In re Racette, 343 B.R. 200 (Bkrtcy.E.D.Wis. 2006)

Court denies motion to strike prior filing dismissed for failure to satisfy pre-filing counseling requirement SEE BAPCPA §§109(h), 362(e)(3) Debtors filed prior chapter13 that was dismissed for failure to do credit counseling. They then filed a subsequent chapter 13 and moved for an order "striking" the prior and not "dismissing" it, in order to avoid the effect of a prior on the automatic stay, and to avoid negative consequences in seeking refinance of a mortgage. The court gave a litany of reasons why a prior case should not be deemed a mere "nullity" to be "stricken," including, would the filing fee and trustee's fees have to be refunded? Was the automatic stay in prior case a nullity, thus causing confusion on part of creditors? "The debtors' concerns to not outweigh all the mischief that could be inflicted on creditors, trustees and courts by adopting a policy of striking the petitions of ineligible debtors." The court cited as authority cases holding the same, including In re Taylor, __ B.R. __ (Bkrtcy.N.D.Cal. 2006); In re Tomco, 339 B.R. 145 (Bkrtcy.W.D.Pa. 2006); In re Ross, 338 B.R. 134 (Bkrtcy.N.D.Ga. 2006).