United States District Court, M.D. Florida, Tampa Division
Charlene Edwards Honeywell, United States District Judge.
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.
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.
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). 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).
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).
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
And she did not obtain credit counseling prior to
filing her case. Id. at 4-5 (BR 15, 23).
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).
Standard of Review
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
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).
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).
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.
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.
Record on Appeal
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 ...