1

2013 BNH 011 Note: This is an unreported opinion. Refer to LBR 1050-1 regarding

citation.

______________________________________________________________________________

UNITED STATES BANKRUPTCY COURT

DISTRICT OF NEW HAMPSHIRE

In re: Bk. No. 13-10446-JMD

Chapter 13

John A. James, Jr.,

Debtor

Mark Cornell, Esq.

Concord, New Hampshire

Attorney for Debtor

S. William Dahar II, Esq.

Victor W. Dahar, P.A.

Manchester, New Hampshire

Attorney for Creditor Barbara A. James

MEMORANDUM OPINION

I. INTRODUCTION

Creditor Barbara A. James (“B. James”) filed a Motion to Dismiss (Doc. No. 9) (the

“Motion”) John A. James, Jr.’s (the “Debtor”) chapter 13 case. The Debtor objects (Doc. No. 10)

(the “Objection”). The Motion alleges that the Debtor’s case should be dismissed because there

is no change in circumstances from the Debtor’s first case that provides a good faith basis for

filing the chapter 13 petition, and because the totality of the circumstances show bad faith in

filing the petition.

The Court held a preliminary hearing on the matter on April 3, 2013, and an evidentiary

hearing on the matter on May 30, 2013 (the “Hearing”). The Court took evidence at the Hearing

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for the purpose of deciding whether B. James met her burden to show that the Debtor filed his

chapter 13 case in bad faith under 11 U.S.C. § 1307(c). 

Essentially, B. James alleges two bases to support a finding of bad faith under § 1307(c)

of the Bankruptcy Code: (1) there is no change in circumstances that provides a good faith basis

for filing the second petition; and (2) the Debtor has caused B. James significant delay in

recovery.

This Court has authority to exercise jurisdiction over the subject matter and the parties

pursuant to 28 U.S.C. §§ 1334, 157(a), and U.S. District Court for the District of New

Hampshire Local Rule 77.4(a). This is a core proceeding in accordance with 28 U.S.C. § 157(b).

II. FACTUAL & PROCEDURAL BACKGROUND

 B. James and the Debtor were married and divorced prior to the filing of either of the

Debtor’s petitions for relief under chapter 13 of title 11 of the U.S. Code (the “Bankruptcy

Code”). B. James’s claim arises from litigation in and orders of the Commonwealth of

Massachusetts Essex Division Probate and Family Court. See Exs. 15-30, 36-45. Proof of Claim

2-1 filed by B. James (the “Proof of Claim”) states that she has a claim entitled to priority as a

Domestic Support Obligation (DSO) in the total amount of $66,337.21. Ex. 32. Prior to and

concurrently with the bankruptcy proceedings, the Debtor and B. James have been litigating over

the Debtor’s obligations in the Massachusetts state courts. 

A. Debtor’s First Chapter 13 Case

On December 19, 2011, the Debtor filed his first chapter 13 petition for relief as a

skeletal petition. Ex. 1 (the “First Case”). On December 20, 2011, the Court issued a Notice to

the Debtor to file the balance of his schedules, statement, and plan on or before January 3, 2012,

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failing which the case would be dismissed. On December 30, 2011, the Court issued a

Contingent Notice of Dismissal to the Debtor to file his declaration regarding electronic filing as

required by Local Bankruptcy Form LBF 5005-4A, failing which the case would be dismissed. 

On January 30, 2012, the case was dismissed for failure to file the electronic filing

declaration. The dismissal was vacated on Debtor’s motion after compliance with the Local

Bankruptcy Form. The Debtor obtained an extension of time to file the balance of his petition

and filed those documents on February 15, 2012. See Ex. 1. 

On his Schedule I, Statement of Income, the Debtor listed his monthly income of

$697.89: 

Line 1: Income- Wages $1,733.33

Line 7: Income- Business $600.00

Line 5: Less Payroll Deductions - $1,635.44

Line 15: Average Monthly Income $697.89

Ex. 1 at 24 of 46. The Debtor’s nondebtor spouse’s income is listed as $58,527.42, with a

combined average monthly income of $59,225.31. Id. Debtor’s Schedule J lists Average

Monthly Expenses of $60,121.97, leaving Monthly Net Income of negative $896.66. Id. at 27

of 46.

B. James filed a proof of claim in the amount of $52,500.21. Ex. 31. The Debtor

objected to the claim of B. James, and the Court overruled that objection, finding that B. James’s

claim was entitled to priority in the amount of $52,500.21. Ex. 9. The Debtor appealed the

Court’s order overruling the objection to B. James’s proof of claim to the Bankruptcy Appellate

Panel for the First Circuit. Ex. 14. The BAP subsequently dismissed the appeal because the

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Debtor failed to file an opening brief and appendix in that proceeding. See Exs. 10-13. 

Accordingly, this Court’s order allowing the priority claim became final. 

B. James filed a motion to dismiss, arguing that the First Case should be dismissed

pursuant to § 1307(c)(11) for failure to pay a $2,500 fee imposed by the Massachusetts Probate

and Family Court. Ex. 3. The Court held an initial hearing on the motion, and continued it

subject to the Debtor making a payment to B. James, and certain pleadings from the Probate and

Family Court being filed and provided to B. James’s counsel. Ex. 4. The Chapter 13 Trustee

also filed a motion to dismiss, arguing that the First Case should be dismissed because of a

failure to make plan payments, because the plan was underfunded, and because: “[I]t does not

appear that the Plan is feasible in that it relies upon the speculative large contributions of [the

Debtor’s] current spouse, while even including same his currently stated disposable income on

Schedules I and J is negative $896.66, and his Plan is due to escalate to require payments of

$1,550.00 per month.” Ex. 2. On February 15, 2013, at a continued hearing on the motions to

dismiss, the Court granted the Trustee’s motion to dismiss. Ex. 5. 

B. Debtor’s Instant Chapter 13 Case

Ten days later, on February 25, 2013, the Debtor filed a skeletal chapter 13 petition in the

instant case. Ex. 7. On February 26, 2013, the Court issued a Notice to the Debtor to file the

balance of his schedules, statements, and plan on or before March 11, 2013, failing which the

case would be dismissed. (Doc. No. 5). B. James filed the instant Motion on March 1, 2013.

(Doc. No. 9). At an initial hearing on the Motion, on April 3, 2013, the Court inquired of the

Debtor why the schedules and plan were not filed. The Debtor stated that the contingent

dismissal date was not until April 10, 2013, and therefore he had been concerned with that date,

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 The IRS also filed an objection to the confirmation of the Debtor’s proposed chapter 13 plan because the

Debtor’s plan did not meet the feasibility requirement of § 1325(a)(6). Ex. 47. 

2

 The Court takes judicial notice of the claims register in this case. 

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rather than the date the schedules and plan were due to be filed. The Court, concerned whether

the Debtor was prosecuting the case in good faith, continued the hearing on the Motion and

ordered that the case would not be automatically dismissed and that any dismissal would await

further order of the Court. (Doc. No. 11). 

On April 11, 2013, the Debtor filed the balance of his schedules, along with the Plan. Ex.

7. On his Schedule I, Statement of Income, he listed his monthly income as $6,410.89: 

Line 1: Income- Wages $1,733.33

Line 7: Income- Business $5,000

Line 5: Less Payroll Deductions - $322.44

Line 15: Average Monthly Income $6,410.89

Ex. 2. The Debtor’s nondebtor spouse’s income is listed as $59,252.84, with a combined

average monthly income of $65,663.73. Id. Debtor’s Schedule J lists Average Monthly

Expenses of $65,767.16, leaving Monthly Net Income of negative $103.43. Id.

With respect to claims in the instant case, B. James has filed the Proof of Claim for a

priority DSO claim of 66,337.21. Ex. 32. The IRS has filed a proof of claim in the amount of

$115,203.38, made up of a $9,425.00 secured claim, a $98,188.04 priority tax claim pursuant to

§ 507(a)(8), and a $7,590.34 unsecured claim.1

 Ex. 34. The third and final claim was filed by the

Massachusetts Department of Revenue, in the amount of $23,559.26, made up of a $5,144.76

priority tax claim pursuant to § 507(a)(8) and a $18,414.50 unsecured claim.2

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The Meeting of Creditors pursuant to 11 U.S.C. § 341 was held and concluded on April

15, 2013. Shortly after the Meeting of Creditors, the Trustee filed a motion to dismiss, stating

that the Debtor: had failed to make timely plan payments; was “unable to formulate a

confirmable chapter 13 plan” because the proposed plan did not provide for, inter alia, the claims

of B. James, and the Internal Revenue Service (IRS); and “employment with his spouse is vague

and does not provide a regular source of income.” Ex. 46. 

On May 30, 2013, the Court held an Evidentiary Hearing on the Motion. At the hearing,

the parties stipulated to the admission of B. James’s Exhibits 1-48, and Debtor’s Exhibit 101. 

The Court heard testimony from B. James and from the Debtor. After testimony, the parties

submitted memoranda of law, and the Court took the matter under submission. 

III. DISCUSSION

A. Bad Faith Filing in Chapter 13

Section 1307(c) provides: “[O]n request of a party in interest . . . and after a notice and a

hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or

may dismiss a case under this chapter, whichever is in the best interests of creditors and the

estate, for cause, including (1) unreasonable delay by the debtor that is prejudicial to

creditors . . . .” § 1307(c). “The list of grounds for dismissal or conversion found in § 1307 is

not exhaustive, the court is not limited by the specific circumstances mentioned there.” 

Gonzales-Ruiz v. Doral Fin. Corp. (In re Gonzales-Ruiz), 341 B.R. 371, 382 (B.A.P. 1st Cir.

2006). 

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While “bad faith” is not an enumerated “cause” under § 1307(c)(1)-(11), “it is well

established that lack of good faith (i.e., bad faith) is ‘cause’ for dismissal or conversion of a

Chapter 13 case.” Sullivan v. Solimini (In re Sullivan), 326 B.R. 204, 211 (B.A.P. 1st Cir. 

2005). The First Circuit Court of Appeals has commented that “good faith is a concept, not a

construct. Importantly, it is a concept that derives from equity.” Berliner v. Pappalardo (In re

Puffer), 674 F.3d 78, 82 (1st Cir. 2012) (applying the totality of circumstances test and finding

that a chapter 13 fee-only plan is not per se bad faith). Under § 1307(c), the objecting creditor

has the burden of proving a lack of good faith on the part of the debtor. Sullivan, 326 B.R. at

211. Bankruptcy courts in the First Circuit apply a totality of the circumstances test to determine

whether a debtor has filed a chapter 13 in good faith (or bad faith). Id. The bottom line is

“whether the Debtor is attempting to thwart his creditors, or is making an honest effort to repay

them to the best of his ability.” In re Virden, 279 B.R. 401, 407 (Bankr. D. Mass. 2002). 

Courts typically consider the following factors in making such a determination:

(1) debtor’s accuracy in stating her debts and expenses, (2) debtor’s honesty in the

bankruptcy process, including whether she has attempted to mislead the court and

whether she has made any misrepresentations, (3) whether the Bankruptcy Code is being

unfairly manipulated, (4) the type of debt sought to be discharged, (5) whether the debt

would be dischargeable in a Chapter 7, and (6) debtor’s motivation and sincerity in

seeking Chapter 13 relief. 

 Sullivan, 326 B.R. at 212 (citing In re Dicey, 312 B.R. 456, 549 (Bankr. D.N.H. 2004)); In re

Visconti, 448 B.R. 617, 622 (Bankr. D.N.H. 2011).

Although this Court and others have provided lists of relevant factors, the inquiry is

inherently fact sensitive, done on a case-by-case basis, and may involve consideration of other

factors or a more general balancing of equities. See Sullivan, 326 B.R. at 212 (citations

omitted). Two additional factors have been considered when examining the totality of the

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circumstances: (1) a debtor’s history of filings and dismissals, and (2) whether a debtor only

intended to defeat or circumvent state court litigation. See Sullivan, 326 B.R. at 211-12 (citing

In re Fleury, 294 B.R. 1, 5-6 (Bankr. D. Mass. 2011); see also In re O’Neal, 2011 WL 2117017,

at *5 (Bankr. D. Mass. May 23, 2011)). 

Where a debtor has a history of prior filings, and there is no significant change in

circumstances or legitimate bankruptcy purpose, then courts have found bad faith. See

Gonzalez-Ruiz,341 B.R. 371; Sullivan, 326 B.R. 204; Fleury, 294 B.R. 1. But see O’Neal, 2011

WL 2117017 (finding no improper purpose and denying a motion to dismiss for bad faith filing

where despite litigation and a prior filing because unsecured creditors were getting paid a

substantial dividend through a sixty month plan and because the bankruptcy court was an

appropriate forum to determine whether retirement accounts are exempt even if encumbered by

liens). Where the debtor has a history of failure to complying with his obligations as a debtor,

courts have found a lack of good faith. See In re Colon Martinez, 472 B.R. 137 (B.A.P. 1st Cir.

2012); Sullivan, 326 B.R. 204. 

If a debtor’s primary intent in filing a chapter 13 petition, or successive petitions, is to

avoid payment to a specific creditor, a court may find bad faith. This intent may be evidenced

by a lack of other creditors, a recharacterization of the creditor’s claim so as to avoid payment

through the plan, or an opacity in the schedules and plan that avoid disclosure of the debtor’s

financial circumstances. See Sullivan, 326 B.R. 204; Fleury, 294 B.R. at 7-8; Virden, 279 B.R.

at 410. In Sullivan, the chapter 13 debtor had only two creditors, the IRS and her co-defendant

in a state court action. The Bankruptcy Appellate Panel for the First Circuit (the BAP) affirmed

the bankruptcy court’s finding of a lack of good faith, and held the purpose of the filing was to

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obtain funds that would otherwise have gone to the co-defendant and citing in support the lack of

creditors other than the IRS. 326 B.R. at 213; accord In re Dicey, 312 B.R. 456, 460 (Bankr.

D.N.H. 2004) (finding that a chapter 13 plan was filed in bad faith where, inter alia, the case is in

substance a one creditor case).

 In Colon Martinez, an individual debtor filed two chapter 11 cases within a one-year

period. In each of those proceedings, the debtor failed to abide by court orders by not filing a

plan or disclosure statement, as well as missing filing deadlines after obtaining repeated

extensions. 472 B.R. at 144, 146-67. The BAP affirmed the bankruptcy court’s dismissal of the

second case because the debtor, who filed both cases pro se, did not indicate any change in

circumstances between the two filings. The BAP found that his failure to abide by orders of the

court and the requirements of the Bankruptcy Code was willful and indicated bad faith. Id. at

147 (affirming the bankruptcy court’s determination that the debtor’s prior dismissal for failure

to file documents supported a dismissal under 11 U.S.C. 109(g)).

In Fleury, the chapter 13 debtor recharacterized the claim of a creditor between her first

and second petition. In the first case, the debtor failed to update the schedules when a judgment

in which she had an interest was entered. In the second, the debtor contested the creditor’s claim

to part of the state court judgment. The bankruptcy court dismissed the case as having been filed

in bad faith because the debtor was not making an honest effort to repay her primary creditor. 

The court found “[her] actions appear[ed] purposeful and planned” to avoid paying her creditor,

despite an ability to pay her debts. 294 B.R. at 7-8. The court found that the debtor’s plans to

avoid payment through use of the bankruptcy system was “egregious behavior” that, taken in

context of the rest of the case, supported dismissal of the case under § 1307(c). Id.

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In Sullivan, the debtor filed her first chapter 13 petition less than a month after entry of a

state supreme court judgement against her. 326 B.R. at 206. The bankruptcy court granted the

chapter 13 trustee’s motion to dismiss for failure to pay and provide required information. 

Approximately five weeks later, the debtor filed a second chapter 13 petition. The court

dismissed that case for failure to file schedules, a Statement of Financial Affairs, or a plan. The

debtors filed a motion to vacate the dismissal, along with the required documents. The chapter

13 trustee filed a motion to dismiss the second case for failure to make plan payments, failure to

produce required insurance information, and failure to disclose a prior claim for attorneys’ fees;

the court granted that motion and dismissed the second case. Id. at 207. Nine months later,

debtor filed a third petition. The court dismissed the third case because the debtor lacked

sufficient income to fund a chapter 13 plan. The day before the third case closed, the debtor

filed a fourth chapter 13 petition. The bankruptcy court granted the judgment creditor’s motion

to dismiss the fourth case for bad faith, including a history of prior filings and dismissals and the

debtor’s purpose to unreasonably delay and hinder the state court action. 

 The BAP affirmed the bankruptcy court’s dismissal. The BAP explicitly adopted the

totality of the circumstances test, and commented that a determination of good faith in filing the

petition “advance[s] one of the primary purposes of bankruptcy, which is to relieve the honest

but unfortunate debtor from the weight of oppressive indebtedness, allowing the debtor to start

afresh.” Id. at 211-12 (citing Local Loan Co. v. Hunt, 292 U.S. 234, 244 (1934)). The BAP held

that the debtor’s unsuccessful serial filings supported the bankruptcy court’s finding that the

debtor’s purpose was to avoid satisfaction of the state court judgment. Id. at 212. The BAP

continued: “The debtor’s conduct in her previous cases also demonstrated her lack of sincerity. 

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In the Debtor’s previous cases, she failed to comply with her obligations as a debtor by failing to

make payments, produce documents requested . . . failing to file schedules . . . [and] lack[ing]

sufficient income to fund a plan. . . . In the Debtor’s fourth petition, her monthly disposable

income was only $11 more than in her previous case.” Id. at 213. Thus, the BAP affirmed the

bankruptcy court’s dismissal because the totality of the circumstances indicated bad faith and an

improper purpose. Id.; see also Fleury, 294 B.R. 1, 6-7, 8 (“Although Petition II is only the

Debtor’s second bankruptcy filing, the similarity between the two petitions demonstrate a

common intention in both filings.”) (finding bad faith where the debtor’s second chapter 13

petition was nearly identical and the debtor was found to be “singular in her desire to discharge

the creditor’s claim”).

In Gonzalez-Ruiz, the debtors filed and voluntarily dismissed one chapter 13 petition. 

Less than three months later, the debtors filed a second chapter 13 petition; the bankruptcy court

dismissed the second case for failure to comply with plan provisions. 341 B.R. at 375-76. Three

years later, the debtors filed a third chapter 13 petition. In the third case, the debtors made plan

payments and attempted to obtain a discharge. The debtors’ mortgage lender was not properly

noticed nor properly paid through the plan, and after protracted motion practice, the bankruptcy

court found the second confirmation order was not binding on the lender. Id. at 378. No appeal

of that order was filed, although the debtors filed six motions for reconsideration with the

bankruptcy court. Id. at 379. Prior to the third case being closed, the debtors filed the fourth

case. The bankruptcy court granted the lender’s motion for dismissal for bad faith filing,

concluding, “the sole purpose of the present filing is to stay [the lender’s] sale of the debtors’

residence. The sale was authorized by the [c]ourt in the debtors’ previous bankruptcy petition

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and the debtors failed to appeal. The [c]ourt concludes that the debtors may not obtain relief

from the orders entered in the previous case by filing a new petition.” Id. at 380. The BAP

affirmed, ruling that the fourth case, “was not filed in order to reorganize the debtors’ affairs, but

to circumvent and undermine the bankruptcy court’s orders in the Third Case. . . . Filing a new

bankruptcy case is not an alternative remedy to an appeal. It is not an honest approach to the

bankruptcy process.” Id. at 383. The BAP affirmed dismissal because the fourth case was not

filed for a proper bankruptcy purpose. Id.

B. The Filing of this Chapter 13 Case

This is the Debtor’s second bankruptcy petition within thirteen months, and there is no

material difference between the first and second filing. The First Case was filed on December

19, 2011, and the instant case on February 25, 2013. In the First Case, the Debtor’s Disposable

Income was negative $896.66. In this case, the Disposable Income is a negative $103.43. While

the Debtor’s petition in this case includes an estimated $5,000 from the operation of his business,

there is no evidence on the record to support his estimate. The Debtor testified at the Hearing

that he believed his business was picking up and that the inclusion on Schedule I was made in

good faith. However, the second petition was filed a mere ten days after the dismissal of the

First Case for, among other reasons, speculative income and an underfunded plan. Nothing in

the record supports a change in circumstances for the Debtor. Like in Sullivan, where the

debtor’s disposable income in the fourth petition was only $11 more than in the third petition,

the Court finds that where the Debtor proposes to fund his plan through contributions from a

nondebtor third person, there is no meaningful difference between negative $896.66 and negative

$103.43. 

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Similar to Fleury, where the bankruptcy court found no bankruptcy purpose when the

second case’s filings were very similar to those in the first case, here the Court finds no

significant difference between the two petitions, other than the inclusion of an additional

judgment entered against the Debtor by the Massachusetts State Court on account of the final

semester of college tuition for the parties’ son. And like in Colon Martinez, where the

similarities and failure to show a change in circumstances supported dismissal for bad faith, the

Debtor has not demonstrated any change in circumstances other than his testimony that business

was increasing. The Debtor’s disposable income is still insufficient to support a chapter 13 plan

of reorganization, even without considering whether the income from either his employment by

his current wife or from his law practice is speculative. The small change in income, especially

as it is accompanied with increased expenses in Schedule J, does not support an ability or intent

to reorganize the Debtor’s affairs. 

The Debtor has also failed to comply with his obligations as a debtor, both in the First

Case and in this case. In the First Case, the debtor did not file his schedules, statement of

financial affairs, or plan by the date required by the Code nor did he file the declaration of

electronic filing in compliance with the Local Rules, and the case was dismissed as a result. 

Although the case was reinstated on the Debtor’s motion to vacate dismissal, initial failure to

comply with the requirements of the Code has been considered by courts to be indicative of bad

faith, such as in Sullivan. The First Case was ultimately dismissed on the Trustee’s motion,

partially because the plan was based on speculative income by the Debtor’s nondebtor spouse,

and partially because the Debtor had failed to make payments under the plan. While actions

prepetition or in a prior case cannot, standing alone, constitute a finding of bad faith in filing this

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chapter 13 case, these failures to meet the basic requirements of a chapter 13 debtor support a

finding of bad faith. 

In this case, the Debtor filed his petition shortly after the dismissal of the First Case, but

did not file the schedules until after the deadline to do so had run. Specifically, the Debtor filed

his petition on February 25, 2013, ten days after the First Case was dismissed. The schedules,

statement of financial affairs, and plan were required by court order to be filed on or before

March 11, 2013. At the Court’s preliminary hearing on the Motion on April 3, 2013, twentythree days after the deadline, the documents had not yet been filed. Debtor indicated at that

hearing that he was aware that the deadline under the Court’s order had passed, but because he

knew that the case would not be dismissed until the deadline for automatic dismissal under

§ 521(i) had lapsed, he had not filed the balance of the petition. While the documents were filed

on April 11, 2013, the Debtor’s casual disregard for his responsibilities and for the Court’s

orders supports a finding of bad faith. Particularly because the schedules were so similar, and

the second petition was filed very shortly after the dismissal of the First Case, the failure to file

required documents is even more egregious.

While B. James argues that she has been subject to unreasonable delay because of the

Debtor’s failure to pursue his appeal of this Court’s order allowing B. James’s claim in the First

Case, the Court is unconvinced by that argument. However, neither is it convinced by the

Debtor’s argument that he was just “availing [himself] of the procedural protections available in

the [B]ankruptcy [C]ode.” The Debtor did have the right to file an appeal of this Court’s order to

the BAP. Such an appeal is not an unreasonable delay, and cannot be considered to evidence

bad faith. However, the Debtor did not prosecute that appeal when he failed to arrange for a

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transcript to be delivered to the BAP, see Ex. 12, and to comply with the BAP’s Briefing Order,

see Exs. 10, 11, 13. This conduct is substantially similar to his conduct in this Court. 

Further, the Debtor appears to be attempting to use this case as an alternative to pursuing

that appeal. The Debtor’s schedules in this case include part of B. James’ claim, namely the

attorneys’ fees in the amount of $42,155.68, as an unsecured nonpriority claim. This Court had

previously ruled, after an evidentiary hearing, that B. James was entitled to a priority DSO claim

of $50, 936.08. The Debtor’s schedules in this case include only an $12,725 claim for B.

James’s DSO claim. This conduct is similar to that in Gonzales-Ruiz, where the debtors did not

file an appeal, but contested the same claim in their fourth bankruptcy petition, even though the

bankruptcy court had previously ruled on it. While the Debtor here did file an appeal, his

abandonment and its subsequent dismissal for lack of prosecution similarly supports a finding of

bad faith. 

Characterization of B. James’s DSO claim as only $12,725, on account of a prepetition

obligation to pay college expenses, while characterizing the rest of her claim as an unsecured

nonpriority claim after this Court had allowed the entire claim in the First Case in the amount of

$50,936.00, also demonstrates the Debtor’s focus on avoiding payment to B. James. As in

Fleury, where the bankruptcy court found that the debtor’s subsequent petition appeared to be

filed with the singular purpose of avoiding payment to her creditor because she had

recharacterized the claim and failed to update it after subsequent judgments in the state court

were entered, here the Debtor has changed how the B. James’s claim is listed. Like in GonzalezRuiz, the Court finds that this is not a valid purpose in bankruptcy. 

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The totality of the Debtor’s circumstances, both in the First Case, the BAP appeal, and in

this case, support a finding of bad faith in filing the chapter 13 petition. The Court finds little

valid bankruptcy purpose, and certainly no benefit to the estate or to creditors that could not be

found outside of bankruptcy. If the Debtor is to reorganize his financial affairs, whether in a

bankruptcy proceeding or outside of bankruptcy, he must depend on the generosity of a third

party. For the reasons discussed in this opinion, the Debtor’s conduct has not demonstrated his

good faith and intention to reorganize his affairs. Thus, the Court finds that the petition was

filed in bad faith, and that B. James’s motion to dismiss under § 1307(c) shall be granted. 

IV. CONCLUSION

The Motion shall be granted by separate order. This opinion constitutes the Court’s

findings of fact and conclusions of law in accordance with Federal Rule of Bankruptcy

Procedure 7052. 

ENTERED at Manchester, New Hampshire.

Date: September 24, 2013 /s/ J. Michael Deasy

J. Michael Deasy

Bankruptcy Judge

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