Forum Rules (Everyone Must Read!!!) (updated: 04/28/2015)

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Motion to Vacate Dismissal? Help!

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  • Motion to Vacate Dismissal? Help!

    So, I messed up big time. Filed petition on 11/30, and today was the last day to file my schedules and remaining documents. My chapter 7 couldn’t be any simpler. No assets, not a lot of creditors, no secured or priority debts, income is $20K below median, I do have one Wage garnishment. So the day after I filed, the Bk court sent me the standard Notoce of Deficient Filing and said if I didn’t file everything by 12/14, there would be a Show Cause Hearing on 12/20 to show cause why my case shouldn’t be dismissed.

    I live an hour from BK court, had some trouble getting there (long story). I missed the deadline! Do I wait and go to the Show Cause hearing, or should I be there when they open Monday morning, and file the late documents? Can I go ahead and file a motion to vacate dismissal (along with a notice and an order) or do I have to wait until it’s dismissed first?

    I’ve read a lot of threads on here by
    justbroke , BlankSlate and DingDong, and I’m feeling like I can do this, but I need a little guidance.


  • #2
    I would try to overnight my documents immediately to the court (maybe at a PostAll or UPS Store on Saturday, with delivery for Monday afternoon latest). The Court typically may not "enter" the mailed in documents immediately on the docket, but they date stamp them on the date received. (In those cases, the PACER entry may have a different entered date from the receipt date.)

    I often mailed things to the Court because I live 85 miles from the bankruptcy court where I filed.

    You are going to need to attend the Show Cause Hearing on the 20th. You can find out if they allow a telephonic appearance by consulting with the Clerk's office.

    The court is much more amendable to an excusable mistake than that you ignore that you were supposed to file by December 14th. That's why you should get the rest of those forms filed quickly and on Monday. At the Thursday (12/20) hearing, just plead that you made an excusable mistake and that you immediately filed the documents on the next available Court date (Monday).

    Unless you're a serial filer, the court is very reasonable when simple errors are made. Even if they did Dismiss your case, you could always file a Motion for Reconsideration and to Re-Open case. (The problem with waiting for it to be closed, is that you may need to notify all your creditors and the "temporary" lifting of the stay could be problematic.)

    Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
    Status: (Auto) Discharged and Closed! 5/10
    Visit My BKForum Blog: justbroke's Blog

    I am not an attorney. Any advice provided is not legal advice.


    • #3
      I agree with JB. I just want to add that once the Schedules and Statement appear on the docket the Court, on its own, may vacate the OSC hearing since you corrected that which caused the hearing to be set. Get your documents filed.



      • #4
        Thank you both for the quick response! I will file first thing on Monday morning, and while I’m there I will ask about the Show Cause hearing.


        • #5
          Thanks again! To update, I filed everything this morning. The clerk said there was no need to do anything else, as it hadn’t been dismissed yet, and she said there’s no need to come to the Show Cause hearing, since everything has been turned in now. Such a relief! I’m guessing I got off easy because I got up there and filed so quickly, before any other action was taken. This forum is a real blessing,


          • #6
            The simple fact is that many people file "skeleton" bankruptcies in order to stop or slow down a foreclosure or another legal action. While I don't have the exact percentage, suffice it to say that many people don't follow through and really have no intention of continuing. This is why the bankruptcy system has pretty set rules and dates that must be maintained to keep the cases flowing. Think about it... a Chapter 7 bankruptcy, which is a legal proceeding, is over from start (filing) to finish (discharge) in 90 days in most cases. The Chapter 7 trustee only makes $60 on each case they take (for 95% of the cases)*. There is just not the time and resources to wait around for things, so deadlines are important and the system has these automatic checkpoints to make sure the case is actually going to proceed.

            * only 5% of all Chapter 7s are asset cases, so neither the Court nor the Chapter 7 trustee want cases lingering around if there's literally no funds to deal with it. Only about 5% of Chapter 7 cases are so-called "asset" cases where the creditors may receive a distribution and the Trustee to make a little more than $60.
            Chapter 7 (No Asset/Non-Consumer) Filed (Pro Se) 7/08 (converted from Chapter 13 - 2/10)
            Status: (Auto) Discharged and Closed! 5/10
            Visit My BKForum Blog: justbroke's Blog

            I am not an attorney. Any advice provided is not legal advice.


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