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The Eighth Circuit summarily affirmed Marshall v. McCarty (In re Marshall), 596 B.R. 366 (B.A.P. 8th Cir. 2019), which affirmed the orders of the District Court and bankruptcy court dismissing the Debtor’s case and barring her from re-filing for 180 days. In re Marshall, No. 19-1634, 2019 WL 4657414 (8th Cir. August 6, 2019).

Part 5 of the Debtor’s petition expressly stated that each debtor is required to receive credit counseling before filing for bankruptcy. The Debtor checked the first box, which states: “I received a briefing from an approved credit counseling agency within the 180 days before I filed this bankruptcy petition, and I received a certificate of completion.” (emphasis added) However, the Debtor failed to attach a copy of such certificate of completion, and the Trustee responded by filing a motion to dismiss the case. The Debtor filed a certificate showing completion after the petition date and objected to the Trustee’s motion to dismiss, stating she “did not remember she needed to do credit counseling before filing.” Additionally, she alleged she “misread the question and believed that her previous credit counseling she had taken in October 2016 met the credit counseling requirement.” The bankruptcy court ultimately granted the Trustee’s motion to dismiss.

Under §105(a) or §349(a) of the Code, the bankruptcy court has the power to sanction bad-faith serial filers by prohibiting bankruptcy filings for over 180 days. The BAP looked at the filing history of the Debtor. The Debtor’s first four chapter 13 cases were all filed on the eve of foreclosure. Her second and third chapter 13 cases were dismissed for her failure to make her payments on time. Her fourth chapter 13 case was considered “abusive in the extreme”: the bankruptcy court dismissed her case and barred her from refiling for one year. Her fifth chapter 13 case was dismissed due to the fact that a prior appeal was still pending. In this sixth case, the Debtor admits that she was about to lose her home, and that is why she filed for a chapter 13. The BAP affirmed the decision of the bankruptcy court, which stated that Debtor’s “bankruptcy and bankruptcies have simply been, in many ways, an abuse of the system.” The BAP held that, in light of its unchallenged findings, the bankruptcy court did not abuse its discretion in dismissing the bankruptcy case and barring refiling for 180 days. In the end, the Debtor did end up losing her home, as she was evicted while this appeal was pending after the bankruptcy court granted the mortgage creditor a relief from stay, which was not stayed pending a related appeal of that lift-stay decision. See Marshall v. Deutsch Bank Nat’l Trust Co. (In re Marshall), 595 B.R. 269 (B.A.P. 8th Cir. 2019) (dismissing an appeal of the lift-stay order as moot).