UNITED STATES BANKRUPTCY
COURT
EASTERN DISTRICT OF
KENTUCKY
COVINGTON DIVISION
IN RE:
JUNE
A. MESSMER CASE
NO. 99-21032
DEBTOR
MEMORANDUM
OPINION AND ORDER
This matter is before the court upon the Motion of
Debtor to Vacate Order of Relief from Automatic Stay Entered in Favor of Fort
Thomas Savings Bank to Vacate Order of Dismissal of Debtor=s Chapter 13 Case for Leave to File an Amended Chapter
13 Plan and for Emergency Ex Parte Relief.
This motion was filed on September 20, 1999 in this action. A review of the facts surrounding the matter
is necessary.
Apparently this debtor filed a Chapter 7 proceeding in
1993 and was granted a discharge from her debts in July 1993 in Case No.
93-20002. That record is not available
to the court for review and the information the court uses was gained from
electronic records maintained by the court.
Subsequently, on September 8, 1998, the debtor filed a
Chapter 13 proceeding before this court and her attorney in that proceeding was
Michael E. Plummer, Esq. That
proceeding was No. 98-21509. As in all
the other cases, an Order to Debtor was prepared and mailed to the debtor as
well as her counsel and other parties.
A notice of the commencement of the case, the date for the Section 341
meeting and setting the matter for confirmation on December 1, 1998 was also
mailed to debtor and her attorney as well as other parties. When the debtor failed to appear for the
Section 341 meeting, that meeting was continued to November 2, 1998. On that date, her attorney appeared but she
did not appear for the continued Section 341 meeting. On November 12, 1998, the trustee moved to dismiss the case
because the debtor had failed to appear as required for a Section 341 meeting
on two occasions and had failed to make payments as required since the filing
of the action. That motion was heard on
December 1, 1998, and the court sustained the motion to dismiss for failure of
the debtor to make payments and attend the Section 341 meeting. An Order of Dismissal was entered on
December 2, 1998.
On March 5, 1999, the debtor filed a second Chapter 13
proceeding which was her third proceeding before this court. In this action, her attorney was Mark W.
Wegford, Esq. That action was No.
99-20380. Again, the normal spate of
notices of the dates of various events, including the Section 341 meeting, were
mailed to debtor, her counsel and other interested parties. On April 5, 1999, the date scheduled for the
Section 341 meeting, her attorney appeared but she failed to appear. The trustee continued the Section 341
meeting to May 3, 1999 at which time the debtor again failed to appear. The trustee then moved to dismiss the case
for failure to appear at the required Section 341 meeting on two occasions and
failure to make payments to the trustee.
That motion was heard on June 1, 1999 with neither counsel nor debtor
appearing and the motion was sustained.
An Order of Dismissal was entered on June 2, 1999.
On June 28, 1999 the current case was filed. This is the debtor=s fourth case and third Chapter 13 case. Her attorney of record in this case is
Stephen P. Basinger, Esq. Again, the
normal orders were issued and served on the debtor, her counsel and other
interested parties and the meeting of creditors was set for August 2,
1999. On August 2, 1999 debtor=s counsel appeared for the Section 341 meeting but
debtor failed to appear. On August 9,
1999, the Chapter 13 trustee moved to dismiss the within action for failure of
the debtor to appear at the Section 341 meeting and to make any payments since
the filing of the plan. That motion was
heard on September 7, 1999 with Mr. Basinger attending for the debtor. The motion was sustained and the court
ordered that the case be dismissed from the bench although the written order
dismissing has not been entered as of this date. Prior to the filing of the trustee=s motion to dismiss, Fort Thomas Savings Bank F.S.B. (Fort Thomas Bank)
filed its Motion for Relief from the Automatic Stay giving the debtor 15 days
to respond to its motion pursuant to this court=s policy for entry of such orders on notice and opportunity for
hearing. When no response to that
motion was filed, the court entered an order for relief from automatic stay on
August 26, 1999.
In accordance with the motion and affidavits filed
herein on September 20, 1999 by attorney Jensen, apparently the debtor went to
Mr. Jensen on September 17 to seek his assistance in avoiding the consequences
facing her, the foreclosure sale of her home.
Mr. Jensen has made a valiant effort on behalf of the debtor to undo the
consequences of the debtor=s failure to
attend five scheduled Section 341 meetings and failure to make payments in
three serial Chapter 13 filings. Mr.
Jensen has expressed his belief that the debtor suffers from depression and
this , of course, concerns the court.
He is the fourth Chapter 13 counsel which she has had and all four of
these counsel regularly, and competently, practice Chapter 13 matters before
this court. By her own admission, she
has failed to open at least one of the notices she has received and, the record
discloses that many notices have been sent to her concerning the scheduled 341
meetings and various other matters that were required of her.
Mr. Jensen has set forth relevant case law which
controls and determines the standard this court must apply in this matter. The relief sought herein is pursuant to FRBP
9024 and FRCP 60(b). The standard set
forth in Pioneer
Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380
(1993) sets forth standards for evaluating excusable neglect. As recited in the brief, the determination
is an equitable one and the court should consider the danger of prejudice to
the debtor, the length of delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the
reasonable control of the movant and whether the movant has acted in good
faith. Other factors aside, it appears
clear to the court that the delay in moving for relief here is the fault of the
debtor and that it could have been avoided had she merely addressed these
matters during the first, second or, timely, during the third proceeding, prior
to the granting of relief and the court=s ruling from the bench that the case
should be dismissed. The court is
sympathetic to the plight of the debtor in these proceedings, but must also
consider the creditor, Fort Thomas Bank, which has had to respond to the three
proceedings and, after numerous failures on the part of the debtor to take
actions required of her by the Bankruptcy Code, and specifically, attending a
Section 341 meeting and making payments as required under the terms of the
plans which she filed, finally obtained relief. The court holds that it would be inequitable to the creditor to
grant the relief requested by the debtor in light of the debtor=s conduct in this
and the previous proceedings.
The debtor has
simply abused the bankruptcy process and it would be grossly unfair to allow
her failure to address her responsibilities under the Bankruptcy Code to extend
further time and stop the foreclosure sale on the debtor=s residence.
For the reasons set
forth above, the court hereby OVERRULES the motions filed herein by the debtor.
Dated this day of September, 1999.
BY THE COURT
JUDGE
COPIES
TO:
Debtor
Joel
Jensen, Esq.
James
Luerson, Esq.
Stephen
P. Basinger, Esq.
Beverly
Burden, Esq.