Opinion
Case No. 11-45460.
March 15, 2011
OPINION AND ORDER GRANTING DEBTOR'S MOTION FOR RECONSIDERATION AND VACATING THE ORDER DISMISSING THIS CASE
This case is before the Court on Debtor's motion entitled "Motion for Reconsideration of the Court's March 7, 2011 Order Dismissing the Debtor's Bankruptcy Case," filed on March 10, 2011 (Docket # 15, the "Motion"), which seeks reconsideration of, and relief from, the March 7, 2011 Order dismissing this case (Docket # 13). That Order stated the following:
On June 27, 2010, Debtor filed a voluntary petition for relief under Chapter 7, initiating Case No. 10-60737. That case is still pending. On March 1, 2011, Debtor filed a voluntary petition for relief under Chapter 13, initiating this case. Because Debtor may not have two bankruptcy cases pending at the same time,
IT IS ORDERED that this case is dismissed.
There are cases, not mentioned in Debtor's brief (Docket # 16), holding that there is a per se rule that a bankruptcy debtor may not have two bankruptcy cases pending at the same time. These cases purportedly state the "majority view," and at least one of these cases is directly on point with this case. See, e.g., In re Sidebottom, 430 F.3d 893, 898-99 (7th Cir. 2005); In re Lord, 295 B.R. 16, 18-21 (E.D.N.Y. 2003); Turner v. Citizens National Bank of Hammond (In re Turner), 207 B.R. 373, 378-79 (B.A.P. 2d Cir. 1997). (Of these cases, In re Lord is directly on point.) But the Court is persuaded by contrary cases, including Grimes v. United States (In re Grimes), 117 B.R. 531, 533-37 (B.A.P. 9th Cir. 1990) and In re Ragsdale, 315 B.R. 691, 693-94 (Bankr. E.D. Mich. 2004), that the better view is that such a per se rule is not correct, at least in the specific circumstances of this case. Those specific circumstances are: a Chapter 7 debtor obtains a discharge in his Chapter 7 case, but then, while that case remains open only for the Chapter 7 Trustee to investigate and possibly administer assets of the Chapter 7 estate, the debtor files a new bankruptcy case under Chapter 13, in an effort to treat the first and second mortgages on his residence through a Chapter 13 plan and a lien-strip action, and thereby save his residence from foreclosure.
For these reasons,
IT IS ORDERED that the Motion (Docket # 15) is granted.
IT IS FURTHER ORDERED that the March 7, 2011 Order dismissing this case (Docket # 13) is vacated, and this Chapter 13 bankruptcy case is reinstated.
IT IS FURTHER ORDERED that no later than March 16, 2011, Debtor must serve a copy of this Order on the Chapter 7 Trustee in the Debtor's prior case, Case No. 10-60737, and the Chapter 7 Trustee's counsel of record; and file proof of such service in this case.
This Order is without prejudice to (1) the rights of any party in interest to seek the dismissal of this case, seek relief from stay, seek other appropriate relief, and/or object to confirmation, on the ground that this Chapter 13 bankruptcy case was filed, and/or a plan was proposed, in bad faith; and (2) all rights and claims of the Chapter 7 Trustee in the Debtor's prior case, Case No. 10-60737, which is still pending, including rights with respect to property of the Chapter 7 bankruptcy estate.