[CLBS] Proposed Language in Voluntary Motions to Dismiss and Proposed Orders Dismissing Chapter 13 Cases

[Bart Green]

Dear Bankruptcy List-Serve Members, 

Attached are a Voluntary Motion to Dismiss and an Order Dismissing Case. Following the excellent work done by Ms. Alex Caval in objecting to a Chapter 13 Trustee's Final Report because the Trustee had taken trustee fees out of payments made by the debtor in a case that was not yet confirmed. (I never would have thought to have objected to that. My hat is off to Ms. Caval.) I recently was faced with two motions to dismiss from the Trustee, and both involved clients who are real estate agents and struggling because of our current Covid-19 economic shutdown. After discussing their respective situations both clients authorized me to object to the Trustee's motion and file a voluntary motion to dismiss in their respective cases, which was done. 

One case was before the Honorable Terry L. Myers, and the other was before the Honorable Joseph M. Meier. In both case, after the applicable period had run, we submitted a statement of no objection and a proposed order dismissing case. In the case before Judge Terry L. Myers he declined to give us some of the language that we requested in our motion and proposed order, but he reserved jurisdiction over the case for the purpose of reviewing the Trustee's final report. In the case before Judge Joseph M. Meier, we received the signed Order, which he signed yesterday . In it he gave us the requested language directing the Trustee to not take any trustee fees out of the payments and to return all of the payments to the debtors. That can be a big help to the clients in their current dilemma. In six to 12 months they may be eligible to refile as Chapter 7 if their earnings are still down, which I suspect they will be. 

I'd suggest that debtors counsel on all future Chapter 13 cases, where the Trustee files a motion to dismiss, and if your clients want their case dismissed due to a significant change in circumstances, that you respond with an objection to the Trustee's motion and file a voluntary motion containing the language that I used in the attached motion and order -- at least as to cases before Judge Joseph M. Meier. As to cases before Judge Terry L. Myers we may have to wait and see in a final report whether the Trustee attempts to take trustee fees, and if so then object to see what kind of ruling we may get from Judge Myers. It would be nice to have several cases ruling on the matter and ideally from more than one judge. 

Sincerely, 

Bart Green 
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