Opinion
Case No. 12-62888
12-14-2012
In re: ALBERT A. STERLINI, and VIVIAN STERLINI, Debtors.
Chapter 13
Judge Steven W. Rhodes
ORDER DENYING MOTION FOR RECONSIDERATION
This case is before the Court on the motion entitled "Debtor Vivian Sterlini's Motion for Reconsideration of Court's November 28, 2012 Order Dismissing Joint-Debtor Vivian Sterlini's Chapter 13 Bankruptcy Petition. . .," filed on December 12, 2012 (Docket # 46, the "Motion"), which the Court construes as a motion for reconsideration of, and for relief from, the November 28, 2012 Order dismissing this case as to Vivian Sterlini (Docket # 37).
Judge Rhodes is the judge assigned to this case, but he has referred this Motion to the undersigned judge, who made the decision and entered the order complained of, acting at that time in the absence of Judge Rhodes.
The Court finds that the Motion fails to demonstrate a palpable defect by which the Court and the parties have been misled, and that a different disposition of the case must result from a correction thereof. See L.B.R. 9024-1(a)(3)(E.D. Mich.).
The Court also concludes that the allegations in the Motion do not establish any valid ground for relief from the order dismissing Vivian Sterlini's case, under Fed.R.Civ.P. 60(b), FedR.Bankr.P. 9024, or under Fed.R.Civ.P. 59(e), Fed.R.Bankr.P. 9023, or otherwise.
In addition, the Court notes the following. In other cases, the undersigned judge has previously considered and rejected the same arguments that Debtor makes in this Motion, concerning 11 U.S.C. § 109(g)(2). The Court reiterates its previous rulings in the other cases. For example, in the case of In re Donovan, Case No. 11-41734, this Court held as follows, in its Order Denying Motion for Reconsideration (Docket # 24), filed on February 23, 2011:
The Court must reject Debtors' arguments about how the Court should interpret 11 U.S.C. § 109(g)(2), because Debtor's arguments are inconsistent with the unambiguous meaning of § 109(g)(2). The Court agrees with the cases holding that (1) dismissal under § 109(g)(2) is mandatory when that statute applies; dismissal is not discretionary; and (2) it is irrelevant under § 109(g)(2) whether there is some causal link or nexus between the filing of a stay relief motion on the one hand, and the debtor's later voluntary dismissal of the case on the other hand. Section 109(g)(2) applies, and requires dismissal, in every situation in which, in a prior case pending within 180 days before the filing of the present case, a creditor filed a motion for relief from stay and the debtor later voluntarily dismissed the case, regardless of the debtor's good faith or whether there was any particular connection between the two events. See Andersson v. Security Federal Savings and Loan of Cleveland (In re Andersson), 209 B.R. 76, 77, 78 (6th Cir. B.A.P. 1997), and cases cited therein. The undersigned judge has so ruled in previous bench opinions, and adheres to that ruling now. See, e.g., In re Sigh, Case No. 09-62738, November 19, 2009 bench opinion at 5-6 (a copy of the transcript of that bench opinion, which is filed in the Sigh case at Docket # 42, is attached to this Order).In addition to the Andersson case, cited in Donovan above, the case of In re Steele, 319 B.R. 518, 520 (Bankr. E.D. Mich. 2005) supports this Court's conclusions about § 109(g)(2).
This Court cited its decision in Donovan during the November 28, 2012 hearing in this case. The Debtor has noted the Steele case, in the brief in support of her Motion.
Based on these authorities, and more importantly, based on the clear and unambiguous wording of § 109(g)(2) itself, the Court must adhere to its decision dismissing Vivian Sterlini's case.
For these reasons,
IT IS ORDERED that the Motion (Docket # 46) is denied.
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Thomas J. Tucker
United States Bankruptcy Judge
Acting in the absence of Judge Rhodes