Select Local Rule Series

You are here

Dismissal of a Case

Local Rule Number: 
Rule 1017-2
1000 Series

(A)       Failure to File Required Papers.

(1)        After Service of Notice of Deficiency.  The court may dismiss a voluntary case under any chapter without further notice or hearing for failure by the debtor to file required schedules, statements or lists or other documents, and may dismiss a chapter 13 case for failure to file a chapter 13 plan, upon determination that:

(a)        notice of the deficiency and a warning that the case will be subject to dismissal without further notice has been provided to the debtor and the debtor’s attorney prior to the expiration of the deadline for filing; and

(b)       the debtor has failed to file the required papers by the deadline and no timely filed request for an extension of time is pending before the court.

(2)        “Automatic Dismissal” Under 11 U.S.C. §521(i).  The “automatic dismissal” provision under 11 U.S.C. §521(i), shall be implemented in this court in an individual chapter 7 or 13 case in accordance with the following requirements:

(a)        The assigned trustee shall review each such case to determine whether the debtor has complied with all filing requirements set forth in 11 U.S.C. §521(a)(1), to the satisfaction of the trustee.

(b)       If the debtor has met these requirements:

(i)         Except as provided in subdivision (c) below, the trustee shall file an electronic statement with the court as follows: “The information required by 11 U.S.C. §521(a)(1) as provided by the debtor(s) in this case is complete to the satisfaction of the trustee.  No creditor or other party in interest has filed a request for an order of dismissal pursuant to 11 U.S.C. §521(i)(2) and the trustee does not believe that this case is subject to automatic dismissal pursuant to 11 U.S.C. §521(i)”.  The chapter 7 trustee shall file this statement no later than the deadline established by the court for filing complaints objecting to the discharge and the chapter 13 trustee shall file this statement prior to entry of an order confirming the plan.

(ii)        Upon the filing of this statement by the trustee, the court shall enter an “Order Determining Debtor’s Compliance With Filing Requirements of §521(a)(1)”, to be served on all creditors and parties in interest, stating that the case is not subject to automatic dismissal under 11 U.S.C. §521(i)(1) or (2).  If any creditor or party in interest has any reason to contest the court’s finding that the debtor has filed all information required by 11 U.S.C. §521(a)(1), that party shall file an objection to the order not later than 21 days from the date of entry of the order, and serve such objection on the trustee, the U.S. Trustee, the debtor and the debtor’s attorney, if any.  The objection should specifically identify the information and document(s) required by 11 U.S.C. §521(a)(1), that the debtor has failed to file.

(iii)       Each creditor or other party in interest served with the order who does not file an objection within the 21 day deadline set forth above, has waived the right to file a motion to dismiss this bankruptcy case for the debtor’s failure to comply with 11 U.S.C. §521(a)(1).

(c)        If the trustee has determined that the debtor has not met the filing requirements of 11 U.S.C. §521(a)(1), and the court has not otherwise waived or extended the deadline for filing, the trustee shall file a motion to dismiss the case no later than the deadlines established for filing the trustee statement in subdivision (b)(i) above.

(d)       Notwithstanding this rule, the court shall continue to dismiss cases under this court’s local rules and procedures earlier than the 46th day if there are any filing deficiencies.

(e)        The trustee assigned to a converted case shall comply with these certification requirements by the deadlines established under the chapter to which the case was converted, unless the certification was filed in the prior case.

(B)       Failure to Appear at Meeting of Creditors.

(1)        In Chapter 7, 11, and 12 Cases.  The court may dismiss a voluntary case under chapter 7, 11 or 12, without further notice or hearing, for failure of the debtor (or in the case of a non-individual debtor, the debtor’s president, managing partner or other knowledgeable officer) to appear at the meeting of creditors, in a chapter 7 case, upon the filing by the trustee of the Local Form “Chapter 7 Trustee’s Motion to Dismiss Case for Failure by Debtor to Appear at the §341 Meeting”; or in a chapter 11 or 12 case, upon the filing of a motion by the U.S. Trustee and upon determination that:

(a)        the clerk has served notice of the intended action, by warning in the §341 or post-conversion meeting notice served under Local Rule 2002-1(C)(1);

(b)       there is no motion pending, pursuant to Local Rule 2003-1, to reconsider the trustee’s or U.S. Trustee’s denial of a request for continuance of the meeting; and

(c)        the case was not commenced as an involuntary case. In an involuntary case, a motion to dismiss for failure of the debtor (or in the case of a non-individual debtor, the debtor’s president, managing partner or other knowledgeable officer) to appear at the §341 meeting shall be scheduled for hearing in accordance with Local Rule 9073-1.

(2)        In Chapter 13 Cases.  The court may dismiss a case under chapter 13, without further notice or hearing, for failure by the debtor to appear at the §341 or post-conversion meeting, if the clerk served notice of the intended dismissal on the debtor in the notice of commencement of case served by the clerk under Local Rule 2002-1(C)(1).

(C)       Dismissal Under 11 U.S.C. §521(e)(2)(B) for Failure to Provide Tax Return.  The court will dismiss cases under section 521(e)(2)(B), only upon motion and after a hearing on notice to the debtor.  Any motion to dismiss filed by a creditor must recite that the creditor timely requested a copy of the return under Bankruptcy Rule 4002(b)(4).

(D)       Failure to Timely Remit Installment Payment or Other Filing Fees Due From Debtor.  The court may dismiss a case without further notice or hearing where the debtor has failed to remit a required installment fee payment or other filing fee due from debtor, including filing fees due upon conversion of a case, upon denial of a chapter 7 fee waiver application or upon revocation of an order permitting waiver of the chapter 7 filing fee.

(E)        Fees Outstanding at Time of Dismissal.  The balance of any statutory or court-ordered fees, including filing fees, conversion fees, and U.S. Trustee’s fees, due and owing at the time of dismissal, must be immediately paid in full.

(F)        Disposition of Funds by Chapter 12 or 13 Trustee Upon Dismissal of Case.  Upon the dismissal of a case under Chapter 12 or Chapter 13 of the Bankruptcy Code, the trustee shall dispose of funds remaining, after payment to the trustee of approved fees and costs and upon payment of any other court authorized administrative expenses, in the following manner:

(1)        If there is a confirmed plan in the case, the trustee shall pay any funds received prior to the entry of the order dismissing the case to creditors pursuant to the terms of the plan.  All funds received after the entry of the order shall be paid or returned to the debtor.

(2)        If there is neither a confirmed plan nor an order directing otherwise, the trustee shall pay all funds,

(a)        in a chapter 12 case to the debtor; and

(b)       in a chapter 13 case to the debtor except:

(i)         the chapter 13 trustee shall disburse all pre-confirmation adequate protection payments and lease payments to the secured creditors described in §1326(a)(1)(C), and lessors described in §1326(a)(1)(B), in accordance with the last filed plan.  If there are insufficient funds, payment shall be pro rata; and

(ii)        where the court has entered an order pre-confirmation that all pre-confirmation interim payments made to the chapter 13 trustee are vested and non-refundable if the plan is not confirmed and the case is dismissed, the pre-confirmation payments held by the trustee at the time of a dismissal shall be disbursed pro rata in accordance with the last filed plan to the lessors and secured creditors protected by §1326(a)(1)(B) and (C), and to the other creditors and parties protected by the vesting order.

(3)        Notwithstanding subdivisions (1) and (2), any remaining balance owed by the debtor to the court for filing fees and clerk’s fees shall be paid by the trustee to the court prior to making any refund to the debtor.

[Comment: See also 11 U.S.C. §347(a) (unclaimed funds), and Local Rule 2002-1(C)(6) (clerk to serve notice of dismissal).]

(G)       Deadline in Reinstated Cases for Filing Motions to Dismiss or for Serving Notices of Hearings Pursuant to Bankruptcy Rule 1017(e).  If a case is dismissed prior to the expiration of the deadline for filing a motion to dismiss a case for abuse pursuant to Bankruptcy Rule 1017(e)(1), or for service of notice of a hearing on the court’s own motion to dismiss a case for abuse pursuant to Bankruptcy Rule 1017(e)(2), and subsequently reinstated, the deadline shall be modified as follows:

(1)        In a case dismissed before the meeting of creditors is held, the new deadline shall be 60 days after the rescheduled meeting of creditors.

(2)        In a case dismissed after the meeting of creditors is held, the new deadline shall be 60 days from entry of the order reinstating the case.