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In In re Atkinson, 2022 WL 17722840 (Bankr. D. Minn. Dec. 15, 2022), the bankruptcy court held the debtor was ineligible for relief for a 180-day period after the voluntary dismissal of an earlier case that followed a motion for relief from stay.

The debtor filed a petition for bankruptcy relief under Chapter 13 (the “Prior Case”). In July 2022, the bankruptcy court granted a mortgage creditor’s motion for relief from the automatic stay in the Prior Case. Thereafter, the debtor filed an application to voluntarily dismiss the Prior Case, which was granted on October 18, 2022. A mortgage foreclosure sale was scheduled for October 25, 2022. On the day before the sale, the debtor filed another bankruptcy case (the “Present Case”), in an apparent attempt to thwart the sale.

The Chapter 13 trustee moved the court to dismiss the Present Case pursuant to 11 U.S.C. § 109(g) which makes ineligible for relief an individual who previously had filed a bankruptcy petition within the prior 180 days, and in the earlier case “the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by [11 U.S.C. § 362].” In ruling on the motion to dismiss, the bankruptcy court interpreted this statutory language as mandatory and barred the debtor from refiling for 180 days from the date of the order (not from the date of filing of the petition in the Present Case). The bankruptcy court annulled the automatic stay and dismissed the Present Case.

Editors-in-Chief
C.J. Harayda, Stinson LLP
David M. Tanabe, Winthrop & Weinstine, P.A.