Expert: Mark J. Markus- California Bankruptcy Attorney - 7/14/2008

Question
I am wondering if the Trusttee is suppose to notify the debtors of the motion to dismiss PRIOR to case actually being dismissed?  We are approximately 1 month from completing our Chapter 13.  Back in April our case was dismissed with no notification of a motion to dismiss in advance.  The reason stated non-payment (not timely).  The deduction was weekly from my husband's employer and monthly from my employer.  However, my husband's employer only sent in monthly (which is what the order for payroll deduction stated...deduct weekly, send in monthly.)  Anyway, a motion to set aside was granted and our case reopened.  Now, it happened again.  Our case has been dismisse dfor non-compliance to the terms which I don't understand.  It still comes out weekly from my husbands payroll & monthly from mine.  However, my employer forgot to put the case number on the check to the trustee and it was returned to them to correct.  Again, we did not received notification of a motion to dismiss and will probably have the letter showing it has been dismissed in today's mail according to our attorney's office.  We saw on-line through the data center that it had been dismissed/closed on 7/08/08.  Getting answers from our attorney's office is like someone else stated, pulling teeth.  We only owed $1782.57 (plus our monthly mortgage) to complete the plan at the end of this month...that is until this dismissal for non-compliance...although we have been complying as required!  Sorry, so long...but again, shouldn't we have gotten a notice of the motion to dismiss so we could respond and fight for what we know is correct rather than have to fight after the fact???

Answer
Yes, you absolutely should have received notice with an opportunity to respond.  In our district (Central Dist. of California) there is usually over a month's notice of any motion to dismiss in a CH. 13 case.   There is obviously some local procedure in your district that allows the Trustees to bypass this requirement (either that, or your mailing address of record is incorrect).  Sounds like you need to file another Motion to Set Aside, unfortunately.