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If a debtor in a chapter 11 files a motion to dismiss their…

If a debtor in a...
If a debtor in a chapter 11 files a motion to dismiss their bankruptcy case, and if the motion is granted by the bk court, when can the same debtor file for a new bankruptcy case? I am looking to understand how a debtor can be stopped from abusing the bankruptcy system to stall a pending trial which is scheduled outside of bankruptcy court.
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1/3/2018
Legal Eagle
Legal Eagle, Lawyer
Category: Legal
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Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating (click here for more info) so all that means is that you can count on me to help today. Are you aware whether the motion was dismissed with prejudice or without prejudice at all?

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Customer reply replied 6 months ago
the motion to dismiss is pending (no ruling by the bk judge yet)

I understand. Thank you for providing that information. A person can reapply for bankruptcy if the first case is dismissed. In Ch.11, if the case is liquidating all, or nearly all, of th eassets and no business is being conducted after the finishing of the plan, then they must wait at least 8 years to refile. Otherwise, there is no time limit.

Did you have any other questions at all for me?

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Customer reply replied 6 months ago
here is the situation: I am part of a creditor group and the debtor is in a lawsuit with us. the lawsuit was stayed upon filing bankruptcy, but we were able to get the stay lifted to allow our case to continue. Our trial for our lawsuit is set and the debtor in a chapter 11 just filed a motion to dismiss recently. There has not been any plan for reorganization filed prior to the debtor filing their motion to dismiss.We are concerned that if the ch. 11 debtor gets his bankruptcy case dismissed, he will simply file a new bankruptcy case before our trial date as another stall tactic. The debtor's bankruptcy attorney has communicated to the creditors that the debtor has a 6 month window before he can refile a bankruptcy case...From what you wrote above, because this bk has no liquidation and is not a business (the ch. 11 debtor is a person), are you saying they could file a new bankruptcy case the day after the case gets dismissed???

Unfortunately, the Bankruptcy Code does not expressly bar a company from filing a second Chapter 11 immediately after the first one is dismissed unless there was a complete liquidation. Chapter 11 cases can be refiled absent some court order that prohibits them from filing. You may need to be prepared to go through the same machinations you did previously. However, it's really important to look at what is on the dismissal order. The judge may find authority that prohibits a refiling and without understanding the full extent of the bankruptcy case, I couldn't tell you with 100% certainty whether this would happen; however, the judge will be the final decision maker. Be prepared to resubmit your relief from stay if necessary if he files again. I'm very sorry.

did you have any other questions for me regarding this?

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Customer reply replied 6 months ago
can you point me to any legal statute that covers this for Maryland? Also, i just read to pending proposed order filed by the ch. 11 debtor...the order does not specify if the debtor's request to dismiss the ch. 11 case would be with or without prejudice.....the proposed order document filed with the motion to dismiss simply says that the debtor requests the bk court to dismiss the case.

Unfortunately, because the BK code doesn't govern this exactly, there isn't a code that's going to say definitive that they can or can't do this. Because it doesn't expressly say that a person can't, a judge will treat this as the legislature's way to permit people to refile as soon as possible. If there is no indication on whether it is with or without prejudice, then I would prepare for someone to refile not long too much longer from now.

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Customer reply replied 6 months ago
how can a creditor stop a debtor from abusing the bankruptcy process??

If they refile, then you would have to ask the bankruptcy court to dismiss the action with prejudice on the grounds that the person may be abusing this process. You could argue that it is not the intent of the legislature to allow people to serially file for bankruptcy if they have no interest in protecting what remaining little assets they have left, but are only doing so to avoid paying back legitimate claims.

If you have an attorney, I would hire one so they may be able to help you figure out the best way to request a motion to dismiss the claim, but keep in mind that it is up to the bankruptcy judge to make the final decision.

Did you have any other questions for me at all?

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