Opinion
Case No. 11-11223-PB13
09-12-2012
In re JORDANA MARINKOVIC BAUMAN, Debtor.
WRITTEN DECISION - NOT FOR PUBLICATION
ORDER ON OBJECTIONS TO
CONFIRMATION
This case was filed by debtor, acting in her own behalf, on July 5, 2011, under Chapter 13. Debtor asked to pay the filing fee in installments, which was granted. The first meeting of creditors was set for August 12, 2011. Debtor had filed a prior case under Chapter 7 within the preceding year, which had been dismissed, thereby making relevant the provision of 11 U.S.C. § 362(c)(3), under which the automatic stay that arose upon filing would terminate within thirty days unless extended by court order.
On July 19, debtor filed a motion to extend time to file her Chapter 13 plan. She asserted she had been hospitalized for appendicitis, and her computer had crashed and was being repaired. She also stated:
Debtor also needs time to see the bankruptcy trustee at the 314 meeting in advance of submitting the "Plan" (as his office indicated she could do) to see what the debtor is allowed to represent in a Chapter 13 Plan in good faith when the Family-Court Judge is the only person with the authority to release money to allow the debtor to pay any debt.The Schedule I she filed said she had a net take home pay of $450, plus $1950 per month in support, subject to the Family Court. Her expenses, albeit spartan, exceeded her income by $635 per month.
The Chapter 13 Trustee filed a statement agreeing to some extension, but asking that the balance of outstanding documents be filed by August 5, one week before the meeting of creditors.
On August 1, 2011 debtor's brother, Mel Marion filed a motion asserting he was a creditor and Family Trustee, and wanted, as a putative party-in-interest for the stay to be extended until a further hearing after the plan was filed. The same day, debtor filed her own request for extension, while also joining in her brother's motion, as well.
Three days later, debtor filed a "Declaration", in which she asked that her brother be authorized to assist her and "answer Trustee questions about Plan details." On August 5, debtor filed a notice of intended action, proposing that the stay be extended to August 25. Attached was a lengthy statement of problems she had encountered with her lender, Wells Fargo; her health; her computer access problems; her efforts at a loan modification; and her difficulties with the Family Court.
On the same date, August 5, she filed her proposed plan, which provided she would pay the trustee "10% of gross income"; provided for no installment payments to any creditor; and said the trustee was to pay "5 (10%)" on non-priority unsecured claims.
Following completion of the meeting of creditors, the trustee filing a veritable shopping list of objections to the proposed plan, and gave notice on a hearing to object to confirmation and on a motion to dismiss for two months hence, on October 19. On August 19, Wells Fargo filed its own objections, and noticed them for hearing the same date.
On September 6, debtor filed her Opposition to the trustee's objections and motion to dismiss, which reads like an opposition to an expected relief from stay motion by Wells Fargo, which has yet to be filed. The same date, her brother filed a request to be allowed to file a plan for her since, in his view, the Family Court "is leaving Debtor defenseless." He proposed that all payments by debtor be deferred until litigation produces funds debtor can use to make payments.
On September 18, debtor filed an emergency motion to extend the stay to the October 19 hearing on the trustee's objections and motion to dismiss. Debtor's proposed form of order with multiple provisions was denied, but an alternate order was entered on September 2 0 providing that the stay "is hereby extended and in full force until formally dissolved by the court."
Then, on October 18, debtor filed an ex parte application to continue the October 19 contested confirmation hearings and motion to dismiss. She asked for 180 days to perform discovery, during which her marital dissolution proceedings might be concluded. She also said she had problems with the Pacer system, although she stated in writing in the Notice of Intended Action filed August 5 that the problem had been identified and was being addressed.
Following the hearing on the objections to confirmation, and the trustee's motion to dismiss, the Court took the matters under submission. No evidence was provided by the debtor that she has a "regular income" within the meaning of 11 U.S.C. § 109(e). Her schedules reflect a negative income and no wherewithal to make payments to real property secured creditors or to the Chapter 13 trustee. The trustee gave her a list of items that needed to be accomplished in order to produce a confirmable plan. Instead, it appears she sought to buy time through invocation of the Chapter 13 process, while she conducted litigation in the Family Court, and pursued possible loan modifications with her lenders without participating in the Chapter 13 process by making the requisite payments to either the trustee or to lenders.
More than enough time has elapsed for debtor to step forward and correct all the deficiencies in her proposed plan. Having failed to do so, the Court finds and concludes that confirmation of the proposed plan should be, and hereby is denied. Moreover, debtor has failed to show how amendments might salvage her plan, much less a present ability to do so. Accordingly, the Court finds and concludes that the Chapter 13 Trustee's motion to dismiss should be, and hereby is granted.
IT IS SO ORDERED.
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PETER W. BOWIE, Chief Judge
United States Bankruptcy Court