Web posted and Copyright © 1/12/98, American Bankruptcy Institute.

The following abstract summarizes the text of submissions made to the National Bankruptcy Review Commission. The abstract is organized by NBRC working group and topic.

The Final Report of the NBRC can be viewed on-line. To obtain a copy of any document shown below, contact the Center for Legislative Archives, Room 205, National Archives Building, Washington, D.C. 20408. The telephone number is 202/501-5350. Mr. R. Michael McReynolds, Deputy Director, will be able to assist with specific inquiries. (The NBRC documents will be housed at this location until June, 1999. Thereafter, the records will be transferred to the Center's archives in College Park, MD.)

Consumer: Serial Filings
IDNameGroupOtherCode
Sec
Cross
Ref
Problem ReferencedProposed Solutions
NBRC-
0005
Richard L. HaeusslerLaw Offices of Richard L. Haeussler. Sole practitioner who represents chapter 7 & 13 debtors.
707(b)
Has never seen 707(b) used in C.D. Ca.Does 707(b) serve a purpose, has never seen it used.
NBRC-
0015
Jerry Sprinkle & Jenna Stockton



Multiple bankruptcy filings and debt load-ups six months prior to a strategically planned bankruptcy filing are abusive and should be looked at by the Commission. Such abuses are common and be shouldered by honest taxpayers.Examine & remedy systemic abuses.
NBRC-
0021
James I. ShepardPractitioner; Commissioner, National Bankruptcy Review Commission
108
The government taxing authorities should not be penalized by the debtor's multiple efforts to remain within the friendly confines of the bankruptcy court when it cannot bring enforcement actions due to the stay during the pendency of those proceedings.Section 108 should be amended to expressly provide that the time a debtor spends in bankruptcy is excluded from the determination of priority periods. This will preclude debtors from downgrading the status of tax claims by merely passing them through one or more bankruptcy cases, while not disrupting the debtor's stay. *Statutory Language Included
NBRC-
0074
William E. CumberlandGeneral Counsel; Mortgage Bankers Ass'n of America
362(a)
Repeated application of stay impacts mortgage financiers hardest due to: multiple filings by same debtor, early filings abandoned before dismissal or with filings dismissed, repetitive reinstatements of plans in a single case with no basis for second or third try and fulfilling terms of plan, or variations on these themes.Code should clarify that protracted delay is not a permitted basis for serial re-application of the automatic stay.
NBRC-
0152
Kenneth L. RobinsonPresident; National Ass'n of Federal Credit Unions


Unnecessary administrative and legal expenses continue to occurr in chapter 13 due to repeat filings.Code should impose time limits on the filing of a conversion or motion to dismiss as well as a debtor's ability to repeatedly file under chapter 13 is eliminated.
NBRC-
0162
Judge Ray Reynolds GravesBankruptcy Judge, Eastern District of Michigan


If it is perceived that serial filings of chapter 13's constitute an abuse of the system, a statutory bar to serial filings can be recommended.If a proposal to bar serial 13's is too harsh, perhaps it can be modified to allow the bar to be waived upon the showing of an exceptional change in circumstances requiring a second or third filing of a chapter 13. I believe this would work as a first step, despite the reluctance expressed in the BBC to trust judicial discretion in this and other matters because it might produce inconsistency.
NBRC-
0176
Mark BrowningAssistant Attorney General, Collection Division, Texas Office of the Attorney GeneralPleading from case typifying "repeat filer" syndrome109(g)(1)1307Repeat filers (debtors who file successive Chapter 13 cases over several years, during which they use the automatic stay to continue operating a business while increasing new trust fund tax liability) consume inordinate amounts of judicial, trustee and creditor resources, and clog the bankruptcy system. One reason why such debtors can pass through bankruptcy's "revolving door" so easily is the lack of specific authority in the Bankruptcy Code for courts to dismiss Chapter 13 cases with prejudice. Any amendments addressing the repeat filer problem should provide judges with general standards for dimissing with prejudice, and allow them the flexibility to address the problem on a case-by-case basis.Simplest way to address the problem of the repeat filer would be to add language to § 1307 providing standards and authority for dsimissing Chapter 13 cases with prejudice (author provides suggested language).
NBRC-
0177
Robert SlavenChase Properties Property Management, and Bankruptcy Reform Committee - AAGLASupplement to author's San Diego open forum testimony

Misuse of Chapter 13 by tenants attempting to continuously avoid or delay eviction is a national problem. The author provides materials supplementing his testimony at the San Diego open forum. These materials contain results of a study he conducted indicating that apartment associations across the country have experienced difficulty with tenants using Chapter 13 to delay or avoid eviction. The author also includes a copy of Rep. Elton Gallegly's 1993 address to Congress introducing a bill to close this "loophole.""Loophole" allowing Chapter 13 tenants to use the bankruptcy system to avoid or delay eviction should be eliminated.
NBRC-
0240
Polly S. HigdonBankruptcy Judge, District of OregonJudges' comments on serial filings

Author attaches comments from all four bankruptcy judges regarding multiple chapter 13 fling cases they have had before them. Also included is raw data printouts on serial filers. Two judgesnote that although there has been filing abuse in the past, some judges are becoming increasingly less tolerant of muliple filers.NBRC should consider this information on serial filings in their deliberations over consumer bankruptcy.
NBRC-
0274
Steven D. GoldsteinPresident, Credit - Sears, Roebuck and Co.; also on behalf of other National Retail Federation members
727
Some debtors are abusing the system by filing repeatedly in an attempt to avoid their financial responsibilities.Amend § 727 to extend the period beween bankruptcy discharges to 10 years.
NBRC-
0274
Steven D. GoldsteinPresident, Credit - Sears, Roebuck and Co.; also on behalf of other National Retail Federation members
1307
Procedures are needed to combat serial filings in circumstances where the debtor has no intention of performing under the plan.Amend § 1307 to require automatic dismissal of a chapter 13 case if no payments are made within 90 days of filing.
NBRC-
0302
Brian L. Mc DonnellPresident, Navy Federal Credit Union


Bankruptcy is increasingly being perceived as an "easy way out" for debtors seeking to avoid responsibility for their actions. In addition, many people no longer consider bankruptcy to be a financial stigma. It is imperative that bankruptcy procedures be revised to discourage financial irresponsibility in today's highly leveraged personal economic environment.Amend the Code to establish a nationwide database to discourage abuse through multiple filings in multiple jurisdictions.
NBRC-
0303
Commercial Law League of AmericaCommercial Law League of America (CLLA)


The Commerical Law League of America believes that the following issue should be considered by the NBRC: whether repeat filing is a significant problem, and how can it be controlledThe CLLA believes that this issue should receive moderate priority.
NBRC-
0320
Robert M. Zinman, on behalf of the Bankruptcy InstituteAmerican Bankruptcy Institute ("ABI")Numerous position papers, memoranda and research material109(g)
Repeat filings are not a problem in most jurisdictions. The author attaches a white paper by David B. Wheeler entitled "The Effect and Impact of Successive or Serial Bankruptcy Filings." The paper summarizes and analyzes the cases addressing serial bankruptcy filings. The author also attaches a white paper by Timothy D. Moratzka and John E. Bloomer entitled "Who May Be a Debtor Under § 109(g)", which analyzes cases involving § 109(g) and its application to abusive multiple filings.Recent amendments to § 109(g) are sufficient to control the problem of repeat filings.
NBRC-
0408
Richard MorganCreditor


The author is a creditor of a woman who assumed his mortgage and then declared bankruptcy under chapter 13 and failed to make scheduled court payments. When the author tried to foreclose, she filed again and is still not making payments. Bankruptcy laws are too lenient with debtors.Bankruptcy Code should be amended to provide that debtors are not allowed to re-file for at least seven years after having received a release or discharge from the court.
NBRC-
0514
Mark BrowningAssistant Attorney General, Collection Division, State of Texas"Proposal to Tax Advisory Committee Regarding "Serial Filers" with Tax Liabilities"1112(b), 1307(c)109(g)Debtors repeatedly incur postpetition tax liability in multiple bankruptcy cases filed over a period of years. Author is concerned about businesses in Chapter 13 which have repeatedly failed to pay postpetition taxes while enjoying the protection of the stay.Author has attached a proposal to amend Bankruptcy Code Sections 1112(b) and 1307(c) to clarify the authority of bankruptcy courts, in appropriate circumstances, to dismiss cases with prejudice to refiling. Alternately, Section 109(g) might be amended to require repeat-filiers to clear some sort of "up front" hurdle to re-enter bankruptcy within a particular period of time after a prior dismissal.
NBRC-
0534
William C. WhitfordProfessor of Law, University of Wisconsin, Madison


Author agrees some restrictions on refiling are desireable, but would not ban them completely. "The exception provided by the opportynity to reopen a dismissed chapter 13 leaves no option for the chapater 7 debtor who gets into trouble again."" I would prefer to provide debtors the option to refile under chapter 13 once, even if a discharge is barred, just to take advantage of the automatic stay and the budgeting advantages of chapter 13.
NBRC-
0535
John F. SutherlandSenior Attorney, Mercantile Bank National AssociationProposed changes to other Code sections, and a three page Memorandum with comments on the various proposals109(e)
The proposed amendment "will prevent the abuse of the Bankruptcy Code commonly referred to as "Chapter 20" (ie: a Chapter 7 case to dischaarge unsecured creditors quickly followed by a Chapter 13 case to cram down secured creditors and obtain a super discharge for debts which would be non-dischargeable in a case under Chapter 7.)"Author gives specific changes to Section 109(e) language, inserted into that section.
NBRC-
0535
John F. SutherlandSenior Attorney, Mercantile Bank National AssociationProposed changes to other Code sections, and a three page Memorandum with comments on the various proposals109(g)
"The primary purpose of this proposed amendment is to restrict abusive multiple filings of Chapter 13 bankruptcies which only serve to delay creditors. However, the proposed amendment is drafted to give a second chance to debtors who had poor counseling or who did not realize the rigors and/or consequences of a Chapter 7 or a Chapter 13 bankruptcy.""11 U.S.C. would be amended by (a) deleting the term "180 days if" and substituting therefore the term "one year", (b) inserting a new sub-paragraph (1) as set forth below, and (c) renumbering sub-paragraphs (1) and (2) as sub-paragraphs (2) and (3) and inserting the word "if" at the beginning of the new sub-paragraphs (2) and (3)." Author gives an example of §109(g) with his proposed modifications.
NBRC-
0537
Lisa Hill FenningUnited States Bankruptcy Judge, Central District of California


The "one bite" approach to serial filings is appealing; however, author is concerned that unrepresented debtors who have trouble completing the paperwork will be bounced out of the system by early dismissals for mistakes or misunderstandings, thereby being deprived for six years of any prospect for a discharge."Currently, our district automatically dismisses cases for failure to file schedules or two failures to appear at the § 341(a) meeting...Upon a showing of good cause, debtors can seek reinstatement by providing evidence along the lines of Pioneer Investment's excusable neglect standard. This flexibility should remain available, in addition to the "change of circumstances" grounds set forth in the proposal."
NBRC-
0537
Lisa Hill FenningUnited States Bankruptcy Judge, Central District of California


"A policy of allowing debtors only one filing every six years places a premium on ensuring that prohibited refilings are stopped at the intake window.""[T]he Code should expressly authorize the bankruptcy courts to require adequate identification upon filing. At a minimun, presentation of a driver's license (or equivalent), evidence of the Social Security number, and a thumbprint should be required as a condition for filing. The clerk's offices should be authorized to refuse for filing any petitions that are not accompanied by such I.D...In addition, all debtors should be photographed together with their I.D.s and petition (using the kind of digital frame technology often used at check cashing stores) upon filing or shortly thereafter."
NBRC-
0538
Randall J. Newsome U.S. Bankruptcy Judge Copy of 10/10/96 letter from Juge Newsome to Professor Warren

"The proposal [for dealing with serial filings] allows for one filing every six years." This creates problems for debtors who can't make payments, who were given bad advice on filing, or who don't even need Chapter 13 relief. "Aprovision limiting repeat filings will only work if the clerk's office informs the court within a few days of the filing that the provision womehow has been violated." "If the serial filer problem is brought under control, then the need to prohibit all repeat filings disappears." Address the problem of unjustified serial filings without prohibiting all repeat filings.
NBRC-
0540
Daniel R. FreundAttorney


Author writes to comment on the "no refiling" provisions of Draft no. 1 (Consumer Bankruptcy). "What of the honest, non-abusive debtor who files a bankruptcy and then, within six years thereafter, suffers financial distress due to an illness or job loss""Let's not throw the baby out with the bath water!"
NBRC-
0547
Wendell J. SherkAttorney, Eric Taylor & Associates, P.C.


Author is responding to idea posed by Prof. Warren of reopening prior cases on a showing of changed circumstances, rather than having new cases filed.No specific proposals, more a discussion of pros and cons.
NBRC-
0559
Lisa Hill FenningUnited States Bankruptcy Judge


While the concept of a "one-bite" approach is appealing, what about unrepresented debtors who are bounced out of the system for mistakes or misunderstandings, thereby being deprived for six years of any prospect for a discharge Also, "[a] policy of allowing debtors only one filing every six years places a premium on ensuring that prohibited refilings are stopped at the intake window.Flexibility to allow debtors, upon a showing of good cause, to seek reinstatement by providing evidence along the lines of Pioneer Investment's excusable neglect standard should remain. The Code should expressly authorize the bankruptcy courts to require adequate identification upon filing. At a minimum, presentation of a driver's license (or equivalent), evidence of the Social Security number, and a thumbprint should be required as a condition for filing."
NBRC-
0562
Kenneth J. DoranAttorney


Author has seen no hard data on the existence of a wide-spread abusive refiling problem. Anecdotal evidence indicates that there may be a serious problem in a few districts. If so, it seems highly probable that many of those filings are already improper under current section 109(g).If there is a problem, the solution is to enforce, and perhaps judicially tighten, the existing controls on abusive filings, not prohibit non-abusive repeat filings. As for tightening the current rule, author suggests: 1. if a creditor has obtained relief from the automatic stay, he is not automatically bound by a stay in a new filing within 90 days. 2. After a dismissal, the court retains jurisdiction to hear a motion to restrict a new filing. 3. Special provisions restricting when a debtor may stay a given creditor of a particular type.
NBRC-
0571
Kenneth T. BoylanManager, Queens Postal Federal Credit UnionA second letter from the same author on the same date.

Bankruptcy laws are too easy on the debtor.Author supports six year bar on refiling. "All bankruptcy filings should be required to explore chapter 13 before chapter 7."
NBRC-
0597
Murray S. Lubitz and Louis LevinePresident and Chair, Consumer Subcommittee, of the Commercial Law League of American
1307
CLLA is concerned about serial/multiple filings, especially the so-called "Chapter 20" filing.CLLA proposes a new subsection, 1307(g), which would require dismissal of a case under Chapter 13 if the debtor had received a discharge pursuant to Section 727 within 12 months.
NBRC-
0600
Eric Friedman Asst. V.P. & Bankruptcy Manager


Author gives statistical information on "multifilers" and outlines the difficulty this causes for mortgage lenders. "In my opinion, if a case is dismissed, 109G should be attached to the dismissal across the board. If relief is granted, then any subsequent filings should not place the automatic stay on the creditor who sought and was granted the relief."
NBRC-
0605
Kenneth L. RobinsonPresident, National Association of Federal Credit Unions (NAFCU)


Proposed six year waiting period to refile is inadequate unless specific counseling and rehabilitation requirements are met by the debtor.Waiting period should be ten years, except in cases of extreme hardship, which should be dealt with on a case by case basis.
NBRC-
0607
Robert F. Hershner, Jr.Chief Judge, U.S. Bankruptcy Court, Middle District of Georgia

11The fundamental complaint with the present Code is the problem of repeat filings. Author is concerned tha the No Refiling position in the March 5 draft would adversely impact consumers with low incomes who have no other realistic chance of improving their way of life. Amend the Code to give a United States Bankruptcy Judge the specific statutory authority to dismiss a Chapter 13 case and bar a refiling for an appropriate period of time.
NBRC-
0620
Michael S. PolkAttorneyLetter of 8/26/94 from author to Senator Grassley; Article from "Mortgage Banking" entitled "Stop the Attack of the Equity Skimmers"362(b)105"The "repeat" bankruptcy filings by the same debtor is only the tip of the iceberg. Over the last four years, the most dramatic and costly examples of bankruptcy abuse involve more sophisticated "repeat" strategies.""A bar on repetitive filings is helpful; however, the ability and authority of the Bankruptcy Court to issue sosme form of "prospective" or "in rem" relief order against future debtors, upon a finding of abuse, is necessarily appropriate." A provision to this effect should be added to the Code, because "[m]any Judges do not believe they have such authority without specific statutory foundation."
NBRC-
0627
Robert S. BrowningPrivate citizen


"The current code is abused to the point where honest citizens have to pay for the losses of an abusive few who are aided and abided by bankruptcy attorneys.""I am in support of the proposed changes to the bankruptcy code to stop multiple filing abuse."
NBRC-
0642
Janet L. DittbernerManaging Attorney, Law Offices of Gerald R. Moss


Firm represents institutional lenders in bankruptcy matters. "One of the most prevalent and costly abuses of the Bankruptcy system is the misuse of the Bankruptcy Courts by debtors filing multiple bankruptcies to avoid foreclosure and eviction procedures by lenders.""On behalf of our clients we urge the commission to institute the rpoposed changes as detailed in the consumer Bankruptcy Working Group's "discussion paper".
NBRC-
0644
Polly S. HigdonU.S. Bankruptcy Judge, District of Oregon


Author notes that there are different reasons why a debtor would refile for bankruptcy, some within the debtor's control, others not. A fair way to deal with refiling is to tailor the response to the cause for refiling. There are considerable problems with the proposal to allow debtors to reopen their dismissed case rather than file a new one.Author proposes a system for refiling which varies depending on the reason for refiling. A reporting system will also be needed, ideally a national, computerized one using social security numbers to identify debtors, but until this can be set up, all bankruptcy courts should keep their own system. The reopening of cases rather than refiling should not be adopted, and discharge should not be granted until after the plan is completed.
NBRC-
0645
Robert VermillionBankruptcy Department, FT Mortgage Company


Author has worked in the mortgage industry for 5 years, and has seen the multi-filer problem continue to get worse and worse."I am in support of the proposed changes to the Ch7 and Ch13 Bankruptcy Code."
NBRC-
0648
Kenneth J. DoranAttorney


"The core problem with serial filings is that short-term invocation of the automatic stay, or even of an apparent stay, substantially hinders and delays the creditor..." A six year delay will not solve this problem. "The better approach is to rework bankruptcy law and orders so that such an improperly motivated filing simply does not achieve the debtor's wrongful objective."Author suggests the following amendments to the Code: a. An order for relief of stay may provide that no subsequent bankruptcy petition by that debtor will stay the creditor from the actions for which relief is granted, with an adequate time limit. b. For debtors with legitimately changed circumstances, a procedure should exist in a refiled case to consider promptly staying such a protected creditor, on a lower standard than would ordinarily be necessary for injunctive relief. c. Dismissal of a bankruptcy case should be delayed, or reopened on a creditor's prompt request, to initiate or complete a request for expanded relief from stay. d. Consideration should be given to allowing a creditor to join as parties and seek "no stay" relief against other defendants who are not debtors in the instant bankruptcy, but whose filing would stay the same proceeding. e. A relief from stay order should be able to be used to enjoin the debtor from claiming a stay which does not exist or obstructing the creditor. The same sanctions would apply as for the violaton of the stay.
NBRC-
0650
Samuel L. BuffordBankruptcy Judge, Central District of California


"It appears to me tht the "single bit of the apple" approach, which permits only one bankruptcy filing in a six year time period, is too draconian, if it is applied to debtors who do not receive a discharge." Many cases are filed by debtors not represented by attorneys who make mistakes that result in the dismissal of their cases within a month or two of filing, without receiving discharge. Judges frequently permit the debtor to file a second tim to correct the deficiencies. A "single bite" rule would impose a substantial burden on judges resulting from motions to vacate such dismissals, that are now unnecessary.Don't adopt the "single bite" rule.
NBRC-
0653
Jennifer Johnson Bankruptcy Supervisor, FT Mortgage Companies


Author is exasperated by what she perceives as abuses of the bankruptcy system by debtors, particularly serial filings. "PLEASE, PLEASE pass something that will help the abuse stop Having a 6 year bar on refiling is FANTASTIC! Finally, someone has listened and is trying to act."
NBRC-
0654
William Mark BonneyStanding Chapter 13 Trustee, Eastern District of Oklahoma

10"The elimination of refiling is a concept that has merit. I will of course by the biggest disruption tot he Chapter 13 process. Now Trustees are not reluctant to file Motions to Dismiss because they know that the Debtor may refile at any time, 109(g) notwithstanding. Debtors do not worry as much because they think tht they will ge another chance if this fails."
NBRC-
0669
J. Michael CombsAttorney


Author, et al., are concerned with plans to limit the number of Chapter 13 filings. Author notes that due to circumstances such as job change, injury, layoffs, etc. debtors may miss a payment, and in their District the Chapter 13 Trustee is very efficient and so it is almost impossible for the average debtor to keep his case from being dismissed at some point in time. Furthermore, debtors frequently have problems that necessitate voluntary dismissal and refiling.If the dismissal and refiling of Chapter 13 cases is being abused in some areas, limit the Automatic Stay in a refiling to a shorter period of time, allowing the debtor to petition fo a continuation of the stay if it is needed. A second possibility would be to limit the number of filings with a specific period, i.e. three times within a six year period.
NBRC-
0679
Polly S. HigdonBankruptcy Judge, District of OregonCopy of letter dated April 23, 1997 from Polly S. Higdon to NBRC.

Author discusses various methods for quickly identifying Chapter 13 filings for the purpose of preventing repeat filings."For BANCAP courts who receive the new computers and operating system a district-wide multiple filing report could relatively easily be created." "We do not know how NIBS courts can effect a similar result."
NBRC-
0682
Thomas J. HolthusExecutive Vice President, HomeComings Financial Network, Asset Resolution Division


"As a former bankruptcy attorney specialist and now executive in the mortgage industry, the abuses of multiple bankruptcies cost the mortgage industry but ultimately all borrowers who have to pay by higher interest rates to cover the costs of the abusive behavior.""We would strongly support that the Bankruptcy Code be amended that prevents a debtor from re-filing a bankruptcy case after a voluntary dismissal or discharge."
NBRC-
0683
Don & Rita GillespiePrivate CitizensCopy of article entitled "The bankruptcy epidemic" from "The Oregonian".

Homeowners angry over contractor who diverted funds for their house, then filed for bankruptcy, leaving them with subcontractor liens on their house. Their most specific concern seems to be multiple filers.Do not let anyone file bankruptcy more then once in a lifetime.
NBRC-
0687
A. Stevens QuigleyAttorney, panel Chapter 7 trustee


Author is concerned that a total ban on refiling would exclude debtors whose circumstances had changed.Do not adopt an absolute ban on refiling. There should be an exception to any ban or refiling when the debtor certifies that there is a change of circumstances which makes what is now proposed feasible. For the same reasons, there should not be a total ban on conversion.
NBRC-
0695
Juan F. EstevesAttorney for Banco Popular De Puerto Rico


"In my practice, we are constantly plagued with multiple bankruptcy filing abuse, knowing of instances where debtors, especially in Chapter 13 cases, have filed as many as four or five petitions within a two year span, creating an abuse of the judicial process.""...I strongly support the proposed changes to the bankruptcy code to prevent multiple filing abuse."
NBRC-
0711
Neal R. AllenAttorney specializing in consumer bankruptcy


Sometimes successive filings are necessary or desirable, such as the so-called "Chapter 20" area.There should be no outright ban for a term such as six years on successive filings. If such filings are abusive or fraudulent they can be dealt with by provisions for sanctions and attorney's fees.
NBRC-
0726
Ken Crone, Saul Eisen, Hank Hildebrand, Ike ShulmanAmerican Bankruptcy Institute Consumer Bankruptcy Reform Forum


The goal of an effort to deal with serial bankruptcy filings are: 1) to sort out the abusive casess from the nonabusive cases; 2) to quickly deny the automatic stay to debtors who file abusive cases; 3) to avoid imposing costs on debtors who aare not filing abusive cases; and, 4) to avoid imposing costs on creditors or lessors who are delayed from exercising their rights by abusive bankruptcy cases.Barriers to serial filings should not be applicable to the second bankruptcy case a debtor files. However, if a debtor files a third case within a five year period, and that case is filed within 180 days of the dismissal of the second case, a new barrier would be erected. "In such cases, the automatic stay would terminate 15 days from the petition filing unless no objection was filed to the continuation of the stay by any creditor, lessor, or the trustee." "If no objection to the debtor's motion was filed, the court would continue the stay without a hearing, subject to current relief from stay procedures." "The subcommittee agreed that the bankruptcy court must have a limited power to issue in rem orders granting relief from the stay with respect to a particular property for future cases filed by debtors other than the debtor in the case before it."
NBRC-
0727
Wendell J. SherkAttorney, Eric Taylor & Associates, P.C.
109(g)
On the issue of refilings, the problem which is being addressed is repeat filing abusers, not those who are out on technical grounds. The abusers amount to only 3% of filings, and so author feels that rewriting the entire existing structure for those few is a case of the tail wagging the dog. Author has "proposed a single code section in §109(g) to allow judicial discretion in refilings." Others have suggested a "three strikes and you're out" rule. Author believes very strongly that a debtor should not be barred because of technical defects in their filing or in getting documentation filed on time, but that they should have a chance to be heard on the merits and get a "fresh start.""The current Code could have a §109(g) "three strike" rule of some kind and a specific bar on incurring new debt during a Chapter 13 without permission and cure most of the system's ills."
NBRC-
0728
John C. AkardU.S. Bankruptcy Judge, Northern District of TexasCopy of letter dated 5/2/97 to Susan Jane Darnold from office of United States Trustee; Copies of 4 letters dated 3/26/97 from Judge Akard to the Bankruptcy Commissioners on different topics.

The proposed provisions will not have the desired results of avoiding abusive refilings. Bankruptcy courts have adequate power under the current statute to prevent abusive refilings. Part of the problem is that often creditors do not request appropriate relief. For example: a creditor asks for a second filing to be dismissed. It would be much better for that creditor if it asked for relief from the stay and an injunction to keep the debtor from taking any action to prevent the foreclosure other than an appeal of the bankruptcy court's order. The proposal prohibits a debtor from voluntarily dismissing a Chapter 7 case, but there are instances, albeit rare, where voluntary dismissal of a Chapter 7 case is appropriate. The proposal also provides that a Chapter 13 case could not be voluntarily dismissed. "That runs directly counter to the entire history of Chapter 13....Chapter 13 has always been a voluntary repayment plan. Are we ready to depart from that concept" "[Y[ou can encourage debtors to file Chapter 13, but you cannot force them to pay if they do not want to do so." Author does not think the provision prohibiting the filing of a Chapter 7 or 13 case for six years following "a discharge in an earlier bankruptcy case" would be effective to prevent the repeat filings which are causing concern.The law could be clarified by a provision stating that a Chapter 7 case can be voluntarily dismissed only for cause after notice and hearing, and empowering the court to include in the order of dismissal appropriate provisions to protect creditors and landlords. With regard to prohibiting voluntary dismissal of Chapter 13 cases, an alternative would be to allow voluntary dismissal after notice and a hearing with the proviso that the court could enter appropriate orders for the protection of creditors and landlords.
NBRC-
0729
Gerald L. White & Gary H. GaleAttorneys, White & Gale


"An absolute ban on successive filings will harm the legitimate filer. The Court is in the best position based on the facts in the case to determine whether or not a multiple filing is in bad faith." Author enumerates a number of reasons why successive filings may be legitimate and necessary.Do not ban multiple filings outright. Allow the Court to decide whether subsequent cases should be allowed.
NBRC-
0731
Rollie R. HansonAttorney, Law Office of Rollie R. Hanson, S.C.


"Any outright ban on successive Chapter 13 filings is not necessary and carries a potential to hurt honest debtors. The result could be to place the debtor in a financial no-man's land with little or no recourse against aggressive collection activities." Author gives a case history of a debtor he represented who had to file successive bankruptcies, but by doing so was able to keep up on bank payments, keep her house, and eventually sell it at a profit to pay off the bank and realize some equity.Do not ban successive Chapter 13 filings.
NBRC-
0734
Gregory J. WaldAttorney


Author is concerned that the discharge upon confirmation of a chapter 13 plan is being suggested primarily as an excuse for denying chapter 13 debtors the right to re-file for chapter 13 protection after a previous bankruptcy. Author notes that his clients have been bombarded with credit card offers immediately after filing for chapter 7. Many get into difficulty again with large medical expenses or other unexpected debt. "I reject the notion that these debtors are not honest. We can't turn our backs on these people. There are better ways to deal with the true repeat filer who is purposely abusing the bankruptcy system."Do not legislatively prohibit repeat bankruptcy filings. Judges can prohibit "bankruptcy addicts" from refiling for an extensive period of time on an individual basis where necessary.
NBRC-
0735
Seth LehrmanAttorney


"I disagree with the assumption made in [the Consumer Bankruptcy Working Group's] memo that repeat bankruptcy filings are a per se indication of abuse or fraud." Many of author's clients file chapter 13 to keep their homes. Many have paid catastrophic uninsured medical expenses or taxes; their ability to make payments is contingent upon their remaining employed. Many of these clients are temporary workers in Silicon Valley and are terminated after working for one to three months and then must look for other work. They are then unable to make their payments and their chapter 13 case is dismissed. "It is often necessary to file another chapter 13 case to stop a foreclosure or wage garnishment when a terminated employee finds a new job and is able to resume chapter 13 plan payments. Dismissal and refiling in these instances certainly does not relfect bad faith, abuse, or fraud."No specific solution proposed.
NBRC-
0793
David A. SchollU.S. Bankruptcy Judge, Eastern District of Pennsylvania


Debtors may have cases dismissed for violations of orders which they don't understand, or because of temporary losses of income or unforeseen financial emergencies. "Any rpovision which presumptively bars refilings within a certain period after dismissal of a case for any reason represents overkill which will deprive many needy and deserving persons of their only effective means of preventing a sheriff's sale of their homes." "...abuses by multiple filiers can be and are curbed by court orders rendered on a case-by-case basis."Do not place restrictions on refiling.
NBRC-
0802
Hon. George B. Nielsen, Hon. Redfield T. Baum, Hon. James M. Marlar, and Hon. Charles G. Case IIUnited States Bankruptcy Judges, District of Arizona


Authors are concerned about the proposal to ban refiling of Chapter 13 cases after dismissal of one previous case. This proposal is unnecessary and unwise. While abuses may exist, there are legitimate circumstances which justify a second, or even third, filing under the particular facts of the case. An absolute ban does not take such circumstances into account.Do not ban Chapter 13 refilings.
NBRC-
0803
Margie EdwardsCollection Manager, Cowlitz Public Employees Credit Union


"A more important issue the NBRC should be addressing is multiple filings." Author has seen debtors "file bankruptcy and go right out and incur large debts again just to wait until they are allowed to file bankruptcy again.""Bankruptcy should be a "once in a lifetime" solution. Make they debtors be accountable for their actions."
NBRC-
0804
Robert R. WeedAttorney, Law Office of Robert Ross Weed


The proposal on refiling presents a challenge to the bar to be sure the debtor and attorney are ready to see to completion the first Chapter 13 filed. "We would lose the ability to use dismissal of the first case to shock the debtor into understanding the seriousness of their situation, but it's a reasonable bar against abusive filings.""I think your compromise on refiling is reasonable."
NBRC-
0812
Bernard S. Via, IIIAttorney, Via & Frye


"Concerning the changes in chapter 13 refiling, I can understand some of the concerns of the continual revolving door of chapter 13 filings motivated to delay foreclosures." However, author had a case which failed because a creditor backed out of an agreement to work out a refinancing of a trailer with a lien on the land. "Debtors leave chapter 13 for various reasons. One is optimism of their condition improving.""I think the debtor should be given the opportunity to ask the court to continue with a subsequent chapter 13 and not have a strict prohibition without looking at the cause. This is essentially included in the code under the good faith filing requirement that now exists. I would think that three consecutive chapter 13 would be automatically disallowed....There should be a quick review by the Court on whether the action is being filed simply to delay the inevitable repossession."
NBRC-
0817
Geraldine MundChief Judge, United States Bankruptcy Court, Central District of CaliforniaTwo charts dealing with discharge in Chapter 7 and 13 cases, chart comparing 7 cases and whether they could refile chapter 7 or 13.

Author was intrigued by the proposal to bar refiling for a period of time after a Chapter 7 or a Chapter 13 proceeding. She prepared three charts which show that the proposed bar would only apply to a very limited group of cases. Further, there is a problem even with those cases, because the bar runs from the date of closing, which can vary widely depending on the workload in the Clerk's Office and the documents received from the Chapter 7 Trustee. "This is not in the control of the debtor and is totally unfair." Author also recommends that the date of discharge not be used, as it can be delayed by a §727 complaint. "If there is to be a bar to refiling, the only fair date would be the date that the case is filed. That is in control of the debtor. Also, by using the filing date...you get around the problem that a case is only closed after it is fully administered and the Trustee discharged..." Another problem in the proposal is that you don't deal with Chapters 11 and 12.If there is a bar to refiling, the time should run from the date of filing. This issue should be dealt with in Chapter 11 and 12. If the case is dismissed because of debtor error, the bar to refiling should be able to be vacated by the Court if injustice would occur.
NBRC-
0832
Arthur S. WeissbrodtU.S. Bankruptcy Judge, Northern District of California


"The second proposal in the June 10th draft with which I strongly disagree is the restrictions on second filings of Chapter 13 cases. The overwhelming majority of such filings - perhaps 90-95% of them or more - are perfectly legitimate and certainly not abusive."Do not preclude Chapter 13 filings within two years of a previous case.
NBRC-
0832
Arthur S. WeissbrodtU.S. Bankruptcy Judge, Northern District of California


Author opposes the proposed national filing registry. First, if access to the bankruptcy system is not limited, it is not needed. Second, there has been no showing of substantial abuse that would warrant it. Third, we don't keep such records on criminals, why bankrupts Fourth, the government keeping centralized files on the financial affairs of over one million citizens a year would be a political hot potato.Do not adopt a national filing registry.
NBRC-
0837
Francis M. AllegraDeputy Associate Attorney General, U.S. Department of JusticeMemorandum dated June 16, 1997 to Fran Allegra from Jonathan Gruber re: Treasury Comments on Bankruptcy Commission Position on Asset Exemption Levels.

"Serial filings are a serious problem in many jurisdictions and, accordingly, we endorse the adoption of firm measures to address this issue....Repeat filings - whether to obtain multiple discharges or to hold creditors at bay temporarily - should not be permitted." "The draft proposes to eliminate serial filings....This proposal appears to balance fairly the interests of debtors and creditors, and would curtail abuses of the bankruptcy process by repeat filings."Adopt the proposals in the draft.
NBRC-
0841
Wendell J. SherkAttorney


"As you know, my gravest concern about the first Draft was the absolute bar on refiling Chapter 13 cases. The new version's 2-year bar, with discretion in exceptional cases, seems fair." Author is concerned that in some cases, debtors would not get enough notice of, for instance, a mortgage foreclosure, and the attorney would be put in the situation of running around at the last minute to get an emergency show cause hearing the day of filing to get the stay, which will also clog up the courts' dockets."I would recommend one slight change to the refiling provision which should keep the spirit but procedurally may be more effective. I would have the stay be imposed immediately upon the filing of the petition, even within the two-year period. However, where there was a prior case within the two-year period, the stay would dissolve automatically after x number of days, unless the Court enters an order finding the required changed circumstances. In essence, I'm suggesting that the stay on a repeat filing be a TRO with a statutory expiration date. Probably the 15 days proposed by ABI would be quite sufficient."
NBRC-
0842
Richard L. HaeusslerAttorney


Author is concerned about debtors who engage in serial bankruptcy filings to buy time.If the debtor's property is in foreclosure, the burden should be on the debtor to show that the stay should be continued and not on the foreclosing creditor to show that the foreclosure should be able to go forward.
NBRC-
0846
Paula E. LangguthAuthor, Bounce Back From Bankruptcy, Pellingham Casper Communications, LLC.


Back-to-back abuse of bankruptcy filings can be a problem, but over a person's lifetime, events could be such that bankruptcy would become a repeated necessity.Author agrees with Commissioner Ceccotti that consumers - and creditors - would be better served with a "three-strikes" approach, restricting people form using bankruptcy protection over and over again, rather than the proposed restrictions on multiple filings.
NBRC-
0849
Ron HaasChairman, Bankruptcy Task Force, Alabama Credit Union League
11Alabama Credit Union League Bankrutpcy Task Force supports the limitation on Chapter 13 filing."Perhaps the limitation on Chapter 13 filing should mirror the Chapter 7 restriction of 6 years."
NBRC-
0870
Joe LeeChief Judge, U.S. Bankruptcy Court, Eastern District of Kentucky
362
"I consider the proposal to limit consumer debtors to one bankrkuptcy filing during a six-year period to be unwise." "The agitation over repeat and serial filings stems from the fact that such filings reinstitute the automatic stay, thereby prolonging the time creditors may be held at bay. Thus, the better way to deal with creditor frustration caused by repeat or serial filings is by amendment of Code §362, the source of the automatic stay."Author has enclosed prpoposed amendments to §362.
NBRC-
0871
David A. TilemAttorney


"The current proposals to sharply limit multiple filings have a worthy objective. There are abuses, particularly in California. But many of the abuses will not be curbed by limiting filings. Creative people will always find ways around fixed standards.""The best response [is] to empower Courts to address abuses on a case by case basis whenever they are discovered."
NBRC-
0872
John C. AkardBankruptcy Judge, Northern District of TexasAnother letter from Judge Akard to Judge Jones dated 5/21/97; Two letters from Walter O'Cheskey to Judge Akard dated 5/16/97; Letter from Phil Black to Walter O'Cheskey dated 5/13/97; Letter from David Enos to Walter O'Cheskey dated 5/14/97.

Author includes letters which were exchanged with a standing trustee and between the trustee and an attorney in certain cases which author feels illustrate his concern that an absolute bar on refiling would result in grave injustices to debtors who make mistakes in the first case."It is because every case is different, and every debtor has different problems, that I respectfully suggest that the Commission should not adopt a total bar on refiling."
NBRC-
0884
Norma HammesPresident, National Association of Consumer Bankruptcy Attorneys


"The proposal is far more draconian than is necessary to address the problem of abusive refilings." Testimony before the commission has shown that most second filings are legitimate. "Many refilings are not abusive, but rather result from the persistence of the debtor in attempting to resolve his/her financial problems after successive periods of unemployment or illness.""Honest debtors should be allowed to file a second or even a subsequent bankruptcy where no abuse is involved." "The in rem proposal, to the extent it is limited to cases of fraudulent and abusive transfers of real property, is a constructive solution to many of the repeat filing problems which have been brought to the attention of the Commission."
NBRC-
0886
William J. PerlsteinAttorney


Author and Citicorp representatives agree that restriction of re-filings is a much needed change, and supports the Commission's efforts in this regard. They feel, however, that allowing re-filing after 2 years is "far too lenient." Also, there is no mention of a ban for Chapter 13 filers. "We find it quite remarkable that, in light of all that has been shown to the Commission, creditors will continue to barred from bringin to the attention of the Court evidence of a debtor's ability to repay creditors which could form the basis for the court's determination to dismiss a case."Increase the time limit for re-filing to 6 years. There should also be a re-filing ban of 4 years for those who receive a Chapter 13 discharge. Amend Section 707(b) to allow creditors to point out ability to repay creditors as a reason for dismissing a Chapter 7 case, coupled with the right to impose fee awards if the creditor's motion is found to be unssubstantiated.
NBRC-
0892
Robert W. AlbertsU.S. Bankruptcy Judge, Central District of California


Author is concerned about abuse of the bankruptcy system."...I suggest eligibility to be a debtor in a second case under any chapter within 6 years after a case is filed by or against a debtor be further restricted so as to prohibit the filing of additional petitions under any chapter within 6 years after entry of discharge in or dismissal of the second case."
NBRC-
0903
Jill M. SturtevantAssistant General Counsel, Bank of America


Author writes to comment on the ABI Working Group Proposals. Author prefers the proposal before the NBRC to that of ABI on this issue. Author feels that the court should have the ability to issue in rem orders as per both the ABI and NBRC proposals, and that the court should be able to issue such orders sua sponte.See above.
NBRC-
0919
William H. GindinChief Judge, United States Bankruptcy Court, District of New Jersey


There are a number of cases where serial filings are justified, and others which are actually to the benefit of the creditors."I believe that the problem noted (abusive serial filings) can be controlled by a specific provision permitting the court, after hearing, to enter an order prohibiting, restricting or setting conditions for the filing of multiple petitions."
NBRC-
0925
C. Michael StilsonBankruptcy Judge, Northern District of Alabama, Western Division

11Author feels that the "substantial" changes proposed to the Bankruptcy Code are not necessary, and that remedies already exist for most of the problems addresed by the Consumer Bankruptcy Working Group. Author addresses each proposal of the Working Group. With regard to the proposal of a national database to monitor filings of all bankruptcy cases by social security number or tax identification number, author feels this would be beneficial to all parties involved, with or without the proposed restrictions on refilings.Author points out that verification of social security numbers would require a change in the Social Security Administration's privacy laws.
NBRC-
0925
C. Michael StilsonBankruptcy Judge, Northern District of Alabama, Western Division

11Author feels that the "substantial" changes proposed to the Bankruptcy Code are not necessary, and that remedies already exist for most of the problems addresed by the Consumer Bankruptcy Working Group. Author addresses each proposal of the Working Group. Author apparently does not agree with the proposal to prohibit the filing of a petition within two years of a Chapter 7 or 13 discharge. Nor is he happy with the automatic conversion of a dismissed Chapter 13 to Chapter 7.Do not prohibit the filing of a petition within two years of a Chapter 7 or 13 discharge. Do not recommend automatic conversion of a dismissed Chapter 13 case to Chapter 7. There are already remedies for abusive re-filing of Chapter 13 cases in §109(g) and §1325(a)(3).
NBRC-
0946
Ira Charmoyunknown, e-mail with no information but the name and e-mail address.
109(e)
Raising the threshold for Chapter 13 filings "would avoid a lot of chapter 20's and be a more direct approach to avoiding multiple filings.""I would like to make the suggestion that the specific dollar limits of 109(e) be done away with and a million dollar combined figure be substituted."
NBRC-
0955
ABI Consumer Bankruptcy Reform ForumAmerican Bankruptcy InstituteLetter from Jill M. Sturtevant, Assistant General Counsel, Bank of America Re: ABI Consumer Forum Contribution dated June 4, 1997; Letter from Dean S. Cooper, Associate General Counsel, Freddie Mac, Re: Freddie Mac's Comments on ABI Consumer Bankruptcy Working Group's Proposal on Repeat Filings dated May 21, 1997.

The ABI sponsored a Consumer Bankruptcy Reform Forum which met twice. The goal was to create a process, rather than to produce a spedific set of proposals. This report was prepared by four members to summarize the events of the second meeting held May 15, 1997. It contains options considered for and discussions of the following issues: 1. Default Discharge Option for Failing Chapter 13 Cases; 2. Chapter 13 Superdischarge; 3. Credit Report Forum; 4. Option on Repeat Filings; 5. Disposable Income; 6. Treatment of Rent-to-Own Contracts; and, 4. Stripdown of Mortgages/Interest on Arrears.Solutions are proposed for each issue mentioned above.
NBRC-
0965
Kenneth J. DoranAttorney


"The national registry is an unnecessary bureaucratic boondoggle."If the law were rewritten to cause no aautomatic stay to arise or discharge to result when a filing is clearly illegal, and then creditors were called upon to know the law and defend themselves, the entire registry mechanism would be unnecessary.
NBRC-
0982
Joe LeeChief Judge, U.S. Bankruptcy Court for the Eastern District of KentuckyMemorandum by Judge Lee; Exhibit A - Congressional Record, April 20, 1997; Exhibit B - Summary of Cases on Successive Filings, Serial Filings, and Dismissals; Exhibit C - 1997 VISA Bankruptcy Debtor Survey; Letter from Judge Jones to Commissioners dated 7/15/97 with copy of Order in case involving a bankruptcy-mill.

This is a letter from Judge Lee to M. Caldwell Butler, Esq. sending materials to help in "negotiations with other members of the Commission in arriving at an acceptable approach for restricting repeat and serial bankruptcy filings."
NBRC-
0984
James W. LaVeckLoan Servicing Manager, CBC Federal Credit Union


Author has a number of complaints about the bankruptcy system, but the primary one seems to be that there should be "stiffer penalties for abuse of the system." This concern centers on authors experience with a property which had a second mortgage held by his credit union. When they tried to foreclose for failure to pay, the property was transferred without their permission, and the transferee filed Deeds of Trust. The persons named in the Deeds of Trust filed bankruptcy and tied the whole matter up.Credit counseling for debtors; stop abuse of system; set guidelines so judges do not have as much latitude; and debtors filing for bankruptcy should have to make some sacrifices.
NBRC-
0992
Kay L. CampbellCompliance Officer, McDonnell Douglas West Federal Credit Union


"We agree that six years is an appropriate time frame for debtor to have to wait before being eligible to file bankruptcy again. However, there is some concern over time frames being made even shorter. Should consumers be able to file bankrutpcy every six years How many fresh starts should a consumer be allowed The potential for abuse in this area seems very obvious for those consumers looking to exploit the system.""...a debtor should not be allowed to voluntarily dismiss a plan under Chapter 13.
NBRC-
0997
Cynthia E. ElliottAppalacian Research and Defense


"I urge you not to amend the portion of the Bankruptcy Act which would disallow repeated filings of Chapter 13.""Instead, permit repeat filings upon motion and a showing of good cause. Good cause could include circumstances beyond the Debtors control, mistake, or inadvertence or any other extraordinary circumstances."
NBRC-
1016
Richard T. WargoCompliance and Information, Pennsylvania Credit Union League & Pacul Services, Inc.


"The League supports the effort to establish a national filing registry. Creditors need a system to monitor repeat filings. The proposed registry may enable creditors to detect fraud and abuse more readily."N/A
NBRC-
1160
Robert J. AdamsAttorney
109(g)
Author writes in response to the DOJ recommendation that individuals be prevented from refiling a bankruptcy case within 180 days after a dismissal. Author gives cases from his own experience where debtors had their first filing dismissed because of unforseen difficulties, and when they refiled, were able to complete a payment plan and get back on their feet."The Bankruptcy Code need not be changed as regards Section 109(g)."
NBRC-
1161
Wendell J. SherkAttorney, Eric Taylor & Associates, P.C.


While there are abusive serial filers, there are also very honest "repeaters." This is what has prevented courts from developing a "bright line" in good faith analysis.The Commission should not adopt a recommendation to "arbitrarily bar refilings under most circumstances." "On the other hand, providing the court with broader, specific authority to reject cases by repeat filers and to bar refiling would be entirely reasonable. Section 109(g) could have an additional provision denying relief where a repeat filer's actual purpose was not to reorganize or where there was no reasonable likelihood of an effective reorganization or discharge."
NBRC-
1162
Lawrence F. Regan, Jr.Attorney, Garza, Papermaster, Regan & Rose


"Based on the clientele this firm serves, I know that around here it is a fact that a substantial number of people who can succeed in Chapter 13 are not equipped by education and socioeconomic status to do so the first time around....Again, the combination of good faith, Rule 9011 compliance and Section 109(g) strike a healthy balance between the rights of creditors and the social policy inherent in fostering continued home ownership.""I strongly urge the Commission not to recommend action to preempt a second Chapter 13."