Opinion
Case No. 95-10815-SSM
August 13, 1997
Bradley R. Coury, Esquire, McLean, VA, of counsel for the Debtor
MEMORANDUM OPINION AND ORDER
This matter is before the court on the debtor's motion to reopen his chapter 7 case, which was dismissed when he failed to appear at the scheduled meeting of creditors.
The record reflects that the debtor filed a voluntary petition under chapter 7 of the Bankruptcy Code in this court on February 28, 1995. The meeting of creditors under § 341, Bankruptcy Code, was scheduled for April 6, 1995. The debtor did not appear, apparently because he was incarcerated. The trustee filed a certification under then-Local Rule 209 (now Local Bankruptcy Rule 2003-1), and an order was entered on June 5, 1995, dismissing the debtor's case. The case was then closed by order entered June 13, 1995.
Approximately 18 months later — December 11, 1996 — the debtor filed the motion that is presently before the court. The grounds for relief set forth in the motion are that the petitioner, who was incarcerated at the time of the originally scheduled meeting of creditors, "will be released very shortly" and would be then be in a position to appear at the meeting of creditors. The motion does not appear to have been noticed to creditors, nor has debtor's counsel ever set it for hearing.
Under § 350(b), Bankruptcy Code, a closed bankruptcy case "may be reopened in the court in which such case was closed to administer assets, to accord relief to the debtor, or for other cause." The decision whether to reopen a closed case is discretionary with the court. Hawkins v. Landmark Finance Co. (In re Hawkins), 121 F.2d 324 (4th Cir. 1984) (affirming ruling by bankruptcy court declining to reopen case eight months after it was closed to file lien avoidance motion). Additionally, under Federal Rule of Civil Procedure 60(b), as incorporated by Federal Rule of Bankruptcy Procedure 9024, this court has the power to grant relief from a judgment or order — here, the order of June 5, 1995, dismissing the debtor's case — based on (among other grounds) "mistake, inadvertence, surprise, or excusable neglect" or "any other reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(1) and (6).
A motion to reopen a case is not subject to the one-year limitation otherwise applicable to motions brought under Rule 60(b)(1). F.R.Bankr.P. 9024. However, the long delay in bringing the motion and then failing to prosecute the motion once filed — it is now two years since the case was dismissed and nine months since the motion was filed — certainly weighs heavily in the calculus. In addition, no circumstances are set forth that would constitute "mistake, inadvertence, surprise, or excusable neglect" or would otherwise constitute meritorious grounds justifying the reopening of the case. The court can only assume that the debtor's incarceration was the result of willful, and most likely criminal, conduct on his part.
ORDER
For the foregoing reasons, it is
ORDERED:
1. The motion to reopen and reinstate is denied.
2. The clerk will mail a copy of this order to counsel for the debtor and to the United States Trustee.