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Mon, 04/26/2004 - 5:00am

Due to the large volume of motions to reconsider dismissal of Chapter 13 cases (sometimes referred to as motions to reopen or motions to vacate dismissal) filed in recent years, Judge Waites, several months ago in association with the Chapter 13 Trustees who appear before him, implemented certain guidelines which are applicable to such motions.

Generally, on motions to reconsider dismissal due to failure to timely pay the Chapter 13 Trustee, the Court will allow reinstatement of the case under the following conditions:

  • Neither the Trustee nor affected party objects;

  • The motion was timely made (within 10-15 days of the dismissal) and set for hearing within 30 days of the dismissal (or the next available docket if Spartanburg );

  • Debtor is present at the hearing on the motion unless previously excused by the Trustee;

  • Debtor presents full catch-up payment in certified (or otherwise acceptable) funds to Trustee at the hearing; and

  • Debtor and counsel consent that any future dismissal of case is with prejudice.

However, the Court will not reconsider prior dismissals with prejudice absent extraordinary circumstances.

Situations of neglect or dismissal due to fault of counsel may require fee disgorgement/sanction before dismissal will be reconsidered.

In addition, this Court has previously determined that vacating the dismissal of a Chapter 13 case does not retroactively reinstate the automatic stay during the period when the case was dismissed. Jennings v. R&R Cars & Trucks (In re Jennings), C/A No. 01-02330, Adv. Pro. No. 01-80044, 2001 WL 1806980, at *3 (Bankr. D.S.C. Sept. 17, 2001).