Opinion
Case No. 98-23357-K.
September 30, 1998
Kim Kea Harris, Esquire, Archibald Halmon, Attorneys, Attorney for mortgagee, Memphis, TN, All Scheduled Creditors and Other Parties in Interest.
On September 29, 1998, the court considered the two following requests of the above-named debtor, Gwendolyn Laren Moore, acting pro se:
• "Petition For Expedited `Emergency' Hearing on Reopening of Chapter 13 Case, For Purpose of Converting and To Protect From Irreparable Harm;" and
• "`Emergency' Petition Seeking To File Injunctions Against Creditors To Protect From Having To Suffer Irreparable Harm"
By virtue of 28 U.S.C. § 157(b)(2)(A) and (O), these are core proceedings.
The relevant background facts and procedural history may be briefly summarized as follows: On March 9, 1998, the debtor, then represented by an attorney, filed an original petition under chapter 13 of the Bankruptcy Code accompanied by a repayment plan proposing to pay $492 per month to the Standing Chapter 13 Trustee to fund her plan; that on March 10, 1998, an "Order Directing Debtor To Make Payments To Trustee" in the amount of $492 per month was entered; that on April 21, 1998, the debtor was directed to pay $557 instead of $492 per month proposed plan payments; that on March 25, 1998, the debtor filed a complaint under 11 U.S.C. § 542(a) seeking a turnover of a 1987 Mazda automobile that had been repossessed prepetition by the secured creditor, Hillstop Motors; that on May 12, 1998, Bankruptcy Judge Jennie D. Latta signed an order directing turnover of the automobile as the debtor proposed to make adequate protection and insurance payments; that the debtor's attorney was authorized to withdraw from this case; that the debtor completely failed to comply with 11 U.S.C. § 1326(a)(1) (i.e., the debtor failed to commence making any payments proposed by her plan within 30 days after the plan was filed or thereafter) whereupon her case was dismissed on June 11, 1998, pursuant to the provisions of 11 U.S.C. § 1307(c)(4); that the case dismissal order did not provide for the retention of jurisdiction over any pending matters; (e.g., a confirmation hearing); that the debtor, acting pro se, later sought, among other things, to set aside the prior case dismissal order; that on July 30, 1998, after notice and a hearing, at which time the debtor testified, the court denied the debtor's request to set aside the prior case dismissal order for the reasons mentioned in open court; that on July 31, 1998, the Standing Chapter 13 Trustee filed a final accounting combined with a report and motion to close this dismissed case; that the Standing Chapter 13 Trustee's final report reflects, in relevant part here, that notwithstanding the fact that this case and proposed repayment plan were filed on March 9, 1998, the debtor has paid zero funds to the Chapter 13 Trustee, and therefore, for example, her home mortgagee and lienor involving her automobile have received no payments nor have any administrative claimants received any payments. Accordingly, this case was dismissed on June 11, 1998, and administratively closed on July 31, 1998.
On August 13, 1998, the debtor, acting pro se, filled certain handwritten documents essentially seeking a "reversal" by the court of its earlier order denying her request to vacate the prior case dismissal order. Since this case had been dismissed and administratively closed, the court on August 14, 1998, summarily denied the debtor's request for such relief without legal prejudice to her seeking to formally vacate the case dismissal order and reinstate this closed case for further administration. Parenthetically, the court provisionally observed that the debtor may not be entitled to relief under either FED. R. BANKR. P. 9023 or 8001 due to "time" problems, although the court did not make such an actual finding.
On September 23, 1998, the debtor, acting pro se, filed the following two hand-written documents, which are the subject of this Order:
• "Petition For Expedited `Emergency' Hearing on Reopening of Chapter 13 Case, For Purpose of Converting and To Protect From Irreparable Harm;" and
• "`Emergency' Petition Seeking To File Injunctions Against Creditors To Protect From Having To Suffer Irreparable Harm"
At the debtor's request, hearings on the debtor's two foregoing requests were scheduled on an expedited basis to be heard in open court and were heard on September 29, 1998, and taken under advisement for careful consideration of the entire case record.
At the hearings held on September 29, 1998, the debtor, acting pro se, appeared in support of the two instant requests and gave oral testimony. She essentially testified, inter alia, that under the circumstances she should not have to make proposed chapter 13 plan payments until such time as the repayment plan was modified to delete the attorney's fee provision for her prior attorney and until such time as the status of her home mortgage was resolved. She further testified that the home mortgagee has a foreclosure sale of her home scheduled for on or about October 11, 1998, and that the utility company has terminated services. (See 11 U.S.C. § 366 regarding the matter involving the utility company.)
If anything, considering a totality of the particular facts and circumstances, the debtor's condition seems to have perhaps worsened since the prior hearings in this case. Still no funds have been paid to the Chapter 13 Trustee under the debtor's proposed plan since March 9, 1998. As a result, for example, the case filing fee of $160 has not been paid. Although not requested by the debtor, the court notes that in forma pauperis relief does not exist. 28 U.S.C. § 1930(a). The attorney for the home mortgagee appeared in open court at the hearing held on September 29, 1998, and opposed the debtor's requested relief as no debt service has been made for sometime (i.e., unreasonable delay by the debtor that is prejudicial to creditors exists). The Standing Chapter 13 Trustee also appeared at the hearing and rendered an oral report stating, inter alia, that absolutely no monies had been paid to him by the debtor to fund the proposed chapter 13 plan, notwithstanding the provisions of 11 U.S.C. § 1326(a) and prior orders of the court.
FED. R. BANKR. P. 1006(b)(2) allows for the payment of the case filing fee required by 28 U.S.C. § 1930(a)(1) in installments, with the final installment being payable not later than 120 days after the filing of the bankruptcy petition. For cause shown, the court may extend the time of any installment, provided the last installment is paid not later than 180 days after the filing of the petition. The petition date in this case was March 9, 1998; August 26, 1998 is 180 days after filing the petition. An additional statutory ground now exists to dismiss this case. See 11 U.S.C. § 1307(c)(2). See also 11 U.S.C. § 1307(c)(1) and (4).
Section 350(b) of the Bankruptcy Code governs the reopening of closed bankruptcy cases. Compare FED. R. BANKR. P. 9024, which is styled Relief from Judgment or Order, and In re Madaj, 149 F.3d 467 (6th Cir. 1998). It is expressly noted that the debtor has not successfully completed this chapter 13 case [i.e., this estate has not been "fully administered" within the meaning of 11 U.S.C. § 350(a) as the plan has not even been confirmed; moreover, this case has been previously dismissed under 11 U.S.C. § 1307(c)(4) for the debtor's failure to comply with 11 U.S.C. § 1326(a)]. The asserted justification articulated by the debtor at the hearing on September 29, 1998 for not making any plan payments in this case are not satisfactory under the existing circumstances and applicable law, whether section 350(b) or Rule 9024 applies.
As stated by the court on prior occasions in this case, it is not unsympathetic with the debtor's plight. Actually, it continues to pain the court very much to see the debtor (and her children) in the unfortunate position that they find themselves. Bankruptcy judges, however, have no more power than any other judge to ignore the plain language of a statute. Even equity judges cannot ignore the law. The Bankruptcy Code is just not a panacea for all socio-economic problems. Creditors also have rights.
Accordingly and after careful consideration of the entire case record, the debtor's two instant requests referred to above are hereby denied. The Bankruptcy Court Clerk shall promptly mail a copy of this Order to the entities reflected below. IT IS SO ORDERED AND NOTICE IS HEREBY GIVEN.