Opinion
Case No. 03-05257-W
October 3, 2003
ORDER IMPOSING SANCTIONS AGAINST THE DEBTOR AND DISMISSING CASE WITH PREJUDICE
This proceeding comes before the Court on two orders and Rules to Show Cause (the "Rules") against Jay D. Robertson (the "Debtor"). The Rules required Debtor to appear before the Court and to show cause (1) why he should not be held in civil contempt and sanctioned for disobeying the order of the Court entered in Debtor's previous case, Case No. 02-13147-W, on February 3, 2003, prohibiting Debtor from filing for bankruptcy relief for a period of one year; and (2) why this case, Debtor's third bankruptcy case, should not be dismissed with prejudice due to repetitive filing, bad faith, and the failure to comply with the Court's local rules. Neither Debtor nor any other party in interest filed a written response or objection to the Rules.
Jurisdiction
Jurisdiction of this proceeding exists pursuant to 28 U.S.C. § 157, 1334, and Local Civil Rule 83.IX.01 DSC. This matter is a core proceeding. 28 U.S.C. § 157(b)(2)(A, L, O). Appropriate venue of this case and this proceeding resides in the District of South Carolina. 28 U.S.C. § 1408-1409.
Findings of Fact
1. Debtor has filed three Chapter 13 bankruptcy cases in this District.
2. Debtor filed his first Chapter 13 case on August 5, 2002, as Jay Dickson Robertson, Case No. 02-09213-W. The case was dismissed on August 28, 2002 upon Debtor's motion. Debtor did not file schedules or a statement of affairs in the case. Debtor correctly listed his Social Security number as 251-78-0574. Debtor was represented by counsel.
3. Debtor filed his second chapter 13 case pro se on November 1, 2002 as Jay Robertson, Case No. 02-13147-W. The United States Trustee (the "UST") obtained an order in that case on February 3, 2003, dismissing the case with prejudice for one year as to any bankruptcy chapter because Debtor failed to disclose his prior bankruptcy filing. Debtor did not file schedules or a statement of affairs in that case. Debtor's Social Security number listed in that case was 251-78-0574.
4. Debtor filed the present case, his third, pro se, on April 30, 2003 as Jay D. Robertson, Case No. 03-05257-W. Debtor filed the third case in violation of the Court's prior order entered on February 3, 2003.
5. The petition in Debtor's third case contained an incorrect Social Security number for Debtor, 215-87-7815. Debtor claims that he does not recognize the number, that he has never used the number before, and that personnel in the Clerk's Office wrote the incorrect Social Security number on his petition without discussing the matter with him.
6. Debtor did not disclose his two prior bankruptcy filings in the third petition as required. Debtor claims that he orally disclosed the prior filings to the Clerk's Office at the time of filing. Debtor has not filed schedules or a statement of affairs. Debtor owed a number of creditors at the time of filing who were not listed in the original mailing matrix filed with the petition.
7. Debtor's third bankruptcy case was dismissed on May 19, 2003, because Debtor had failed to file the required documents. Upon the motion of the UST, the case was re-opened on July 18, 2003 and the two Rules were issued. The UST contends that Debtor's case should be dismissed with prejudice and Debtor held in civil contempt for violating the Court's order of February 3, 2003, prohibiting Debtor from refiling for one year. The UST also contends that Debtor's use of an incorrect Social Security number, new addresses, and a variation of his name constituted an attempt by Debtor to refile his case in violation of the February 3, 2003, order and to go undetected by the Court and the UST.
8. Upon the motion of the UST, an order was entered to enable the UST to obtain Debtor's credit report The UST claimed that his investigation indicated that the credit reporting agency Experian had records in its possession which showed that Debtor had been using the incorrect Social Security number listed in this his third case. Counsel for the UST stated at the hearing, however, that the information received from Experian had only come a few days before the hearing on the Rules. The UST did not produce any evidence at the hearing specifically linking the incorrect Social Security number appearing on Debtor's petition to the Debtor.
Conclusions of Law
Debtor's filing of his third bankruptcy case pro se clearly violates the Court's order issued in Case No. 02-13147-W, prohibiting the refiling of bankruptcy until February 3, 2004. While Debtor testified that he filed this case as he had the first two cases to stop a foreclosure against his residence by Wachovia (formerly First Union), Debtor failed to provide any credible evidence that he was unaware of the February 3, 2003, order prohibiting refiling. If Debtor's claim of lack of knowledge of the dismissal order in the second case were true, Debtor certainly would not have needed to file the third case on April 30, 2003. Debtor was unable to explain adequately why he filed a third time if he remained under the belief that his second case was still pending.
Debtor's testimony at the hearing regarding all three cases further indicates bad faith in the filing of the third case. Despite having filed for bankruptcy relief three times, Debtor has never filed the required schedules or statement of affairs, indicating a lack of seriousness to pursue chapter 13 bankruptcy relief and failure to properly prosecute his case(s). Debtor failed to disclose his prior bankruptcy filings in the second and third cases as required by Official Form 1, although he signed both petitions under penalty of perjury. Debtor used a slightly different variation of his name each time he filed a bankruptcy petition. This combined with the use of an incorrect Social Security number in the third case lead to the conclusion that Debtor sought to violate the Court's prior order and to avoid detection. Even if this Court accepts as true Debtor's testimony that he filed the third case without disclosing a Social Security number, Debtor failed to disclose identifying information mandated by Official Form 1.
After carefully considering the circumstances and Debtor's testimony, the Court concludes that Debtor's explanations of his lack of knowledge of the February 3, 2003, order and of other events are neither credible nor convincing.
The Court concludes that Debtor's filing of his third bankruptcy case is a willful violation of the Court's order of February 3, 2003 and that Debtors conduct is an abuse of the bankruptcy process. Pursuant to 11 U.S.C. § 105, the provisions cited herein, and the Court's inherent authority to enforce its Orders, Debtor is hereby sanctioned in the amount of $1,500.00 to deter future and continuing violations of the Court's Orders. The sanction shall be paid to the Clerk of the Court within thirty (30) days of this Order.
FURTHER, this case shall be dismissed with prejudice to bar any refiling of bankruptcy under any bankruptcy chapter for a period of two (2) years. See 11 U.S.C. § 109(g) and 349. The Court retains jurisdiction of this case following dismissal to enforce this Order.
AND IT IS SO ORDERED.