Opinion
CASE NO. 17-11618
10-25-2017
IN THE MATTER OF: SEAN M. WATKINS KIMBERLY M. WATKINS Debtors
NOT INTENDED FOR PUBLICATION DECISION AND ORDER DENYING MOTION TO RECONSIDER
On October 25, 2017.
The court dismissed this case and declared the debtors ineligible for further relief under any chapter of title for 180 days, by an order issued on October 17, 2017. The debtors have filed a motion to reconsider the imposition of the 180-day bar. The motion is addressed to the court's discretion, In re Prince, 85 F.3d 314, 324 (7th Cir.1996), and can be ruled upon without a hearing or requiring a response. See, Dunn v. Truck World, Inc., 929 F.2d 311, 313 (7th Cir. 1991). See also, N.D. Ind. L.B.R. B-9023-1(b). The motion is DENIED for the following reasons:
1. The motion has not been accompanied by a brief in support thereof as required by the local rules of this court. See, N.D. Ind. L.B.R. B-9023-1(a). See also, In re King, 2006 WL 1994679 (Bankr. N.D. Ind. 2006). Had the required brief been prepared, counsel might have noticed that the motion does not accurately recite the text of § 349 when it states a dismissal does not prejudice the filing of a subsequent petition except as provided in § 109(g). See, Motion to Reconsider, filed Oct.18, 2017, p. 3. Significantly, the omitted portion of that section is the beginning phrase: "Unless the court, for cause, orders otherwise . . . ." 11 U.S.C. § 349(b).
2. The debtors did not object to or otherwise oppose the motion to dismiss that led to the court's order and did not appear at the hearing on that motion. See, Moro v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir.1996) (post-judgment motions are not opportunities to present arguments or evidence "that could and should have been presented" before, in the hope that the court will change its mind) (citing LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.1995)); Lock Realty Corporation IX v. U.S. Health, LP, 2010 U.S. Dist. LEXIS 3122 (N.D. Ind. 2010). See also, Mungo v. Taylor, 355 F.3d 969, 978 (7th Cir. 2004) ("Arguments raised for the first time in connection with a motion for reconsideration, however, are generally
deemed to be waived.").
3. Whether or not a case is dismissed with prejudice, if any, is a matter committed to the court's discretion and the court may raise that issue on its own initiative; the movant does not have to request it. In re Dempsey, 247 Fed. Appx. 21, 25 (7th Cir. 2007); B-3 Properties, LLC v. Lasco, 517 B.R. 889, 898 (N.D. Ind. 2014); In re Dilley, 125 B.R. 189, 198 (Bankr. N.D. Ohio 1991).
4. When a case is dismissed for having been filed in violation of § 109(g), at a minimum, the running of the 180-day bar is tolled. In re Dickerson, 209 B.R. 703, 708 (W.D. Tenn. 1997); In re Moody, 336 B.R. 876, 880 (Bankr. S.D. Ga. 2005); In re Rives, 260 B.R. 470, 472 (Bankr. E.D. Mo. 2001); In re Wilson, 85 B.R. 72, 73 (Bankr. N.D. Ill. 1988). It may also be reset. In re Carty, 149 B.R. 601, 604 (9th Cir. BAP 1993). The court also has the discretion to impose a longer bar. In re Casse, 198 F.3d 327 (2nd Cir. 1999); In re Tomlin, 105 F.3d 933, 938-39 (4th Cir. 1997); B-3 Properties, LLC, 517 B.R. at 897.
SO ORDERED.
/s/ Robert E . Grant
Chief Judge, United States Bankruptcy Court