IN RE: Ernestine Angela JONES (2025)

ORDER IMPOSING STAY

THIS MATTER is before the Court on the Motion to Impose Automatic Stay (“Motion”) filed by Ernestine Angela Jones (“Debtor”) requesting an automatic stay be imposed pursuant to 11 U.S.C. § 362(c)(4).¹ Debtor filed the above-captioned case on January 13, 2025. Debtor is represented in this case by Moss & Associates, Attorneys, P.A. (“Moss & Associates”).² Prior to this case, Debtor filed two other bankruptcy cases, both of which were pending within the one-year period preceding the commencement of this case: (a) C/A No. 23-02840-hb, a Chapter 13 case in which Debtor was represented by Reed Law Firm, PA, and which was dismissed on April 9, 2024, for failure to make plan payments; and (b) C/A No. 24-01823-hb, which Debtor filed pro se, seeking relief again under Chapter 13, and which was dismissed on October 10, 2024, for failure to cure certain filing deficiencies. The Court ³ conducted a hearing on the Motion on January 30, 2025, which was attended by Debtor, her counsel,⁴ and counsel for the Chapter 13 Trustee (“Trustee”).

Section 362(c)(4)(A)(i) of Title 11 provides, in relevant part, that “if a single or joint case is filed by or against a debtor who is an individual under this title, and if 2 or more single or joint cases of the debtor were pending within the previous year but were dismissed ․ the stay under subsection (a) shall not go into effect upon the filing of the later case[.]” However, a party in interest may, within 30 days after the filing of the later case, request the Court to “order the stay to take effect in the case as to any or all creditors (subject to such conditions or limitations as the court may impose) ․ only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed[.]” 11 U.S.C. § 362(c)(4)(B). A case is presumptively filed not in good faith as to all creditors if the debtor had two or more bankruptcy cases dismissed within a year of filing the later case. A debtor, however, may rebut such presumption by providing clear and convincing evidence to the contrary. 11 U.S.C. § 362(c)(4)(D)(i)(I).

Debtor's counsel of record, Moss, filed the Motion on January 13, 2025, without a supporting affidavit. The Motion states that Debtor's first bankruptcy case was dismissed “for failing to make her Chapter 13 bankruptcy plan payments due to losing time at her job due to a medical issue and losing income as a result.” Motion at ¶ 8. Paragraph 10 of the Motion mistakenly refers to Debtor by the wrong name—Ms. Pinckney. The deadline for objecting to the Motion has passed and no objections or responses were filed. At the hearing, Debtor's counsel, Korn, noted that the Motion, as filed, contained “scrivener's errors,” and referred specifically to the incorrect name for Debtor in paragraph 10 of the Motion. When called to the stand to testify, Debtor explained the reason she stopped making her plan payments in her first case was because she had to start financially supporting her daughter, who was unemployed at the time, and son-in-law, whose health was in critical condition. Debtor further testified that she filed her second case pro se but did not understand all the Chapter 13 filing requirements and thus chose to refile a third time with the assistance of counsel. According to Debtor's testimony, her daughter and son-in-law are both working and in good health now; accordingly, she filed the current case in good faith and does not expect any issues with her ability to make plan payments now that her daughter and son-in-law no longer need her financial assistance.

When questioned by the Court to clarify the statement made in paragraph 8 of the Motion, Debtor stated that she does not work and was not working at the time of the first bankruptcy filing, as she is retired and her income since her first bankruptcy consists of Social Security benefits and a pension from her late husband's job. Thus, she admitted that paragraph 8 of the Motion signed and filed with the Court by her counsel was factually incorrect and must have erroneously referred to the debtor whose name appeared in paragraph 10.⁵

Counsel for the Trustee indicated that the Trustee had no objection to the Motion being granted based on Debtor's clarification of the reason for her first case's dismissal.

Motions such as the one currently before the Court are common in consumer bankruptcies, but the burden falls on the debtor to rebut the presumption that the case was not filed in good faith. At times, if no objections are filed, the Court may enter an order granting the relief requested based on the motion and signed affidavit. Thus, it is important for debtors and the attorneys who file motions on their behalf to treat these motions not as simple “run of the mill” pleadings with vague, blanket statements to rebut the presumption that arises due to the multiple filings. Counsel signing these motions—or any pleading for that matter—must ensure that they are factually correct and legally sound.

While using forms previously prepared and filed in other cases may be efficient in some respects, such “form” usage must be done with caution and careful attention to detail. By failing to ensure that the factual allegations set forth in the filed pleadings are applicable to the case in question, counsel risks violating applicable rules by certifying that the filed documents have proper evidentiary support.

The Court has previously brought similar issues to Moss's attention and takes this opportunity to again reiterate the importance of not only reviewing pleadings before signing and filing them with the Court, but also conducting the proper “due diligence” to ensure that the facts stated are supported by even a simple review of the Court's records. Moreover, it goes without saying that attorneys appearing before the Court are expected to be well-versed in the facts of the case at issue so that the statements made to the Court are true and correct.

Based upon the record and the statements and testimony provided at the hearing, the Court finds that Debtor has satisfied her burden of proving that this case was filed in good faith.

IT IS, THEREFORE, ORDERED:

1. Debtor's Motion to Impose Automatic Stay is granted, and the automatic stay is imposed pursuant to § 362(c)(4)(B) as of the date of the entry of this order as to all creditors;

2. Should the above-captioned case be dismissed for any reason within 12 months of the commencement of this case, dismissal shall be with prejudice as to any subsequent filing by the Debtor under chapter 11, 12, or 13 of the Bankruptcy Code for a period of one (1) year; and

3. Notice and service of this Order is delegated pursuant to SC LBR 5075-1.

AND IT SO ORDERED.

FOOTNOTES

1.   ECF No. 8, filed Jan. 13, 2025.

2.   Jason Moss, Esq. (“Moss”) signed the Motion and filed it with the Court using his CM/ECF account.

3.   Judge Elisabetta G.M. Gasparini presided over the hearing, standing in for Judge Helen E. Burris, who remains the judge assigned to this case. For prudent expediency and given the location of the hearings and the fact that there were only two matters remaining on Judge Burris’ Columbia calendar, Judge Gasparini agreed to preside over the remaining hearings on Judge Burris’ calendar for January 30, 2025.

4.   Peter Korn, Esq. (“Korn”) from Moss & Associates appeared as Debtor's counsel in court.

5.   At the hearing, Korn offered to have the Court enter a wage order, but it is not clear how such order would be applicable under the facts of this case because Debtor is retired.

Elisabetta G. M. Gasparini, United States Bankruptcy Judge