What is a motion to dismiss and what do I do when one is filed?
A motion to dismiss can be filed by a number of parties, including the trustee, a creditor, or even a voluntary motion to dismiss filed by the parties. Here we will focus on motions to dismiss by the trustee. This motion is basically the trustee asserting that the debtor(s) should not be allowed to continue with the bankruptcy case for some specified reason. Often times the reason is for failure to make plan payments. There is no hard and fast rule of how far you can be behind before the trustee will file a motion to dismiss, however, generally, the more you fall behind the more likely a motion to dismiss will be filed.
If a motion to dismiss is filed your attorney will get notice of a response date. If you want to continue in your case your attorney will need to respond by this date. The response may be a variety of different things, most commonly that the debtor(s) plan to become current. If this response is filed you will generally have a little bit of time to become current. Your attorney can advise you on the specifics.
If you do not become current by the deadline your case may be dismissed. If your case is dismissed you have 14 days to become current and reinstate your case. After this 14 days the order is final and you will not be able to reinstate your case. It is important to remember that because payments must be made by money order in the mail, if you are sending your payment close to the deadline you may need to appear at a hearing in person to make the payment to the trustee. It will not be sufficient to say that your payment has been sent, it will actually need to be received and processed by the trustee within 14 days. You may incur court costs and additional attorney’s fees if a motion to reinstate your case is necessary.
The best course of action is to avoid a motion to dismiss whenever possible. You can do this by making timely monthly payments. You can also enter into a wage order, whereby your employer will send your monthly plan payment to the trustee. This can be split in equal parts between however many paycheck you receive monthly.
If you have further questions, or would like to speak with a St. Louis Bankruptcy Attorney, feel free to contact us today!