Dorothea L. Riddick

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WILSON DIVISION
IN RE:
DOROTHEA LEE RIDDICK,
Debtor. 	Case No. 08-00926-8-JRL
______________________________________________________________________________
ORDER
This matter is before the court on the motions to dismiss filed by the Chapter 13 trustee and
by creditor Five C’s, Inc. (Five C’s). On July 8, 2008, the court conducted a hearing on this matter
in New Bern, North Carolina.
The debtor filed for relief under Chapter 13 of the Bankruptcy Code on February 13, 2008.
The debtor’s proposed Chapter 13 plan calls for payments of $362.00 for 58 months. The trustee
moves to dismiss the debtor’s case because the plan is not confirmable and the debtor has failed to
make payments into the plan for two months. 	As of the hearing date, the debtor had only paid
$412.00 into the plan. The debtor is behind $724.00 in plan payments through June 2008. The
debtor does not dispute the trustee’s assertions that she has failed to make plan payments.
In addition, Five C’s moves to dismiss the debtor’s Chapter 13 case. The debtor previously
filed Chapter 13 in the Eastern District of Virginia on January 6, 2006. On March 1, 2007, Five C’s
SO ORDERED.
SIGNED this 14 day of July, 2008.
________________________________________
J. Rich Leonard
United States Bankruptcy Judge
____________________________________________________________
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filed a motion for relief from the automatic stay pursuant to 11 U.S.C. § 362(d). A consent order
was entered on May 3, 2007, which permitted Five C’s to exercise its rights and remedies under
North Carolina law regarding real property located in Gates County, North Carolina. On January
2, 2008, the Gates County Superior Court entered a foreclosure order permitting the substitute
trustee to foreclose on the property pursuant to a power of sale. 	On February 4, 2008, Forbes
Homes, Inc. purchased the home at foreclosure sale. The upset bid period expired February 18,
2008. The debtor filed the current Chapter 13 case on February 13, 2008 in the Eastern District of
North Carolina. 	The debtor filed a motion for a voluntary dismissal without prejudice in the
Virginia Chapter 13 case on February 27, 2008 and an order dismissing the case was filed on March
14, 2008. Five C’s moves to dismiss the case pending in the Eastern District of North Carolina
pursuant to 11 U.S.C. § 109(g)(2) because 180 days did not pass between the voluntary dismissal
of the case in the Eastern District of Virginia and the filing of the current case.
Section 109(g)(2) of the Bankruptcy Code states that an individual may not be a debtor if that
individual had “a case pending under [Title 11] at any time in the preceding 180 days if . . . the
debtor requested and obtained voluntary dismissal of the case following the filing of a request for
relief from the automatic stay provided by [11 U.S.C. § 362].” 11 U.S.C. § 109(g)(2). In this case,
the debtor requested and obtained a voluntary dismissal of the Virginia Chapter 13 case following
the filing of a request for relief from the automatic stay by Five C’s. The issue here is that the debtor
filed the current Chapter 13 petition in the Eastern District of North Carolina prior to the entry of
the order dismissing the Virginia case. Thus, under a strict reading of the statute, the debtor is not
precluded from bringing the second case under § 109(g)(2) because she did not file the current case
in the 180 days preceding the voluntary dismissal. However, the court is of the opinion that a debtor
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should not be allowed to defeat the intent of § 109(g)(2) by filing a second Chapter 13 petition
before taking a voluntary dismissal in the first case. The court therefore finds that the debtor does
not qualify to be a debtor pursuant to 11 U.S.C. § 109(g)(2). This result is in line with the ruling of
the Bankruptcy Court for the Eastern District of North Carolina in In re Tune, 361 B.R. 466 (Bankr.
E.D.N.C. 2007). In Tune, Judge Doub granted a creditor’s motion to dismiss pursuant to § 109(g)(2)
where the debtor filed a second Chapter 13 petition just three days after filing a motion for voluntary
dismissal and before the dismissal of the prior case was granted. Id. at 467-68.
Based on the foregoing, the court ALLOWS both the trustee’s motion to dismiss and Five
C’s motion to dismiss. 	The debtor’s case is dismissed on the grounds of failure to make plan
payments and because the debtor does not qualify to be a debtor pursuant to 11 U.S.C. § 109(g)(2).
The debtor is barred from filing another bankruptcy case in any jurisdiction for a period of 180 days
to allow Five C’s an opportunity to complete the foreclosure proceeding.
“END OF DOCUMENT”
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