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Opinion 168

Case Name: 

In re Fulton, 52 B.R. 627 (Bankr.D.Utah)

Judge: 
Judge Allen
Date: 
Aug-23-1985
Case Number(s): 
85A-0764
Status: 

PUBLISHED

Body: 

Debtors filed a previous chapter 7 petition that was dismissed by the court based on debtors' failure to appear at the creditors meeting, which debtors explained was due to inadvertently writing down the wrong date. They filed a new petition shortly after the dismissal was entered, and creditor moved to dismiss their petition on the grounds that they were precluded from refiling by 11 U.S.C. § 109(f)(1). That provision precludes refiling for 180 days after a previous filing was dismissed for "willful failure" to abide by the court's orders or to appear before the court in proper prosecution of their case. The court ruled that failure to appear at the creditors meeting satisfied both situations covered by § 109(f)(1), and thus considered whether debtors' failure to appear had been willful, which standard the court determined was applicable to both § 109(f)(1) situations. The court decided that "willful" in this context should be defined the same as it is under 11 U.S.C. § 523(a)(6), or "deliberate or intentional," found that debtors had presented credible testimony that their failure to appear was not deliberate or intentional, and ruled that § 109(f)(1) was inapplicable.

Internal Ref: 
Opinion 168
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