Opinion
Case No. 02-10966.
December 16, 2010
ORDER DENYING MOTION TO REOPEN
The Debtor, Pierre Gagne, seeks to reopen his Chapter 13 case to seek damages against Home Loan Investment Bank for alleged violations of the automatic stay. The case was closed upon the Debtor's completion of his Chapter 13 plan. The Debtor, jointly with his wife, is also a debtor in a different Chapter 13 case currently pending before this court. After hearing on the Debtor's motion, for the reasons which follow, the motion is denied.
The Chapter 13 trustee in the present case suggested at the hearing that the cause of action against Hone Loan Investmernt Bank could be raised in the pending Chapter 13 case and it may be an asset of the current estate. That issue is not properly before the court, and has not influenced the outcome of the Debtor's motion to reopen.
11 U.S.C. § 350(b) permits a case to be reopened "to administer assets, to accord relief to the debtor, or for other causes." The issue of whether a case is to be reopened "is one addressed to the sound discretion of the court, guided by the statute and equitable considerations." In re Garrett, 266 B.R. 910, 912 (Bankr. S. D. Ga. 2001). Motions to reopen generally involve a weighing of competing policy considerations: "the bankruptcy policy of providing a deserving debtor with a fresh start; and the bankruptcy policy of providing, in an expedient manner, `finality' to those disputes which arise between debtors and creditors." In re Kapsin, 265 B.R. 778, 780 (Bankr. N. D. Ohio 2001). If reopening a case would serve no purpose, the motion to reopen should be denied. See In re Hunter, 283 B.R. 353, 356 (Bankr. M. D. Fla, 2002). Further, "[l]aches is a valid and recognized defense to any motion to reopen a closed case." Id. at 357.
Courts generally permit cases to be reopened to add creditors, provided that the creditors were omitted in good faith and they were not denied the opportunity to share in any distribution, id. at 915, or to avoid liens, see Matter of Caicedo, 159 B.R. 104, 105-6 (Bankr. D. Conn. 1993) (holding that avoiding a lien is good cause to reopen, but that a motion to reopen after 8 years was untimely). However, motions to reopen which are not timely made should be denied. In the Kapsin case, for example, the court denied a motion to reopen a case to pursue dischargeability of a student loan, which was brought one and a half years after the discharge. 265 B.R. at 781.
In this case, the Debtor filed his case in 2002, he was discharged in May of 2006, and the case was closed in October of 2006. He seeks to reopen the case more than four years later, claiming that during 2004 through 2006, Home Loan Investment Bank harassed him with demands for payment. The Debtor obviously knew of these alleged actions at the time, but claims to have only recently discovered that such actions may have violated the automatic stay.
The Debtor's motion, filed more than four years after his case was closed, is untimely. Further, there is substantial authority that a debtor may not have more than one case open at the same time. See In re Brown, 399 B.R. 162 (Bankr. W.D. Va. 2009) and cases cited therein. I therefore exercise my discretion and DENY the Debtor's motion to reopen.
SO ORDERED.
Notice Recipients
Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 0100-1 User: kford Date Created: 12/16/2010 Case: 02-10966 Form ID: pdf900 Total: 6 tr Peter C. Fessenden jawill@chap13.com ust Office of U.S. Trustee ustpregion01.po.ecf@usdoj.gov aty Leonard F. Morley, Jr., Esq. morleybankrupt@logs.com TOTAL: 3 db Pierre John Gagne 2123 Portage Road Portage, ME 04768-3007 intp Carrie J. Gagne 2123 Portage Road Portage, ME 04768 smg State of Maine Bureau of Revenue Services Bankruptcy Unit P.O. Box 9101 Augusta, ME 04333-9113 TOTAL: 3