Filing a Motion to Withdraw a Bankruptcy Petition

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Filing a F.R.Civ.P. 41 Motion to Withdraw or Dismiss Bankruptcy Petition on a voluntary basis requested by the bankruptcy petitioner is as easy as drafting the motion with all relevant supporting grounds, filing it with the bankruptcy court clerk where the petition is currently pending, and serving a copy on the case trustee and all interested creditors.  In most cases there is no cutoff date where motioning to withdraw the bankruptcy petition on a voluntary basis becomes impossible.  What might be difficult is making the decision to take the action of requesting that the court dismiss the bankruptcy petition.  Dismissing the petition by the petitioner should only be requested in situations where the debts that originally caused the bankruptcy petition to be filed have been either renegotiated with creditors or paid down by agreed settlement amounts and a reasonable financial plan for the future has been created that would assure that the petitioner does not land back in bankruptcy court.

Federal Rule of Civil Procedure 41

A motion to dismiss a bankruptcy action on a voluntary basis as directed by F.R.Civ.P. 41 would need to be either (1) made without court approval but with the stipulation or the agreement of the creditors concerned in bankruptcy action or (2) made with court approval and by subsequent court order dismissing the bankruptcy petition.  Rule 41(a)(2) prevents voluntary dismissals of bankruptcies where the creditors are unfairly affected by the action.  The dismissal is discretionary for the bankruptcy court but would be allowed unless the creditors can show that they would suffer legal prejudice or be forced to confront the same debt issues again in another lawsuit.  There would be a hearing on the motion to withdraw the bankruptcy petition and any interested creditors would be allowed to appear at the hearing in opposition to the motion to withdraw.  If the petitioner has renegotiated all of the debts originally at issue in the bankruptcy petition by settling the debt with repayment of a reduced amount or on modified repayment terms then the bankruptcy judge should have no problem dismissing the petition.   

Getting Legal Help

If you or a member of your family has filed a petition for bankruptcy and would like to file a motion to withdraw that petition for the reason that the debts at issue have been otherwise settled then it may be helpful to contact a bankruptcy attorney in order to obtain assistance with drafting and filing the motion dismissing the petition.  An attorney may be able to review the bankruptcy case and provide additional advice on financial risks and protections that may arise concerning the debtor once the petition has been dismissed.

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