David M. Sickel

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
DAVID M. SICKEL,
Debtor.
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Case No. 08-00309
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
DECISION AND ORDER CONCLUDING THAT THE DEBTOR’S PLAN
MAY NOT BE CONFIRMED AFTER THE CASE HAS BEEN DISMISSED
On September 19, 2008, the debtor, through counsel,
represented at a hearing regarding confirmation of his chapter 13
plan that he would file an amended plan containing provisions
mooting the trustee’s objections to his original plan. 	Such a
plan was filed later on that same day. 	On the morning of
September 23, 2008, the trustee submitted a proposed order to
confirm the debtor’s amended plan. 	However, on the afternoon of
September 23, 2008, the debtor filed his motion to dismiss the
case. 	On September 24, 2008, the clerk prepared, signed on
behalf of the court, and entered an order dismissing the case.
The trustee’s proposed order confirming the debtor’s plan is now
before the court for consideration.
In entering the order of dismissal, the clerk acted pursuant
The document below is hereby signed. Dated:
September 26, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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1 	The court retains authority, however, on its own motion
on or on motion of an interested party, to amend the order of
dismissal to include any necessary and appropriate provisions
contemplated by 11 U.S.C. § 349 (such as making the dismissal
with prejudice).
2
to standing order directing the clerk to enter an order
dismissing any chapter 13 case that was not converted from
another chapter, and in which the debtor seeks dismissal. 1 	Under
11 U.S.C. § 1307(b), a debtor in that circumstance has an
absolute right to have his case dismissed. 	See, e.g., In re
Barbieri, 199 F.3d 616 (2nd Cir. 1999); In re Polly, 392 B.R. 236
(Bankr. N.D. Tex. 2008); In re Harper-Elder, 184 B.R. 403
(Bankr. D.D.C. 1995). 	But see, e.g., In re Jacobsen, 378 B.R.
805 (Bankr. E.D. Tex. 2007).
Had the court signed the trustee’s proposed order before the
debtor filed his motion to dismiss, the confirmed plan would have
had binding effects on the debtor with respect to plan payments
that had been made under the plan, albeit relieving the debtor of
the responsibility to make future plan payments. 	See In re
Parrish, 275 B.R. 424 (Bankr. D.D.C. 2002). 	But see In re Nash,
765 F.2d 1410 (9th Cir. 1985) (upon dismissal of the case, the
debtor was entitled to undistributed plan payments held by
trustee under a confirmed plan).
But when no plan has been confirmed, the dismissal of the
case ends the court’s authority to confirm a plan, as the debtor
is signaling that he no longer wishes to have a confirmed plan.
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3	O:\TEEL\Judge Temp Docs\Sickel - Mem Decsn & Order re No Confirmation After Dismissal.wpd
The debtor’s motion to dismiss was, in effect, a withdrawal of
his proposed plan. 	Under 11 U.S.C. § 1323, the debtor was
entitled to modify his plan prior to confirmation, and had he
done so in a manner that altered the rights of a creditor, the
modified plan could not be confirmed without an opportunity for
the creditor to be heard. 	Implicitly the Bankruptcy Code also
permits a debtor to withdraw his plan before it is confirmed.
Although withdrawing a plan at the last minute might constitute
unreasonable delay in the case, and might lead to conversion or
dismissal, that does not alter the conclusion that until a plan
is confirmed, the debtor has a right to withdraw the plan. 	For
all of these reasons, the plan cannot be confirmed in this
dismissed case.
It is thus
ORDERED that the trustee’s proposed order confirming the
debtor’s amended plan is stricken, and the amended plan will not
be confirmed.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee.
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