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Setting Aside 180-day Bar Date
The Clerk is required to accept any filing. That is an administrative rule that prevents the Clerk from, effectively, practicing law by making decisions that should be made by judges. If you file the case prior to having the "bar" portion of the dismissal order vacated, you are begging for a problem. You could cause your client significant harm. You could be sanctioned. Read FRBP 9011, then carefully read the language in dismissal order. What is it about Dennis McGoldrick's consise but correct answers that people find hard to believe?
To: cdcbaa@yahoogroups.com
Date: Wed, 3 Mar 2010 18:16:51 -0800
Subject: Re: [cdcbaa] Setting Aside 180-day Bar Date
I did some research after I posted this and found the following on Collier's which leads me to believe that you file and then fight over it the bar:
Subsection (g) makes ineligible for relief an individual or family farmer who previously had filed a petition under the Code if the earlier case had been pending within the 180-day period before the date on which the newer petition was filed, and the earlier case had either been (1) dismissed by the court on the ground that the debtor had disobeyed orders or had failed to appear to prosecute the case, or (2) dismissed on the debtor's motion after a request for relief from the automatic stay had been filed. Thus, section 109(g) prevents certain tactics on the debtor's part that could be deemed abusive, and was enacted to prevent debtors from using repetitive filings as a method of frustrating creditor's efforts to recover what is owed to them.1 The debtor who willfully fails to appear as required or disobeys the court's orders and suffers dismissal of the case as a result is explicitly prevented from immediately filing another petition; under such circumstances, immediate refiling would thwart the court's effort to preserve its authority. This prong of section 109(g) is applicable only when the earlier case was dismissed because of the debtor's willful conduct. The issue of whether a bankruptcy filing is barred by section 109(g) arises only if a second petition is filed within 180 days of an earlier dismissal.2 Normally, the court, in dismissing the first case, has no reason to determine whether the debtor's failure to appear or obey court orders was willful; therefore, the debtor usually is not put on notice that the court may consider the issue of willfulness at a dismissal hearing in the subsequent case.3 The clerk must accept the subsequent petition when it is filed, since it will not yet have been determined whether the debtor is ineligible under section 109(g). Typically, the issue is raised by a motion to dismiss the subsequent case. As with most motions, the burden of proof is on the moving party.4 In the absence of evidence that the debtor willfully failed to prosecute the prior case or willfully failed to obey a court order, the section 109(g) bar to eligibility as a debtor may not be imposed.5 For willfulness to be found there must be more than simply inadvertence or even reckless disregard for the debtor's duties.6 A mere showing that the debtor failed to attend a creditors' meeting or make plan payments is not sufficient.7 The court must look to the circumstances of the particular case to determine willfulness.8 The debtor who obtains voluntary dismissal of the case when faced with a motion for relief from the section 362 automatic stay, or after such relief has been granted, may not immediately refile and thereby frustrate creditors' attempts at having their rights adjudicated within a reasonable time.9 But because the goal of section 109(g) is to curb abuses of the bankruptcy system,10 it has been held that dismissal of the second case under 109(g)(2) is not warranted if the debtor requested dismissal of the prior case before a motion for relief from the automatic stay was filed, even if the first case was actually dismissed after the filing of the motion.11 Similarly, in light of its purpose, it should not be applicable if the debtor successfully defended against or resolved the motion for relief from the stay12 or paid in full the creditor who moved for relief.13 Further, when the dismissal of the first case is remote in time from the motion for stay relief--perhaps, years after it was filed--section 109(g) should not be automatically applied. Quite arguably, Congress's use of the word "following" in section 109(g), rather than "after," indicates its intent that there be some causal relationship between the motion for relief and the dismissal. Certainly, the purpose of preventing abusive refilings is not served when the motion for relief and the dismissal are totally unrelated.14 However, because the statute focuses on the debtor's behavior, the party seeking dismissal of the subsequent case need not be the party that sought relief from the automatic stay in the prior case.15 While the circumstances described in section 109(g) do not exhaust the possibilities for abusing the Code by refiling following dismissal of the case, section 109(g) applies only when the particular circumstances described therein are present. If a case is involuntarily dismissed after a motion for relief from the stay is filed, the section is not applicable. Similarly, if a case is voluntarily dismissed and no motion for relief from the stay has been filed, the issue of willful failure to appear or obey court orders does not arise, at least under section 109(g). Courts have other methods of dealing with abusive situations not described in section 109(g).16 In any case, like the other provisions of section 109, section 109(g) is not jurisdictional; if no party raises the issue, the orders entered in a bankruptcy case subject to challenge under that section are not invalid.17 Subsection (g) is only applicable to cases in which the prior petition was pending within the 180-day period preceding the filing of the second petition; if a debtor's previous petition was dismissed 181 days before the subsequent filing, section 109(g) does not apply. Some courts have held that the running of the 180-day period may be tolled during the pendency of a case filed in violation of section 109(g)(2).18 Subsection (g) applies only to individual debtors or family farmers, not to family fishermen or corporate or partnership debtors.
On Wed, Mar 3, 2010 at 1:49 PM, Dennis McGoldrick wrote:
No, this violates the bar. Must move to set aside the bar before filing.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Mar 2, 2010, at 5:23 PM, Giovanni Orantes wrote:
I have led a sheltered career. I never have had to set aside a 180-day bar and don't recall how it was done back when I was a law clerk. A Chapter 11 was dismissed on the UST's motion for failing to satisfy the UST's requirements - e.g., the attorney submitted a handwritten MOR and submitted insurance policies weeks after a motion to dismiss had been filed and other such issues. How do you go about doing this logistically? Do you file the case and immediately file the motion to set aside the bar or what?
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail at (213) 389-4362 or (888) 619-8222.
IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail at (213) 389-4362 or (888) 619-8222.
IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.
*I did some research after I posted this and found the following on
Collier's which leads me to believe that you file and then fight over it the
bar:*
Subsection (g) makes ineligible for relief an individual or family farmer
who previously had filed a petition under the Code if the earlier case had
been pending within the 180-day period before the date on which the newer
petition was filed, and the earlier case had either been (1) dismissed by
the court on the ground that the debtor had disobeyed orders or had failed
to appear to prosecute the case, or (2) dismissed on the debtor's motion
after a request for relief from the automatic stay had been filed.
Thus, section 109(g) prevents certain tactics on the debtor's part that
could be deemed abusive, and was enacted to prevent debtors from using
repetitive filings as a method of frustrating creditor's efforts to recover
what is owed to
The post was migrated from Yahoo.
No, this violates the bar. Must move to set aside the bar before filing.
Dennis McGoldrick
350 S. Crenshaw Bl., #A207B
Torrance, CA 90503
On Mar 2, 2010, at 5:23 PM, Giovanni Orantes wrote:
I have led a sheltered career. I never have had to set aside a 180-day bar and don't recall how it was done back when I was a law clerk. A Chapter 11 was dismissed on the UST's motion for failing to satisfy the UST's requirements - e.g., the attorney submitted a handwritten MOR and submitted insurance policies weeks after a motion to dismiss had been filed and other such issues. How do you go about doing this logistically? Do you file the case and immediately file the motion to set aside the bar or what?
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail
IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
No, this violates the bar. Must move to set aside the bar before filing.Dennis McGoldrick350 S. Crenshaw Bl., #A207BTorrance, CA 90503On Mar 2, 2010, at 5:23 PM, Giovanni Orantes <go@gobklaw.com> wrote:
The post was migrated from Yahoo.
You will need to wait for entery of the order setting aside the bar unless the order specifies an earlier date. If you need an earlier date, then you would need to request that relief in the motion. If you go this route, youshould probably set for a hearing on shortened notice and appear before the judge rather than using the9013-1 alternative procedure.
Law Office of Peter M. Lively * Personal Financial Law Center I
11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647
Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462
A-Bankruptcy-Attorney.com
Personal Financial Law Center II
1706-B Newport Boulevard, Costa Mesa, CA 92627-3073
Telephone: (949)650-3328
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
________________________________
To: cdcbaa@yahoogroups.com
Sent: Tue, March 2, 2010 5:23:47 PM
Subject: [cdcbaa] Setting Aside 180-day Bar Date
I have led a sheltered career. I never have had to set aside a 180-day bar and don't recall how it was done back when I was a law clerk. A Chapter 11 was dismissed on the UST's motion for failing to satisfy the UST's requirements - e.g., the attorney submitted a handwritten MOR and submitted insurance policies weeks after a motion to dismiss had been filed and other such issues. How do you go about doing this logistically? r or what?
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw. com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail
IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
You will need to wait for entery of the order setting aside the bar unless the order specifies an earlier date. If you need an earlier date, then you would need to request that relief in the motion. If you go this route, you should probably set for a hearing on shortened notice and appear before the judge rather than using the 9013-1 alternative procedure. Peter M. Lively, JD/MBALaw Office of Peter M. Lively * Personal Financial Law Center I11268 Washington Blvd, Suite 203, Culver City, CA 90230-4647Telephone: (310)391-2400 * (800)307-3328 * Fax: (310)391-2462 A-Bankruptcy-Attorney.com
Personal Financial Law Center II1706-B Newport Boulevard, Costa Mesa, CA 92627-3073Telephone: (949)650-3328
THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY E-MAIL OR BY TELEPHONE. THANK YOU.
From: Giovanni Orantes <go@gobklaw.com>To: cdcbaa@yahoogroups.comSent: Tue, March 2, 2010 5:23:47 PMSubject: [cdcbaa] Setting Aside 180-day Bar Date
I have led a sheltered career. I never have had to set aside a 180-day bar and don't recall how it was done back when I was a law clerk. A Chapter 11 was dismissed on the UST's motion for failing to satisfy the UST's requirements - e.g., the attorney submitted a handwritten MOR and submitted insurance policies weeks after a motion to dismiss had been filed and other such issues. How do you go about doing this logistically? Do you file the case and immediately file the motion to set aside the bar or what?-- Giovanni Orantes, Esq. Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 1980Los Angeles, CA 90010Tel: (213) 389-4362Phone: (888) 619-8222 x101Fax: (877) 789-5776e-mail: go@gobklaw.comwebsite: www.gobklaw.
comWE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail at (213) 389-4362 or (888) 619-8222.IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not
intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.
I have led a sheltered career. I never have had to set aside a 180-day bar
and don't recall how it was done back when I was a law clerk. A Chapter 11
was dismissed on the UST's motion for failing to satisfy the UST's
requirements - e.g., the attorney submitted a handwritten MOR and submitted
insurance policies weeks after a motion to dismiss had been filed and other
such issues. How do you go about doing this logistically? Do you file the
case and immediately file the motion to set aside the bar or what?
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Phone: (888) 619-8222 x101
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
WE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.
SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO
AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential
information intended only for the use of the individual or entity named. If
the reader of this message is not the intended recipient or an agent
responsible for delivering it to the intended recipient, you are hereby
notified that any dissemination, distribution or copy of this communication
is strictly prohibited. If you have received this communication in error,
please immediately notify us by telephone or e-mail and delete the original
e-mail at (213) 389-4362 or (888) 619-8222.
IRS Circular 230 Disclosure: In order to comply with requirements imposed by
the Internal Revenue Service, we inform you that any U.S. tax advice
contained in this communication (including any attachments) is not intended
to be used, and cannot be used, for the purpose of (i) avoiding penalties
under the Internal Revenue Code or (ii) promoting, marketing, or
recommending to another party any transaction or matter addressed herein.
I have led a sheltered career. I never have had to set aside a 180-day bar and don't recall how it was done back when I was a law clerk. A Chapter 11 was dismissed on the UST's motion for failing to satisfy the UST's requirements - e.g., the attorney submitted a handwritten MOR and submitted insurance policies weeks after a motion to dismiss had been filed and other such issues. How do you go about doing this logistically? r or what?
-- Giovanni Orantes, Esq. Orantes Law Firm, P.C.3435 Wilshire Blvd. Suite 1980Los Angeles, CA 90010Tel: (213) 389-4362Phone: (888) 619-8222 x101Fax: (877) 789-5776e-mail: go@gobklaw.com
website: www.gobklaw.comWE ARE A "DEBT RELIEF AGENCY" AS DEFINED BY FEDERAL LAW.SERVING BAKERSFIELD, LOS ANGELES, ORANGE COUNTY, RIVERSIDE, SAN BERNARDINO AND SANTA BARBARA.
Note: The information contained in this e-mail message is confidential information intended only for the use of the individual or entity named. If the reader of this message is not the intended recipient or an agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in error, please immediately notify us by telephone or e-mail and delete the original e-mail IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
The post was migrated from Yahoo.