Harry Edward Gough

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
HARRY EDWARD GOUGH,
Debtor.
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Case No. 07-00554
(Chapter 13)
Not for Publication in
West’s Bankruptcy Reporter
INTERIM MEMORANDUM DECISION REGARDING TRUSTEE’S MOTION TO DISMISS
The court entered orders which required the debtor to file
the documents required by 11 U.S.C. § 521(a)(1) by November 22,
2007. 	The documents were not filed by that date, and the trustee
has moved to dismiss the case with prejudice based on that
failure to comply with orders of the court, and based on the
debtor’s failure to comply with certain statutory obligations.
Among the statutory provisions the trustee has invoked is 11
U.S.C. § 521(i)(1).
I
With exceptions discussed later, § 521(i)(1) provides in
relevant part that upon the failure of a debtor to file the
papers required by 11 U.S.C. § 521(a)(1) within the 45-day period
after the date of the filing of a petition commencing a chapter
The decision below is signed as a decision of
the court.
Signed: January 03, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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13 case, certain consequences follow. 	Specifically, § 521(i)(1)
provides that upon such a failure occurring (and unless the 45-
day period has been enlarged) “the case shall be automatically
dismissed effective on the 46th day after the date of the filing
of the petition.”
However, that command does not direct that when § 521(i)(1)
is triggered, the case stands automatically dismissed as of the
46th day, and the command is expressly made subject to, and its
meaning clarified by, a procedure under § 521(i)(2) which
requires that not later than 5 days after a party in interest
requests the entry of an order dismissing a case described in §
521(i)(1), the court shall enter “an order dismissing the case”
(not an order, analogous to one under 11 U.S.C. § 362(j),
confirming that the case was already dismissed). 	In other words,
if the 45-day period has not been enlarged, the statute makes a
failure by the 45th day to file the required documents a point of
no return after which dismissal cannot be avoided. 	Effective as
of the 46th day, the court is deprived of discretion to deny a
request to dismiss the case. 	Instead, dismissal is automatically
required (“the case shall be automatically dismissed”), with an
order of dismissal to be entered under § 521(i)(2) within 5 days
of a request being made for dismissal based on § 521(i)(1) having
been triggered. 	If the statute contemplated that the case is to
stand automatically dismissed effective upon § 521(i)(1) being
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triggered on the 46th day, no order of dismissal would be
necessary. 	Accordingly, a case does not stand dismissed unless
and until the order of dismissal contemplated by § 521(i)(2) is
entered.
II
Prior to the expiration of the 45-day period, the trustee or
the debtor could have filed a motion under 11 U.S.C. § 521(i)(3)
or § 521(i)(4) to enlarge the 45-day period, but no one filed
such a motion. 	Pursuant to 11 U.S.C. § 521(i)(2), the court is
required pursuant to the trustee’s having moved for dismissal
based on § 521(i)(1), to enter an order of dismissal within 5
days of her filing her motion if she is still pursuing that
motion.
III
However, the trustee appears, at least temporarily, to be
treating her motion as on hold. 	She has filed a Praecipe
Resetting § 341 Meeting of Creditors in which she has reset the
meeting of creditors because the debtor has now filed a plan,
schedules and various required statements. 	The court infers that
the trustee does not at this juncture seek a dismissal, and
wishes to await the outcome of the debtor’s proposed plan and his
compliance with his obligations in this case.
Section 521(i)(1) is not jurisdictional: if a plan is
confirmed, that will be binding on all creditors and will be res
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4	O:\Judge Temp Docs\Gough (Harry) Decsn re MTD Interim Because Trustee Appears to Wish to Suspend Mtn v2.wpd
judicata with respect to the issue of whether the case was
required to be automatically dismissed. 	Until the trustee
advises the court that, despite her Praecipe Resetting § 341
Meeting of Creditors, she wishes the case to be dismissed, the
court will not act on her motion. 	If she advises that she wishes
her motion to be granted, the court will have no choice other
than to dismiss the case pursuant to the command of § 521(i)(1).
She should also advise, in light of the debtor having now filed
required documents, whether she still wishes the dismissal to be
one with prejudice.
[Signed and dated above.]
Copies to: Debtor; Debtor’s attorney; Chapter 13 Trustee; Office
of U.S. Trustee.
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