Regina Anquionette Spencer

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF COLUMBIA
In re
REGINA ANQUIONETTE SPENCER,
Debtor.
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Case No. 06-00314
(Chapter 7)
For Publication in West’s
Bankruptcy Reporter in Lieu
of Original Decision
AMENDED MEMORANDUM DECISION
RE EFFECTIVE DATE OF DISMISSAL OF CASE
The court entered an earlier order granting the United
States Trustee’s motion under § 521(i)(2) of the Bankruptcy Code
(11 U.S.C.) to dismiss the case on the basis of 11 U.S.C.
§ 521(i)(1). 	The order, however, left open the issue of the date
on which the dismissal should be made effective. 	In re Spencer,
2006 WL 3820702 (Bankr. D.D.C. Dec. 22, 2006).
I
Section 521(i)(1) provides:
Subject to paragraphs (2) and (4) and notwithstanding
section 707(a), if an individual debtor in a voluntary case
under chapter 7 or 13 fails to file all of the information
required under subsection (a)(1) within 45 days after the
date of the filing of the petition, the case shall be
automatically dismissed effective on the 46th day after the
date of the filing of the petition.
The Amended Memorandum Decision below is hereby
signed. It replaces the Memorandum Decision in this
case signed yesterday. Dated: May 13, 2008.
_____________________________
S. Martin Teel, Jr.
United States Bankruptcy Judge
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2
Section 521(i)(2) (to which § 521(i)(1) is expressly made
subject) provides:
Subject to paragraph (4) and with respect to a case
described in paragraph (1), any party in interest may
request the court to enter an order dismissing the
case. 	If requested, the court shall enter an order of
dismissal not later than 5 days after such request.
Section 521(i)(3) (to which § 521(i)(1), through apparent
drafting error, is not expressly made subject, but to which
§ 521(i)(1) plainly is subject) and § 521(i)(4) (to which
§ 521(i)(1) is expressly made subject) provide:
(3) Subject to paragraph (4) and upon request of
the debtor made within 45 days after the date of the
filing of the petition described in paragraph (1), the
court may allow the debtor an additional period of not
to exceed 45 days to file the information required
under subsection (a)(1) if the court finds
justification for extending the period for the filing.
(4) Notwithstanding any other provision of this
subsection, on the motion of the trustee filed before
the expiration of the applicable period of time
specified in paragraph (1), (2), or (3), and after
notice and a hearing, the court may decline to dismiss
the case if the court finds that the debtor attempted
in good faith to file all the information required by
subsection (a)(1)(B)(iv) and that the best interests of
creditors would be served by administration of the
case.
The debtor did not timely move under § 521(i)(3) to enlarge the
45-day deadline of § 521(i)(1). 	After the United States Trustee
moved for dismissal of the case, the chapter 7 trustee failed to
move in a timely manner under § 521(i)(4) for a determination
that the grounds specified by § 521(i)(4) required that the case
ought not be dismissed. 	Dismissal was mandatory once it was
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1 	I need not address whether the court, on its own
initiative under 11 U.S.C. § 105(a), may direct the parties to
show cause why the case ought not be dismissed by reason of
§ 521(i)(1). 	Compare Finney v. Smith (In re Finney), 992 F.2d
43, 45 (4th Cir. 1993) (court on its own initiative could address
whether a Chapter 11 case should be dismissed under 11 U.S.C.
§ 1112(b) even though that provision only mentions dismissal “on
request of a party in interest”) with In re Jackson, 348 B.R. 487
(Bankr. S.D. Iowa 2006) (court may not dismiss a case sua sponte
based on § 521(i)(1)). 	Resolution of that issue ought not affect
how § 521(i) is interpreted with respect to the issue before the
court, which only arises when dismissal actually occurs.
3
determined that not all of the documents required by § 521(a)(1)
had been filed by the 45-day deadline. 1 	Accordingly, I issued an
order dismissing the case, but I deferred ruling on when
dismissal was to be treated as having occurred, and invited the
views of interested parties regarding the issue. 	The United
States Trustee and Cynthia A. Niklas, the standing chapter 13
trustee for this district, filed responses regarding the issue.
II
Section 521(i) addresses the consequences of a failure of an
individual debtor to file the papers required by 11 U.S.C.
§ 521(a)(1) within the 45-day period after the date of his filing
of a petition commencing a case under chapter 7 or 13 of the
Bankruptcy Code. 	Specifically, § 521(i)(1) directs that if the
45-day period has not been enlarged under § 521(i)(3), and if the
debtor has failed to comply with § 521(a)(1) at the end of day 45
of the case, then “[s]ubject to paragraphs (2) and (4) . . ., the
case shall be automatically dismissed effective on the 46th day
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2 	As stated in In re Parker, 351 B.R. 790, 801 (Bankr. N.D.
Ga. 2006), “[i]f the case had already been ‘automatically
dismissed,’ this language would be mere surplusage.” 	Moreover,
the phrase “subject to” means that § 521(i)(2) is a limitation on
§ 521(i)(1), and that dismissal by reason of § 521(i)(1) is not
to occur except pursuant to the procedures set forth in §
521(i)(2). 	See In re Jackson, 348 B.R. 487, 498 n.25 (Bankr.
S.D. Iowa 2006). 	Due to the “subject to” language of
§ 521(i)(1), a case is not dismissed under § 521(i) unless and
until a party in interest moves for dismissal under
§ 521(i)(2). 	Id. at 497-98.
3 	Both § 362(j) and § 521(i) were added to the Bankruptcy
Code by the same statute, thus reinforcing the conclusion that
Congress did not intend that the § 521(i)(2) order of dismissal
would merely confirm that the case was already dismissed.
4
after the date of the filing of the petition."
The command of § 521(i)(1) does not mean that when
§ 521(i)(1) is triggered, the case stands automatically dismissed
as of the 46th day, for 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," 2 (not an order, analogous to one under 11 U.S.C. § 362(j),
confirming that the case was already dismissed). 3 	Moreover,
§ 521(i)(4)--permitting a trustee to file a motion within the 5-
day period of § 521(i)(2) to have the court “decline to dismiss
the case”--would be internally inconsistent with § 521(i)(1) if
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4 	A party’s right under § 521(i)(2) to obtain an order
dismissing the case is expressly made subject to § 521(i)(4). 	In
turn, § 521(i)(4) provides that notwithstanding § 521(i)(1), in
certain circumstances the court may decline to dismiss the case
“on the motion of the trustee filed before the expiration of the
applicable period of time specified in paragraph (1), (2), or (3)
. . . .” 	(Emphasis added.) 	The 5-day time period specified in
§ 521(i)(2) for the court to enter an order dismissing the case
is thus a window of opportunity for a trustee to file a timely
motion under § 521(i)(4). 	If the case already stood dismissed as
of the 46th day, and a request for entry of an order of dismissal
under § 521(i)(2) is then filed, the trustee’s purported right
under § 521(i)(4) to file a motion requesting that the court
decline to dismiss the case during the period set forth in §
521(i)(2) would be rendered meaningless. 	See CFCU Community
Credit Union v. Swimelar, 2008 WL 189929 (N.D.N.Y. Jan. 18,
2008).
5 	To illustrate its point, the Court in King, 502 U.S. at
221, quoted with approval the following passage from NLRB v.
Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941)(L. Hand, J.):
Words are not pebbles in alien juxtaposition; they have
only a communal existence; and not only does the
meaning of each interpenetrate the other, but all in
their aggregate take their purport from the setting in
which they are used . . . .
A court “should adopt that sense of words which best harmonizes
with context and promotes [the] policy and objectives of [the]
legislature.” 	King, 502 U.S. at 221 n.10.
5
under § 521(i)(1) dismissal already occurred on day 46. 4
“Statutory construction . . . is a holistic endeavor.”
United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs.,
Ltd., 484 U.S. 365, 371 (1988). 	A court must “follow the
cardinal rule that a statute is to be read as a whole since the
meaning of statutory language, plain or not, depends on context.”
King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (citations
omitted). 5 	It is thus necessary to interpret 521(i)(1) in light
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6
of other provisions of the Bankruptcy Code, and to strive for an
interpretation of § 521(i)(1) whose effects are compatible with
the Bankruptcy Code as a whole. 	See Timbers of Inwood Forest,
484 U.S. at 371. 	Moreover, a statutory provision ought not be
interpreted in a fashion that eviscerates or renders mere
surplusage another provision of the same statute. 	Citizens Bank
of Md. v. Strumpf, 516 U.S. 16, 20 (1995) (statute will not be
held to destroy itself); Dunn v. CFTC, 519 U.S. 465, 472 (1997)
(courts should avoid interpretation of a provision that renders
another provision mere surplusage); Ratzlaf v. United States, 510
U.S. 135, 140-141 (1994) (same).
Because § 521(i)(1) cannot be construed in isolation without
considering § 521(i)(2) and (4), the language in § 521(i)(1) that
"the case shall be automatically dismissed" is susceptible of
being interpreted as meaning that the court has no discretion not
to dismiss the case, and the language “effective on the 46th day”
simply marks the date on which the court is deprived of such
discretion. 	Dismissal at the point of day 46 of the case is
automatically required, 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 triggered on the 46th
day, no order of dismissal would be necessary. 	A case does not
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7
stand dismissed unless and until the order of dismissal
contemplated by § 521(i)(2) is entered, and the date of entry of
the order of dismissal is the date on which the case is
dismissed.
III
Even when read in isolation from the provisions in the
companion paragraphs of § 521(i) to which it is made subject, the
command in § 521(i)(1) that “the case shall be automatically
dismissed” can, for additional reasons, reasonably be read as
meaning that 	dismissal is automatic in the sense that no showing
of cause is required and the court no longer has discretion to
deny dismissal if the debtor failed to satisfy the filing
requirements of § 521(a)(1). 	When the language “shall be
automatically dismissed” is thus understood as a directive to the
court requiring that the court dismiss the case without any
concomitant showing of cause, the following clause “effective on
the 46th day after the date of the filing of the petition” is
most naturally understood as setting the point in time at which
the court becomes subject to that directive, and the debtor is
deprived of any right to show cause why the case ought not be
dismissed. 	Thus, the 46th day is not the date on which the
dismissal itself is effective, but rather, the date effective as
of which the court is divested of the discretion to deny a
request for dismissal. 	Three principal reasons support that
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reading of the statute.
A.
When a statute, rule, or court order intends that a case is
to stand automatically dismissed without the necessity of a court
order upon an event occurring, language is used making that
clear. 	See Swint v. Smith, 134 S.E.2d 595, 596 (Ga. 1964)
(discussing state statute which provided that “any suit filed in
any of the courts of this State in which no written order is
taken for a period of five years the same shall automatically
stand dismissed . . . .”) (emphasis added); Clark v. Ganson, 87
S.E. 670, 670 (Ga. 1916) (holding that “where the order
sustaining the demurrer allowed a definite time within which an
amendment might be filed, and provided that, if no such amendment
was filed within the time allowed, ‘the suit to stand dismissed,’
if no amendment was filed, the suit was automatically
dismissed.”) (emphasis added); Fed. R. Civ. P. 41(a) (providing
in Rule 41(a)(1), at the time of enactment of § 521(i), that a
civil action “may be dismissed by the plaintiff without order of
court (i) by filing a notice of dismissal [by a specified
deadline], or (ii) by filing a stipulation of dismissal . . . .”
(emphasis added)).
In comparison to such clear statutory expressions that a
case stands dismissed on a specified date, § 521(i)(1) does not
use language that clearly would deem the case actually dismissed
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9
on the 46th day after the filing of the petition. 	Had Congress
intended that when § 521(i)(1) is triggered, the case is actually
dismissed on the 46th day, the statute could have provided that
“the case is dismissed effective on the 46th day.” 	In other
provisions of the Bankruptcy Code, that is how Congress expressed
the idea of an event occurring without the necessity of an order
of the court. 	See 11 U.S.C. § 362(h) (“the stay . . . is
terminated”); 11 U.S.C. § 365(p)(1) (“If a lease of personal
property is rejected or not timely assumed by the
trustee . . ., the leased property is no longer property of the
estate and the stay under section 362(a) is automatically
terminated.”); 11 U.S.C. § 365(p)(3) (providing in relevant part
that “[i]f the lease is rejected, the stay under section 362 and
any stay under section 1301 is automatically
terminated . . . .”); 11 U.S.C. § 521(a)(6) (“the stay . . . is
terminated”); 11 U.S.C. § 551 (“Any transfer avoided under
[certain sections] . . . is preserved for the benefit of the
estate . . . .”). 	Presumably, Congress intended a different
meaning when it used the words “shall be automatically dismissed”
in § 521(i)(1).
B.
One other aspect of the language of § 521(i)(1) itself
strongly suggests that the phrase “automatically dismissed” must
be viewed in the sense of there being no discretion not to
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10
dismiss the case upon the specified event occurring, not as
meaning that the case stands dismissed upon the specified event
occurring. 	Section 521(i)(1) overrides the requirement of
showing that cause for dismissal exists, and this suggests that
“automatic dismissal” under § 521(i)(1) is directed to when a
court is deprived of discretion not to dismiss the case, not when
the court’s order dismissing the case is to be effective.
Ordinarily, dismissal of a case under chapter 7 of the
Bankruptcy Code is governed by 11 U.S.C. § 707(a), which provides
that the court “may dismiss a case under this chapter only after
notice and a hearing and only for cause” (emphasis added), and
§ 521(i)(1) (through the clause “notwithstanding section 707(a)”)
expressly dispenses with the strictures of § 707(a) and the
requirement of a showing of cause. 	This reinforces the view that
§ 521(i)(1) deals with depriving the court, after day 45 of the
case, of any discretion not to dismiss the case.
Similarly, dismissal of a case under chapter 13 of the
Bankruptcy Code (the other type of case to which § 521(i) is
applicable) is generally governed by 11 U.S.C. § 1307©, which
requires notice and a hearing, and a showing of cause. 	When the
circumstances specified by § 521(i)(1) exist in a case,
§ 521(i)(1) must be viewed as a more specific statutory provision
than § 1307© and as making dismissal mandatory notwithstanding §
1307© (even though § 1307© is not expressly mentioned in
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6 	Although 11 U.S.C. § 1307(c)(9) provides that only the
United States Trustee may request a dismissal for failure to file
“the information required by paragraph (1) of section 521 [which
was re-numbered § 521(a)(1) by a year 2005 amendment],” that
would not diminish the observation that § 521(i)(1), once
triggered, deprives the court, in both chapters 7 and 13, of any
discretion not to dismiss the case, and that it is in this sense
that § 521(i)(1) uses the term “automatically dismissed.”
Section 521(i)(1) and § 1307(c)(9) can be harmonized by treating
§ 521(i)(1) as dealing with automatic dismissals after day 45 of
the case requiring no showing of cause, and treating § 1307(c)(9)
as dealing with a dismissal for cause (for example, based on a
failure to file schedules by day 15 of the case as required by
Fed. R. Bankr. P. 1007©).
11
§ 521(i)(1)). 6
C.
In a chapter 13 case, “[t]he provisions of a confirmed plan
bind the debtor and each creditor . . . .” 	11 U.S.C. § 1327(a).
If § 521(i)(1) were triggered in the case, but no one sought an
order of dismissal under § 521(i)(2) until after a plan was
confirmed, the confirmed plan, by reason of § 1327(a), would bar
any challenge based on § 521(i)(1) to the rights of the parties
under that plan, and the case would be treated as pending despite
the phrase “automatically dismissed” contained in § 521(i)(1).
In other words, the case would not have stood dismissed on day 46
by virtue of § 521(i)(1), and it would have been necessary for
someone to have obtained an order of dismissal under § 521(i)(2)
if confirmation of the plan was to be defeated by reason of §
521(i)(1) having been triggered.
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D.
Thus, when dismissal is sought pursuant to § 521(i)(2) on
the ground that § 521(i)(1) has been triggered, the phrase
“automatically dismissed” in § 521(i)(1) only means that the
debtor is not permitted to defeat the motion by arguing that the
failure timely to file the documents required by § 521(a)(1)
constitutes insufficient cause for dismissal. 	It is in the sense
of there being no requirement for a showing of cause, that, as
stated by § 521(i)(1) the case “shall be automatically dismissed”
when documents required by § 521(a)(1) have not been filed by day
45, and the 46th day is not the date on which the dismissal
itself is effective, but rather, the date effective as of which
the court is divested of the discretion to deny a request for
dismissal.
IV
A court ought not give a Bankruptcy Code provision an
interpretation that would produce a result inconsistent with
important principles embodied in other provisions of the
Bankruptcy Code, or with significant state or federal interests.
See United States v. Ron Pair Enters., Inc., 489 U.S. 235, 243-46
(1989) (citing Midlantic Nat’l Bank v. N.J. Dep’t of Envtl.
Protection, 474 U.S. 494, 500-502, 505 (1986); Kelly v. Robinson,
479 U.S. 36, 50 (1986)). 	Courts also “will not read the
Bankruptcy Code to erode past bankruptcy practice absent a clear
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13
indication that Congress intended such a departure.” 	Pa. Dep’t
of Pub. Welfare v. Davenport, 495 U.S. 552, 563 (1990); Cohen v.
De La Cruz, 523 U.S. 213, 219-20 (1998). 	In addition,
“interpretations of a statute which would produce absurd results
are to be avoided if alternative interpretations consistent with
the legislative purpose are available.” 	Griffin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982). 	A statute’s
seemingly plain meaning may be disregarded if literal application
of the statute would lead to a result that is demonstrably at
odds with legislative intent. 	Id. at 571. 	“In such cases, the
intention of the drafters, rather than the strict language,
controls.” 	Ron Pair Enters., 489 U.S. at 242 (citation omitted).
Applying those doctrines of statutory construction leads to the
conclusion that a § 521(i)(2) dismissal order should dismiss a
case as of the date of the entry of the order, not retroactive to
day 46 after the petition filing date. 	Interpreting § 521(i)(1),
when triggered, as causing a case to stand dismissed on day 46
would be inconsistent with prior law under which dismissals are
effective only upon entry of an order of dismissal, and would
lead to results that are absurd and whose substantive effects are
inconsistent with important policies embodied in § 521(i) itself
and with other provisions of the Bankruptcy Code and federal law.
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A.
Creditors need certainty regarding whether a case has been
dismissed, and that certainty cannot be achieved if a case
dismissed by reason of § 521(i)(1) stands dismissed as of day 46
of the case instead of as of the date of entry of the order of
dismissal. 	Section 521(i)(2) contemplates that the court must
first determine that the debtor failed to comply with § 521(a)(1)
before it can treat dismissal as automatically required. 	Pending
the court’s determination whether § 521(i)(1) has been triggered,
there can be doubt beforehand whether the case has actually been
automatically dismissed. 	As already noted, the court may decline
to dismiss the case when a trustee successfully invokes
§ 521(i)(4), and there can also be uncertainty whether the debtor
failed to comply with § 521(a)(1):
• 	If dismissal is sought because the movant contends that
payment advices were not filed as required by
§ 521(a)(1)(B)(iv), the debtor might respond that he
received no payments from an employer within the 60
days before the date of the filing of the petition,
thereby giving rise to a factual dispute.
• 	Factual and legal issues may exist with respect to
whether the debtor’s debts were principally consumer
debts such that he was required to file a Form 22. 	See
In re Reavis, 2007 WL 2219519 (Bankr. N.D. Okla. Jul.
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7 	There will be other cases in which it will be a close
call whether § 521(i)(1) applies, and in which the applicability
of § 521(i)(1) might escape early detection. 	For example, a
debtor with no priority debts might neglect to check the “None”
box on Schedule E (“Creditors Holding Unsecured Priority
Claims”), and thus have arguably failed to comply with the
requirement of filing by day 45 a schedule of such liabilities.
Section 521(i)(2) has not abrogated the requirement of the filing
of a motion under Fed. R. Bankr. P. 9013 and service of the
motion on the trustee and the debtor under this court’s Local
Bankr. R. 9013-1 when an order of dismissal is sought under
§ 521(i)(2). 	See In re Wojda, 371 B.R. 656, 659 (Bankr. W.D.N.Y.
2007) (Rule 9013 applied to require service of a motion). 	It is
inherent in § 521(i) (and under basic concepts of due process)
that the trustee and the debtor are entitled to notice so that
they will have an opportunity to show that
§ 521(i)(1) was not triggered (that is, to show that the movant
is in error in contending that documents required by § 521(a)(1)
were not timely filed), and so that the trustee will have an
opportunity to file a motion under § 521(i)(4), within the five-
day period prescribed by § 521(i)(2), to attempt to persuade the
court that it is required under § 521(i)(4) to decline to dismiss
the case.
15
30, 2007); In re Adibi, 2007 WL 1556838 (Bankr. S.D.
Tex. May 24, 2007). 7
Creditors ought not be viewed as clairvoyant regarding how a
court might rule on such questions. 	It would be absurd if the
case would stand as already dismissed prior to the court’s
determining such issues. 	Congress did not likely intend to
inflict on creditors the harms that could arise from treating
§ 521(i)(2) dismissals as effective retroactively to the 46th day
when there was uncertainty whether § 521(i)(1) would actually be
held applicable.
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8 	The facts of the instant case similarly illustrate the
delay that may occur before an order is entered under § 521(i)(2)
dismissing a case based on § 521(i)(1). 	The 46th day after the
filing of the debtor’s petition fell on October 24, 2006. 	The
United States Trustee’s motion to dismiss based on § 521(i)(1)
was filed on November 28, 2006, thirty-five days later. 	The
United States Trustee did not file a separate request to the
clerk to present the motion to dismiss to the court for
adjudication within five days after the filing of the motion as
contemplated by § 521(i)(2). 	As a result, the motion was not
given expedited treatment, and the court’s order of dismissal was
entered on December 26, 2006, sixty-three days after the 46th day
after the filing of the debtor’s petition.
16
B.
Adding to the absurdity of subjecting creditors to such
uncertainty, there can be substantial delay before the court
adjudicates that § 521(i)(1) was triggered and that the case must
be dismissed. 	A request under § 521(i)(2) for dismissal of the
case may be filed months after the 46-day mark of § 521(i)(1).
See, e.g., In re Calhoun, 359 B.R. 738, 741 (Bankr. E.D. Mo.
2007) (case dismissed January 17, 2007, effective March 28, 2006,
the 46-day mark under § 521(i)(1)); 	In re Cloud, 356 B.R. 544
(Bankr. N.D. Okla. 2006) (request filed 131 days after the 46-day
mark of § 521(i)(1)). 8 	Moreover, a court’s ruling that the
debtor complied with § 521(a)(1) would be subject to appellate
review, see In re Svigel, 2007 WL 1747117 (B.A.P. 10th Cir. June
18, 2007), so that if an appellate court reversed a ruling that
there was compliance with § 521(a)(1), a judicial decree that
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9 	Even with close monitoring, there would be many cases in
which the issue of whether § 521(i)(1) was triggered would not be
spotted until late in the case. 	In any event, Congress did not
direct the courts to devote resources to monitoring whether a
debtor has complied with § 521(i)(1), and § 521(i)(2) implies
that the issue is generally to be addressed via an interested
party filing a motion for entry of an order dismissing the case.
This court’s interpretation of the statute avoids the necessity
to adopt an elaborate procedure such as the one adopted in In re
Beacher, 358 B.R. 917 (Bankr. S.D. Tex. 2007), to attempt to make
clear at any early stage whether § 521(i)(1) has been triggered.
17
§ 521(i)(1) was triggered might come very late in the case. 9
C.
The commencement of a bankruptcy case places a temporary
halt (through the automatic stay of 11 U.S.C. § 362(a)) on
collection activity and stays the race of diligence in which
creditors often engage in order to prevail in collection efforts
vis-à-vis other creditors, thereby assuring equality of treatment
of creditors. 	See Checkers Drive-In Rests., Inc. v. Comm’r of
Patents and Trademarks, 51 F.3d 1078, 1082 (D.C. Cir. 1995);
Drabkin v. Midland-Ross Corp. (In re Auto-Train Corp.), 810 F.2d
270, 277 (D.C. Cir. 1987); see also In re Sherman, 441 F.3d 794,
814 (9th Cir. 2006). 	The automatic stay of § 362(a) terminates
at “the time the case is dismissed.” 	11 U.S.C. § 362(c)(2)(B).
If dismissal based on § 521(i)(1) is effective only upon entry of
an order of dismissal that is noticed to all creditors
simultaneously, this assures that creditors can all
simultaneously resume the race of diligence. 	If, instead,
dismissal based on § 521(i)(1) were made effective on day 46
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18
after the petition filing date, this would result in creditors
being put to the burden of monitoring the case to ascertain
whether the debtor failed to comply with § 521(a)(1) so that they
can resume collection activity as soon as possible. 	Subjecting
creditors to that burden could not have been intended by
Congress. 	Moreover, some creditors may be in a superior position
to ascertain whether the debtor has complied with § 521(a)(1).
For example, a debtor’s employer-creditor will know whether the
debtor received payment advices. 	Making the dismissal effective
only upon the date of entry of the order of dismissal assures
that creditors are not put to that unnecessary burden of
monitoring the debtor’s compliance with § 521(a)(1), and assures
equality of treatment of creditors.
D.
Furthermore, making the dismissal effective on day 46 of the
case would be inconsistent with longstanding bankruptcy practice
that even when it is plain that dismissal of a case is required,
the automatic stay is not lifted under 11 U.S.C. § 362(c)(2)(B)
unless and until the court enters an order dismissing the case.
See Fish Mkt. Nominee Corp. v. Pelofsky, 72 F.3d 4, 6 (1st Cir.
1995) (“[T]he stay under section 362(a) itself expired as soon as
the judgment dismissing the chapter 11 case was entered. . . .”
(citations omitted)). 	In another provision added by the statute
that enacted § 521(i), Congress required that when a case is
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19
subject to mandatory dismissal by reason of the bar of 11 U.S.C.
§ 109(g), an order of dismissal must first be entered before the
automatic stay is treated as terminated based on such required
dismissal. 	See 11 U.S.C. § 362(b)(21) (providing exception to
automatic stay for some creditors in such a case, but not other
creditors); In re Hawkins, 340 B.R. 642 (Bankr. D.D.C. 2006).
Congress gave no indication that in enacting § 521(i)(1) pursuant
to the same statute, it intended to take an approach at odds with
longstanding bankruptcy practice and with the approach of
§ 362(b)(21) of treating a case as pending despite a provision
that made the debtor ineligible to be a debtor in the bankruptcy
case.
E.
By reason of the delay that can arise before a case is
dismissed pursuant to § 521(i)(2), a holding that such a
dismissal is retroactive to day 46 will in some instances
frustrate the protections that Congress intended to accord
creditors via 11 U.S.C. §§ 362(c)(3) and 362(c)(4), provisions
enacted by the same statute as enacted § 521(i). 	Those
provisions limit the availability of the automatic stay of 11
U.S.C. § 362(a) in any case of an individual debtor under chapter
7, 11, or 13, if a case of the debtor was “pending within the
preceding 1-year period but was dismissed” (§ 362(c)(3)) or two
or more cases of the debtor were “pending within the previous
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20
year but were dismissed” (§ 362(c)(4)). 	If an order of dismissal
of a case is entered under § 521(i)(2) a year after the specified
day 46, but the dismissal were treated as effective retroactively
to that 46th day, that would result in the case not counting for
purposes of §§ 362(c)(3) and 362(c)(4) as a case that was pending
within the prior one-year period. 	In other words, making the
dismissal retroactive to day 46 after the petition filing date
would rob creditors of part (or, in our example, all) of the one-
year period within which a new case would trigger the protections
of §§ 362(c)(3) or 362(c)(4), as the case may be. 	Section
521(i)(1) ought not be interpreted in a manner that eviscerates
the protections intended to be accorded creditors by §§ 362(c)(3)
and 362(c)(4).
F.
During the period between the 46-day mark of
§ 521(i)(1) and the date on which an order is entered under
§ 521(i)(2) dismissing the case, uncertainty will exist regarding
the trustee’s authority to retain possession of and utilize
property of the estate pursuant to 11 U.S.C. §§ 363 and
521(a)(4). 	For example, unless the court orders otherwise,
dismissal revests in the debtor the debtor’s property that had
become property of the estate. 	11 U.S.C. § 349(b)(3). 	If, when
§ 521(i)(1) is triggered, the dismissal is effective on day 46
after the date of the petition filing, but the trustee refuses
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21
after that date to let the debtor have access to the property
because he believes that § 521(i)(1) was not triggered, is the
trustee liable for damages to the debtor when the court later
rules that § 521(i)(1) was indeed triggered and orders the case
dismissed? 	Congress did not likely intend to wreak such havoc
regarding the trustee’s authority over assets of the estate.
G.
Various orders may have been entered in the case after day
45 of the case and before the entry of an order of dismissal
under § 521(i)(2). 	If the case is treated as having been
dismissed effective as of the 46-day mark of § 521(i)(1), those
actions may be rendered improper. 	As explained in In re Adibi,
2007 WL 1556838 at *2 (Bankr. S.D. Tex. May 24, 2007), when §
521(i) is read as requiring the dismissal to be retroactive to
day 46:
the statute [would] present[] dangerous ambiguities and
substantial peril for debtors, for creditors, for
bankruptcy trustees, and for entities who dealt with
the trustees (such as purchasers of estate assets).
If . . . the Court [does] not determine (early on)
whether [§ 521(i)(1) was triggered], then all
proceedings in the case after the 45th day [would be]
subject to challenge. 	If . . . no one raised the
question until several years into the administration of
the case, and if the Court determined years later [that
§ 521(i)(1) was triggered] and therefore the case had
been dismissed automatically by the statute several
years earlier [effective on day 46], the jurisdiction
of the court and all acts of administration of the
estate after the 45th day would be in question.
Accordingly, if a chapter 7 trustee sold property of the estate
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10 	There is great doubt that the purchaser could obtain an
order under § 349(b)(3) directing, retroactively, that the
dismissal at the specified day 46 did not re-vest the property in
the debtor, and that the purchaser could obtain an order
upholding the validity of the sale order (even though issued in
an already dismissed case). 	Even if such orders could be
obtained, the pursuit of entry of such orders would entail
attorney fees and other expenses.
11 	This would also be contrary to the policy of assuring
the security of titles to real property. 	See BFP v. Resolution
Trust Corp., 511 U.S. 531, 544 (1994). 	To paraphrase BFP, 511
U.S. at 544, the title of every piece of realty sold by a
bankruptcy trustee after the 45th day after an individual debtor
filed his petition would be under a cloud.
22
after the 45th day, in the mistaken belief that the debtor had
fully complied in a timely manner with § 521(a)(1), the sale
order, entered after the case stood dismissed, would be void if
dismissal under § 521(i)(2) is retroactive to day 46, and the
void character of the sale might not be discovered until months
later. 	In the meantime, the purchaser may have incurred
substantial expenses relating to the property, and, in any event,
would incur substantial expenses addressing the effect on his
purchase of the case having stood dismissed effective on day 46
after the filing of the petition. 10 	Such uncertainty and added
expense regarding the effectiveness of a trustee’s sale of
property would only lead to a decrease in the prices parties are
willing to pay trustees for estate property. 11 	Congress did not
likely intend to wreak such havoc.
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23
H.
Treating the case as dismissed as of the 46-day mark of
§ 521(i)(1), notwithstanding that the order of dismissal under
§ 521(i)(2) was only entered many weeks later, would in some
circumstances frustrate the intended legislative purpose of 26
U.S.C. § 6503(h), a provision that Congress plainly intended to
work in a coordinated fashion with the Bankruptcy Code. 	Under
that provision, Congress intended that the Secretary of the
Treasury have at least 60 days after the automatic stay of 11
U.S.C. § 362(a) terminates under 11 U.S.C. § 362(c)(2)(B) within
which to make an assessment of taxes that was not time-barred on
the date of the commencement of the case. 	If a case described in
§ 521(i)(1) is treated as standing dismissed at the 46-day mark
even though the order of dismissal is not entered until more than
60 days after the passage of the 46-day mark, in such cases, the
Secretary would be without notice of dismissal until after the
window for pursuing the assessment had closed. 	This is contrary
to the Congressional intent to permit the Secretary 60 days
within which to assess the tax, and demonstrates how an
interpretation of the statute that would render all § 521(i)(2)
orders effective as of day 46 is not only in tension with the
Bankruptcy Code, but is at direct odds with Congressional intent
as expressed in statutes intended to work in harmony with the
Bankruptcy Code.
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12 	The same court that decided Fawson later supported its
interpretation of § 521(i)(1) by reasoning in In re Wilkinson,
346 B.R. 539, 543 n.17 (Bankr. D. Utah 2006), that “[i]t would be
patently inappropriate for this Court to assist in the
prosecution of a dismissed case over which it has no
jurisdiction.” 	That observation, however, follows from the
erroneous premise that when § 521(i)(1) is triggered, the case
stands dismissed without the necessity of an order. 	Under this
court’s interpretation, the case does not stand dismissed, and
the court necessarily has jurisdiction over the case, until an
order is entered dismissing the case.
24
V
In re Fawson, 338 B.R. 505 (Bankr. D. Utah 2006), was the
first decision that interpreted § 521(i)(1), when triggered on
day 46 after the petition filing date, as resulting in any
dismissal order under § 521(i)(2) being effective retroactively
to that day 46. 	The court stated that:
Automatic means “acting or operating in a manner
essentially independent of external influence or
control.” 	Section 521(i)(1) does not contemplate any
independent action by the Court or any other party–-the
case is merely dismissed by operation of the statute
itself. 	There is no ambiguity.
Id. at 510 (footnote omitted). 	However, as already demonstrated,
the phrase “shall be automatically dismissed” is ambiguous
because susceptible to the different meaning ascribed to it by
this court. 	Moreover, Fawson fails to address the points upon
which this court relies in favor of treating the case as not
standing dismissed on day 46 whenever § 521(i)(1) is triggered,
but only once an order of dismissal is entered. 12
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13 	See Warren v. Wirum, 378 B.R. 640, 647 (N.D. Cal. Nov.
14, 2007) (case stood dismissed by operation of law without
necessity of order of dismissal); In re Hall, 368 B.R. 595, 599
n.4 (Bankr. W.D. Tex. 2007); In re Conner, 2006 WL 1548620
(Bankr. N.D. Fla. May 16, 2006); In re Williams, 339 B.R. 794
(Bankr. M.D. Fla. 2006). 	See also In re Turner,
2008 WL 852486 (Bankr. D. Colo. Mar. 24, 2008); In re Richardson,
2008 WL 270263 (Bankr. E.D. Tex. Jan. 30, 2008) (court entered
order evidencing automatic dismissal of case); In re Winston,
2007 WL 2385095 (Bankr. E.D. Cal. Aug. 16, 2007); In re Reyes,
2007 WL 338066, at *2 (Bankr. E.D. Tenn. Jan. 31, 2007) (case was
automatically dismissed “by operation of law” on the specified
day 46 “irrespective of whether a party in interest requested
entry of an order of dismissal pursuant to § 521(i)(2)”); In re
Calhoun, 359 B.R. 738, 741 (Bankr. E.D. Mo. 2007); In re Ott, 343
B.R. 264, 266-67 (Bankr. D. Colo. 2006) (characterizing §
521(i)(1) as “self-executing” and agreeing with Fawson, 338 B.R.
at 510); In re Cloud, 356 B.R. 544, 545 (Bankr. N.D. Okla. 2006);
In re Smith, 352 B.R. 729, 730 (Bankr. W.D.N.Y. 2006); In re
Rubio, 2006 WL 2792213 (Bankr. S.D. Tex. Sept. 25, 2006).
14 	See In re Brickey, 363 B.R. 59, 66 (Bankr. N.D.N.Y.
2007) (court appears to assume that a § 521(i) dismissal is
effective on day 46 after the filing date of the petition, but
holds that under § 521(i)(4), when applicable, the court may
annul that dismissal); 	In re Dienberg, 348 B.R. 482, 483 (Bankr.
N.D. Ind. 2006) (suggesting that an order under § 521(i)(2) is a
“comfort order” doing “nothing beyond confirming a state of
affairs that already exists”) (footnote omitted); In re Walker,
2006 WL 4671832 (Bankr. D. Md. July 20, 2006); In re Duffus, 339
B.R. 746, 748 (Bankr. D. Or. 2006) (“Where the Congress intended
that a case be dismissed automatically, and without the need for
a motion, it said as much. 	See § 521(i)(1).” (footnote
omitted)); In re Muhaimin, 343 B.R. 159, 166 (Bankr. D. Md.
2006).
25
Decisions of some other courts appear to have made holdings
in agreement with the Fawson view of the statute, 13 or to have
expressed in dicta agreement with that view. 14 	However, those
decisions have added no analysis beyond what Fawson articulated,
and in most of those decisions there is no indication that the
issue of retroactivity was addressed by the parties.
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26
VI
In determining when a dismissal under § 521(i)(1) should be
made effective, it is unnecessary to resolve an issue upon which
the courts are split regarding whether, when a debtor invokes
§ 521(i)(1) in bad faith in an attempt to escape unfavorable
consequences of the bankruptcy case, the automatic dismissal
requirement of § 521(i)(1) can be avoided by retroactively
ordering that the documents required by § 521(a)(1)(B) need not
be filed. 	Section 521(a)(1)(B) imposes its filing requirements
“unless the court orders otherwise.” 	Some courts have held that
if the case does not already stand dismissed after § 521(i)(1)
was triggered, and is, instead, not dismissed until an order is
entered dismissing the case, a court has authority to invoke
§ 521(a)(1)(B) to prevent § 521(i)(1) from being successfully
invoked by a debtor to escape adverse developments in her case.
See In re Parker, 351 B.R. at 800-02 (court directed under
§ 521(a)(1)(B) that certain missing documents were not required
to be filed under § 521(a)(1)(B), and thereby prevented a
dismissal requested by the debtor under § 521(i)(1) that would
have worked a substantial injustice on creditors); In re Jackson,
348 B.R. at 499-500; In re Warren, 2007 WL 1079943 (Bankr. N.D.
Cal. Apr. 9, 2007), rev’d sub nom. Warren v. Wirum, 378 B.R. 640
(N.D. Cal. 2007); In re Withers, 2007 WL 628078 (Bankr. N.D. Cal.
2007); In re Fileccia, 2007 WL 1695387 (Bankr. M.D. Tenn. June 6,
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15 	A court has no such express power to direct that the
debtor is not required to file the list of creditors required by
§ 521(a)(1)(A), but as a practical matter a case in which the
debtor does not file a list of creditors is dismissed well before
day 46 after the petition filing date. 	The clerk cannot give
notice of the commencement of the case and of the meeting of
creditors without the list of creditors. 	Notice of the meeting
of creditors generally must be mailed out no later than the 20-
day mark of the case in chapter 7 and the 30-day mark of the case
in chapter 13. See Fed. R. Bankr. P. 2002(a)(1) (minimum number
of days of notice required); see also Fed. R. Bankr. P. 2003(a)
(latest date for holding meeting of creditors). 	Accordingly, the
court addresses a debtor’s failure to file a list of creditors
well prior to the 46-day mark of the case.
27
2007); In re Ackerman, 374 B.R. 65 (Bankr. W.D.N.Y. 2007). 15
Even if a dismissal under § 521(i)(1) does not occur until the
entry of an order of dismissal, § 521(i)(1) could be read as
subject to only paragraphs (2) through (4) of § 521(i), and if
the order under § 521(a)(1)(B) excusing non-filing of required
documents was not entered by day 45 of the case, then such an
order (because not issued pursuant to § 521(i)) might come too
late to excuse the non-filing, and Parker and similar decisions
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16 	Even assuming that In re Parker and similar decisions
were properly decided, the holding of those decisions should be
limited to cases of abuse. 	When a dismissal would not result in
an abuse of the system, a denial of dismissal, once § 521(i)(1)
has been triggered, properly should be confined to § 521(i)(4)
which is limited to a case in which the debtor in good faith
attempted to file required payment advices. 	In other words, it
does not appear that Congress intended that a court would excuse
non-filing, once § 521(i)(1) is triggered on day 46, when the
debtor is the party requesting after day 45 to be excused from
filing documents required by § 521(a)(1). 	Granting a debtor’s
request to be relieved of filing requirements under § 521(a)(1)
after § 521(i)(1) has been triggered would be inconsistent with
this court’s interpretation of § 521(i)(1), once that provision
is triggered, as requiring no showing of cause to warrant
dismissal of the case.
28
would be incorrect. 16 	I need not resolve that issue.
But if, under the other possible interpretation of
§ 521(i)(1), the case has already been dismissed on day 46 by
virtue of § 521(i)(1) having been triggered, there would be no
question that the court is precluded from retroactively excusing
the non-filing, and the debtor would succeed in escaping the
throes of the bankruptcy case. 	See Warren v. Wirum, 378 B.R. at
647 (because the court believed that the case already stood
dismissed on day 46 pursuant to § 521(i)(1) based on the non-
filing of certain payment advices required by § 521(a)(1)(B)(iv),
the court concluded that it could not retroactively undo the
dismissal by invoking § 521(a)(1)(B) to excuse the non-filing of
the payment advices); Rivera v. Miranda, 376 B.R. 382, 385-86
(D. Puerto Rico 2007). 	Accordingly, interpreting § 521(i)(1),
when triggered, as causing the case to stand dismissed on day 46
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29
would deprive the bankruptcy court of any chance that it could
invoke “the broad authority granted to bankruptcy judges to take
any action that is necessary or appropriate ‘to prevent an abuse
of process’ described in § 105(a) of the Code” noted in 	Marrama
v. Citizens Bank of Massachusetts, --- U.S. ----, ----, 127 S.Ct.
1105, 1112, 166 L.Ed.2d 956 (2007). 	I prefer an interpretation
of § 521(i)(1) that leaves open the possibility that the court
might be able to prevent an abuse of the bankruptcy system, and
under my interpretation of when a dismissal order under § 521(i)
is effective, there is at least an argument (which I need not
resolve now) that the effects of § 521(i)(1) can be avoided via a
retroactive order excusing non-filing of documents required by
§ 521(a)(1)(B).
But all of the foregoing discussion of the In re Parker and
Warren v. Wirum competing line of cases is academic. 	Even if §
521(i)(1), once triggered, deprives the court of discretion to
prevent dismissal (by retroactively excusing non-filing of
documents) in a case in which the debtor in bad faith invokes
§ 521(i)(1) to attempt to avoid adverse developments in the case,
that still would not answer the question regarding when a
dismissal on § 521(i)(1) grounds should be treated as occurring.
VII
The responses filed regarding the issue either support my
conclusion or fail to persuade me to a contrary conclusion. 	In
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17 	In her response, the chapter 13 trustee urges that the
court direct that payment advices be submitted to the case
trustee and not filed with the court (because the existence vel
non of payment advices prevents certainty in administering the
requirements of § 521(i)), and that the court itself dismiss a
case on the 46th day when schedules and the statement of
financial affairs have not all been filed by the 45th day. 	Even
if the court were to attempt to monitor cases for § 521(i)
compliance, there would be the occasional non-compliant case that
would escape detection at the 46th day.
30
her response, Cynthia A. Niklas, the standing chapter 13 trustee
for this district, urges that dismissal under § 521(i) should not
be made retroactive to the 46th day, stating:
A retroactive dismissal would . . . potentially create
absurd results and have far ranging un[in]tended
consequences. 	Retroactive Court Orders would bring
into question the validity and the enforceability of
Court orders and with it, the credibility of the Court.
Retroactive Court Orders might also shorten or
eliminate the requisite 180-day dismissal period with
prejudice to the benefit of the debtor and to the
detriment of creditors. 	Retroactive Court Orders would
also create havoc in Chapter 13 plan distributions to
creditors made pursuant to a confirmed plan, to the
prejudice of creditors and with a financial windfall
for debtors.
Response of Cynthia A. Niklas at ¶ 5. 17 	This mirrors the
observation in In re Parker, 351 B.R. at 801:
The statute . . . was primarily designed to prevent
abuse of the bankruptcy system so that parties were not
allowed to receive the benefits of bankruptcy without
performing the requisite duties. 	However, interpreting
“automatic dismissal” to mean that a case ceases to be
pending by the mere passage of time without a court
order of dismissal does not further the purposes of the
statute and may cause chaos and confusion since there
is no readily ascertainable way to determine whether or
not a case has been dismissed.
The United States Trustee “submits that making the 521(i)
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31
dismissal effective as of the 46th day is the appropriate remedy
in this case and that to the extent anomalies may arise in other
or future cases, the court retains sufficient authority to
address those situations on a case-by-case basis.” 	Response of
U.S. Trustee at 3. 	The United States Trustee elaborates that:
dismissal should be made effective as of day 46, unless
there is some overriding issue which the court can
address at that time. 	As identified in Parker, there
are tools and judicial doctrines available for the
courts to prevent abuse and protect the integrity of
the judicial system. 	In this particular case, the
United States Trustee is unaware of any circumstance
which should prevent a straightforward application of
the statute.
Response of U.S. Trustee at 4. 	However, if, as the United States
Trustee concedes by citing Parker, a court retains the power
under § 521(a)(1)(B) to prevent § 521(i) from being effective
even once it appears to have been triggered on the specified day
46 by reason of the debtor’s failing to file one of the required
documents, then parties in interest cannot know whether the case
has been dismissed under § 521(i) until the court issues an order
of dismissal. 	Congress could not have intended such uncertainty.
Moreover, as demonstrated by the discussion in part IV of this
decision, the untoward consequences of making the dismissal
retroactive to day 46 after the petition filing date will not
always be immediately known. 	The untoward consequences of a
retroactive dismissal (what the United States Trustee calls
anomalies arising from such a dismissal) are not reflected solely
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32	O:\Judge Temp Docs\Spencer (Regina) Decision re Section 521(i) Mtn to Dismiss - Effective Datev11.wpd
in the bankruptcy case docket. 	It is far preferable to adopt an
interpretation of the statute which acts prophylactically to
prevent any such anomalies from arising in the first place, and
which consistently treats the dismissal date as the date of entry
of the order of dismissal instead of injecting the uncertainty of
treating the dismissal date as chameleon-like depending upon the
unique circumstances of each case.
VIII
An order follows deeming the dismissal to have occurred as
of the date on which the court entered its order of dismissal.
[Signed and dated above.]
Copies to: Office of U.S. Trustee; Cynthia A. Niklas.
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