## Facts

- George C. Montgomery filed a Chapter 13 petition on March 24, 1992.
- The bankruptcy court dismissed the first case on June 8, 1992 because Montgomery failed to attend the required § 341 meeting of creditors.
- On August 11, 1992, within 180 days of the first dismissal, Montgomery filed a second Chapter 13 petition.
- Creditor Norah Josephine Ryan moved to dismiss the second petition under 11 U.S.C. § 109(g)(1), asserting Montgomery was ineligible because the prior case was dismissed for willful failure to obey a court order (nonattendance at the § 341 meeting).
- After hearing, the bankruptcy court dismissed the second case, finding Montgomery’s failure to attend the earlier § 341 meeting was willful.
- The district court affirmed; Montgomery appealed.

## Issues

1. Whether § 109(g)(1) required the order dismissing the first Chapter 13 case to contain an express finding that the debtor’s failure to attend the § 341 meeting was willful.
2. Whether, on a motion to dismiss under § 109(g)(1), the creditor had the burden to prove willfulness or the debtor had the burden to prove the failure was not willful.
3. Whether the bankruptcy court clearly erred in finding the debtor’s nonattendance at the prior § 341 meeting was willful.

## Decision

- The court of appeals affirmed the dismissal of the second Chapter 13 petition.
- No express willfulness finding was required in the first dismissal order; willfulness needed to be determined only when § 109(g)(1) was invoked to bar the later filing.
- Failure to attend a § 341 meeting constitutes failure to obey a court order for purposes of § 109(g)(1).
- The debtor bore the burden to show his earlier failure to comply was not willful; the record contained no explanation for the nonattendance, so the debtor did not meet that burden.
- Standard of review: legal conclusions were reviewed de novo; factual findings (including willfulness) were reviewed for clear error.

## Legal Principles

- Under 11 U.S.C. § 109(g)(1), an individual is ineligible to be a debtor if, within the prior 180 days, a previous case was dismissed for willful failure to abide by court orders.
- A prior dismissal order need not contain an explicit willfulness determination to support later dismissal under § 109(g)(1); the willfulness finding may be made in connection with the later eligibility challenge.
- Nonattendance at a § 341 meeting qualifies as noncompliance with a court order within § 109(g)(1).
- In a repeat filing within 180 days after dismissal for noncompliance, the debtor has the burden to establish that the earlier failure was not willful; absent evidence explaining the noncompliance, a willfulness finding may stand.

## Conclusion

The Eighth Circuit upheld dismissal of a second Chapter 13 filing within 180 days because the debtor failed to attend a required creditors’ meeting in the first case, no earlier express willfulness finding was required, and the debtor failed to prove the earlier noncompliance was not willful under § 109(g)(1).


Montgomery v. Ryan (In re Montgomery), 37 F.3d 413 (8th Cir. 1994)