Nancy N. Mishoe-Hooper

1
UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
WILMINGTON DIVISION
IN RE:
NANCY MISHOE-HOOPER,
DEBTOR.
CASE NO. 12-01392-8-JRL
CHAPTER 13
ORDER
This matter is before the court on debtor’s motion to reopen her chapter 13 case pursuant to
11 U.S.C. § 350 and Fed. R. Bankr. P. 9024 et seq., to which the trustee has objected. A hearing on
the matter was held in Wilmington, North Carolina on October 17, 2012.
BACKGROUND
Nancy Mishoe-Hooper ( “debtor”) filed her voluntary petition for relief under chapter 13
of the Bankruptcy Code on February 22, 2012. On May 23, 2012, the court entered an order
granting the motion to confirm the chapter 13 plan filed by the trustee. The plan provided for
monthly payments of $1,005.00 for thirty six (36) months.
On June 29, 2012, the trustee filed a motion to dismiss the debtor’s case for failing to
comply with the terms of her plan due to her failure to make two plan payments. On July 30,
SO ORDERED.
SIGNED this 29 day of October, 2012.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 1 of 6

2
2012, the court entered an order dismissing the debtor’s case for cause, on the grounds that she
failed to comply with the provisions of her confirmed plan. The trustee filed his final report and
accounting on September 10, 2012, and the debtor’s case was closed on September 20, 2012.
On September 25, 2012, the debtor filed the motion to reopen her chapter 13 case that is
presently before the court, contending that a work-related injury caused her income to plummet
precipitously and led to her failure to make the required chapter 13 plan payments. Additionally,
the debtor asserts that if her case is reopened, she will be in a position to bring her chapter 13
plan payments current by the end of October 2012. On September 27, 2012, the trustee filed an
objection and requested a hearing on the matter.
DISCUSSION
Section 350 of the Bankruptcy Code provides “[a] case may be reopened in the court in
which such case was closed to administer assets, to accord relief to the debtor, or for other
cause.” 11 U.S.C. § 350(b); Fed. R. Bankr. P. 5010 (stating that a case “may be reopened on
motion of the debtor or other party in interest pursuant to § 350(b) of the Code.”). 	In the Fourth
Circuit, bankruptcy courts are vested with broad discretion in determining whether to reopen a
case. See, e.g., Hawkins v. Landmark Fin. Co. (In re Hawkins), 727 F.2d 324, 326-327 (4th Cir.
1984) (adopting the view “that the reopening of a closed case is a discretionary matter,” which
“depends upon the circumstances of the individual case[.]”); Thompson v. Virginia (In re
Thompson), 16 F.3d 576, 581-82 (4th Cir. 1994). The movant bears the burden of establishing
grounds for a motion to reopen a case, In re Lee, 356 B.R. 177, 180 (Bankr. N.D. W.Va. 2006)
(citation omitted), which the court may deny “where it appears that to do so would be futile and
a waste of judicial resources.” In re Carberry, 186 B.R. 401, 402 (Bankr. E.D. Va. 1995)
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 2 of 6

1 The Ninth Circuit, in Income Prop. Builders, Inc., contrasted an order closing a case and
an order dismissing a case and observed the following:
[A] bankruptcy is normally closed after the bankruptcy proceedings are completed
. . . . A bankruptcy is reopened under 11 U.S.C. § 350(b), not to restore the
pre-bankruptcy status, but to continue the bankruptcy proceeding. 	The word
‘reopened’ used in Section 350(b) obviously relates to the word ‘closed’ used in the
same section. In our opinion a case cannot be reopened unless it has been closed.
An order dismissing a bankruptcy case accomplishes a completely different result
than an order closing it would and is not an order closing.
699 F.2d at 965; see, e.g., Garcia, 115 B.R. at 170 (“An order closing a bankruptcy case
contemplates that the bankruptcy proceedings and administration of the estate have been
completed. An order of dismissal, however, terminates a bankruptcy proceeding for reasons
other than the completed administration of the estate.”); Archer, 264 B.R. at 168.
3
(reasoning that because the debt was discharged upon entry of the order or excepted from
discharge, nothing would be accomplished by reopening the case to schedule an omitted
creditor); Horizon Aviation of Va., Inc. v. Alexander, 296 B.R. 380, 382 (E.D. Va. 2003)
(denying the motion to reopen the case where the movant failed to “demonstrate . . . a
compelling cause.”).
Although § 350(b) grants bankruptcy courts broad discretion to reopen a closed case, it
does not allow the court to reopen a previously dismissed case. In re Archer, 264 B.R. 165, 168
(E.D. Va. 2001); In re Garcia, 115 B.R. 169, 170 (N.D. Ind. 1990) (denying debtor’s motion to
reopen case because a case dismissed for the debtor’s failure to file a modified plan may not be
reopened pursuant to § 350(b)); Armel Laminates, Inc. v. Lomas & Nettleton Co. (In re Income
Prop. Builders, Inc.), 699 F.2d 963, 965 (9th Cir. 1982) (observing that an order dismissing a
bankruptcy case is vastly different from an order closing it following administration of the
estate).1 Under § 350(b) only a case that has been closed [following full administration], “as
opposed to dismissed, can be reopened under § 350.” Rosado v. Pablos (In re Rosado), No. PR
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 3 of 6

4
11-081, 2012 Bankr. LEXIS 2969, at *12-13, 2012 WL 2564375, at *4 (B.A.P. 1st Cir. June 29,
2012); In re King, 214 B.R. 334, 336 (Bankr. W.D. Tenn. 1997) (recognizing that a case that has
been dismissed is not closed within the meaning of § 350(b) and, therefore, may not be
reopened). On the other hand, “[a] case which is dismissed . . . on a trustee’s motion on account
of nonpayment[,] is not one that has been fully administered.” Pingaro v. Ameriquest Mortg.
Co. (In re Pingaro), No. MB 08-025, 2008 Bankr. LEXIS 3959, at *6, 2008 WL 8664764, at *2
(B.A.P. 1st Cir. Aug. 14, 2008); Bernegger v. King, No. 10-CV-1158, 2011 U.S. Dist. LEXIS
67716, at *3, 2011 WL 2518788, at *1 (E.D. Wis. Jun. 23, 2011) (holding that standards of Fed.
R. Civ. P. 60(b) control whether relief should be afforded to a debtor’s motion to reopen his
bankruptcy case that was dismissed for failure to make plan payments).
A dismissal may be set aside only by direct appeal or a motion pursuant to either Fed. R.
Civ. P. 59(e) or Fed. R. Civ. P. 60(b) (hereinafter “Rule 60(b)”), made applicable to bankruptcy
proceedings by Fed. R. Bankr. P. 9024. King, 214 B.R. at 336. Rule 60(b) authorizes a court in
its sound discretion to grant relief from an order or judgment for the following: “mistake,
inadvertence, surprise, or excusable neglect” (Rule 60(b)(1)); newly discovered evidence (Rule
60(b)(2)); “fraud . . ., misrepresentation, or other misconduct of an adverse party” (Rule
60(b)(3)); “the judgment is void[]” (Rule 60(b)(4)); “the judgment has been satisfied, released,
or discharged[]” (Rule 60(b)(5)); or “any other reason justifying relief from the operation of the
judgment” (Rule 60(b)(6)).
The debtors Garcia, Archer, and Bernegger requested that their previously dismissed
chapter 13 cases be reopened. In Garcia, the debtor’s chapter 13 case was dismissed for failure
to comply with a court order requiring that the debtor file an amended chapter 13 plan. 115 B.R.
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 4 of 6

5
at 169-70. The court in Garcia denied the debtor’s motion to vacate the court’s dismissal under
Rule 60(b) because it was not filed within a reasonable time and the debtor failed to provide any
plausible excuse for the three-month delay. Id. at 171. Similarly, in Archer, the debtor’s chapter
13 case was dismissed and subsequently closed because she failed to file an amended plan
following a denial of plan confirmation. 264 B.R. at 166-167 (requesting that the case be
reopened for the purpose of removing a judgment lien docketed in state court while the
bankruptcy case was pending). After considering the debtor’s motion to reopen under Rule
60(b), the court in Archer held that it must be denied because only a fully administered case can
be reopened under § 350(b). Id. at 168. Furthermore, in Bernegger, the debtor’s case was
dismissed for failing to make his chapter 13 plan payments. 2011 U.S. Dist. LEXIS 67716, at
*2-3, 2011 WL 2518788, at *1. After concluding that § 350(b) was not applicable, the court
held that the debtor was not entitled to relief from the dismissal because “Rule 60(b) relief is an
extraordinary remedy” which can be “granted only in exceptional circumstances.” Id. at *4,
2011 WL 2518788, at *2 (citations omitted).
After reviewing the relevant statutory authority and case law, the court finds that Rule
60(b), not § 350(b), controls whether the debtor is entitled to relief from the prior dismissal. The
debtor's case was dismissed for failure to make plan payments and closed prior to being fully
administered; therefore, it may not be reopened pursuant to § 350(b). Garcia, 115 B.R. at 170
(emphasizing that the reopening of dismissed cases under § 350(b) “would make dismissal an
almost meaningless act, since the court would be required to reinstate a dismissed case upon
being presented with some articulated ‘cause’ for reopening it.”); Archer, 264 B.R. at 166-167.
As a result, the debtor’s motion to reopen must be construed as a request to set aside the order
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 5 of 6

6
dismissing her case under Rule 60(b).
Based on the record and the testimony of the debtor, the court finds that the prior
dismissal of the case was appropriate and will not exercise its discretion to set it aside. The
debtor has failed to demonstrate any of the grounds afforded under Rule 60(b) such that she
should be granted relief. Additionally, the debtor was advised in the trustee’s motion to dismiss
that failure to take action regarding the delinquent plan payments would result in dismissal
without further notice. The debtor would have to pay approximately $6,030.00 (i.e., six (6)
monthly payments) to cure the arrearage and bring her plan payments current before the end of
October 2012, which would undoubtedly place a tumultuous strain on the debtor and her family.
Aside from her desire and willingness to cure this substantial arrearage, the debtor failed to
provide a plausible explanation for the decision to reopen her closed chapter 13 case in lieu of
filing another voluntary petition.
CONCLUSION
Based on the foregoing, the debtor’s motion to reopen her case is DENIED.
END OF DOCUMENT
Case 12-01392-8-SWH Doc 29 Filed 10/29/12 Entered 10/29/12 15:01:31 Page 6 of 6