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In re Nero

United States District Court, M.D. Florida, Tampa Division

August 26, 2019

In Re TERENCE PETER NERO
v.
JON WAAGE, et al., Appellees. TERENCE PETER NERO, Appellant,

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         After Terence Nero petitioned for bankruptcy protection three times to delay foreclosure, failed to receive pre-petition credit counseling, and failed to disclose aliases, other residences, and a bankruptcy action in the Southern District of Florida, the United States Trustee moved to dismiss Nero's third bankruptcy action and to bar Nero for two years from petitioning for bankruptcy. After the Trustee moved to dismiss, The Florida Bar suspended for thirty days Nero's bankruptcy attorney. During the pendency of the attorney's suspension, the bankruptcy court held a hearing on the motion to dismiss. Neither Nero nor his attorney attended the hearing, at which the bankruptcy court dismissed Nero's third bankruptcy action and barred Nero for two years from petitioning for bankruptcy.

         Appearing pro se, Nero appeals (Doc. 1) and argues that the bankruptcy court deprived Nero of due process by holding a hearing during the pendency of the attorney's suspension. Because a bankruptcy debtor possesses no right to counsel, because Nero received notice of the hearing, and because the bankruptcy court's dismissal and bar order enjoys substantial evidentiary support, Nero's appeal lacks merit and the bankruptcy court's order commends affirmance.

         BACKGROUND

         In 2012, Jennifer McClean sued in state court to foreclose her interest in property owned by Nero. McClean v. Nero, No. 2012-CA-10683 (13th Judicial, Circuit Hillsborough County, Florida). Brandon Kolb, a lawyer, appeared on behalf of Terence Nero and identified Nero by six aliases.[1] On December 31, 2015, the state court entered a judgment of foreclosure against Nero's property. (Doc. 4-32 at 1) The same day, Nero moved for emergency relief from foreclosure. (Doc. 4-32 at 1)

         In February 2016, Nero petitioned in the Middle District of Florida for chapter 13 bankruptcy protection. In re Nero, No. 8:16-bk-01281-CPM. Attempting to halt foreclosure, Nero filed in state court a copy of the bankruptcy petition. (Doc. 4-30 at 2) On February 20, 2016, the state court denied Nero's emergency motion for relief from judgment. (Doc. 4-32 at 1) About a year later, the bankruptcy court dismissed Nero's bankruptcy action because Nero failed to remit payments in accord with the proposed chapter 13 plan. (Doc. 4-2 at 2)

         About two weeks after dismissal of Nero's bankruptcy, Nero petitioned in the Southern District of Florida for chapter 13 bankruptcy protection. (Doc. 4-2 at 2; In re Nero, No. 17-12225-RBR (Bankr. S.D. Fla. Feb. 24, 2017)). In the petition, Nero states that he lived in Hollywood, Florida, but - unlike Nero's first bankruptcy petition - Nero failed to disclose that he had lived in Tampa, Florida. (Doc. 4-30 at 3) Again attempting to halt foreclosure, Kolb filed in state court a copy of the second bankruptcy petition. (Doc. 4-30 at 3) On May 22, 2017, the Southern District of Florida denied confirmation and dismissed Nero's second bankruptcy. (Doc. 4-2 at 2)

         In January 2018, Nero filed an emergency motion to stay the state foreclosure pending appeal. (Doc. 4-32) In the motion, Nero states that he had unsuccessfully attempted twice to obtain relief in bankruptcy because Nero lacked the ability to remit regular payments in accord with the proposed plan. (Doc. 4-30 at 4) Nero stated that he “is literally too broke to file Bankruptcy.” (Doc. 4-30 at 4) In February 2018, the state court denied the motion to stay, which denial the appellate court approved. (Doc. 30 at 4)

         Three days after the state court denied Nero's motion to stay, Nero filed in the Middle District of Florida a third petition for chapter 13 bankruptcy. (Doc. 4-7; In re Nero, 8:18-bk-01320-CPM) The petition and accompanying documents failed to disclose (1) that Nero had petitioned earlier in the Southern District of Florida, (2) that Nero had employed at least six aliases, and (3) that Nero had lived in Hollywood, Florida. Further, although Nero had earlier received credit counseling, the petition falsely states that Nero had received credit counseling within 180 days before filing the petition. (Doc. 4-7 at 5)

         On April 10, 2018, the Trustee moved (Doc. 4-30) to dismiss with prejudice Nero's third bankruptcy petition and requested an injunction barring Nero from petitioning for further bankruptcy. The Trustee argued that Nero had devised a scheme to frustrate foreclosure by filing serial bankruptcy petitions and by purposefully omitting from the third petition (1) Nero's aliases, (2) the bankruptcy action in the Southern District of Florida, and (3) Nero's failure to receive credit counseling within 180 days before filing the third petition for bankruptcy. (Doc. 4-30 at 1-3) Responding (Doc. 4-36) to the motion to dismiss, Nero argued that he had improved his financial circumstance before the third petition and that he had inadvertently omitted the bankruptcy in the Southern District of Florida. The next day, the clerk of the bankruptcy court scheduled (Doc. 4-37) for May 9, 2018, a hearing on the motion to dismiss and the request for an injunction.

         On April 22, 2018, Nero supplemented (Doc. 4-41) the response to the motion to dismiss and stated (Doc. 4-39) that he had received on April 16, 2018 - six days after the Trustee moved to dismiss - the credit counseling required by 11 U.S.C. § 109(h). The same day, Kolb, on behalf of Nero, moved (Doc. 4-39) to stay the bankruptcy action because The Florida Bar had suspended from Kolb from April 21, 2018, to May 21, 2018.[2] The next day, the bankruptcy court scheduled for May 9, 2018, a hearing on Nero's motion to stay and directed Kolb to serve interested parties with notice of the hearing. (Doc. 4-2 at 7) Kolb failed to timely serve notice of the hearing, and the bankruptcy court canceled the hearing on the motion to stay only. (Doc. 4-2 at 9) The hearing on the Trustee's motion to dismiss and the request for a bar order remained scheduled for May 9, 2018.

         Neither Nero nor Kolb attended the May 9, 2018 hearing.[3] (Doc. 7 at 3-4) At the hearing, the bankruptcy court determined that, because Nero failed to receive mandatory credit counseling within 180 days before petitioning for bankruptcy, Nero was not a “debtor” under 11 U.S.C. § 109(h) and was ineligible for bankruptcy protection. (Doc. 7 at 9-11) Further, the bankruptcy court determined that “well-documented” facts demonstrated Nero's bad faith and declared that “Mr. Nero will not be welcome in my Court or any other Bankruptcy Court in the world before May 9th, 2020.” (Doc. 7 at 10) A June 4, 2018 order (Doc. 4-71) dismisses Nero's action with prejudice for “the reasons stated orally and recorded in open court, ” finds Nero“an abusive serial bankruptcy filer, ” and bars Nero from petitioning for bankruptcy until May 9, 2020. (Doc. 4-71 at 1)

         DISCUSSION

         Appealing pro se, Nero argues (1) that the bankruptcy court deprived Nero of due process by holding the hearing during Kolb's suspension, (2) that the bankruptcy court erred by dismissing the bankruptcy because of Nero's failure to receive credit counseling, and (3) that the bankruptcy court ...


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