Opinion
CASE NO. 17-10137
09-28-2017
IN THE MATTER OF: GARY L. SMITH, JR. Debtor
DECISION ON MOTION TO DISMISS
On September 28, 2017.
Debtor filed a petition for relief under Chapter 7 on February 1, 2017. On June 29, 2017, the debtor and trustee jointly filed a motion to dismiss which stated that, shortly after filing, the debtor suffered a stroke and was unable to attend the scheduled § 341 meetings or answer the trustee's questions. As a result, they agreed to dismiss the case, conditioned upon the debtor having to turnover to the trustee in any subsequent case the sum $1,288, an amount the trustee had determined the debtor would be required to turnover to him for creditors in this case. Although the motion did not explicitly say so, apparently the debtor wants this case dismissed so that he can file a second case in order to discharge his post-petition medical bills. Following a hearing on the motion, the court invited the debtor and the U.S. Trustee to submit briefs directed to whether the court should dismiss this case and, if so, under what conditions. No briefs were filed in the time required and the motion is now before the court.
The trustee did not attend the hearing. --------
Dismissal of a chapter 7 case is a matter committed to the court's discretion and it is the movant's burden to prove that "cause" exists for the dismissal. 11 U.S.C. § 707(a); In re Hopper, 404 B.R. 302, 307 (Bankr. N.D. Ill. 2009). That burden has not been satisfied here. While the court is sympathetic to the debtor's plight, the case law is not in his favor; thus the lack of a brief from the debtor is not surprising. The reported decisions overwhelmingly hold that a debtor may not dismiss a chapter 7 case simply because it has incurred post-petition debts it wants to discharge in a subsequent filing. See e.g., In re Hopkins, 261 B.R. 822 (Bankr. E.D. Pa. 2001) In re Haney, 241 B.R. 430 (Bankr. E.D. Ark. 1999); In re McCullough, 229 B.R. 374 (Bankr. E.D. Va. 1999); In re Sheets, 174 B.R. 254 (Bankr. N.D. Ohio 1994); In re Compston, 161 B.R. 636 (Bankr. N.D. Ohio 1993); In re Branisel, 130 B.R. 502 (Bankr. N.D. Ohio 1991). "[B]y filing bankruptcy today a debtor gives up the opportunity to discharge debts that may be incurred tomorrow." In re Fortman, 456 B.R. 370, 377 (Bankr. N.D. Ind. 2011). That is what has happened here.
The joint motion to dismiss will be denied. An order doing so will be entered.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court