FILED
JAN 31 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NC-17-1350-KuFB
NC-17-1351-KuFB
JENNIFER VERA GUTIERREZ, (related)
Debtor. Bk. No. 17-42410-WJL
JENNIFER VERA GUTIERREZ,
Appellant,
v. MEMORANDUM*
PACIFIC GAS AND ELECTRIC
COMPANY,
Appellees.
Argued on November 29, 2018, at San Francisco, California
Submitted on January 25, 2019
Filed – January 31, 2019
Appeal from the United States Bankruptcy Court
for the Northern District of California
Honorable William J. Lafferty, Bankruptcy Judge, Presiding
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Appearances: Appellant Jennifer Vera Gutierrez on brief pro se; Martha
J. Simon argued for appellee Pacific Gas and Electric
Company.
Before: KURTZ, FARIS, and BRAND, Bankruptcy Judges.
Chapter 131 debtor, Jennifer Vera Gutierrez, appeals from the
bankruptcy court's order barring her from filing a petition under any
chapter of the Bankruptcy Code in any court for a period of one-year (BAP
No. 17-1350). The one year period expired on November 15, 2018, prior to
the scheduled hearing in this appeal. Accordingly, we DISMISS this appeal
as MOOT because we cannot grant effective relief.2 See GE Capital Mortg.
Servs. (In re Fernandez),
227 B.R. 174, 178 (9th Cir. BAP 1998).
Ms. Gutierrez also appeals from the bankruptcy court's orders
dismissing her case and denying her motion to vacate the dismissal (BAP
No. 17-1351). For the reasons explained below, we AFFIRM.
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code,
11 U.S.C. §§ 101-1532, all “Rule” references are to the Federal Rules
of Bankruptcy Procedure, and all “Civil Rule” references are to the Federal Rules of
Civil Procedure.
2
The order also denied Pacific Gas and Electric Company's (PG&E) request for
sanctions against Debtor. PG&E has not appealed from that ruling.
2
FACTS
A. Bankruptcy Events
Ms. Gutierrez filed a skeletal chapter 13 case on September 25, 2017.
The Notice of Prior Filings showed that she had filed 13 bankruptcy cases
since May of 2010. All of those cases had been dismissed and in two of the
cases, the bankruptcy court had entered a one-year bar. At the time of her
filing, Ms. Gutierrez owed over $15,000 to PG&E.
The day after her filing, the bankruptcy court entered an Order to File
Required Documents and Notice of Automatic Dismissal. Ms. Gutierrez
had fourteen days from the petition date, or until October 9, 2017, to file
her documents (Filing Deadline). If she failed to do so, her case was subject
to automatic dismissal without further notice or a hearing. Ms. Gutierrez
could request an extension and if an extension was granted and the
documents were not filed, the order informed her that her case may be
dismissed.
On October 5, 2017, PG&E filed a motion to dismiss Ms. Gutierrez's
case with a ten year bar based on Debtor's bad faith. The motion was
grounded upon Ms. Gutierrez's multiple prior filings which had all been
dismissed based on her failure to appear at the § 341(a) meeting, make
chapter 13 payments, or comply with court orders to file appropriate
papers and confirm chapter 13 plans. PG&E argued that the prior one-year
bars issued in two of Ms. Gutierrez's dismissed cases were not sufficient to
3
deter her from re-filing and, therefore, a ten-year bar was appropriate.
PG&E also argued that Ms. Gutierrez was a vexatious litigant due to
her prior filings. PG&E requested the bankruptcy court to enter an order
with a term of ten years which required Debtor to obtain leave from the
bankruptcy judge before filing another case. Finally, PG&E requested
sanctions in the amount of $10,000.
On the same date, Ms. Gutierrez filed a motion requesting a two
week extension of time to file her documents. Ms. Gutierrez's motion stated
that she had recently hired an attorney to help her with her bankruptcy
case. She further explained she had encountered unexpected hardship due
to water damage to her primary residence. As a result of the damage,
Ms. Gutierrez and her family had been living at a hotel since August 7,
2017.
The bankruptcy court granted her motion and entered an order on
October 6, 2017, giving Ms. Gutierrez a one-week extension instead of a
two week extension due to her prior filing history (Extension Order). The
Extension Order mistakenly showed the deadline to file her documents as
October 12, 2017, which was three days past the October 9, 2017 Filing
Deadline, instead of October 16, 2017, which was one week past the
deadline. Ms. Gutierrez did not file her documents by October 12th or 16th.
On October 16, 2017, the chapter 13 trustee (Trustee) filed a motion to
dismiss Ms. Gutierrez's case based on her failure to file the required
4
documents by the October 12th deadline in the Extension Order.
The parties filed a number of pleadings on October 17, 2017. First,
Trustee joined in PG&E's motion to dismiss, arguing for a one-year bar to
refiling based on Ms. Gutierrez's lack of good faith in the commencement
of the case.3 Second, Ms. Gutierrez filed the balance of her schedules and
chapter 13 plan with the Clerk's office as she did not have the ability to file
electronically.4 Third, the bankruptcy court entered an order dismissing
Ms. Gutierrez's case because she failed to meet the October 12, 2017
deadline (Dismissal Order). In the Dismissal Order, the bankruptcy court
retained jurisdiction to hear any pending motions.
On October 23, 2017, Ms. Gutierrez filed an ex parte motion to vacate
the Dismissal Order (Motion to Vacate). Ms. Gutierrez again stated that she
had hired an attorney to represent her in the bankruptcy case and
explained that he could not file the documents electronically. She picked
them up from her attorney on October 16, 2017. Since her home was fifty-
three miles from the courthouse, she could not arrive there before it closed.
Accordingly, she took the documents to the courthouse on October 17,
2017, and filed them. Ms. Gutierrez also explained that her mother had
3
Trustee later withdrew this motion after the bankruptcy court dismissed
Ms. Gutierrez's case for failure to file the required documents by the October 12, 2017
deadline.
4
The documents were not docketed until the following day.
5
become very ill, so she needed additional time to file her documents.
Finally, Ms. Gutierrez stated that she drives from the hotel in Stockton to
her home in Discovery Bay daily to get her mail. Ms. Gutierrez maintained
that she retrieved her mail on Friday, October 13, 2017, and found the
Extension Order stating that her documents were due the day before.5
PG&E opposed Ms. Gutierrez's Motion to Vacate. PG&E pointed out
that Ms. Gutierrez was a professional pro se litigant and serial bankruptcy
filer and thus was well aware of court requirements.
Trustee opposed the Motion to Vacate, contending that Ms. Gutierrez
failed to show relief was warranted under Civil Rule 60(b) based on
mistake, inadvertence, surprise, or excusable neglect. Trustee pointed out
that Ms. Gutierrez had filed fourteen bankruptcy cases (including the
instant case) since 2007 and was well familiar with schedules and deadlines
and their consequences.
On October 24, 2017, PG&E discontinued service to Ms. Gutierrez's
home.
Ms. Gutierrez's attorney, Peter Pappas, submitted a declaration in
support of her Motion to Vacate. Mr. Pappas declared that her 100% plan
showed her good faith and was fair to creditors. He further declared that if
the court continued the matter for thirty to sixty days to see if
5
Ms. Gutierrez stated in a later filed pleading that she received the Extension
Order in the mail on October 12, 2017, the same day her documents were due.
6
Ms. Gutierrez followed through with the payments there would be little
harm to creditors, whereas if the court denied the Motion to Vacate,
Ms. Gutierrez and her five children would be without electricity.
On November 9, 2017, the bankruptcy court heard PG&E's motion to
dismiss and Ms. Gutierrez's Motion to Vacate. Counsel for PG&E, Martha
Simon, explained that PG&E had entered into five payment plans with
Ms. Gutierrez since April 2017 and each time she failed to comply with the
terms. Ms. Simon also pointed out that Ms. Gutierrez had filed a total of
fourteen cases in the past ten years and another five in the three years prior
to that. Ms. Simon clarified for the court that only one of the prior
dismissed cases had been filed in 2017 and that the instant case was
Ms. Gutierrez's second filing in 2017.
Trustee also appeared and requested the court to enter an order
barring Ms. Gutierrez from refiling for a one year period.
Ms. Gutierrez's attorney, Mr. Pappas, explained to the court that he
assisted Ms. Gutierrez and her husband with drafting a 100% plan.
According to Mr. Pappas, this demonstrated good faith. Mr. Pappas further
noted that the $15,000 Ms. Gutierrez owed to PG&E was "peanuts" and that
PG&E's disruption of Ms. Gutierrez's service was "amazing." He also
asked: "[H]ow is it going to hurt the court or PG&E if this plan goes
through?" The Court asked: "Is that it?" Mr. Pappas: "Yes."
In its findings of fact and conclusions of law, the bankruptcy court
7
summarized the two issues before it as (1) whether there was a reason to
vacate the dismissal and (2) what should the court do given Ms. Gutierrez's
extraordinary history of abuse. In answering the first question, the court
found there was no reason to vacate the dismissal. The court observed that
Ms. Gutierrez had an "extraordinary background" in bankruptcy matters
and certainly knew what was supposed to happen and when. The
bankruptcy court found nothing in the record that suggested excusable
neglect for the late-filed documents, noting that Ms. Gutierrez had been
"around the bankruptcy block a number of times" and had cases dismissed
by the bankruptcy judge's predecessors. In considering Ms. Gutierrez's
abuse, the bankruptcy court found a one-year bar to refiling was
appropriate under the circumstances.
On November 14, 2017, the bankruptcy court entered an order
barring Ms. Gutierrez from filing a bankruptcy case under any chapter of
the Bankruptcy Code in any court for a period of one year from date of
entry of the order and denying PG&E's request for sanctions. The order did
not mention granting PG&E's motion to dismiss because Ms. Gutierrez's
case was already dismissed, although on other grounds.
On the same date, the bankruptcy court entered an order denying
Ms. Gutierrez's Motion to Vacate. Ms. Gutierrez timely appealed both
8
orders.6
B. Post-appeal Events
1. Ms. Gutierrez's Motion For A Stay Pending Appeal
Ms. Gutierrez moved for a stay pending appeal in the BAP in both
appeals. The BAP denied her motions without prejudice to re-filing if it
was demonstrated that a motion for stay pending appeal was presented to
the bankruptcy court and was either denied or not acted upon in a timely
manner.
Ms. Gutierrez then moved for a stay pending appeal in the
bankruptcy court. Among other things, Ms. Gutierrez argued that she did
not receive the bankruptcy court's Extension Order until October 12, 2017,
the due date for filing her documents. She opined that the delivery of the
Extension Order was delayed because no mail was delivered on October 9,
2017, a federal holiday. She reiterated that she hired Mr. Pappas and did
not pick up the balance of the schedules from him until October 16, 2017.
After she filed the documents on October 17, 2017, the bankruptcy court
dismissed her case.
The bankruptcy court set a hearing on the matter. After hearing
6
In BAP No. 17-1351, Ms. Gutierrez's notice of appeal refers only to the order
denying her Motion to Vacate. Her Motion to Vacate was filed within ten days of the
entry of the Dismissal Order, thereby tolling the time for appeal. Therefore, both the
Dismissal Order and the order denying her Motion to Vacate are properly before this
Panel.
9
argument from Ms. Gutierrez pro se and PG&E's counsel, Ms. Simon, the
bankruptcy court considered the factors for imposing a stay pending
appeal and found no stay was warranted. However, in a lengthy
discussion, the court decided to treat Ms. Gutierrez's motion for a stay
pending appeal as a motion for reconsideration of the denial of
Ms. Gutierrez's Motion to Vacate. The bankruptcy court observed that her
motion for a stay pending appeal appeared to be asking the court to change
its mind about the dismissal of her case.
The bankruptcy court further explained that it discovered the one
week extension it granted Ms. Gutierrez for filing her documents should
have set the new deadline as October 16, 2017. Ms. Gutierrez had filed the
documents on October 17th, one day late. Based on these facts, the
bankruptcy court explained that it did not know whether it would have
vacated the Dismissal Order. Nonetheless, the court observed that there
were other grounds for dismissal besides Ms. Gutierrez's late-filed
documents due to her filing history.
On February 27, 2018, the bankruptcy court entered an order denying
Ms. Gutierrez's motion for a stay pending appeal. On the same date, the
bankruptcy court issued a Memorandum Pursuant to Rule 8008(a)(3).7
7
Rule 8008(a)(3) allows a court to inform an appellate court when a motion is
filed regarding a matter, jurisdiction over which has been divested by an appeal, that
raises a substantial issue.
10
There, the bankruptcy court stated that its Extension Order contained an
incorrect date and this raised a substantial issue with respect to
Ms. Gutierrez's construed motion to reconsider. The court acknowledged
that it lacked authority to reconsider whether its decision denying
Ms. Gutierrez's Motion to Vacate was proper since she had appealed.
Accordingly, pursuant to Rule 8008(b), the bankruptcy court required
Ms. Gutierrez to notify the clerk of the BAP of its Memorandum which
explained that her motion for reconsideration had raised a substantial issue
for the court to deal with were the case to be remanded for that purpose.
Ms. Gutierrez subsequently moved for a stay pending appeal in both
appeals with the BAP. The BAP denied her requests.
2. The Remand
In response to the bankruptcy court's Memorandum, the BAP entered
an order remanding the appeal in BAP No. 17-1351 to the bankruptcy
court.
On remand, the bankruptcy court set a hearing for March 28, 2018, to
(1) decide if the faulty Extension Order justified relief as a matter of law,
(2) determine if the order had misled Ms. Gutierrez and contributed to her
failure to timely file her documents, and (3) determine what effect, if any,
the order had on PG&E's motion to dismiss the case for abuse with a bar to
refiling.
PG&E opposed, contending that there was no basis for relief under
11
Civil Rule 60(b). It further argued that the court's error in the Extension
Order was harmless because Ms. Gutierrez failed to file her documents by
October 12th or 16th. Finally, PG&E argued that Ms. Gutierrez's bad faith
justified dismissal of the case and denial of the motion for stay pending the
appeals.
In response, Ms. Gutierrez argued that the notice regarding the
Extension Order was issued on October 6, 2017 (Friday) and not mailed to
her until October 8, 2017 (Sunday). The following day, October 9, 2017, was
a federal holiday. Therefore, the order was sent through the mail on
Tuesday, October 10, 2017. Ms. Gutierrez claims she received the Extension
Order on October 12, 2017, the day the documents were due. She again
maintained that it would have been physically impossible for her to
comply with the court's order since she files hard copies in the courthouse
and lives fifty three miles from the Clerk's office.
Ms. Gutierrez also argued that if the documents were due on
October 9, 2017, which was Columbus Day, she would not have been able
to file documents on that date. Rather, she would have been able to file
documents on October 10, 2017, and a one-week extension would have
given her to October 17, 2017, which was the date she filed the documents.8
Finally, Ms. Gutierrez noted that the Extension Order was
8
On March 7, 2018, Ms. Gutierrez filed an "Amended Statement of Issues" which
was in essence an informal brief that incorporated this argument.
12
contradictory because the calculations for the deadline did not make sense.
The court took the matter under submission.
On April 6, 2018, the bankruptcy court issued its Order Denying
Motion For Reconsideration which it considered under Civil Rule 60(b).
The court found that Ms. Gutierrez's filing of her documents five days past
the October 12, 2017 deadline in the Extension Order was not (according to
her own statement) due to confusion over the order's ambiguous language
giving a "one week" extension (she did not even notice it). The bankruptcy
court further noted that Ms. Gutierrez filed the documents one day after
October 16, 2017, which was the most generous order. In the end, the court
viewed the ambiguity in the Extension Order as harmless.
Next, although Ms. Gutierrez had complained about how far she
lived from the bankruptcy court, the court noted that it was not physically
impossible to drive fifty three miles in one day to reach the court from
Ms. Gutierrez's residence, particularly when doing so was necessary to
meeting a deadline imposed by the court.
In addition, the bankruptcy court noted that Ms. Gutierrez was not
entitled to an extension of any length for filing the required documents.
The court observed that it could have declined to grant an extension on the
basis that, given Ms. Gutierrez's many past filings and dismissals for
failure to file documents, there was no question she knew what documents
she needed to file with her petition. Ms. Gutierrez was given an extension
13
to October 12th to file documents to complete a petition filed on
September 25, 2017. The court found that neither the entirely unnoticed
ambiguity in the Extension Order nor any other excuse offered by
Ms. Gutierrez constituted cause under Civil Rule 60(b) to reconsider the
order denying Ms. Gutierrez's Motion to Vacate.
Finally, the bankruptcy court observed that it had invited both
parties to comment on the court's dismissal of this case in light of
Ms. Gutierrez's history of filings and dismissals, citing Leavitt v. Soto (In re
Leavitt),
209 B.R. 935, 942 (9th Cir. BAP1997), aff'd,
171 F.3d 1219 (9th Cir.
1999). The court noted that Ms. Gutierrez did not argue that dismissal on
those grounds was inappropriate. In addition, the court explained that it
granted PG&E's motion to dismiss based on Ms. Gutierrez's abuse and
entered an order with a one-year bar to Ms. Gutierrez's refiling. The court
further explained that the reason the order granting PG&E's motion did not
also dismiss the underlying bankruptcy case is that the case was already
dismissed. In the end, the court opined that it had every reason to believe
that, were Ms. Gutierrez to prevail on her motion to vacate the Dismissal
Order based on her failure to timely file documents, the court would grant
PG&E's motion to dismiss (which was joined by Trustee) anyway. For these
reasons, the bankruptcy court denied the motion for reconsideration by
14
order entered on April 6, 2018.9
JURISDICTION
The bankruptcy court had jurisdiction pursuant to
28 U.S.C. §§ 1334
and 157(b)(2)(A). We do not have jurisdiction over BAP No. 17-1350 as we
cannot exercise jurisdiction over a moot appeal. United States v. Pattullo (In
re Pattullo),
271 F.3d 898, 900 (9th Cir. 2001). We have jurisdiction over BAP
No. 17-1351 under
28 U.S.C. § 158.
ISSUES
Did the bankruptcy court abuse its discretion when it dismissed
Ms. Gutierrez's bankruptcy case due to her failure to timely file the
required documents?
Did the bankruptcy court abuse its discretion when it denied
Ms. Gutierrez's Motion to Vacate?
STANDARD OF REVIEW
We review an order dismissing a chapter 13 bankruptcy case for
abuse of discretion. Brown v. Sobczak (In re Sobczak),
369 B.R. 512, 516 (9th
9
Ms. Gutierrez did not amend her notice of appeal to include the order denying
her motion for reconsideration. Nonetheless, we conclude that her notice of appeal
incorporates the bankruptcy court's supplemental findings of fact and conclusions of
law which clarified or amended its previous findings on the denial of Ms. Gutierrez's
Motion to Vacate. Further, PG&E had notice and an opportunity to brief the issues that
arise out of both the underlying order denying the Motion to Vacate and the order
denying reconsideration. Accordingly, we discern no prejudice from Ms. Gutierrez's
failure to amend her notice of appeal. See United States v. Arkison (In re Cascade Rds.,
Inc.),
34 F.3d 756, 761-62 n.5 (9th Cir. 1994).
15
Cir. BAP 2007).
We review the bankruptcy court's denial of Ms. Gutierrez's Motion to
Vacate for abuse of discretion. Pilkington v. Cardinal Health, Inc. (In re Syncor
ERISA Litig.),
516 F.3d 1095, 1099 (9th Cir. 2008).
A bankruptcy court abuses its discretion if it applies the wrong legal
standard, misapplies the correct legal standard, or if it makes factual
findings that are illogical, implausible, or without support in inferences
that may be drawn from the facts in the record. See TrafficSchool.com, Inc. v.
Edriver Inc.,
653 F.3d 820, 832 (9th Cir. 2011) (citing United States v. Hinkson,
585 F.3d 1247, 1262 (9th Cir. 2009) (en banc)).
DISCUSSION
A. The bankruptcy court did not abuse its discretion when it
dismissed Ms. Gutierrez's bankruptcy case.
Rule 1007(c) requires a debtor to file schedules, statements, and other
documents with the petition or within fourteen days thereafter. Rule 3015
requires a chapter 13 debtor to file a plan with the petition or within
fourteen days thereafter.
Here, the bankruptcy court gave Ms. Gutierrez an extension of time
beyond the fourteen days to file the required documents and her plan. She
failed to file the required documents by the deadline stated in the
Extension Order. Accordingly, the bankruptcy court was entitled to enforce
the Extension Order and dismiss Ms. Gutierrez's bankruptcy case without
16
further notice. See Tennant v. Rojas (In re Tennant),
318 B.R. 860, 869-70 (9th
Cir. BAP 2004). The bankruptcy court did not err or abuse its discretion by
dismissing her case.
B. The bankruptcy court did not abuse its discretion when it denied
Ms. Gutierrez's Motion to Vacate.
A motion to reconsider or vacate may be treated either as a motion to
alter or amend the judgment under Civil Rule 59(e) or as a motion for relief
from judgment under Civil Rule 60(b). Ms. Gutierrez did not specify in her
Motion to Vacate the rule under which she was proceeding. Her motion
was filed within fourteen days following the date of entry of the Dismissal
Order. Therefore, her motion was technically a motion to alter or amend
the judgment under Civil Rule 59(e). Am. Ironworks & Erectors, Inc. v. N.
Am. Constr. Corp.,
248 F.3d 892, 898–99 (9th Cir. 2001).
Despite the timing of Ms. Gutierrez's motion, a court should construe
a motion according to the relief requested. Miller v. Transamerican Press,
Inc.,
709 F.2d 524, 527 (9th Cir. 1983). Ms. Gutierrez requested the
bankruptcy court to vacate the Dismissal Order because she was dealing
with a medical emergency, she was living in a hotel with her family due to
water damage to her primary residence, her attorney could not file the
documents electronically, and she did not get notice of the extension in the
mail quickly enough. For all these reasons, she was unable to file her
documents in a timely manner. Therefore, the gist of her motion was that
17
the Dismissal Order should be vacated based on excusable neglect, which
implicates Civil Rule 60(b)(1).
Moreover, although the bankruptcy court did not explicitly rely on
Civil Rule 60(b)(1) in its decision denying Ms. Gutierrez's Motion to Vacate,
it mentioned in its findings that Ms. Gutierrez had not shown cause for
reconsideration based on excusable neglect.10 Accordingly, we analyze
Ms. Gutierrez's Motion to Vacate and the bankruptcy court's decision
denying that motion under Rule 60(b)(1) and the excusable neglect
standards.
The test for determining "excusable neglect" is well established: it is
"at bottom, an equitable one, taking account of all relevant circumstances
surrounding the party's omission." Pioneer Inv. Servs. Co. v. Brunswick
Assocs. Ltd. P'ship,
507 U.S. 380, 395 (1993). Such an analysis requires the
weighing or balancing of relevant factors, including: (1) the danger of
prejudice to the nonmovant, (2) the length of the delay and its potential
impact on judicial proceedings, (3) the reason for the delay, including
whether it was within the reasonable control of the movant, and
(4) whether the movant acted in good faith. Id.; Pincay v. Andrews,
389 F.3d
853, 855 (9th Cir. 2004) (holding that per se rules are not consistent with
10
In denying Ms. Gutierrez's motion for reconsideration, the bankruptcy court
explicitly relied on Civil Rule 60(b). This was most likely due to the timing as it was
well past the fourteen day deadline under Civil Rule 59(e).
18
Pioneer).
The Ninth Circuit adopted the equitable test in Pioneer to determine
whether neglect is "excusable" under Civil Rule 60(b)(1). Briones v. Riviera
Hotel & Casino,
116 F.3d 379, 381 (9th Cir. 1997). Accordingly, the court is
required to consider all the relevant circumstances, including the factors in
Pioneer.
Id. Finally, this Circuit has "admonished that, as a general matter,
[Civil] Rule 60(b) is 'remedial in nature and . . . must be liberally applied.'"
TCI Group Life Ins. Plan v. Knoebber,
244 F.3d 691, 695–96 (9th Cir. 2001)
(citing Falk v. Allen,
739 F.2d 461, 463 (9th Cir. 1984)).
In its ruling on the Motion to Vacate, the bankruptcy court did not
cite the Pioneer factors or mention its equitable test. Nonetheless, it is
apparent from the record that the bankruptcy court actually did conduct
the equitable analysis laid out in Pioneer. The record shows that the court
considered Ms. Gutierrez's reasons for the delay in filing her documents
and did not find them persuasive in light of her background and
experience with bankruptcy deadlines. Moreover, the bankruptcy court
addressed the ambiguity in the Extension Order and concluded that the
ambiguity was not a cause for Ms. Gutierrez's delay in filing her
documents because (1) she wasn't even aware of the ambiguity and
(2) even under the most generous extension of one week until October 16,
2017, she still failed to file her documents by that date. In addition, the
bankruptcy court was particularly concerned with Ms. Gutierrez's lack of
19
good faith due to her previous bankruptcy filings which had all been
dismissed, some with a one-year bar. The bankruptcy court also implicitly
considered the prejudice to PG&E and the chapter 13 trustee due to
Ms. Gutierrez's numerous bankruptcy filings over the years. Finally,
although the length of the delay from October 12th to October 17th was not
great, the court found that Ms. Gutierrez's untimely filing was not
excusable in light of her past bankruptcy filings and knowledge of filing
deadlines.
In Pioneer, the Supreme Court indicated that some factors may be
more important than others (in particular, prejudice to the nonmovant or
bad faith) in determining excusable neglect: "To be sure, were there any
evidence of prejudice to petitioner or to judicial administration in this case,
or any indication at all of bad faith, we could not say that the Bankruptcy
Court abused its discretion in declining to find the neglect to be
'excusable.'" Pioneer,
507 U.S. at 398–99. Here, Ms. Gutierrez's prior filings
and dismissals based on her failure to comply with court orders, file
documents, or file chapter 13 plans, are ample evidence of her bad faith.
In sum, when the record shows, as it does here, that the totality of the
circumstances militates against any finding of excusable neglect, the court
must deny the relief sought. The bankruptcy court applied the correct legal
standards for determining excusable neglect and its factual findings were
plausible and supported by reasonable inferences that may be drawn from
20
the facts in the record. Accordingly, the court did not abuse its discretion
when it denied Ms. Gutierrez's Motion to Vacate.
CONCLUSION
Ms. Gutierrez's appeal of the order barring her from filing a petition
under any chapter of the Bankruptcy Code in any court for a period of one
year (BAP No. 18-1350) is DISMISSED as MOOT because the one year
expired prior to the hearing on this appeal.
We AFFIRM the orders dismissing Ms. Gutierrez's bankruptcy case
and denying her Motion to Vacate (BAP No. 18-1351).
21
