In re: ERNEST SPENCE ANDREA SPENCE Debtors.

Case No. 01-14721-SSM, Chapter 13United States Bankruptcy Court, E.D. Virginia, Alexandria Division
February 28, 2002

Earnest and Andrea Spence, Woodbridge, VA, Debtors pro se.

Gerald M. O’Donnell, Esquire, Alexandria, VA, Chapter 13 Trustee, Office of the United States Trustee, Alexandria, VA.

MEMORANDUM OPINION AND ORDER
STEPHEN S. MITCHELL, Alexandria, Virginia United States Bankruptcy Judge

This matter came on for hearing in open court on February 27, 2002, on the”Motion to Reinstate Case” filed by the debtors on January 28, 2002. The Chapter 13 Trustee, Gerald M. O’Donnell, was present in person. The debtors failed to appear. For the reasons stated, the motion is denied.

Background
The debtors, who are proceeding pro se, filed a joint voluntary petition under chapter 13 of the Bankruptcy Code in this court on December 12, 2001. They did not file with their petition a list of creditors, nor, relevant to the present motion, schedules, a statement of financial affairs, and Chapter 13 Plan. The clerk provided the debtors with a written notice that the schedules, statement of financial affairs, and plan were due within 15 days of the filing date, that is, by December 27, 2001. When none of these papers was timely filed, the clerk, under the authority of Local Bankruptcy Rules 1007-1 and 3015-2, dismissed the case on January 9, 2002. Nineteen days later, the debtors filed the motion that is presently before the court.

In their motion, the debtors request reconsideration of the dismissal order because they “were unable to appear at the Meeting of Creditors due to a Family emergency in Pennsylvania.”[1] However, the motion fails to discuss why the debtors were unable (or unwilling) to file schedules, a statement of financial affairs, and a proposed Chapter 13 Plan by the deadlines set by the Clerk. Additionally, the motion was not served either on creditors or on the standing chapter 13 trustee, Gerald M. O’Donnell.[2] Finally, a review of this court’s record reflects that the debtors are no strangers to this court, having filed the following prior cases:[3]

Case No. 96-16328-SSM

Filed by Andrea Spence on November 13, 1996, under chapter 13 of the Bankruptcy Code; subsequently dismissed by the Clerk on December 5, 1996, for reasons identical to the present case.

Case No. 97-12472-MVB

Filed jointly by Andrea and Ernest Spence on April 3, 1997, under chapter 7 of the Bankruptcy Code; discharge granted on July 18, 1997.

Discussion
The court treats the present motion as a motion under Federal Rule of Bankruptcy Procedure 9024 for relief from a judgment or order. Rule 9024 incorporates Federal Rule of Civil Procedure 60, which, in relevant part, provides as follows:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; . . . or (6) any other reason justifying relief from the operation of the judgment. This motion shall be made within a reasonable time, and for reasons (1), (2), and (3), not more than one year after the judgment, order or proceeding was entered or taken.
The debtors, however, have set forth no relevant facts showing “mistake, inadvertence, surprise, or excusable neglect.” Although they explain why they did not appear at the meeting of creditors, they set forth no reason why they did not timely file the schedules, statement of financial affairs, and plan. Given that one of the debtors previously had a case dismissed for identical reasons, the court can only conclude that the debtors did not make a good faith effort to comply with the requirements imposed on debtors as a condition to chapter 13 relief. Finally, the motion sets forth no “other reason justifying relief” from the order of dismissal. Accordingly, the court is unable to conclude that good cause has been shown for granting the relief requested.

ORDER
It is therefore ORDERED:

1. The motion to reconsider, which the court treats as a motion to vacate the order of dismissal, is denied.

2. The clerk will mail a copy of this order to the debtors and to the chapter 13 trustee.

[1] The § 341 Meeting of Creditors had been scheduled for January 15, 2002, but was presumably not held, given that the case had already been dismissed.
[2] The certificate of service attached to the “Notice of Hearing And Motion” reflects service upon the Office of the United States Trustee and on “Robert G. Mayer, Esquire, Interim Trustee” instead. Mr. Mayer, who now sits as a judge of this court, previously served as a Chapter 7 panel trustee in this district. However, the court’s record does not reflect that he ever served as a Chapter 7 trustee in any case identified with the debtors. Accordingly, how Mr. Mayer came to be served with the present motion is a mystery.
[3] Neither of these prior filings was disclosed on the petition even though the page 2 of the petition plainly requires the debtors to list all prior bankruptcies filed within the last six years. See Fed.R.Bankr.P, Official Form 1.