UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF KENTUCKY
JUNE A. MESSMER CASE NO. 99-21032
MEMORANDUM OPINION AND ORDER
This matter is before the court upon the Motion of Debtor to Vacate Order of Relief from Automatic Stay Entered in Favor of Fort Thomas Savings Bank to Vacate Order of Dismissal of Debtor=s Chapter 13 Case for Leave to File an Amended Chapter 13 Plan and for Emergency Ex Parte Relief. This motion was filed on September 20, 1999 in this action. A review of the facts surrounding the matter is necessary.
Apparently this debtor filed a Chapter 7 proceeding in 1993 and was granted a discharge from her debts in July 1993 in Case No. 93-20002. That record is not available to the court for review and the information the court uses was gained from electronic records maintained by the court.
Subsequently, on September 8, 1998, the debtor filed a Chapter 13 proceeding before this court and her attorney in that proceeding was Michael E. Plummer, Esq. That proceeding was No. 98-21509. As in all the other cases, an Order to Debtor was prepared and mailed to the debtor as well as her counsel and other parties. A notice of the commencement of the case, the date for the Section 341 meeting and setting the matter for confirmation on December 1, 1998 was also mailed to debtor and her attorney as well as other parties. When the debtor failed to appear for the Section 341 meeting, that meeting was continued to November 2, 1998. On that date, her attorney appeared but she did not appear for the continued Section 341 meeting. On November 12, 1998, the trustee moved to dismiss the case because the debtor had failed to appear as required for a Section 341 meeting on two occasions and had failed to make payments as required since the filing of the action. That motion was heard on December 1, 1998, and the court sustained the motion to dismiss for failure of the debtor to make payments and attend the Section 341 meeting. An Order of Dismissal was entered on December 2, 1998.
On March 5, 1999, the debtor filed a second Chapter 13 proceeding which was her third proceeding before this court. In this action, her attorney was Mark W. Wegford, Esq. That action was No. 99-20380. Again, the normal spate of notices of the dates of various events, including the Section 341 meeting, were mailed to debtor, her counsel and other interested parties. On April 5, 1999, the date scheduled for the Section 341 meeting, her attorney appeared but she failed to appear. The trustee continued the Section 341 meeting to May 3, 1999 at which time the debtor again failed to appear. The trustee then moved to dismiss the case for failure to appear at the required Section 341 meeting on two occasions and failure to make payments to the trustee. That motion was heard on June 1, 1999 with neither counsel nor debtor appearing and the motion was sustained. An Order of Dismissal was entered on June 2, 1999.
On June 28, 1999 the current case was filed. This is the debtor=s fourth case and third Chapter 13 case. Her attorney of record in this case is Stephen P. Basinger, Esq. Again, the normal orders were issued and served on the debtor, her counsel and other interested parties and the meeting of creditors was set for August 2, 1999. On August 2, 1999 debtor=s counsel appeared for the Section 341 meeting but debtor failed to appear. On August 9, 1999, the Chapter 13 trustee moved to dismiss the within action for failure of the debtor to appear at the Section 341 meeting and to make any payments since the filing of the plan. That motion was heard on September 7, 1999 with Mr. Basinger attending for the debtor. The motion was sustained and the court ordered that the case be dismissed from the bench although the written order dismissing has not been entered as of this date. Prior to the filing of the trustee=s motion to dismiss, Fort Thomas Savings Bank F.S.B. (Fort Thomas Bank) filed its Motion for Relief from the Automatic Stay giving the debtor 15 days to respond to its motion pursuant to this court=s policy for entry of such orders on notice and opportunity for hearing. When no response to that motion was filed, the court entered an order for relief from automatic stay on August 26, 1999.
In accordance with the motion and affidavits filed herein on September 20, 1999 by attorney Jensen, apparently the debtor went to Mr. Jensen on September 17 to seek his assistance in avoiding the consequences facing her, the foreclosure sale of her home. Mr. Jensen has made a valiant effort on behalf of the debtor to undo the consequences of the debtor=s failure to attend five scheduled Section 341 meetings and failure to make payments in three serial Chapter 13 filings. Mr. Jensen has expressed his belief that the debtor suffers from depression and this , of course, concerns the court. He is the fourth Chapter 13 counsel which she has had and all four of these counsel regularly, and competently, practice Chapter 13 matters before this court. By her own admission, she has failed to open at least one of the notices she has received and, the record discloses that many notices have been sent to her concerning the scheduled 341 meetings and various other matters that were required of her.
Mr. Jensen has set forth relevant case law which controls and determines the standard this court must apply in this matter. The relief sought herein is pursuant to FRBP 9024 and FRCP 60(b). The standard set forth in Pioneer Investment Services Company v. Brunswick Associates Limited Partnership, 507 U.S. 380 (1993) sets forth standards for evaluating excusable neglect. As recited in the brief, the determination is an equitable one and the court should consider the danger of prejudice to the debtor, the length of delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant and whether the movant has acted in good faith. Other factors aside, it appears clear to the court that the delay in moving for relief here is the fault of the debtor and that it could have been avoided had she merely addressed these matters during the first, second or, timely, during the third proceeding, prior to the granting of relief and the court=s ruling from the bench that the case should be dismissed. The court is sympathetic to the plight of the debtor in these proceedings, but must also consider the creditor, Fort Thomas Bank, which has had to respond to the three proceedings and, after numerous failures on the part of the debtor to take actions required of her by the Bankruptcy Code, and specifically, attending a Section 341 meeting and making payments as required under the terms of the plans which she filed, finally obtained relief. The court holds that it would be inequitable to the creditor to grant the relief requested by the debtor in light of the debtor=s conduct in this and the previous proceedings.
The debtor has simply abused the bankruptcy process and it would be grossly unfair to allow her failure to address her responsibilities under the Bankruptcy Code to extend further time and stop the foreclosure sale on the debtor=s residence.
For the reasons set forth above, the court hereby OVERRULES the motions filed herein by the debtor.
Dated this day of September, 1999.
BY THE COURT
Joel Jensen, Esq.
James Luerson, Esq.
Stephen P. Basinger, Esq.
Beverly Burden, Esq.