Mary Gschwend

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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Memorandum
UNITED STATES BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
In re 	No. 06-41635
Chapter 13
MARY GSCHWEND,
Debtor./
MEMORANDUM RE: MOTION TO DISMISS
Creditor Barbara G. Markus (“Markus”) has moved to dismiss this
chapter 13 case. 	The court heard the matter on January 8, 2007.
Debtor Mary Gschwend (“Gschwend”) appeared in pro se, and Markus
appeared through counsel. 	The court will grant Markus’s motion to
dismiss, but will stay the dismissal for a period of 20 days from
service of the order of dismissal to provide Gschwend with the
opportunity to file a confirmable chapter 13 plan.
On January 2, 2003, Markus obtained a judgment against Gschwend
in the California Superior Court, Contra Costa County. 	Numerous
motions and appeals by Gschwend followed, by which she attempted to
have the judgment vacated. 	None of these efforts were successful,
Signed: January 09, 2007

EDWARD D. JELLEN
U.S. Bankruptcy Judge

Entered on Docket
January 09, 2007
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 06-41635 Doc# 30 Filed: 01/09/07 Entered: 01/09/07 15:00:38 Page 1 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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2	Memorandum
and on September 22, 2004, the California Supreme Court denied
Gschwend’s petition for review.
The superior court judgment became final in due course, and
Markus attempted to collect. 	On September 14, 2006, Gschwend filed
the chapter 13 petition herein. 	Markus filed a secured claim in the
sum of $59,316, based on a judgment lien in her favor.
Gschwend’s proposed chapter 13 plan provides for Gschwend to
continue litigating the validity of Markus’s claim against her, and
during the litigation, to make payments to the chapter 13 trustee of
$100 per month for a period of three years. 	The plan further
provides that Gschwend will refinance some property and pay Markus
in the event such litigation is not successful. 	Finally, the plan
provides that Gschwend is to make direct payments to secured
claimant Countrywide Home Loans. 	(Gschwend listed no unsecured
claims.)
In her motion to dismiss, Markus argues that this is a bad
faith filing by Gschwend. 	Markus argues that Gschwend shows a net
worth in her schedules of some $1.3 million, has no unsecured
claimants, has no apparent need for relief in respect of her two
other secured claimants, and filed this case solely for purposes of
delay. 	Markus also notes that Gschwend has had some four years to
repay her judgment debt to Markus by refinancing property or
otherwise. 	Markus also alleges that Gschwend has concealed assets
by failing to list same in her schedules.
In her opposition, Gschwend asserted various reasons why she
believes Markus’s judgment against her is invalid. 	At oral
Case: 06-41635 Doc# 30 Filed: 01/09/07 Entered: 01/09/07 15:00:38 Page 2 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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1The foregoing holds true even if a state court judgment is
a default judgment. 	In re Daghighfekr, 161 B.R. 685 (9th Cir.
B.A.P. 1993); In re Nourbakhsh, 	67 F.3d 798 (9th Cir. 1995).
3	Memorandum
argument, she insisted that she be given a chance to challenge the
superior court judgment through an adversary proceeding in the
bankruptcy court.
The plan filed by Gschwend is not confirmable. 	The judgment in
favor of Markus is final, and Gschwend may not challenge it or
litigate the issues in this court. 	In re Int’l Nutronics, Inc., 28
F.3d 965, 969 (9th Cir. 1994). 	See also 28 U.S.C. § 1738 (requiring
federal courts to give full faith and credit to state court
judgments); Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S.
373, 380, 105 S.Ct. 1327 (1985). 1
Although this case has many of the earmarks of a bad faith
filing, the court feels compelled by recent case law to provide
Gschwend with an opportunity to amend her plan. 	See In re Nelson,
343 B.R. 671 (9th Cir. B.A.P. 2006). 	Accordingly, the court will
stay dismissal for a period of 20 days following service of the
order of dismissal on Gschwend. 	In the event Gschwend files a plan
contemplating re-litigation of her debt to Markus, the dismissal
will stand, the court reserving jurisdiction to enter such
additional orders, if any, as may be appropriate. 	If, on the other
hand, Gschwend files a plan providing for full payment of all
Case: 06-41635 Doc# 30 Filed: 01/09/07 Entered: 01/09/07 15:00:38 Page 3 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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2The court would assess what is reasonable with reference to
the amount of time it might require a debtor acting in good
faith, with due dispatch, to obtain a refinance loan.
4	Memorandum
amounts she owes to Markus within a reasonable time, 2 the court will
revisit dismissal and any other relevant issues.
The court will issue its order so providing.
** END OF ORDER **
Case: 06-41635 Doc# 30 Filed: 01/09/07 Entered: 01/09/07 15:00:38 Page 4 of 5

UNITED
STATES
BANKRUPTCY
COURT
NORTHERN DISTRICT OF CALIFORNIA
1300 Clay Street (2d fl.)
Oakland, CA. 94612
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5	Memorandum
COURT SERVICE LIST
Mary Gschwend
4402 Marsh Elder Ct.
Concord, CA 94521
Martha G. Bronitsky
P.O. Box 5004
Hayward, CA 94540-5004
U.S. Trustee
Office of the U.S. Trustee
1301 Clay St. #690N
Oakland, CA 94612
Elliott Abrams
Law Offices of Elliott Abrams
2033 North Main Street, Suite 750
Walnut Creek, CA 94596-3774
Case: 06-41635 Doc# 30 Filed: 01/09/07 Entered: 01/09/07 15:00:38 Page 5 of 5