3:26-bk-30636•Michael B. Siddle
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UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In re: Michael B. Siddle, Debtor. : : : : : : Case No. 26-30636 Chapter 7 Judge Crist ORDER DENYING MOTION TO DISMISS (DOC. 5), WITHOUT PREJUDICE On March 26, 2026, Michael B. Siddle a/k/a Barry Siddle (the “Debtor”), by and through his counsel, Randal A. Harvey (“Debtor’s Counsel”), filed a voluntary chapter 7 petition (Doc. 1) accompanied by his schedules, statement of financial affairs, and related documents. On March 27, 2026, Debtor’s Counsel filed a Motion to Dismiss (Doc. 5) (the “Motion to Dismiss”),1 requesting dismissal of this case under “11 U.S.C. § 1307(b),” asserting that “this case has not been converted under § 706, 1112, or 1208 of Title 11 of the U.S. Code” and “that the 1 Debtor’s Counsel left voicemail messages for the Court’s staff to advise the Court that the Debtor had not completed the credit briefing required by 11 U.S.C. § 109(h) prior to filing his case, but Counsel did not recognize this deficiency until after he had already begun filing the Debtor’s case. Debtor’s Counsel indicated he would seek to dismiss the Debtor’s case for this reason. This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: March 31, 2026 Case 3:26-bk-30636 Doc 10 Filed 03/31/26 Entered 03/31/26 13:26:56 Desc Main Document Page 1 of 3
2 Debtor has an absolute right to dismiss, pursuant to In [r]e Sanders, 100 B.R. 338 (S.D. OH 1989).”2 Mot. to Dismiss. The problem is that 11 U.S.C. § 1307(b) does not apply in a chapter 7 case 3 and there is no absolute right to dismiss a chapter 7 case under the applicable statute, which is § 707(a) and which states that “[t]he court may dismiss a case under this chapter only after notice and a hearing and only for cause . . . .” 11 U.S.C. § 707(a) (emphasis added). This might not ultimately make a difference – we cannot know at the moment – but it does require that Debtor follow the proper procedure to file a motion to dismiss on notice to parties with an opportunity to object in accordance with the Local Bankruptcy Rules and the Federal Rules of Bankruptcy Procedure. The present Motion to Dismiss does not do this and therefore cannot be granted. The Debtor’s Motion to Dismiss does not include a memorandum in support as required by Local Bankruptcy Rule 9013-1(a), is not accompanied by the mandatory twenty-one (21) day notice required by LBR 9013-1(b) 4 and Federal Rule of Bankruptcy Procedure 2002(a)(4),5 and does not cite to legal authority for granting a motion to dismiss a chapter 7 case. Most notably, the Motion to Dismiss does not allege cause for dismissal under 11 U.S.C. § 707(a). Unlike a chapter 13 debtor, a chapter 7 debtor does not have an absolute right to voluntarily dismiss their case and bears the burden of showing cause for any such dismissal. See Sicherman v. Cohara (In re Cohara), 324 B.R. 24, 27 (B.A.P. 6th Cir. 2005) (stating “[t]he Debtor does not have an absolute 2 In In re Sanders, 100 B.R. 338, 341 (Bankr. S.D. Ohio 1989), a decision by Bankruptcy Judge William A. Clark, the Court found that a previously filed motion to dismiss a chapter 13 case took precedence over a subsequently filed motion to convert filed by the Chapter 13 Trustee. But see Skandis v. Moyer (In re Skandis), 648 B.R. 918, 924 (B.A.P. 6th Cir. 2023) (finding chapter 13 debtor did not have an absolute right to dismiss under § 1307 once an order converting the case had been entered). The essential legal principle of Sanders, a Debtor’s absolute right to dismiss a chapter 13 case under § 1307(b), has been adopted by the Sixth Circuit Court of Appeals. Smith v. U.S. Bank N.A. (In re Smith), 999 F.3d 452, 455-56 (6th Cir. 2021). 3 The Court further notes that Sanders stands for the proposition that a debtor’s motion to voluntarily dismiss a chapter 13 case, filed under 11 U.S.C. § 1307(b), is not subject to a bad-faith exception. However, § 1307 and Sanders have no application when a debtor seeks to dismiss a chapter 7 case. 4 General Order 12-4 excepts a debtor’s motion to dismiss his or her chapter 13 case, in so far as the case has not been previously converted from another chapter, from the noticing requirements of LBR 9013-1. A motion to dismiss a chapter 7 case is not covered by this exception. 5 Bankruptcy Rule 2002(a)(4) requires a 21-day notice by mail of “a hearing on a motion to dismiss a Chapter 7, 11, or 12 case . . . –unless the hearing is under § 707(a)(3) or § 707(b) or is on a motion to dismiss the case for failure to pay the filing fee[.]” Fed. R. Bankr. P. 2002(a)(4). None of those exceptions apply in this circumstance. Case 3:26-bk-30636 Doc 10 Filed 03/31/26 Entered 03/31/26 13:26:56 Desc Main Document Page 2 of 3
3 right to dismiss a chapter 7 petition” (citing Bartee v. Ainsworth (In re Bartee), 317 B.R. 362, 366 (B.A.P. 9th Cir. 2004)). For these reasons, the Motion to Dismiss is hereby DENIED, without prejudice to Debtor filing another motion to dismiss in accordance with the requirements set forth in this Order.6 IT IS SO ORDERED. Copies to: All Creditors and Parties in Interest Plus Edward H. Cahill, Office of the US Trustee, 170 North High Street, Suite 200, Columbus, OH 43215-2417 (Assistant United States Trustee) Nathan A. Wheatley, Office of the US Trustee, 170 North High Street, Suite 200, Columbus, OH 43215-2417 (Counsel for the United States Trustee) 6 Ultimately, if the Debtor did not complete the credit counseling briefing prior to filing this chapter 7 bankruptcy, then this case will most likely be dismissed because he is ineligible pursuant to 11 U.S.C. § 109(h)(1), unless either exigent circumstances or inability to complete are established under § 109(h)(3) or (4). As of yet, however, no credit counseling certificate has been filed. Case 3:26-bk-30636 Doc 10 Filed 03/31/26 Entered 03/31/26 13:26:56 Desc Main Document Page 3 of 3
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