Bankr. E.D.N.C.: In re Brown- Delay of Voluntary Dismissal to Protect Creditor’s Rights & Dismissal for Failure to Prosecute

Summary: After Wells Fargo commenced foreclosure, the Debtor filed an action against Wells Fargo first in North Carolina Superior Court, which was then removed to the Middle District Court.  (This series of events actually occurred twice.)  When the Debtor eventually filed bankruptcy in the Eastern District, venue in her case against Wells Fargo was transferred. Following a Motion to dismiss the Debtor’s complaint, the Debtor sought to voluntarily dismiss her Chapter 13 case, requesting that the Complaint against Wells Fargo then be remanded to either the Eastern District Court or North Carolina Superior Court.  Because such a voluntary dismissal would adversely affect the rights of Wells Fargo while the Motion to Dismiss the complaint was pending, the bankruptcy court delayed entry of the voluntary bankruptcy dismissal. Proceeding to the Motion to Dismiss the complaint, the bankruptcy court found that the Debtor had recently successfully served Wells Fargo and the other defendants, but found that the three year delay in service constituted sufficient basis for dismissal due to failure to prosecute under Rule 41(b). Additionally, the bankruptcy court found that the Debtor’s complaint failed to include anything more than conclusory assertions and should also be dismissed under the Iqbal/Twombley pleading requirements. Brown- Delay of Voluntary Dismissal to Protect Creditor’s Rights & Dismissal for Failure to Prosecute.PDF