Opinion
CASE NO. 19-10255
07-11-2019
IN THE MATTER OF: GREGORY WALKER KELLY WALKER Debtors
NOT FOR PUBLICATION
DECISION AND AMENDED ORDER DENYING MOTION TO RECONSIDER
On July 11, 2019
This case was dismissed on March 21, 2019, because, at the time it was filed, the debtors were ineligible for relief under title 11. That order went on to restrict the debtor's ability to refile for "a period of 180 days and until all unpaid fees due on account of this case and Debtors' prior case, 15-12184, have paid in full." It also forbade the debtors from asking to waive the filing fee or to pay it in installments in any future case. The debtors have now filed an emergency motion to reconsider or for relief from the order of dismissal asking that the case be reinstated. It is that motion which is presently before the court.
In another of the debtors' prior cases, the court ordered that the debtors would be ineligible "for relief under any chapter of title 11 until all fees on account of all prior cases have been paid in full" and were to fully pay all filing fees in any future case upon filing. Matter of Walker, Case No. 16-10449, Order dated Mar. 15, 2016 (emphasis original). Because the debtors failed to provide their full social security number (as required) with that case, neither it nor its restrictions were brought to the court's attention when this case was dismissed.
The day after this motion was filed, the debtors (again, in violation of the court's orders) initiated another case. To the extent the motion is not moot and in consideration of the disposition of the debtors' most recent case, the court has fully considered the present motion.
Construing the motion liberally, it is based upon Rule 60(b) of the Federal Rules of Civil Procedure, see, Fed. R. Bankr. P. Rule 9024; as such, it is addressed to the court's discretion, Lee v. Village of River Forest, 936 F.2d 976, 979 (7th Cir. 1991); Reinsurance Co. of America, Inc. v. Administratia Asigurarilor de Stat, 902 F.2d 1275, 1277 (7th Cir. 1990), and may be determined without a hearing or requiring a response from any adverse parties. See, U.S. v. 8136 S. Dobson Street, Chicago, Illinois, 125 F.3d 1076, 1086 (7th Cir. 1997); N.D. Ind. L.B.R. B-9023-1, B-7007-2(a).
The essence of the motion is that they did not receive any of the court's orders or notices and they received "bad information" from some entity called PrePaid Legal Services. Insofar as the debtors allege a failure to receive any of the court's orders, the court served the debtors at the address they designated on the petition, which they prepared, signed and filed, and that is precisely what the clerk is to do: serve the debtors at the address designated on the petition. See e.g., Fed. R. Bankr. P. Rule 7004(b)(9); 9014(b). As to any "bad information" the debtors may have received also fails to demonstrate excusable neglect. They do not say what this "bad information" may have been (or, given the similarities in the debtors cases, when they may have received it). The debtors chose to proceed pro se. If a debtor is bound by the acts of his chosen attorney, See, Link v. Wabash R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386, 1390 (1962); Helm v. Resolution Trust Corp., 84 F.3d 874, 878 (7th Cir. 1995); Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th Cir. 1986). See also, Universal Film Exchange v. Lust, 479 F.2d 573, 577 (4th Cir. 1973) ("Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent."), a debtor who proceeds pro se is bound by his own acts - bad, foolish or otherwise. Downs v. Westphal, 78 F. 3d 1252, 1257 (7th Cir. 1996) pro se litigant not given "the discretion to choose which of the court's rules and orders it will follow, and which it will willfully disregard"); Fischer v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006) (pro se litigants not afforded "one opportunity to disregard the court's schedule without fear of penalty . . . ."); Korsunskiy v. Gonzales, 461 F.3d 847, 850 (7th Cir. 2006); Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992); U.S. Bank Nat'l Ass'n v. Dunn, 2013 WL 1222054 *1 (N.D. Ill. 2013) (liberality afforded pro se litigants liberality is not a dispensation from procedural rules, legal standards for relief, or court imposed deadlines).
That also does not explain the debtor's failure to abide by the court's order of October 5, 2015 which dismissed their prior case and directed that they would not be eligible for further relief under any chapter of title 11 until such time as all fees due the clerk of this court on account of that case have been paid in full. Despite that restriction, the debtors chose to ignore it when they filed this case without such payment having been made even though the court gave the debtors until March 15 (ten days after the case was filed) to pay it.
Furthermore, motions filed pursuant to Rule 60(b) must be filed within a reasonable time, not to exceed one year. Even if filed within a year, a motion may still be untimely. Kagan v. Caterpillar Tractor Co., 795 F.2d 601, 610 (7th Cir. 1986). The order the debtors want vacated was entered nearly four months ago. In the meantime, the deadlines for objecting to discharge and for filing dischargeability proceedings have expired; as has the deadline for filing required documents. See, 11 U.S.C. § 521(i).
The debtor has never filed schedules or statements. If the court had not dismissed the case on March 21, it would have been automatically dismissed, as a matter of law and without any judicial action, a few weeks later. Since that deadline has long passed and cannot be retroactively extended, see, 11 U.S.C. § 521(i)(3), (4), to grant the present motion would be pointless. --------
Finally, the court's orders of March 21, 2019 and March 15, 2016, clearly required the debtor to fully pay any required filing fee upon the filing of the case and to pay any remaining balance due the clerk of this court. The filing fee due on account of case number 16-10449 remains due and owing and the debtors have yet to pay the fee due on account of this case in full and, so, are still in default. See, Tolliver v. Northrup Corp., 786 F.2d 316, 319 (7th Cir. 1986)("It would take an extraordinary set of facts - one we cannot now imagine - to make a case of 'abuse of discretion' in failing to restore to the docket a case in which the defaulting party is still in default at the time the [] judge rules on the motion to vacate.").
For all of these reasons, the debtors' emergency motion to reconsider is DENIED.
SO ORDERED.
/s/ Robert E. Grant
Chief Judge, United States Bankruptcy Court