CASE NO. 02-20450-AJM-13United States Bankruptcy Court, S.D. Indiana.
December 17, 2002
Tom Rothe, for Debtor in First Case Robert Brothers
ORDER DISMISSING CASE
ANTHONY METZ, Bankruptcy Judge
The Debtor filed a voluntary petition for relief under Chapter 13 on December 3, 2001, (the “First Case”) and that case was assigned to Bankruptcy Judge James K. Coachys.[1] Creditors General Motors Acceptance Corporation (“GMAC”), First Horizon Home Loan Corporation (“First Horizon”), and Bank One each filed relief from stay motions, all of which were initially resolved by agreed entry. After confirmation of the chapter 13 plan, and pursuant to the “drop dead” language in their respective agreed entries, First Horizon and Bank One filed affidavits of default, indicating that the Debtor had defaulted on the terms of the respective agreed entry. Consequently, orders lifting the automatic stay were entered with respect to collateral in which First Horizon and Bank One had an interest. First Horizon holds the first mortgage on the Debtor’s residence located at 10521 Camille Court, Indianapolis (the “Property”). The order granting relief from stay with respect to First Horizon specifically provided that the stay was lifted to allow First Horizon to proceed with the sheriffs sale of the Property.
Shortly after those orders were entered, the Debtor, on November 27, 2002, moved to dismiss the First Case; however, more than a wee before, the Debtor, pro
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se, filed this case, also under chapter 13 (the “Second Case”). Because the filing was a “barebones” (e.g. no full and complete schedules or statement of financial affairs, only selected schedules and the petition) the Debtor was required to file a “certificate of emergency” to justify the barebones filing. The reason given for the emergency was that the Property was scheduled for a sheriffs sale on November 20, 2002. First Horizons is scheduled as a secured creditor, holding the first mortgage on the Residence.
The First Case was voluntarily dismissed after First Horizon, along with Bank One, filed and obtained relief from the automatic stay. The Second Case (filed while the First Case was pending) was filed specifically to avoid the sheriffs sale that had been scheduled by First Horizon which moved for and obtained relief from stay in the First Case.
In addition, the Debtor was ordered on November 19, 2002 to file within fifteen (15) days the remainder of the schedules and the statement of financial affairs that had not been submitted with the barebones filing in the Second Case. Those remaining schedules and statements were to have been filed no later than December 4, 2002, and the failure to timely file those items subjects the Second Case to dismissal. To date, nothing has been filed. Accordingly, there is additional cause to dismiss this Second Case.
Given the fact that the dismissal of the First Case falls under the technical provisions of 11 U.S.C. § 109(g), the Court finds that this case should be dismissed since the Debtor filed this Second Case before the expiration of the statutory 180-day waiting period under § 109(g). Alternately, the Debtor has failed to file the complete set of
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schedules and statement of financial affairs as ordered on November 19th. Accordingly, this Second Case is DISMISSED. The Debtor’s pending Application to Pay Filing Fees in Installments is moot.
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