Expert: Terry Leeders - 8/6/2007

Question
QUESTION: Since April, my husband and I were working a temporary job in Florida and filed Chapter 13 in the Florida Middle District on 06/07/07.  One month after filing we lost the job.  We stayed in Florida long enough to attend to the 341 meeting on 07/30 and explained circumstances to the trustee.  We moved back to Texas on 07/31.   On 08/03/07 I received the second filing fee installment payment (cashier's check dated 07/07/07) marked void and returned to me in the mail.  I do not know why the payment was refused by the Clerk of the Court.  We have since learned from the National Data Center that our case was dismissed (no notice received yet) on 07/30.  The Florida trustee received our first preconfirmation payment.  I don't know if she plans to refund it to us or make payment to the creditors.  In the meantime, I have arranged to make our scheduled plan payments directly to the creditors for August.

I guess my question is, should we let this dismissed dog lie in Florida and refile a new Chapter 13 in Texas Eastern District or try to file a motion for transfer of venue?

ANSWER: IF it is dismissed, then you would need to bring a motion to vacate...depending on why it was dismissed.  Since you have moved..it may be easier and cheaper to refile in texas.  Now, since you are not working, or else have started a new job, you may just want to file again in Texas.  If you do Ch13, then you have to petition the court for an extension of the automatic stay.  Depending on the circumstances, you might even qualify for Chapter 7.  Therefore, talk to your local attorney to plan the best course of action.

---------- FOLLOW-UP ----------

QUESTION: Thanks for your help.  We are pro se, but this got out of hand.  It was dismissed because the court clerk erroneously rejected, marked void and returned our second filing fee installment.  She rejected it as a personal check, which it was not.  It was a prepaid bank draft.  Go figure.   

We really and truly do not have the funds to pay an attorney.  Our current income is my disability income.  Social Security lets me, and will even help me work part time, which I plan to be doing again soon, and my husband will be entitled to unemployment until he finds another job.

I am working on the Notice of Appeal and MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS.  I know those have to be filed by Wednesday, because the case was dismissed 07/30.  I am thinking to file the Motion to Transfer Venue with the Appeal, along with a motion to suspend trustee payments until the transfer is complete.  Am I on the right track?

We are afraid that letting this dismissal stay will require us to wait 180 days to refile in Texas, and we simply can't do that.  

Chapter 7 will mean giving up the car which we can't do right now either, I need to make my doctor and Social Security appointments.

Answer
Hi Jamie.
I no not know the exact steps, as I require my clients to pay the filing fee in advance.  I also have never filed any transfer of venue motions either.  The Venue rule says you can file in the new jurisdiction after 91 days..not 180, since it is the 'greater part of 180 days'

You can definitely try to vacate the dismissal due to error, so it seems you are on the right track.  Be sure to send notice to all parties and creditors in the case.