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In re Carty

filed: January 22, 1993.

IN RE MICHAEL CARTY AND PATRICIA CARTY, DEBTORS. PAUL GREENWELL, APPELLANT,
v.
MICHAEL CARTY AND PATRICIA CARTY, APPELLEES.



Appeal from the United States Bankruptcy Court for the District of Arizona. Honorable Redfield T. Baum, Bankruptcy Judge, Presiding. BK. No. 90-12236-PHX-RTB

Before: Russell, Jones, and Meyers, Bankruptcy Judges.

Author: Russell

RUSSELL, Bankruptcy Judge:

The creditor appeals the bankruptcy court's authorization of the refiling of a new bankruptcy petition by the debtors after dismissal of a previous petition which was improperly filed within the 180-day period proscribed by 11 U.S.C § 109(g)(2).*fn1 We AFFIRM.

I. FACTS

The facts are not in dispute. On January 5, 1989, appellant Paul Greenwell ("Greenwell") was awarded a stipulated judgment against the debtors/appellees Michael and Patricia Carty ("the Cartys") in the amount of $3,883.69 in Arizona Superior Court.

On April 3, 1989, the Cartys filed for Chapter 13 relief. The case was voluntarily dismissed on August 3, 1990,*fn2 after the trustee recommended dismissal for failure to make regular and timely interim payments for eleven months, and after a unrelated creditor, Bancplus Mortgage Corporation, had moved for an order lifting the automatic stay. The motion to lift the stay was granted on January 12, 1989.

On August 21, 1989, Greenwell applied for a writ of garnishment. The Arizona Superior Court issued the writ of garnishment and ordered a continuing lien on November 9, 1990.

On November 19, 1990, the Cartys filed another Chapter 13 petition for relief, 108 days after the dismissal of the last Chapter 13.

Ten months later, on September 18, 1991, Greenwell filed a motion to dismiss the second Chapter 13 case. The bankruptcy court heard arguments on November 13, 1991. The court found that the second Chapter 13 petition was indeed filed within the 180-day period prohibited by § 109(g)(2).

The court further ruled that at the time of the hearing, there was no longer a prohibition against filing another petition because the 180-day prohibition had since run. Greenwell argued that he was entitled to a renewed 180-day period, or a tolling of the 180-day period for the time between the second petition and its dismissal, in order to receive the full benefit of the 180 days. The bankruptcy court, however, authorized the filing of another petition. Greenwell appeals. We AFFIRM.

II. ISSUE

Whether the bankruptcy court erred in authorizing the immediate refiling of a new petition after dismissing the debtors' Chapter 13 ...


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