Argued: May 10, 2018
from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee,
District Judge. (1:17-cv-00135-GBL-IDD)
Steinhilber Beran, TAVENNER & BERAN, PLC, Richmond,
Virginia, Court-Assigned Amicus Counsel. Thomas Patrick
Gorman, OFFICE OF THE CHAPTER 13 TRUSTEE, Alexandria,
Marcelo R. Michel, OFFICE OF THE CHAPTER 13 TRUSTEE,
Alexandria, Virginia, for Appellee.
DUNCAN and AGEE, Circuit Judges, and SHEDD, Senior Circuit
and remanded by published opinion. Judge Duncan wrote the
opinion, in which Judge Agee and Senior Judge Shedd joined.
DUNCAN, CIRCUIT JUDGE:
U.S. Bankruptcy Court for the Eastern District of Virginia
dismissed Appellant's bankruptcy case without a hearing
under Local Bankruptcy Rule 3070-1(C), and the district
court affirmed. Because the plain language of 11 U.S.C.
§ 1307 requires a hearing, we reverse and remand.
November 30, 2016, Sarah Hyunsoon No filed a voluntary
petition for Chapter 13 bankruptcy under § 301 of the
U.S. Bankruptcy Code (the "Bankruptcy Code").
See 11 U.S.C. § 301. On December 15, 2016, No
filed her "Amended Chapter 13 Plan and Related
Motions" with attachments ("Chapter 13 Plan").
Bankruptcy Code § 1326 requires a debtor under these
circumstances to "commence making payments not later
than 30 days after the date of filing of the plan or the
order for relief, whichever is earlier, " to the
trustee. 11 U.S.C. § 1326(a)(1). No neither commenced
payments within the time limit nor appeared for a required
meeting of creditors.
January 13, 2017, Thomas P. Gorman, the Chapter 13 Trustee,
filed a "Local Bankruptcy Rule 3070-1(C)
Certification" stating that No had failed to commence
timely payments as required by 11 U.S.C. § 1326. Local
Bankruptcy Rule 3070-1(C) provides that "[u]pon receipt
of such a certification, the Clerk shall enter an order
dismissing the case." Bankr. E.D. Va. R. 3070-1(C).
Gorman also separately filed a "Motion to Dismiss,
Notice of Motion to Dismiss, and Notice of Scheduled Hearing
on This Motion." This latter filing argued that
dismissal was proper for three reasons: (1) No failed to
attend the required meeting of creditors; (2) No failed to
commence payments as required under § 1326; and (3)
No's Chapter 13 Plan was not made in good faith.
bankruptcy court scheduled a hearing on the motion to dismiss
for February 9, 2017, with responses to be filed at least
five days before that hearing, and it notified the
parties. However, the bankruptcy court dismissed
the case on January 17, 2017, before the scheduled hearing
could occur. Its dismissal relied solely on Local Bankruptcy
Rule 3070-1(C) and Gorman's certification under that Rule