Jureau Charmaine Bowman

IN THE UNITED STATES BANKRUPTCY COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IN RE: )
)
Jureau Charmaine Bowman, ) Case No. 04-42664
)
Debtor. )
Memorandum Opinion
Countrywide Home Loans (Countrywide) filed a motion to dismiss this Chapter 13
bankruptcy case, or alternatively a motion relief from the automatic stay as to real property
located at 10117 Bel Air, Kansas City, Missouri 64134. This is a core proceeding under
28 U.S.C. § 157(b)(2)(A) and (G) over which the Court has jurisdiction pursuant to 28
U.S.C. § 1334(b), 157(a), and 157(b)(1). The following constitutes my Findings of Fact and
Conclusions of Law in accordance with Rule 52 of the Federal Rules of Civil Procedure as
made applicable to this proceeding by Rule 7052 of the Federal Rules of Bankruptcy
Procedure. For the reasons set forth below, I dismiss this case.
FACTUAL BACKGROUND
The facts are not in dispute. On August 8, 2001, Ms. Bowman filed a Chapter 13
bankruptcy case to prevent Countrywide from foreclosing on her residence. On July 10,
2003, this Court granted Countrywide’s motion for relief from the automatic stay, and on
September 29, 2003, this Court granted Ms. Bowman’s motion to voluntarily dismiss her
case. Despite the 180-day ban on refiling a voluntarily dismissed case, on October 8, 2003,
Ms. Bowman filed another Chapter 13 bankruptcy petition. The Chapter 13 trustee filed a
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111 U.S. C. § 109(g)(2).
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motion to dismiss, and on January 30, 2004, the Court granted that motion. On April 30,
2004, before Countywide completed its foreclosure by sale set for May 5, 2004, and
continued to May 12, 2004, Ms. Bowman filed a third Chapter 13 petition. Countrywide
filed this motion to dismiss and a motion for a hearing on shortened notice. On May 10,
2004, this Court held a hearing. The issue before me is whether the intervening Chapter 13
case tolled the running of the 180-day ban on refiling between the first and third Chapter 13
cases.
DISCUSSION
Section 109(g) of the Bankruptcy Code (the Code) bars a second filing for 180 days
if a debtor voluntarily dismisses a case following the filing of a motion for relief from stay:
(g) Notwithstanding any other provision of this section, no individual or
family farmer may be a debtor under this title who has been a debtor in a case
pending under this title at any time in the preceding 180 days if–
. . .
(2) the debtor requested and obtained the voluntary dismissal
of the case following the filing of a request for relief from the
automatic stay provided by section 362 of this title.1
There is no question that, when Ms. Bowman filed her second Chapter 13 case within nine
days of the voluntary dismissal of her first case, she violated section 109(g) of the Code.
And, that was the basis for this Court granting the Chapter 13 trustee’s motion to dismiss
the second case 114 days later. Then, 92 days after the Court dismissed her second case,
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2260 B.R. 470 (Bankr. E.D. Mo. 2001).
3Id. at 471.
4Id. at 472.
5Id.
699 B.R. 363 (Bankr. N.D. Ohio 1989).
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she filed this third Chapter 13 case.
Ms. Bowman argues that section 109(g) is no longer applicable since 215 days
elapsed between the dismissal of her first case and the filing of her third case. Countrywide
argues that the intervening case tolled the running of the 180 days for a period of 114 days,
therefore, she is ineligible to file this case, as only 101 days of untolled time has elapsed.
In re Rives,2 is directly on point with this case. A secured creditor moved to dismiss
a third bankruptcy case for a violation of section 109(g). Even though more than 180 days
elapsed between the voluntary dismissal of the first case and the filing of the third case,
debtor had filed an intervening case to prevent the creditor from completing a foreclosure.3
The court found that section 109(g) is intended to prevent abusive repetitive filings, and that
the prohibitions are mandatory.4 The court further found that the purpose of section 109(g)
would be frustrated unless the running of the 180 days is tolled during the pendency of an
improperly filed case.5 I agree. Despite the fact Ms. Bowman’s second case was improperly
filed, Countrywide was still prohibited by the automatic stay from exercising the relief it
obtained during the first bankruptcy case. As the court stated in In re Berts, 6 “the obvious
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7Id. at 365.
8In re Rives, 260 B.R. at 272.
9149 B.R. 601 (B.A.P. 9th Cir. 1993).
10Id. at 604.
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thrust of [section 109(g)] is to preclude the debtor from denying the creditor the benefit of
termination of the stay by filing another case reimposing the stay.”7
Ms. Bowman makes the following equitable arguments. She claims that she was
unable to make her payments in the past because she lost her full-time job. She claims that
she now has steady employment, that she has signed a wage order, and that her proposed
plan provides that payments to Countrywide will be made through the plan. However, the
prohibitions in section 109(g)(2) are mandatory.8 If I find an intervening case tolls the
running of the 180 days, I do not have discretion to deny Countrywide’s motion to dismiss.
In Greenwell v. Carty (In re Carty),9 a debtor filed a second case 108 days after the
dismissal of his first Chapter 13 case. Ten months later, the garnishing creditor, who
precipitated the second filing, filed a motion to dismiss under section 109(g)(2). The court
found that the second petition was, indeed, filed within the 180-day period prohibited by
section 109(g)(2), however, since the creditor waited 10 months to bring the motion, the
court would grant it and allow debtor to immediately file another case. The creditor
appealed that decision and the Bankruptcy Appellate Panel for the Ninth Circuit affirmed.
10 The court in Carty relied on two factors that are not relevant to this case. First, it found
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11Id. at 603.
12In re Luna, 122 B.R. 575, 577 (B.A.P. 9th Cir. 1991).
13See, e.g., In re Rives, 260 B.R. at 472; In re Gregory, 110 B.R. 911, 912 (Bankr. E.D.
Mo. 1989).
14In re Young, 535 U.S. 43, 50-51, 122 S. Ct. 1036, 1041, 152 L. Ed. 2d 79 (2002).
15Id.
16Id. at 49, 122 S. Ct. at 1040.
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that the doctrine of laches prevented the creditor from exercising a right he had clearly sat
on for ten months.11 In this case Countrywide moved for dismissal within four days of the
filing of the petition. In the second case the Chapter 13 trustee moved for dismissal within
33 days of the filing of the petition. I need not, therefore, consider the doctrine of laches.
More significantly, in the Ninth Circuit, the application of section 109(g)(2) has been held
to be discretionary.12
The courts in Missouri, however, have followed the line of cases that require the
mandatory application of section 109(g)(2).13 And, more recently, the United States Supreme
Court held that the Internal Revenue Service had been disabled from utilizing the entire
three-year collection period, provided by sections 523(a)(1)(A) and 507(a)(8)(A)(i) of the
Code, when debtors filed an intervening Chapter 13 bankruptcy petition.14 Thus the Supreme
Court held that the entire period of disability tolled the three-year lookback period.15 The
Supreme Court stated that limitation periods are customarily subject to equitable tolling,
unless tolling would be inconsistent with the text of the relevant statute.16 As shown above,
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tolling is consistent with the purpose and the text of section 109(g)(2).
Despite an admitted violation of Section 109(g), and an admission that she has no
equity in her home, Ms. Bowman asks this Court to deny the motion to dismiss and allow
her to confirm her proposed plan. The equities of this case, however, do not favor Ms.
Bowman. She claims the fair market value of her home is $63,000. Countrywide claims the
principal remaining to be paid is $60,037.85. In addition, Countrywide claims total
arrearage of $20,929.94, including 21 monthly payments of $550.92 each, attorneys fees
of $6,291.86, escrow of $3,515.34, and suspense of $446.58. Countrywide has attempted
to foreclose three times since September 19, 2001, and each time its efforts have been
frustrated by a bankruptcy filing. And, Ms. Bowman has apparently been unable or
unwilling to make any payments to Countrywide outside of bankruptcy. Since I find that
Ms. Bowman has no equity in the real estate, and that she is unable to make the payments
required, I find no basis for equitable relief.
I will follow the line of cases in Missouri that hold that the application of section
109(g)(2) of the Code is mandatory. I will also follow the guidelines handed down by the
United States Supreme Court in In re Young and find that the filing of an intervening, and
improperly filed, bankruptcy case tolls the 180-day ban imposed by section 109(g). I will,
therefore, grant Countrywide’s motion to dismiss this Chapter 13 case.
An Order in accordance with this Memorandum Opinion will be entered this date.
IT IS SO ORDERED.
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/s/ Arthur B. Federman
Bankruptcy Judge
Date: May 11, 2004.
Copies electronically mailed to:
Richard Fink
David Barlow
Cynthia Woolverton
Copies conventionally mailed to all parties of record by the Court.
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