.
In addition to its objection under § 1325(a)(1), FFB requests that the Court deny the confirmation of the amended plan due to issues regarding the Debtor's good faith pursuant to § 1325(a)(3) and § 1325(a)(7) and the non-compliant liquidation analysis pursuant to § 1325(a)(4). In addition, FFB requests that the Debtor, Jerlian Jones, be dismissed from the case at bar due to the Debtor's violation of § 109(g).
III. Law
The Bankruptcy Code outlines that no individual can be a debtor who has been a debtor in a case pending under this title in the preceding 180 days if "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). The purpose of § 109(g) was to stop debtors from voluntarily dismissing their case to frustrate the creditor's relief from stay, and then immediately filing another petition to invoke a new automatic stay. Section 109(g) was enacted to curb these specific abuses of the Bankruptcy Code. In re Andersson, 209 B.R. 76, 79 (B.A.P. 6th Cir. 1997); see In re Rivera, 494 B.R. 101, 105 (B.A.P. 1st Cir. 2013); In re Beal, 374 B.R. 87,90 (E.D. Wis. 2006); In re Riekena, 456 B.R. 365, 368 (Bankr. C.D. Ill. 2011).
IV. Analysis
While the Sixth Circuit Court of Appeals has not directly interpreted the meaning of § 109(g), courts in the Sixth Circuit have adopted the mandatory approach. In re Andersson, 209 B.R. 76 (B.A.P. 6th Cir. 1997); In re Steele, 319 B.R. 518, 519 (E.D. Mich. 2005). The cases hold that the "better reasoned cases are those that follow the plain language of the statute and hold that its provision is mandatory rather than discretionary," and that the "text of the statute is clear and contains nothing to indicate that a bankruptcy court can, in its discretion, determine whether to apply section 109(g)(2) based upon the equities of the situation." Erickson v. Ford Motor Credit Co., 2006 WL 528414, at *2 (D. Utah Feb. 10, 2006); In re Harris, 2005 WL 6487200, at *4 (Bankr. N.D. Ga. July 29, 2005). The Debtors filed their present petition on March 19, 2014, well within 180 days of the Court dismissing Ms. Jones's previous case on March 17, 2014, which was dismissed subsequent to FFB's motion for relief from the automatic stay. See Case No. 14-10380, Docs. 14 and 21. Ms. Jones must be dismissed from this chapter 13 case and the plan objection upheld.
V. Conclusion
Accordingly, for the reasons stated above, FFB's objection is hereby sustained, and the debtor, Jerlian Jones, is dismissed from this case. As to FFB's objection as to the feasibility and good faith of the Debtors' in filing the chapter 13 plan and petition, with Ms. Jones being dismissed from the bankruptcy case these objections are rendered moot.
So Ordered.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: August 8, 2014
/s/_________
Burton Perlman
United States Bankruptcy Judge
Copies to: Default List Jeremy R. Mason, Esq.
5181 Natorp Boulevard, Suite 202
P.O. Box 498367
Cincinnati, Ohio 45249
jeremy@mason-law.com