In re Palmer, Case No. 06-62439, 2006 Bankr. LEXIS 1367 (Bankr. N.D.Ga. May 12, 2006)(Massey).
This was the debtor’s fourth bankruptcy case since March 2000, and in each case the debtor had litigated to avoid a foreclosure of his residence. In the second case, the arrearage on the loan was over $30,000. In the debtor’s third case, filed in October 2005, the debtor had valued the property at $98,000 and indicated that the secured claim was $135,000. After the lender filed a motion for relief in that Ch. 7 case, the stay was lifed by order dated December 15, 2005. In March 2006, the debtor filed a Motion for TRO in that case seeking to prevent a foreclosure, and the court denied the motion on the grounds that the dispute between the parties was litigated at the stay relief hearing.
Unbeknownst to the Court when it ruled on the TRO, the debtor had just filed his fourth case – a Chapter 13. The lender sought a dismissal with prejudice of the case and a hearing was held on May, 10, 2006. Debtor argued at the hearing that the lender had no given him proper credit for payments made on the secured loan. The Chapter 13 Trustee also sought dismissal based upon the debtor’s failure to attend the first meeting of creditors or make plan payments.
The court granted the motion to dismiss. It noted that any dispute over the arrearage or payments should have been raised at the December 2005 stay relief hearing (held in the third case). He, therefore, cannot now raise the issue again and he does not contend that payments made in the prior case brought the loan current. The court also found that the case was essentially a two-party dispute, and due to the facts identified above, was filed in bad faith. It was dismissed with prejudice.