Judicial Follies: Ignoring the Plain Meaning of Bankruptcy Code § 109(G)(2)

Bankruptcy Code § 109(g)(2) is an eligibility provision that is intended to prevent debtors from filing abusive repetitive petitions when the debtor has voluntarily dismissed a bankruptcy case after the filing of a motion for relief from the automatic stay. In applying this provision, the federal courts have adopted four different approaches, which are referred to as (1) the mandatory approach, (2) the discretionary approach, (3) the “causal connection” approach, and (4) the “pending” approach. This Article demonstrates that the mandatory approach is the correct view, and it asserts three novel legal theories to explain why the other approaches are clearly erroneous (including misinterpretations of Congressional intent, and mischaracterization of a part of speech). Based upon the Supreme Court’s rule of statutory interpretation, the legislative history of § 109(g)(2), and application of the 2005 Bankruptcy Act, this Article concludes that the unambiguous language of § 109(g)(2) must be applied.