David Maurice Craighead

OCR transcription for search; preserved printed pages are authoritative

UNITED STATES BANKRUPTCY COURT

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INFORMATION

GPO

Entered on Docket
October 18, 2007

GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

In re Case No. 07-51596-ASW

David Maurice Craighead, Chapter 13

Debtor.

MEMORANDUM DECISION
DISMISSING CASE WITH REFILING BAR
Before the Court are the motions of the United States Trustee
(“UST”) and the Chapter 13 Trustee (“Trustee”) to dismiss the
bankruptcy case of Debtor David Maurice Craighead (“Debtor”) with a
five-year refiling bar (collectively, “Motions”). The Motions were
filed on June 11, 2007. The UST is represented by Shannon L.
Mounger-Lum, Esq. Trustee is represented by E. Alexandra DeLateur,

Esq. Debtor is appearing in propria persona. A hearing on the

Motions was held on July 9, 2007. Instead of responding on the
merits, Debtor faxed to this Court a document entitled Objection to

Illegal Motion by the US Trustee and Request for Dismissal

17

MEMORANDUM DECISION DISMISSING
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UNITED STATES BANKRUPTCY COURT

For The Northern District Of California

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(“Objection”) on July 8, 2007, the day before the hearing.? The
Objection was faxed to the UST and the Trustee on July 8, 2007 and
served by mail on the same day on the Internal Revenue Service.
The Objection was filed with the Court on July 11, 2007. Debtor
did not appear at the hearing. At the request of the Court at the
July 9, 2007 hearing, the UST and Trustee filed supplemental briefs
in support of the Motions on July 19, 2007.

This Memorandum Decision constitutes the Court’s findings of
fact and conclusions of law, pursuant to Rule 7052 of the Federal
Rules of Bankruptcy Procedure. After consideration of the Motions,
the Objection and the supplemental briefs, and based on the
evidence before the Court, the Court dismisses Debtor’s bankruptcy

case with a three-year refiling bar.

I.
FACTS
Debtor filed a voluntary Chapter 13 petition on May 29, 2007.
This case was a skeleton filing -- Debtor did not file any
schedules, a Statement of Financial Affairs, a Means Test form, or

a Chapter 13 plan. Debtor also filed a request to pay the filing

! While Debtor’s Objection requested immediate dismissal of his bankruptcy case, dismissal
was not granted at the time. Bankruptcy Code § 1307(b) permits dismissal of a bankruptcy case at
any time on the request of a debtor if a case has not been previously converted. Per Bankruptcy Rule
1017, such a request “shall be on motion filed and served as required by Rule 9013.” Fed. R. Bankr.
P. 1017(f)(2). This Court did not construe Debtor’s Objection as such a motion, and Debtor’s
bankruptcy request has not yet been dismissed.

Even if this Court had construed Debtor’s Objection as a proper motion to dismiss his
bankruptcy case under Bankruptcy Rule 1017(f)(2), this Court could have dismissed Debtor’s
bankruptcy case in July and retained jurisdiction to determine the request of the UST and the Trustee
for a five-year re-filing bar. In re Lawson, 156 B.R. 43, 45-46 (9th Cir. BAP 1993).

MEMORANDUM DECISION DISMISSING

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fee in installments. The Court issued an order to show cause re
dismissal on May 30, 2007, for Debtor’s failure to file a

Chapter 13 plan, schedules, a Statement of Financial Affairs, anda
Means Test form. As noted above, the Motions were filed on

June 11, 2007.

On June 13, 2007, Debtor filed a Chapter 13 plan and also
requested a 45-day extension to file additional documents. On
June 27, 2007, this Court granted Debtor’s request for an
additional 45 days from July 13, 2007, to file the additional
documents. Debtor failed to appear at his Section 341 meeting of
creditors on July 2, 2007. The Section 341 meeting of creditors
was continued to July 16, 2007.

Previously, on March 26, 2007, Debtor had filed another

skeletal chapter 13 case -- In re David Maurice Craighead, 07-

50856-ASW. Debtor also requested to pay the filing fee in
installments in that case. Debtor’s prior case was dismissed
pursuant to the Court’s Order to Show Cause on May 17, 2007,
following Debtor’s failure to file schedules, a Statement of
Financial Affairs, and a Means Test Form. Debtor filed the current
case twelve days after the dismissal of his prior case.

The UST and Trustee argue that Debtor’s actions are part of a
concerted effort by his family to prevent a foreclosure of real
properties located at 7871 Prestwick Circle, San Jose, California
(“Prestwick Property”), and 7119 Via Portada, San Jose, California
(“Via Portada Property”). The UST and Trustee contend that this
bankruptcy petition is a continuation of the numerous transfers of

real property and incomplete bankruptcy filings that have been

MEMORANDUM DECISION DISMISSING

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UNITED STATES BANKRUPTCY COURT

For The Northern District Of California

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generated by the Craighead family and Robert Helwig’? since 1998.
Debtor, Debtor’s father Carlton Craighead, Debtor’s mother Patricia
Craighead, Debtor’s brother Peter Craighead, and Robert Helwig have
collectively filed at least twenty-two bankruptcy cases since
1998.?

Of the twenty-two bankruptcy cases, six have been filed by
Debtor. Of the six cases filed by Debtor, five were dismissed
prior to confirmation and the sixth is the current case. A chart
of the various bankruptcy filings -- including whether the filings
were skeletal and whether the respective debtors requested that the
filing fees be paid in installments -- and the disposition of each,
is set forth in the chart below. The six cases filed by Debtor are
denoted by gray shading:

///
///
///

2 The Court has no information as to how, if at all, Robert Helwig is related to the Craighead
family.

3 The Court takes judicial notice of all the filings pursuant to Fed. R. Evid. 201, made
applicable to bankruptcy proceedings pursuant to Fed. R. Bankr. P. 9017.

MEMORANDUM DECISION DISMISSING
CASE WITH REFILING BAR

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Ch _ | Case no. reuon Debtor Type Disposition

1 13 | 98-59147 ASW | 11/12/98 | Carlton Craighead Skeletal Dism 12/15/98 -- no docs

2 13 | 98-60170 JRG | 12/22/98 | Carlton Craighead | Skel/install | Dism 7/29/99 -- pre-conf

3 13 | 99-54519 JRG | 07/02/99 | Robert Helwig Skel/nstall | Dism 12/9/99 -- pre-conf

4 7 99-54640 MM 07/08/99 | Carlton Craignead Skeletal Discharge order 11/12/99

5 13 | 99-57750 JRG | 12/06/99 | Robert Helwig Skel/install | Dism 6/12/00 -- pre-conf

6 13 | 01-51763 JRG | 04/09/01 | Robert Helwig Skel/install | Dism 8/10/01 -- pre-cont

7 | 13/7 | 01-54572 JRG | 09/19/01 j Carlton Craighead Skeletal Discharge order 12/13/05

8 13 | 02-55558 ASW | 10/01/02 | Peter Craighead Skel/install | Dism 11/6/02 -- no docs
“9 | 13 | 02-6569 ASW | 10/02/02 | DavidCraighead | Skel/nstall | Dism 11/19/02 -- no docs 1

10 | 13 | 02-56751 ASW | 11/26/02 | Peter Craighead Skel/install | Dism 1/24/03 -- no docs
41 | 13 | 03-50057 sw | 01/06/03 | David Craighead | Skel/nstall | Dism 2/10/03--nodocs

12 | 13 | 03-50971 ASW | 02/14/03 | Peter Craighead Skel/install | Dism 4/10/03 -- no docs
“aa | 13 | 03-s23ea asw | 04/11/03 | David Craighead | Skelinstall | Dism 6/22/03 — no docs

14 | 13 | 03-53805JRG | 06/11/03 | DavidCraighead | _ Install | Dism 7/25/03 -- pre-conf_ :

15 13 | 03-54164 JRG | 06/28/03 | Peter Craighead Skel/install | Dism 9/28/04 w/ 60 mo bar

16 | 13 | 03-55846 JRG | 09/10/03 | Peter Craighead Skel/install | Dism 10/10/03 -- no docs

17 13 | 06-51924 RLE | 09/27/06 }| Peter Craighead Skel/install | Dism 9/29/06 -- no docs

18 | 13 | 06-52226RLE | 11/01/06 | Patricia Craighead | Skel/install | Dism 11/20/06 -- no docs

19 | 13 | 06-52419RLE | 11/28/06 | Patricia Craighead | Skel/install | Dism 6/17/07 w/ 24 mo bar
20 | 13 | 07-50856 RLE | 03/26/07 | David Craighead Skel/nstall | Dism 5/47/07 -- no docs z

21 13 07-51108 ASW 04/18/07 | Patricia Craighead Skel/install | Dism 6/9/07 -- no doc

22 | 13 | 07-51596 ASW | 5/29/07 | David Craighead | SkeVinstall_ | Pending Z

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ASW.

Two-Year Bar”)

filed on March 23,

MEMORANDUM DECISION DISMISSING

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The UST asks the Court to take judicial notice of the Objection
to Motion to Dismiss and 2-year Bar to Re-filing (“Objection to
2007, by Patricia Craighead,

appearing in propria persona in In _re Patricia Craighead, 06-52419-

Debtor did not oppose the UST’s request.

17

The Court takes

judicial notice pursuant to Fed. R. Evid. 201, made applicable to

UNITED STATES BANKRUPTCY COURT

For The Northern District Of California

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bankruptcy proceedings pursuant to Fed. R. Bankr. P. 9017. Fed. R.
Evid. 201 allows the Court to take judicial notice of its own
records and proceedings. This judicial notice encompasses notice
of the cases filed in the Court, the dockets of those cases, and
the documents filed therein. The Objection to Two-Year Bar
directly addresses the serial filings by members of the Craighead
family and Robert Helwig and was filed in response to a similar
motion to dismiss with a filing bar filed by the UST approximately
two months before David Craighead filed the instant case. Based on
the similarity of the issues, the closeness in time, and the fact
that Debtor has failed to respond on the merits of the Motions, the
Court takes judicial notice of the Objection to Two-Year Bar. The
Objection to Two-Year Bar provides the background of transfers and
bankruptcy filings.

In her Objection to Two-Year Bar, Patricia Craighead stated
that: “All the filings in question were done to protect two real
properties from foreclosure: 7119 Via Portada, San Jose, CA, the
personal residence of Debtor [Patricia Craighead] and Debtor’s
spouse [Carlton Craighead], and 7871 Prestwick Cir, San Jose, CA,
an 1891 historic mansion that the Debtor’s spouse has been trying
to renovate and preserve since April, 1995.” Objection to Two-Year
Bar at 1:25-2:2. The Objection to Two-Year Bar also stated that
the “[d]Jebtor strongly believes her civil rights to use the federal
bankruptcy laws to save her personal residence are being abridged
and violated by the U.S. Trustee’s motion to dismiss and bar to re-
filing.” (Emphasis added). Objection to Two-Year Bar at 2:3-5.

The Objection to Two-Year Bar also explains that: (1) the nine

bankruptcies filed from July 2, 1999 to February 14, 2003 (Numbers

MEMORANDUM DECISION DISMISSING
CASE WITH REFILING BAR

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3 -12 in the table above) were filed to protect the Prestwick
Property; (2) Debtor [David Craighead] purchased the Via Portada
Property for his parents in approximately the year 2000; and

(3) the bankruptcies filed from April 11, 2003 to November 28, 2006
(Numbers 13-19 in the table above) were filed to save the Via
Portada Property.

Since 1997, the Prestwick Property has been transferred between
and among Robert Helwig, Evonne Helwig, Carlton Craighead, Peter
Craighead, Theodore Gallis, and Debtor. Carlton Craighead and
Peter Craighead currently hold title to the Prestwick Property as
tenants in common. Since 2001, the Via Portada Property has been
transferred between and among Peter Craighead, Patricia Craighead,
Carlton Craighead, Robert Helwig, and Debtor. Robert Helwig
currently holds title to the Via Portada Property.

The UST provided the Court with a declaration of Shannon L.
Mounger-Lum and a transcript of a deposition of Carlton Craighead,
taken during one of his personal bankruptcy cases on April 8, 2002

in In re Carlton Craighead, 01-54572-ASW. The Court takes judicial

notice of the deposition transcript pursuant to Fed. R. Evid. 201,
made applicable to bankruptcy proceedings pursuant to Fed. R.
Bankr. P. 9017. The deposition was taken under oath and discussed
how and why Debtor briefly held title to the Prestwick Property
from June 30, 2000 to September 19, 2001.

In his deposition, Carlton Craighead testified that he and
various parties transferred property to each other for no
consideration and for the express purpose of filing bankruptcy so
as to prevent foreclosure on properties whose mortgages were

delinquent. Specifically, Carlton Craighead testified as follows:

MEMORANDUM DECISION DISMISSING

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Q: So when you were Grant Deeded the 977 and 979 Prevost,

did you pay money or any other kind of consideration for

that property?

A: No, I didn’t. I didn’t pay any consideration. Like I

said, it was a move to save this thing from going into

foreclosure. .. . I took it because I knew I was going to

file bankruptcy so that was going to at least hold that up

until we could sort out what we were going to do.
Deposition of Carlton Bertram Craighead dated April 8, 2002 at
22:5-18. At another point in the deposition, Carlton Craighead
testified that Debtor came to own the Prestwick Property because
the purchasers of the Prestwick Property -- Robert and Evonne
Helwig -- fell behind in the payments and filed for Chapter 13.
Carlton Craighead testified that Evonne quitclaimed the Prestwick
Property to Robert -- and Robert Helwig subsequently transferred
the Prestwick Property to Debtor by grant deed. The deed granting
the property to Debtor was recorded on June 30, 2000. Debtor
received a second loan on the Prestwick Property since Robert
Helwig could not qualify for a loan after filing his chapter 13
bankruptcy petition. According to Carlton Craighead, Debtor never
paid any money for the acquisition of the Prestwick Property. When
the Prestwick Property went into default in August of 2001, Debtor
executed a grant deed to transfer the property to Carlton Craighead
without any consideration so Carlton Craighead could then file for
bankruptcy. The grand deed to Carlton Craighead was recorded on
September 19, 2001. Id. at 36:16 - 37:21; 40:10 - 41:23.

Debtor, Robert Helwig, Carlton Craighead, Peter Craighead, and
Patricia Craighead have all listed the Prestwick Property as their
residence on all seventeen of their bankruptcy petitions from

April 9, 2001 to the current petition on May 29, 2007 (Numbers 6 -

22 in the chart above). Even though Debtor listed the Prestwick

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Property as his residence, an internal investigation by the UST
(uncontested by Debtor) indicates that Debtor’s likely current
address is in Rancho Cucamonga, California -- not San Jose.
Declaration of Brian M. Martinson filed in support of the Motion by
the UST, @ 5.

There is already a 60-month refiling bar against Debtor's
brother Peter Craighead imposed on September 28, 2004 in In re
Peter Craighead, 03-54164-JRG. There is also a 24-month refiling
bar against Debtor’s mother Patricia Craighead, imposed on June 17,

2007 in In re Patricia Craighead, 06-52419-ASW.

Il.
ANALYSIS
In the Ninth Circuit, bad faith constitutes cause for dismissal
of a Chapter 13 case under § 1307(c) and constitutes cause for

dismissal with prejudice under § 349(a). In re Leavitt, 171 F.3d

1219, 1224 (9th Cir. 1999). Section 349(a) of the Bankruptcy Code
states:

Unless the court, for cause, orders otherwise, the
dismissal of a case under this title does not bar the
discharge, in a later case under this title, of debts that
were dischargeable in the case dismissed; nor does the
dismissal of a case under this title prejudice the debtor
with regard to the filing of a subsequent petition under
this title, except as provided in section 109(g) of this
title.

The phrase “[u]nless the court, for cause, orders otherwise” in
Section 349(a) authorizes the bankruptcy court to dismiss the case

with prejudice. Leavitt, 171 F.3d at 1223. See also In re Tomlin,

105 F.3d 933, 937 (4th Cir. 1997). “Cause” for dismissal under

§ 349 is not specifically defined in the Bankruptcy Code. For

MEMORANDUM DECISION DISMISSING

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Chapter 13 cases, Bankruptcy Code sections 1307(c) (1) through (10)
provide that the bankruptcy court may convert or dismiss, depending
on the best interests of the creditors and the estate. Leavitt,
171 F.3d at 1224. Bad faith can constitute cause for dismissal
under § 1307(c). Id. Bad faith is determined by the totality of
the circumstances including the repeated filing of bankruptcy
petitions without the balance of the schedules and plan. In re

Stobber, 193 B.R. 5 (Bankr. D. Ariz. 1996); In re Warren, 89 B.R.

87 (9th Cir. BAP 1998).

Leavitt is the leading Ninth Circuit case on dismissal with
prejudice. Leavitt sets forth certain factors to be considered in
dismissing a case with prejudice:

Bad faith, as cause for the dismissal of a Chapter 13
petition with prejudice, involves the application of the
“totality of the circumstances” test. The bankruptcy court
should consider the following factors: (1) 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,”; (2) “the debtor’s history of filings and
dismissals,”; (3) whether “the debtor only intended to
defeat state court litigation,”; and (4) whether egregious
behavior is present. (Citations omitted).

Id. at 1224.

Courts generally hold that when a debtor repeatedly files
bankruptcy petitions and then repeatedly fails to file schedules or
to comply with other requirements, this pattern of behavior is
evidence of bad faith and an attempt to abuse the system.

Walker v. Stanley, 231 B.R. 343 (N.D. Cal. 1999). The Court can

determine that a debtor filed a case in bad faith based on a
pattern of conduct, and may impute bad faith from the timing and
circumstances of the filings. Walker, 231 B.R. at 349; In re

Eisen, 14 F.3d 469, 470 (9th Cir. 1994); In re Huerta, 137 B.R.

MEMORANDUM DECISION DISMISSING

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356, 367 (Bankr. C.D. Cal. 1992). Once the issue of bad faith is
raised, it is the debtor’s burden to prove his good faith. In re
Leavitt, 209 B.R. 935, 940 (9th Cir. BAP 1997), aff'd, 171 F.3d

1219 (9th Cir. 1999) (citing In re Powers, 135 B.R. 980, 997

(Bankr. C.D. Cal. 1991)) (“Leavitt II").

Debtor’s position is that all the bankruptcy filings were all
legal and there was never a finding of bad faith.’ Debtor also
seems to object to imputing the bankruptcy filings of other family
members to Debtor. The UST and Trustee contend that Debtor and
other family members have filed multiple bankruptcy cases in bad
faith in an effort to hinder or delay creditors.

The Court finds that there is sufficient evidence to consider
the multiple bankruptcy filings by Debtor and Debtor’s family and
Robert Helwig’ in determining the totality of the circumstances
regarding Debtor’s bad faith. Various courts in similar
circumstances have considered the filings and acts of family
members and other real property titleholders when determining bad

faith of a debtor. See In re Kinney, 51 B.R. 840, 845 (Bankr. C.D.

Cal. 1985) (finding that the actions of each family member in
filing multiple bankruptcies could be imputed to the rest of the
family for purposes of determining abuse of the bankruptcy system) ;
see also In re Feldman, 309 B.R. 422, 427 (Bankr. E.D.N.Y. 2004)

(imputing the non-filing spouse’s prior abusive filings to the

4 The Objection filed by Debtor the day before the hearing states in relevant part that: “All
the filings were 100% legal. All the real property transfers were 100% legal. Not one law was

broken, and in all cases, there was never a finding of bad faith.” (Emphasis in original). Objection
at 2:14-16.

5 The Court would find bad faith on Debtor’s part whether or not Robert Helwig is a family
member or had even filed for bankruptcy.

MEMORANDUM DECISION DISMISSING

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debtor in determining that the debtor’s first case was filed in bad

faith); In re Wong, 30 B.R. 87, 89 (Bankr. C.D. Cal. 1983)

(considering husband and wife’s separate filings to determine abuse
of the bankruptcy system).

Robert Helwig, Carlton Craighead, Peter Craighead, Patricia
Craighead, and Debtor have filed seventeen bankruptcy petitions
since 2001 using the Prestwick Property address as their residence.
The evidence before this Court is that the Prestwick Property is a
renovation project to restore a historic house, and that none of
the above-named individuals who filed for bankruptcy actually
resided in the property.

This bankruptcy petition appears to have been filed to prevent
a foreclosure of the Prestwick Property and/or Via Portada
Property. Although Debtor does not hold title to either of the
properties and the evidence submitted by the UST shows that Debtor
does not live at either of the real properties, Debtor listed the
Prestwick Property as his residence in the instant case, as Debtor,
Robert Helwig, Carlton Craighead, Peter Craighead, and Patricia
Craighead had each done in the previous sixteen bankruptcy
petitions.

Furthermore, Carlton Craighead testified under oath that he and
various parties transferred property to each other for no
consideration for the express purpose of filing bankruptcy and
preventing foreclosures on properties. Carlton Craighead also
testified that a deed to the Prestwick Property was granted to
Debtor from Robert Helwig on June 30, 2000, and transferred again
to Carlton Craighead on September 19, 2001 for the purposes of

filing bankruptcy. According to the testimony, this transfer

MEMORANDUM DECISION DISMISSING

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occurred only to have Carlton Craighead file for bankruptcy because
Debtor refused to file for bankruptcy. Carlton Craighead filed a

skeletal petition on September 19, 2001, in In re Carlton

Craighead, 01-54572-JURG.

Patricia Craighead also stated in her Objection to Two-Year Bar
that all the bankruptcy filings in question were done to protect
the Via Portada and Prestwick Properties from foreclosure. The
Objection to Two-Year Bar implies that Patricia Craighead is under
the misconception that there is an inherent civil right to use the
bankruptcy laws to file multiple bankruptcy cases in order to save
one’s personal residence.® That is simply not the law.

This is the twenty-second bankruptcy case filed by this family
and Robert Helwig since 1998. None of the twenty Chapter 13 cases
has resulted in a confirmed plan, and all but one of the filings’
were skeletal filings. The various debtors applied to pay the
filing fee in installments in nineteen of the twenty-two cases.
Only Carlton Craighead’s chapter 7 cases were completed by the
issuance of a discharge. The family members and Robert Helwig have
managed to impose an automatic stay on creditors by filing multiple
and serial bankruptcy petitions for over eight years. The UST and
Trustee have had to expend significant resources monitoring and
litigating the dismissal of those cases.

Even without considering the multiple bankruptcy filings of

Debtor’s other family members, there is sufficient cause to find

6 “Debtor strongly believes her civil rights to use the federal bankruptcy laws to save her
personal residence are being abridged and violated by the U.S. Trustee’s motion to dismiss and bar
to re-filing.” (Emphasis added). Objection to Two-Year Bar at 2:3-5.

7

In re David Craighead, 03-53805-JRG.

MEMORANDUM DECISION DISMISSING
CASE WITH REFILING BAR

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bad faith based solely on the actions of Debtor alone. Under the
totality of circumstances test under Leavitt, this Court should
consider certain factors such as whether Debtor misrepresented
facts in his petition, whether Debtor is unfairly manipulating the
Bankruptcy Code, whether Debtor filed this bankruptcy petition in
an inequitable manner, Debtor’s history of filings and dismissals,
whether this bankruptcy case was intended only to defeat state
court litigation, and whether there has been any egregious
behavior. Here this is Debtor’s sixth bankruptcy case in the past
five years. All but one of the six cases were skeletal filings.
Debtor has also applied to pay all of his filing fees in
installments. Of these six cases, five were dismissed prior to
confirmation and the sixth is the current case pending; not one has
been confirmed. This is also the second case filed by Debtor
within the past few months. Each bankruptcy petition listed
Debtor’s residence as the Prestwick Property. However, evidence
shows that Debtor has not held any interest in this real property
since November 22, 2002. The uncontested internal investigation by
the UST indicates that Debtor’s likely current address is Rancho
Cucamonga, California. See Declaration of Brian M. Martinson filed
in support of the Motion by the UST, @ 5.

Once the issue of bad faith is raised, Debtor has the burden to
prove his good faith. Leavitt II, 209 B.R. at 940. Debtor has
failed to meet his burden. Debtor’s conduct shows a pattern of
filing a case and failing to take the necessary steps to move the
case forward. Debtor has failed to file schedules under penalty of
perjury in this case and in all prior cases. Debtor has never

appeared for a section 341(a) first meeting of creditors, so he has

MEMORANDUM DECISION DISMISSING

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UNITED STATES BANKRUPTCY COURT

For The Northern District Of California

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never been examined under oath. In short, Debtor has never come
close to confirming a plan in any of his six bankruptcy cases.

Furthermore, in response to the Motions, Debtor asked the Court
to dismiss this case in his Objection, filed the day before the
hearing. Debtor failed to respond on the merits. Debtor failed to
appear at the hearing as well. Debtor was given the opportunity to
prove his good faith multiple times and Debtor has failed to rebut
the bad faith allegation. Based on the facts before the Court,
cause exists under the Ninth Circuit authority of Leavitt to
dismiss this bankruptcy case and impose a refiling bar against
Debtor. Dismissal is in the best interests of Debtor’s creditors
and Debtor’s estate. Indeed, Debtor himself requests that the case
be dismissed. A refiling bar is in the interests of Debtor’s
creditors, especially those creditors with a security interest in
the properties Debtor has repeatedly attempted to block from
foreclosure.

The Motions request a five-year refiling bar asserting that a
five-year bar is needed to deter Debtor from engaging in further
abusive filings. Bankruptcy Code section 349 gives the bankruptcy
court authority to dismiss a bankruptcy case with a bar preventing
a debtor from re-filing in cases of abuse. The Court agrees with
the UST and Trustee that a bar to re-filing is appropriate in this
case. However, the issue of the length of the bar is a matter for
the Court’s discretion. See Leavitt, 171 F.3d at 1226.

The Court has decided that a three-year refiling bar is
appropriate in this case. While Debtor may have been under the
misguided impression that he could use the Bankruptcy Code in the

way that he did to block foreclosures on real properties in which

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UNITED STATES BANKRUPTCY COURT

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Debtor and/or family members had an interest, this Memorandum
Decision disabuses Debtor of any possible misunderstanding. This
Decision holds that Debtor’s conduct constitutes bad faith and an
abuse of the Bankruptcy Code. Three years should also be
sufficient for any creditors of the Debtor to take whatever actions

they deem appropriate pursuant to state law.

IIl.
CONCLUSION
For the reasons set forth above, this Court grants the motions
of both the UST and Trustee to dismiss Debtor’s bankruptcy case,
and imposes a three-year refiling bar. Counsel for the UST shall
prepare a proposed form of order, serve it upon Trustee and Debtor,

and submit it to the Court.

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ARTHUR S. WEISSBRODT
UNITED STATES BANKRUPTCY JUDGE

Dated: | o\\y Ver

MEMORANDUM DECISION DISMISSING

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Court Service List

David Craighead
7871 Prestwick Circle
San Jose, CA 95135-2144

Shannon Mounger-Lum, Esq.
Office of the U.S. Trustee
U.S. Federal Bldg.

280 S lst St. #268

San Jose, CA 95113-3004

E. Alexandra Delateur, Esq.
Office of the Chapter 13 Trustee
P.O. Box 50013

San Jose, CA 95150

Devin Derham-Burk
P.O. Box 50013
San Jose, CA 95150-0013

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