Opinion
24-11852
12-12-2024
In Re JAMAR MAMON Debtor.
Chapter 7
ORDER OF DISMISSAL [DOCKET NUMBER 42]
BETH A. BUCHANAN, UNITED STATES BANKRUPTCY JUDGE
This matter is before this Court on Chapter 7 Trustee Eric Goering ("Trustee")'s Amended Motion to Dismiss [Docket Number 42] amending his originally filed Motion to Dismiss [Docket Number 19] (collectively the "Motions to Dismiss"); and the Responses filed by Debtor Jamar Mamon ("Debtor") [Docket Numbers 22 and 44]. An evidentiary hearing was held on December 10, 2024 at which the Trustee appeared and presented evidence. The Debtor, while receiving notice of the evidentiary hearing and the need to appear in person, did not appear.
The Debtor participated in a telephonic status conference held on November 7, 2024, during which he was made aware of the December 10, 2024 hearing date and the need to appear at the evidentiary hearing in person. The hearing information was also provided to the Debtor through the scheduling order [Docket Number 49] that was served on the Debtor at both the mailing address he provided in his schedules as well as an address on Wall Street he used on some documents and provided to this Court during the telephonic status conference [See Docket Number 51]. He later documented the Wall Street address as his mailing address of record in his Notice of Change of Address [Docket Number 53]. On Friday, December 6, 2024, four days before the hearing, the Debtor called chambers to request the ability to attend the evidentiary hearing remotely. Chambers returned the call later that same day and left the Debtor a voicemail informing him that any such request would have to be made by motion and, given the upcoming hearing date, would have to be filed quickly. No such motion was filed. The Debtor called chambers again the morning of the hearing, December 10, 2024, to repeat his request to attend the hearing remotely. Noting that he had not filed a proper request to appear remotely, the Debtor was again advised by chambers that the hearing would proceed as scheduled. Given the significance of the hearing and its evidentiary nature, it is highly unlikely this Court would have permitted the Debtor to appear remotely even if a proper request had been made.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Debtor filed his chapter 7 voluntary bankruptcy petition and schedules on August 13, 2024 [Docket Number 1]. In his schedules the Debtor listed only two assets, a Jeep with a value of $1,000 and a personal injury claim that the Debtor valued at $700,000 [Id.]. The Debtor also listed only one creditor, Eastgate CJDR, and no amount for this creditor's claim [Id.].
This Court grants the Trustee's request at the evidentiary hearing and takes judicial notice of the Debtor's petition, schedules, and filings in this case. See ZMC Pharmacy, LLC v. State Farm Mut. Auto. Ins. Co., 307 F.Supp.3d 661, 665 n.1 (E.D. Mich. 2018) (noting that a court may take judicial notice of its own docket); Baccala Realty, Inc. v. Fink (In re Fink), 351 B.R. 511, 517 n.1 (Bankr. N.D.Ill. 2006) (holding that a court make take judicial notice of the record in its own cases).
The Trustee was appointed and the Notice of Chapter 7 Bankruptcy Case was issued providing notice of the case as well as the date and time for the § 341 Meeting of Creditors scheduled on September 11, 2024 [Docket Number 11]. On September 11, 2024, the Trustee held the § 341 Meeting of Creditors at which the Debtor failed to appear prompting the Trustee to file his first Motion to Dismiss [Docket Number 19].
Following the date for the § 341 Meeting, the Debtor began filing adversary complaints against various entities that included claims for the return of property or damages [see Docket Numbers 33, 34, 37, 38, 39, 45, 46]. However, these claims for the return of property or damages were not listed as assets by the Debtor in his schedules. Furthermore, the Debtor filed a separate adversary complaint against the Department of Education and Nelnet, Inc. to determine whether a student loan debt was dischargeable [Docket Number 47]. Neither the Department of Education nor Nelnet were listed as creditors by the Debtor in his schedules nor did the Debtor list any student loan debt.
In the Motions to Dismiss and at the hearing, the Trustee included both the Debtor's failure to attend the § 341 Meeting of Creditors and the significant inaccuracies in the Debtor's petition and schedules, among other items, as "cause" to dismiss the Debtor's case. In addition to the information missing in the schedules, the Trustee also noted the Debtor had incomplete answers in his Statement of Financial Affairs ("SOFA"). Specifically, question 2 in the SOFA requests that a debtor lists all of his addresses at which he has lived during the past three years [Docket Number 1, p. 38]. While the Debtor checked the box indicating that he has lived other places than where he currently lives during the past three years, he failed to identify the prior addresses [Id.]. The Trustee stated that this has left him unable to determine whether venue for the Debtor's bankruptcy case is appropriate in the Southern District of Ohio, particularly since the Debtor indicated that he lived in Fort Wayne, Indiana as recently as March of 2024 based on the residential address the Debtor provided in his prior bankruptcy case filed in the Southern District of Indiana on March 21, 2024 [Trustee Ex. 3].
The Trustee's Exhibits 1 - 7 [Docket Number 58] were admitted at the evidentiary hearing.
On November 20, 2024, almost three months after his original petition and schedules in this case were filed and two months after the scheduled § 341 Meeting of Creditors, the Debtor filed an amended list of creditors with forty-nine (49) new creditors that were not listed in the original schedules [Docket Number 54]. Because these creditors were added so late to the case, they did not receive the Notice of Chapter 7 Bankruptcy Case that provides notice of the Debtor's case and the date set for the § 341 Meeting of Creditors.
The Debtor filed Responses to the Trustee's Motions to Dismiss indicating that he experienced difficulties such as housing instability and changes in residence that may have caused some problems but that these issues have been promptly addressed and that amended schedules with more detailed information would be forthcoming [Docket Numbers 22 and 44]. However, as of the date of the December 10, 2024 evidentiary hearing, the Debtor had not filed amended schedules.
II. LEGAL ANALYSIS
The Trustee seeks dismissal of the Debtor's bankruptcy case "for cause" under 11 U.S.C. § 707(a). This provision of the Bankruptcy Code provides a non-exhaustive list of circumstances that can establish cause for dismissal. Industrial Ins. Servs. v. Zick (In re Zick), 931 F.2d 1124, 1126-27 (6th Cir. 1991); Riddle v. Greenberger (In re Riddle), No. 19-8022, 2020 Bankr. LEXIS 1695, at *17-18, 2020 WL 3498438, at *7 (B.A.P. 6th Cir. June 29, 2020). In addition to enumerated circumstances listed in the statute, such as unreasonable delay prejudicial to creditors, a debtor's lack of good faith may constitute "cause" to dismiss a chapter 7 case. Zick, 931 F.2d at 1126-27; Riddle, 2020 Bankr. LEXIS 1695, at *17-18, 2020 WL 3498438, at *7.
"Bad faith dismissals should not be taken lightly and should be carefully confined to egregious cases keeping in mind that § 707(a) is geared toward maintaining the integrity of the bankruptcy process." In re Jones, Case No. 21-10011, 2022 Bankr. LEXIS 979, at *18, 2022 WL 1010559, at *6 (Bankr. S.D. Ohio Feb. 9, 2022) (citing Zick, 931 F.2d at 1129 and Riddle, 2020 Bankr. LEXIS 1695 at *18, 2020 WL 3498438, at *7). Although each case is different and must be evaluated on a case-by-case basis, factors considered to determine whether a debtor proceeds in good faith include whether a debtor attends his scheduled § 341 meeting of creditors and whether the debtor makes full and candid disclosure of his assets, debts and other information in his bankruptcy schedules. See, e.g., Riddle, 2020 Bankr. LEXIS 1695, at *18-21, 2020 WL 3498438, at *7-8 (concluding that the bankruptcy court did not abuse its discretion in dismissing the debtor's case for failing to cooperate with the chapter 7 trustee, failing to disclose all assets and debts, failing to attend the § 341 meeting, and using multiple filings to forestall an eviction); Sicherman v. Warner (In re Warner), Adv. No. 11-1032, 2011, Bankr. LEXIS 4853, at *11-13, 2011 WL 6140856, at *4 (Bankr.N.D.Ohio Dec. 9, 2011) (dismissing the case for failure to provide the trustee with documents necessary to administer the case and for failure to attend the § 341 meeting).
In this case, the Debtor's petition and schedules fail to fully identify his assets, debts and creditors and his SOFA likewise omits critical information including his prior residential addresses. Although the Debtor saw fit to subsequently amend his list of creditors to add forty-nine previously omitted creditors [Docket Number 54], he failed to identify the debts owed to these numerous creditors in his schedules. The lack of complete disclosures in the schedules and SOFA coupled with the failure of the Debtor to attend the September 11, 2024 § 341 Meeting of Creditors leaves the Trustee unable to complete his duties and administer the bankruptcy estate on behalf of creditors. See Warner, 2011 Bankr. LEXIS 4853, at *9, 2011 WL 6140856, at *3 (noting the debtor's requirement under 11 U.S.C. § 521(a)(3) to cooperate with the trustee as necessary to enable the trustee to perform his duties).
In his November 4, 2024 Response to the Trustee's Amended Motions to Dismiss, the Debtor assured this Court and the Trustee that he would amend his schedules and SOFA to provide the more detailed information needed. However, the Debtor did not follow through and amend his schedules and SOFA prior to the December 10, 2024 dismissal hearing even though he had ample time to do so. The Debtor then failed to attend the dismissal hearing and provide evidence to support his contention that this case should not be dismissed. Based on all of these circumstances, this Court concludes that the Debtor has not proceeded in good faith and that the Trustee has established "cause" to dismiss the Debtor's bankruptcy case pursuant to 11 U.S.C. § 707(a).
To the extent that the Trustee raised additional bases for dismissal under § 707(b)(1) and § 109(g)(1), they are denied as moot.
WHEREFORE, the Trustee's Amended Motion to Dismiss [Docket Number 42] is GRANTED. The Debtor's bankruptcy case is DISMISSED.
SO ORDERED.
IT IS SO ORDERED.