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Bunyan v. Remick

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

October 1, 2019

RAYNETTE MARY ALICE BUNYAN, Appellant,
v.
KELLY REMICK, Appellee.

          OPINION

          Charlene Edwards Honeywell, United States District Judge.

         Raynette Mary Alice Bunyan (“Appellant”), proceeding pro se, appeals the Bankruptcy Court’s Order Granting Trustee’s Motion to Dismiss (Doc. 41) With A One Hundred and Eighty (180) Day Bar as to Re-Filing in favor of Kelly Remick, Chapter 13 Trustee (“Appellee”) (Doc. 1). The Bankruptcy Court found that Appellant did not comply with the Court’s Administrative Order, dismissed the Chapter 13 bankruptcy petition with prejudice; and prohibited Appellant from filing another Chapter 13 case for 180 days. Doc. 6-2. Appellant filed her brief. Doc. 10. Appellee filed her answer brief (Doc. 11). Although requesting additional time to file a reply brief, which the Court granted, Appellant did not file a reply brief. See Docs. 15, 16, 17, 18, 19, 21.

         Upon due consideration of the record, the parties’ submissions, and otherwise being fully advised of the premises, the Court concludes that the Bankruptcy Court’s Order Granting Trustee’s Motion to Dismiss (Doc. 41) With A One Hundred and Eighty (180) Day Bar as to ReFiling should be affirmed.

         I. Background

         On February 21, 2018, Appellant filed a Voluntary Petition under Chapter 13 of the Bankruptcy Code. Doc. 6-3 at 2. The same day the Bankruptcy Court issued a Notice of Deficient Filing because Appellant did not include the Summary of Assets, Schedules A-J, Statements of Financial Affairs, Creditors Matrix, Chapter 13 Plan, and Statement of Current Monthly Income. Doc. 6-3 at 2 (BR 5)[1]. The Bankruptcy Court entered a Fourth Amended Administrative Order FLMB-2017-3 Prescribing Procedures for Chapter 13 Cases. Id. (BR 6). Additionally, Appellant did not sign the Statement of Social Security, and the Bankruptcy Court entered an amended Notice of Deficient Filing. Id. at 3 (BR 11).

         On March 6, 2018, Appellant filed her Summary of Assets, Schedules A-J, Statement of Financial Affairs, Chapter 13 Plan, Chapter 13 Statement of Current Monthly Income, Statement of Intentions, and Chapter 7 Statement of Current Monthly Income. Id. at 3 (BR 13, 14). But several days later, the Court dismissed Appellant’s Chapter 13 Petition because she did not properly sign her Statement of Social Security. Id. at 4 (BR 19). It also struck her Amended Plan. Id. (BR 20). Appellant filed a motion for reconsideration which the Bankruptcy Court granted, after Appellant fixed the deficiencies. Id. at 5-6 (BR 23-31).

         Although a § 341 meeting of creditors was scheduled for March 27, 2018, id. at 2 (BR 4), Appellant did not comply with the Bankruptcy Court’s Administrative Order, id. (BR 6). She did not file a plan in accordance with the Court’s Model Plan. See id. at 3 (BR 13, 18). She also had six prior bankruptcy cases all dismissed within seven months of filing. Id. at 2-3.[2] And she did not obtain credit counseling prior to filing her case. Id. at 4-5 (BR 15, 23).

         Appellee filed a Motion to Dismiss with Prejudice which outlined all of the Chapter 13 petition’s deficiencies; and on May 23, 2018, the Court heard the motion. Doc. 21 (BR 46). Counsel for the Trustee and counsel for Creditor, U.S. Bank, were present at the hearing. Id. Appellant was absent from the hearing. Id. The Bankruptcy Court entered the Order Dismissing Case with Injunction Period of 180 days on May 29, 2018. Doc. 6-1 (BR 47). On June 6, 2018, Appellant filed her Notice of Appeal. Doc. 1 (BR 49).

         II. Standard of Review

         The district court functions as an appellate court in reviewing decisions of the bankruptcy court. See In re Colortex Indus., Inc., 19 F.3d 1371, 1374 (11th Cir. 1994). Legal conclusions of the bankruptcy court are reviewed de novo, and findings of fact are reviewed for clear error. In re Globe Mfg. Corp., 567 F.3d 1291, 1296 (11th Cir. 2009). “A factual finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) (citations and quotation marks omitted).

         Whether a Chapter 13 case has been properly dismissed with prejudice is a finding of fact reviewable under the clearly erroneous standard. See Orcutt v. Crawford, 8:10-CV-1925-T-17, 2011 WL 4382479, at *1 (M.D. Fla. Sept. 20, 2011) (citing In Re Saylors, 869 F.2d 1434, 1438 (11th Cir. 1989). The burden of showing clear error falls on the party seeking to overturn a bankruptcy court’s finding. See In re Caribbean K Line, Ltd., 288 B.R. 908, 911 (S.D. Fla. 2002).

         And dismissals “for cause” are reviewed for abuse of discretion. In re Piazza, 719 F.3d 1253, 1271 (11th Cir. 2013). That standard allows for a “range of choice for the [bankruptcy] court, so long as that choice does not constitute a clear error of judgment.” In re Rasbury, 24 F.3d 159, 168 (11th Cir. 1994).

         III. Discussion

         In her brief, Appellant states that she did not know that the Bankruptcy Court lifted her automatic stay. Doc. 10 at 2. Had she known, she contends that she would have requested reinstatement. She argues that Wells Fargo misled her by “pretending [that] the automatic stay was still in [effect].” Id. She believes that the Bankruptcy Court would have reinstated the automatic stay if she so moved. Id. at 3. She also contends that she completed her debtor’s education classes but did not have an opportunity to meet with the creditors at any time. Id. She asks that this Court send the case back to the Bankruptcy Court to reinstate her petition on the basis of equity. Id.

         Appellee argues that based on the Bankruptcy Court’s record on appeal, there is no evidence that the Bankruptcy Court committed clear error when it dismissed the case. Appellee contends that Appellant is a serial filer and received multiple opportunities to obtain bankruptcy protection and to correct errors in the underlying petition. Combined with her failure to appear at the hearing and defend her shortcomings, Appellee argues the Bankruptcy Court exercised its authority to dismiss the petition for failure to abide by the Bankruptcy Court’s Order under 11 U.S.C. §109(h)(1). Doc. 11 at 6. And it had authority to do so with prejudice based on bad faith under 11 U.S.C. §349(a). Id. at 7. Thus, Appellee argues that the Bankruptcy Court did not abuse its discretion. Id.

         a. Record on Appeal

         Bankruptcy Rule of Procedure 8009 provides that Appellant must file with the bankruptcy clerk a designation of the items to be included in the record on appeal and statement of issues to be presented. Fed.R.Bankr.P. 8009 (a)(1)(A). Further, it provides that the record on appeal must include:

• docket entries kept by the bankruptcy clerk;
• items designated by the ...

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