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| In re: | ) | |
| ) | ||
| WILLIAM RUSTY HOOD, | ) | Case No. A90-00565 |
| ) | Chapter 13 | |
| Debtor. | ) | |
| ________________________________________ | ) |
MOTION FOR DISMISSAL WITH PREJUDICE AND
ORDER TO SHOW CAUSE
This case came before the court on the application of Rangeview Annex, Inc. for relief from stay.
A review of the file indicates that this chapter 13 case was commenced on June 27, 1990 by the filing of a voluntary petition. There were no creditors named on the mailing matrix other than the Debtor's landlord Rangeview Annex, Inc. and the Internal Revenue Service. The Debtor was scheduled to be evicted for failing to pay rent on June 26, 1990. He was some two and one-half years late with his rent, having failed to pay rent since October 1, 1987. He was $7,245.00 in arrears. The chapter 13 petition prevented his eviction by invoking the automatic stay.
Weeks went by. Months went by. No plan was filed. No chapter 13 statement was filed. No pre-confirmation payments were made pursuant to 11 U.S.C. § 1326(a). No motion to extend the time limits for filing schedules was made. Rule 1007 of the Bankruptcy Rules was totally ignored.
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Having been frustrated in their eviction efforts in state court,
Rangeview was forced to file motions for relief from stay
along with motions to assume or reject the month to month
tenancy and for administrative status for unpaid rents. The motion
for relief from stay was opposed. This again prevented
eviction and gave Mr. Hood more free rent. The Debtor's counsel
stated in his opposition to the request for relief from
stay:.
At the hearing no plan, no statements and no schedules were filed. No rent had been paid. The Debtor, having abused the Rangeview Annex, Inc. for another two free months of rent magnanimously stipulated to termination of the stay.On information, Mr. Hood has paid the August space rent and intends to keep it current.
As further adequate protection of the landlord's interest, William Hood will have on file prior to the preliminary hearing his plan, statements and schedules.
In accordance with 11 U.S.C. § 1307(c), this Court moves for the dismissal of this chapter 13 case. The Debtor and his11 U.S.C. § 105(a) provides:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
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attorney are hereby ordered to appear and show cause, if any they
have, why this chapter 13 proceeding should not be dismissed with
prejudice for a 180 day period. They shall appear on Thursday,
August 30, 1990 at 2:00 p.m., in Courtroom 2 - Room 126, 605 W.
4th Avenue, Anchorage, Alaska. Notice is hereby ordered shortened
to prevent the Debtor from improperly benefiting from the automatic
stay any further.
The grounds for the motion for dismissal are: (1) For cause because of a bad faith filing; (2) For cause for filing an opposition to relief from stay in violation of Rule 9011; and (3) For cause due to (A) unreasonable delay by the debtor that is prejudicial to creditors; (B) failure to file a plan timely under section 1321 of this title; and (C) failure to commence making timely payments under section 1326 of this title.
I have chosen not to move for sanctions on counsel for the Debtor in accordance with Rule 9011 at this time, although they certainly appear warranted. If confronted with a similar situation in the future, I will not be as charitable.
DATED: August 22, 1990.
| Serve. | C. Johansen, Esq. |
| B. Furman, Trustee | |
| D. Hopwood, Esq. | |
| U. S. Trustee | |
| Internal Revenue Service | |
| Calendar |