Mark D. Glauser

1 Fed.R.Evid. 201, incorporated in these proceedings by Fed.R.Bankr.P. 9017. See Maritime
Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991); Levine v. Egidi, 1993
WL 69146, at *2 (N.D. Ill. 1993); In re Paolino, 1991 WL 284107, at *12 n. 19 (Bankr. E.D. Pa.
1991); see generally In re Indian Palms Associates, Ltd., 61 F.3d 197 (3d Cir. 1995). While a court
may not take judicial notice sua sponte of facts contained in the debtor’s file that are disputed, In
re Augenbaugh, 125 F.2d 887 (3d Cir. 1942), it may take judicial notice of adjudicative facts
“not subject to reasonable dispute ... [and] so long as it is not unfair to a party to do so and does not
undermine the trial court’s factfinding authority.” In re Indian Palms Assoc., 61 F.3d 197, 205
(3d Cir. 1995) (citing Fed.R.Evid. 201(f) advisory committee note (1972 proposed rules)).
(continued...)
UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 13
:
MARK D. GLAUSER, 	: 	Bankruptcy No. 07-13165DWS
:
Debtor. 	:
MEMORANDUM OPINION
BY: 	DIANE WEISS SIGMUND, Chief Bankruptcy Judge
Before the Court is the Motion of Deutsche Bank National Trust Company (“Bank”)
to Dismiss (the “Motion”) the Chapter 13 case of the debtor Mark Glauser (“Mark” and
“Mark’s Case). The Motion is inextricably related to proceedings in the case of Mark’s wife,
Jennifer Glauser (“Jennifer” and “Jennifer’s Case”), which has been pending in this Court
for over two years. An evidentiary hearing at which Mark testified was held. I also take
judicial notice of the docket and written opinions issued in Jennifer’s Case. 1
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Moreover, “factual assertions in pleadings, which have not been superceded by amended pleadings,
are judicial admissions against the party that made them. Larson v. Gross Bank, 204 B.R. 500, 502
(W.D. Tex. 1996) (statements in schedules). See also In re Musgrove, 187 B.R. 808 (Bankr. N.D.
Ga. 1995) (same); In re Leonard, 151 B.R. 639 (Bankr. N.D.N.Y. 1992) (same).
2 Initially Mark’s monthly net income from his employment as assistant general manager
of the Sporting Club in the amount of $2,950.43 was included. Case no. 05-19233, Doc. No. 7
(July 15, 2005). He then had a period of unemployment where his net income dropped to $1,995
(Id., Doc. No. 20 (December 7, 2005)). On January 25, 2006, his employment at Seventh Street
Medical (“SSM”) was disclosed with what appears to be an estimated net monthly income of $2,000
for work commencing Feb. 1, 2006. Id., Doc. 25. On May 2, 2006, that number was amended to
$2,500 although based on the rounded figures is still apparently estimated. Id., Doc. 37.
3 This may be a result of simply copying the last Schedule I and J filed in Jennifer’s Case.
I note that Jennifer’s length of employment with Aetna and their children’s ages remain the
same notwithstanding the passage of 14 months between documentary filings. 	In light of the
representation in Jennifer’s Fourth Amended Plan (also made in the Second and Third Amended
Plans) that payments of $606 would begin in June 2007 based on Mark’s anticipated income
from “his sales position which he began on February 1, 2006, in which his earnings have already
increased substantially and there is a strong potential for additional increases,” I can only conclude
that his income is understated or the previously filed documents were erroneous.
-2-
BACKGROUND
On July 7, 2005 Jennifer filed a Chapter 13 case. Mark did not join in the petition
although his income was devoted to performance of the Chapter 13 plan proposed by
Jennifer.2 Mark and Jennifer’s incomes in this case are identical to the incomes disclosed in
the Jennifer case.3 Other than the $3,800 priority claim of the Internal Revenue Service,
Bank, which holds a validly perfected mortgage on Mark and Jennifer’s residence at 14 Bark
Hollow Road, Horsham, Pennsylvania (the “Residence”), was the only creditor dealt with
in Jennifer’s Chapter 13 plans.
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On August 19, 2005 Jennifer and Mark filed an adversary proceeding in Jennifer’s
Case asserting their right to rescind the Bank’s mortgage (the “Adversary Case”), and
Jennifer took the position that as a result, she did not have to cure their prepetition mortgage
arrears to the Bank under her Chapter 13 plan. 	Her initial monthly payments to the
Chapter 13 trustee were $50, but were subsequently increased to $100 with a promise of
future enhancement as a result of Mark’s new position with SSM. See note 3 supra.
On June 7, 2006 Bank filed a motion for relief from stay (“First Relief Motion”)
contending 	that 	Jennifer 	had 	not 	made 	post-petition 	mortgage 	payments 	since 	the
inception of the case. 	Id., Doc. No. 41. 	In a stipulation (the “Stipulation”) in which she
admitted post-petition arrears of $22,350.25, Jennifer was given an opportunity to cure over
time according to a negotiated schedule which required a $5,000 initial payment and a double
monthly payment equal to $2,637.44 until the arrears were paid. 	The Stipulation was
approved by the Court on July 11, 2006. Doc. Nos. 41, 46, 52, 53. As part of that resolution
Bank also withdrew its opposition to Jennifer’s Fourth Amended Chapter 13 Plan
(the “Plan”) which was then confirmed on July 6, 2006.
On August 7, 2006 Bank filed a motion to dismiss or in the alternative for relief
from stay (“Second Relief Motion”) on the grounds that Jennifer was in default of
the Stipulation. 	The Bank also alleged that it was induced to enter into the Stipulation
and 	withdraw 	its 	opposition 	to 	plan 	confirmation 	by 	Jennifer 	and 	her 	counsel’s
misrepresentations regarding her ability to make the stipulated payments. At the evidentiary
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4 Debtor did not appear at the first scheduled hearing and the stay was retained to allow her
to testify at the later hearing.
5 As I stated therein:
It is well settled that stipulations between the parties in settlement of litigation are
favored by the law and should not be lightly set aside. Waldorf v. Shuta, 142 F.3d
601, 616 (3rd Cir.1998); In re Robinson, 2004 WL 2495406 (Bankr. E.D. Pa.
Oct. 18, 2004). Stipulated agreements avoid costly and time-consuming litigation.
In re Buzzworm, Inc., 178 B.R. 503, 512 (Bankr. D. Co. 1994). In contested matters
similar to the case at bar, stipulations have long been entered into and enforced to
settle relief from stay motions. In re Wald, 211 B.R. 359 (Bankr. D. N.D. 1997).
The failure to enforce them undermines the willingness of parties to enter into future
agreements, which inevitably impacts the prompt and efficient administration of
bankruptcy cases. 	As noted by the Court in Wald, “‘if [debtors] can remake the
terms of their stipulations, especially default provisions, such agreements could fall
into disfavor, significantly complicating the process of negotiating consensual plan
provisions and confirmation proceedings.’” 	Id. at 361 (quoting In re Burrows,
1995 WL 42398, at *3 (Bankr. D. Idaho January 26, 1995)). Therefore, unless a
stipulation has not been entered into voluntarily, or its terms violate public policy,
or other extenuating circumstances exist, a court will enforce the clear terms of a
stipulation of the parties previously approved by the court at the request of the
(continued...)
-4-
hearing held on September 6, 2006,4 it was established that Jennifer had defaulted under the
Stipulation and that her resources to make the promised payments had been misrepresented.
On September 19, 2006, an Order granting relief from stay accompanied by an 11-page
Memorandum Opinion (the “Ruling”) was entered. In re Glauser, 2006 WL 2847364 (Bankr.
E.D. Pa. Sept. 19, 2006). The Ruling found that Jennifer was in default of the Stipulation by
her failure to make a $5,000 payment on or before July 15, 2006 and to cure that payment
default during the cure period, as well as her failure to pay the full August payment and any
of the September payment. Since the agreed consequence of default of the Stipulation was
relief from the automatic stay in favor of Bank, relief was mandated since the Stipulation
was a binding agreement which must be enforced according to its terms. 5
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parties. In re Sando, 30 B.R. 474, 477 (E.D. Pa. 1983); Sellersville Savings and
Loan Association v. Kelly, 29 B.R. 1016,1018 (E.D. Pa. 1983); Wald, 211 B.R. at
361.
2006 WL 2847364, at *3. I found none of the exceptions to the enforceability of the Stipulation
were applicable.
6 As the Reinstatement Motion had not been decided, Mark’s counsel (also Jennifer’s
counsel) stated that he had no other option to protect the Residence. While I do not agree that a new
case was the only option since a call to the Court when Bank filed its motion for summary judgment
would have prompted a ruling before the summary judgment motion would have required action.
Nor do I agree that the long pendency of the Reinstatement Motion “indicates, at the least, that there
is a substantial dispute as to which the stay should be reinstated.” “Answer to Motion ¶3. In fact,
the pending Reinstatement Motion, contemporaneously and easily decided with this Motion,
had been overlooked. However, counsel, not having made inquiry, did not know that.
-5-
One 	week 	after 	the 	Ruling, 	Jennifer 	filed 	a 	motion 	to 	reinstate 	the 	stay
(“Reinstatement Motion”) contending that the Ruling was premised on the assumption that
she could not cure the Stipulation payments and she alleged that she had by then done so.
After a hearing on this new motion, I took the matter under advisement as trial of the
Adversary Case was imminent. Bank took no actions to enforce its state law remedies while
the Adversary Case was pending. After a protracted briefing period, the Adversary Case was
decided adversely to Jennifer and Mark on April 3, 2007, and Bank moved forward with a
motion for summary judgment in its state court foreclosure action. With no stay in effect in
Jennifer’s Case, Mark filed his own Chapter 13 case on June 1, 2007 to enjoin the
continuation of that litigation.6 This Motion seeking dismissal on the ground of bad faith was
promptly filed on June 15, 2007.
As noted above, Mark has filed a Schedule I in his case that is identical to that filed
in Jennifer’s Case over one year ago. However, the couple’s expenses are shown as reduced
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7 He contends that these mortgagors should have more than one chance at curing their
mortgage. 	If Jennifer fails, Mark should now have a chance. 	By Order this same date, I have
refused to reinstate the stay in Jennifer’s Case. Thus, the strategy Mark seeks to employ is ripe for
consideration.
-6-
which allows $48.27 in disposable income after a $500 monthly allocation for Jennifer’s
trustee payment. His Chapter 13 plan proposes a $40 trustee payment for 40 months but
the only claims that are to be paid are his attorney’s fees and the Trustee’s commission.
Exhibit M-1. Based on the foregoing, Bank argues that the Chapter 13 case has no purpose
but to stay Bank’s exercise of its state law remedies. 	Mark’s counsel acknowledges that
Mark’s Case as filed has no other purpose but contends that if the stay is not reimposed in
Jennifer’s Case, he will use this case as a vehicle to cure the mortgage arrears.7 As I interpret
his position, if the stay is not reimposed in Jennifer’s Case, she will stop making payments
to the Chapter 13 trustee to elicit dismissal. Mark will then amend his Schedule J to delete
the $500 payment and increase his Chapter 13 plan by a like amount. Bank contends this
is bad faith. I agree.
DISCUSSION
Section 1307(c) provides that Chapter 13 petitions may be dismissed “for cause.”
11 U.S.C. § 1307(c). In In re Lilley, 91 F.3d 491, 496 (3d Cir. 1996), the Third Circuit held
that a debtor’s lack of good faith in filing is sufficient cause for dismissal under § 1307(c).
Because the term “good faith” is “incapable of precise definition,” the good faith inquiry
is a fact intensive determination that is left to the discretion of the bankruptcy court. 	Id.
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8 Recognizing that there is no one established set of good faith factors, the Oglesby Court
provides a non-exhaustive list of considerations to be utilized in measuring the good faith of
multiple filings:
(1) 	the length of time between the prior cases and the present one;
(2) 	whether the successive cases were filed to obtain favorable treatment afforded by
the automatic stay;
(3) 	the effort made to comply with prior case plans;
(4) 	the fact that Congress intended the debtor to achieve its goals in a single case;
(5) 	any other facts the court finds relevant relating to the debtor's purpose in making
successive filings.
Id. at 607. Where two cases seeking the same outcome overlap and the second is commenced to
secure renewed protection of the automatic stay lost through vigorous litigation, the Oglesby factors
support a finding of bad faith.
-7-
The good faith of Chapter 13 filings is “assessed on a case-by-case in light of the totality of
the circumstances.” Id. To assist the bankruptcy court in its review, the following factors
have been identified by the Third Circuit to be among those relevant to the inquiry:
the nature of the debt ...; the timing of the petition; how the debt arose;
the debtor's motive in filing the petition; how the debtor's actions affected
creditors; the debtor's treatment of creditors both before and after the petition
was filed; and whether the debtor has been forthcoming with the bankruptcy
court and the creditors.
Id. (quoting In re Love, 957 F.2d 1350, 1357 (7th Cir. 1992)). 	See also Eisen v. Curry
(In re Eisen), 14 F.3d 469, 470 (9th Cir. 1994) (quoting In re Goeb), 675 F.2d 1386, 1391
(9th Cir. 1982)) (whether the debtor “misrepresented facts in his [petition or] plan, unfairly
manipulated the Bankruptcy Code or otherwise [filed] his Chapter 13 [petition or] plan in
an inequitable manner.”).
A debtor's history of filings and dismissals is probative of bad faith. In re Oglesby,
158 B.R. 602 (E.D. Pa. 1993). 8 While there is no per se rule against serial filings,
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9 A genuine change of circumstances may warrant further bankruptcy relief. 	See In re
Oglesby, 158 B.R. at 606 (citing In re Metz, 820 F.2d 1495, 1498 (9th Cir. 1987)).
10 While no Chapter 13 plan has been filed providing for Bank’s arrears (Mark rather
incorporating Jennifer’s plan payment as his expense), the Bank could be treated less favorably
in this new case. The post-petition arrears existing on June 6, 2006 when the First Relief Motion
was filed in Jennofer’s Case still have not been not paid. In Mark’s case, they are a pre-petition
(continued...)
-8-
see Johnson v. Home State Bank, 501 U.S. 78, 87-88, 111 S.Ct 2150, 2156 (1991), 9 where
the subsequent case is a mere continuation of the prior case and is filed solely to circumvent
an adverse ruling by the court, bad faith is implicated. The fact that the successive case is
filed by a spouse does not require a different outcome. It is has been long recognized that
the actions of a family member can be imputed to the rest of the family where there is unity
of interest and concert of action. In re Kinney, 51 B.R. 840, 845 (Bankr. C.D. Cal. 1985).
Where, as here, two spouses are co-mortgagors and the sole objective of the bankruptcy is
to protect the jointly owned and occupied residence from foreclosure, a unity of interest
and concert of action exists.
Finally, I have often concluded that “where the purpose of the bankruptcy filing is to
defeat state court litigation without a reorganization purpose, bad faith exists.” In re Dami,
172 B.R. 6, 10 (Bankr. E.D. Pa. 1994). Mark’s petition was filed because relief from stay
had been granted in Jennifer’s Case. Notwithstanding the pending Reinstatement Motion,
Jennifer was clearly in default of the Stipulation and there were no grounds for it to be
reimposed as I have now ruled. As the string had all but run out in her case, it now became
Mark’s turn. 	Mark’s debts, however, are identical to Jennifer’s and his Chapter 13 plan
simply would pick up where hers left off.10 After being restrained for over two years in
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(...continued)
obligation which he would be permitted to cure over the life of his plan. Jennifer and Mark have
had the benefit of the Stipulation. 	To allow Mark to circumvent the agreement with Bank by
filing his own case would be extremely unfair.
11 The procedure for a party to seek sanctions under Fed.R.Bankr.P. 9011 is set forth in
subsection (c)(1) and requires a separate motion which describes the specific conduct that violates
subsection (b). The incorporation of the request for sanctions in the Motion does not comply with
the Rule. However, since sanctions can be awarded also on the court’s initiative, I will address
the request.
-9-
Jennifer’s Case and prevailing on every contested matter brought before me, Bank would
again be held hostage under the same facts and circumstances. 	Jennifer’s Plan was
confirmed as part of a global resolution with Bank. For her to walk away now, only to gain
continued protection by substituting her husband as debtor is neither fair nor equitable.
Application of the Lilley factors to the instant case dictates that this case should
be dismissed as a bad faith filing. Jennifer and Mark Glauser have had sufficient time to
reach a bankruptcy accord with Bank, the sole object of their petitions. They did not cure
post-petition defaults after being granted some grace to do so in Jennifer’s Case nor are
they prepared to do so today. In short, Jennifer and Mark have had more than one chance
to cure their mortgage. 	They, not she, have failed, and they, not he, will not be given
another chance.
Finally Bank requests that I award $1,210, reflecting the cost of filing this Motion,
as sanctions against Debtor. I may do so on my own initiative or on motion of a party.11
Fed.R.Bankr.P. 9011(1). I am not inclined to do so in this case for the simple reason that the
status of the stay was in limbo by reason of the deferred resolution of the Reinstatement
Motion. Neither party called it to the Court’s attention. Having failed to do so, it was not
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In re Mark D. Glauser - Bankruptcy No. 07-13165DWS
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timely decided. Jennifer could persuade herself that she was entitled to the stay, see n. 6
supra, and that she had no option but to find another means of protecting the Residence.
Had I rendered my ruling denying the Reinstatement Motion prior to the filing of Mark’s
Case, I might find the award of costs entirely proper.
An Order consistent with this Memorandum Opinion shall issue.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
Dated: August 1, 2007
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UNITED S TATES B ANKRUPTCY COURT
FOR T HE E ASTERN DISTRICT O F PENNSYLVANIA
In re 	: 	Chapter 13
:
MARK D. GLAUSER, 	: 	Bankruptcy No. 07-13165DWS
:
Debtor. 	:
ORDER
AND NOW, this 1st day of August 2007, upon consideration of the Motion of
Deutsche Bank National Trust Company (“Bank”) to Dismiss (the “Motion”) the Chapter 13
case of the debtor Mark Glauser, after notice and hearing and for the reasons stated in the
accompanying Memorandum Opinion;
It is hereby ORDERED that:
1. Bank’s Motion is GRANTED in Part;
2. The Chapter 13 case of Mark Glauser is DISMISSED;
3. Bank’s request for sanctions under Fed.R.Bank.P. 9011 is DENIED.
DIANE WEISS SIGMUND
Chief U.S. Bankruptcy Judge
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