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cortrightlaw
cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience:  Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
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My wife (only her) filed pro se for Ch7 in Nov 11 here in Lexington

Resolved Question:

My wife (only her) filed pro se for Ch7 in Nov 11 here in Lexington KY.
The petition was dismissed Feb 12 after the US Trustee established my wife had previously filed ChXXXXXin Jan 07.
We had moved to KY in Mar 07, never followed through with CT case, however in Jan 09 Clerk of CT BR Court granted her petition.
SO the KY Court dismissed her petition. (previously filed within 8 years) - OK
In June we received a notice from the trustee in the dismissed KY case that he has determined possible assets and is now asking creditors to file a proof of claim by Sept 12.
QUESTION: KY petition being dismissed in Feb 12, how can trustee still proceed with case and if so or not, what action can be taken in BR Court to stop or challange him.
Absoulty positive KY petition dismissed, we have Court order, it says dismissed...
Jim
Submitted: 2 years ago.
Category: Bankruptcy Law
Expert:  cortrightlaw replied 2 years ago.

cortrightlaw : Very interesting situation with both cases, something does not make sense? If the original case was dismissed without a discharge the she should have been able to refile, so the reason for the current dismissal is perplexing. And if the current case was dismissed them the trustee and the court would not have jurisdiction over the case. The other point is did she k iw she was filing bankruptcy with unprotected assets? I would recommend first contacting the trustee in writing regarding what is the status of the case and what are his intentions.
cortrightlaw : Then if this is not clarified with the trustee I would file a motion with the court to determine the status of the case, but the clerk might not allow you to file it if the case is dismissed. And if you are not represented by an attorney you need to be because something is not making sense with your wife's cases.
Customer:

The first BR case in CT (2007)

Customer:

I will be more specific,

Customer:

The first BR case in CT was filed in Feb 2007. We then moved to KY in Apr. 2007 and never followed through with CT BR ie (did not complete credit counseling), so we thought CT BR would be dismissed. She filed here in KY on Nov 2011 believing that CT BR was dismissed. To our surprize, the US Trustee here in KY moved to dismiss this case and produced a "CT discharge" order dated Feb. 2009 from the CT BR Court. Apparently the CT case sat in the CT Court for 2 years then a clerk signed the discharge order. We "objected" here in KY to the KY dismissal, but Judge said, "nothing I can do, CT granted discharge in 2009. Judge here in KY dismissed the nov 2011 petition. There was no unprotected assets listed on petition. Q. Are there any special rules in new BR rules that allow trustee to continue case for creditors once case has ben dismissed.

cortrightlaw :

Very strange to say the least, if the second case is dismissed then the trustee and the judge should not have any jurisdiction to pursue any assets in the second case.

Customer:

Yes, it was strange that the first BR was granted and disscharged, but that was some screwup in CT. Not strange for CT Courts. I have in hand the dissmissal order from KY Judge for this second case. My question is, before I go back to Court, do you know of any special statute, rule or trustee handbook option that would allow a trustee/Court to continue matter once it has been dismissed. There was no filing of any motions to reopen matter....

Customer:

Thks, Jim

cortrightlaw :

I did a search of the Federal Rules of Bankruptcy Procedure and it does not cover the topic.

cortrightlaw : 11 USC § 349 - EFFECT OF DISMISSAL

 

cortrightlaw :

11 USC Section 349 seems to cover the topic the best, XXXXX XXXXX last sentence which relates to re-vesting of the property. When a case is filed the property immediately becomes part of the bankruptcy estate, after the case is dismissed it re-vests to the original entity, being your wife.

cortrightlaw :

(a) Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109 (g) of this title.

(b) Unless the court, for cause, orders otherwise, a dismissal of a case other than under section 742 of this title—
(1) reinstates—
(A) any proceeding or custodianship superseded under section 543 of this title;

(B) any transfer avoided under section 522, 544, 545, 547, 548, 549, or 724 (a) of this title, or preserved under section 510 (c)(2), 522 (i)(2), or 551 of this title; and

(C) any lien voided under section 506 (d) of this title;


(2) vacates any order, judgment, or transfer ordered, under section 522 (i)(1), 542,550, or 553 of this title; and

(3) revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.


cortrightlaw, Attorney
Category: Bankruptcy Law
Satisfied Customers: 513
Experience: Attorney practicing Bankruptcy Law including Chapter 7, Chapter 11, Chapter 12, and Chapter 13.
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