FILED
JUN 06 2014
1 NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
2 OF THE NINTH CIRCUIT
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
4 OF THE NINTH CIRCUIT
5 In re: ) BAP No. EC-13-1094-JuTaKu
)
6 BILLY JOE JOHNSON, ) Bk. No. 12-17166
)
7 Debtor. ) Adv. No. 12-1150
______________________________)
8 )
BILLY JOE JOHNSON, )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M*
11 )
JEFFREY M. VETTER, Trustee; )
12 UNITED STATES TRUSTEE, )
)
13 Appellee. )
______________________________)
14
Submitted Without Oral Argument
15 on May 15, 2014
16 Filed - June 6, 2014
17 Appeal from the United States Bankruptcy Court
for the Eastern District of California
18
Honorable Fredrick E. Clement, Bankruptcy Judge, Presiding
19 ______________________
20 Appearances: Appellant Billy Joe Johnson, pro se, on brief;
Gregory S. Powell, Ramona D. Elliot, P. Matthew
21 Sutko, Robert J. Schneider, Jr., August B. Landis
and Antonia G. Darling on brief for appellee
22 United States Trustee.
______________________
23
Before: JURY, TAYLOR, and KURTZ, Bankruptcy Judges.
24
25
26 *
This disposition is not appropriate for publication.
27 Although it may be cited for whatever persuasive value it may
have (see Fed. R. App. P. 32.1), it has no precedential value.
28 See 9th Cir. BAP Rule 8013-1.
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1 Chapter 71 debtor Billy Joe Johnson (Debtor) appeals from
2 the bankruptcy court’s order granting the United States
3 Trustee’s (U.S. Trustee) summary judgment motion and the
4 judgment dismissing the underlying chapter 7 case with a
5 two-year bar to refiling. For the reasons stated below, we
6 REVERSE and REMAND for proceedings consistent with this
7 disposition.
8 I. FACTS
9 Debtor filed two prior pro se chapter 7 cases in the
10 Eastern District of California. The first chapter 7 case was
11 filed on December 15, 2011. Debtor failed to attend three
12 continued § 341(a) meetings. On April 5, 2012, the bankruptcy
13 court dismissed the first chapter 7 case for failure to appear
14 at the § 341(a) meeting. Soon after, on April 10, 2012, Debtor
15 filed the second chapter 7 case in the same district. At the
16 initial § 341(a) meeting Debtor appeared but refused to answer
17 any of the chapter 7 trustee’s questions about Debtor’s
18 financial circumstances. Thereafter Debtor did not attend the
19 continued § 341(a) meeting. On August 2, 2012, the bankruptcy
20 court dismissed the second chapter 7 case for failure to appear
21 at the § 341(a) meeting.
22 On August 21, 2012, Debtor filed this case, his third, pro
23 se. Debtor appeared at the initial § 341(a) meeting held on
24 October 19, 2012. However, because Debtor failed to provide the
25
1
26 Unless otherwise indicated, all chapter and section
references are to the Bankruptcy Code,
11 U.S.C. §§ 101-1532,
27 “Rule” references are to the Federal Rules of Bankruptcy
Procedure, and “Civil Rule” references are to the Federal Rules
28 of Civil Procedure.
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1 chapter 7 trustee with the required tax returns and pay stubs,
2 Debtor was not asked about his financial affairs and the meeting
3 was continued. Debtor then failed to attend two continued
4 § 341(a) meetings.
5 On November 5, 2012, Debtor filed a document entitled
6 “Notice of Lawsuit Filing,” which indicated that he had filed
7 state court lawsuits against the bankruptcy judge, chapter 7
8 trustee, and U.S. Trustee personnel.2
9 On December 26, 2012, the chapter 7 trustee filed a motion
10 to dismiss the case because debtor failed to appear at the
11 § 341(a) meeting.3 On January 4, 2013, Debtor filed his notice
12 of hearing and opposition to the chapter 7 trustee’s motion to
13 dismiss. Debtor then filed a supplement to his opposition on
14 January 15, 2013. These documents were off-point and did not
15 address the motion before the court.4 The chapter 7 trustee’s
16 motion to dismiss and the duplicate motion were set to be heard
17 on February 20, 2013.
18 Meanwhile, on September 7, 2012, the U.S. Trustee initiated
19 an adversary proceeding seeking dismissal of the current
20 chapter 7 case with a two-year bar to refiling. On October 11,
21 2012, Debtor filed an answer. The purported answer did not
22
2
23 We exercise our discretion to take judicial notice of
documents electronically filed in the underlying bankruptcy case
24 and adversary proceeding. See Atwood v. Chase Manhattan Mortg.
25 Co. (In re Atwood),
293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
3
26 A duplicate motion to dismiss was docketed on the same
day, December 26, 2012.
27
4
This characterization applies to all of Debtor’s filings
28 in both the bankruptcy case and adversary proceeding.
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1 admit or deny the allegations asserted in the complaint but
2 requested a venue change and jury trial due to “the court’s
3 decision to drag [Debtor] into an attempted murder, kidnapping
4 and rico case involving Minister Victor Mcgee.” On January 23,
5 2013, the U.S. Trustee filed the summary judgment motion, which
6 was set to be heard concurrently with the chapter 7 trustee’s
7 motions to dismiss on February 20, 2013. On February 19, 2013,
8 the day before the hearing, Debtor filed another document
9 entitled “Notice of Lawsuits” again indicating Debtor had named
10 the bankruptcy judge, chapter 7 trustee, and U.S. Trustee
11 personnel as defendants in state court lawsuits. The “Notice of
12 Lawsuit” document stated Debtor’s position that the bankruptcy
13 judge and other parties could not proceed with the hearing
14 because of an “obvious conflict of interest.”
15 At the February 20, 2013 hearing, the bankruptcy court
16 called the three motions together but heard the U.S. Trustee’s
17 summary judgment motion first. The bankruptcy court stated its
18 tentative ruling based upon the filed documents, but afforded
19 Debtor an opportunity to be heard. In his response, Debtor
20 failed to address the factual and legal matters relevant to the
21 motion. Because the bankruptcy court granted summary judgment
22 which included dismissal of the underlying chapter 7 case as
23 relief, Debtor and the chapter 7 trustee agreed that the two
24 motions to dismiss would be dropped as moot. The bankruptcy
25 court issued its final ruling in the civil minutes entered on
26 February 20, 2013.
27 II. JURISDICTION
28 The bankruptcy court had jurisdiction over this proceeding
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1 under
28 U.S.C. §§ 1334 and 157(b)(2)(A). We have jurisdiction
2 under
28 U.S.C. § 158.
3 III. ISSUES
4 A. Whether the bankruptcy court abused its discretion in
5 denying Debtor’s request for recusal;
6 B. Whether the bankruptcy court abused its discretion in
7 denying transfer of venue;
8 C. Whether Debtor had standing to assert the interests of
9 third parties;
10 D. Whether Debtor was denied due process;
11 E. Whether Debtor was entitled to a jury trial;
12 F. Whether the bankruptcy court erred when dismissing the
13 case under § 707(b) by summary judgment; and
14 G. Whether the bankruptcy court abused its discretion
15 when it imposed a two-year bar to refiling.
16 IV. STANDARDS OF REVIEW
17 A bankruptcy court’s denial of a motion for recusal is
18 reviewed for abuse of discretion. E. & J. Gallo Winery v. Gallo
19 Cattle Co.,
967 F.2d 1280, 1290 (9th Cir. 1992).
20 A decision denying transfer of venue is reviewed for abuse
21 of discretion. Donald v. Curry (In re Donald),
328 B.R. 192,
22 196 (9th Cir. BAP 2005).
23 A bankruptcy court's decision to dismiss a bankruptcy case
24 with prejudice is reviewed for abuse of discretion. Leavitt v.
25 Soto (In re Leavitt),
171 F.3d 1219, 1224 (9th Cir. 1999).
26 The bankruptcy court abuses its discretion when it applied
27 the incorrect legal rule or when its application of the law to
28 the facts was: (1) illogical; (2) implausible; or (3) without
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1 support in inferences that may be drawn from the facts in the
2 record. United States v. Hinkson,
585 F.3d 1247, 1263 (9th Cir.
3 2009) (en banc).
4 Questions of standing are reviewed de novo. San Diego
5 Cnty. Gun Rights Comm. v. Reno,
98 F.3d 1121, 1124 (9th Cir.
6 1996). The factual determinations underlying the bankruptcy
7 court’s decision on standing are reviewed for clear error.
8 American–Arab Anti–Discrimination Comm. v. Thornburgh,
970 F.2d
9 501, 506 (9th Cir. 1991).
10 Summary judgment orders are reviewed de novo. Tobin v. San
11 Souci Ltd. P’ship (In re Tobin),
258 B.R. 199, 202 (9th Cir. BAP
12 2001). Viewing the evidence in the light most favorable to the
13 non-moving party, we must determine “whether there are any
14 genuine issues of material fact and whether the trial court
15 correctly applied relevant substantive law.”
Id. A bankruptcy
16 court’s conclusions of law are reviewed de novo. Fireman’s Fund
17 Ins. Co. v. Grover (In re Woodson Co.),
813 F.2d 266, 270 (9th
18 Cir. 1987).
19 V. DISCUSSION
20 A. Debtor’s Appellate Issues
21 We address first the issues raised on appeal by Debtor.
22 1. Recusal
23 Debtor alleges that the bankruptcy court was conflicted out
24 of ruling on the summary judgment motion because Debtor filed
25 state court lawsuits against the bankruptcy judge, the chapter 7
26 case trustee, and U.S. Trustee. The law clearly states “[a]
27 judge is not disqualified by a litigant’s suit or threatened
28 suit against him[.]” United States v. Studley,
783 F.2d 934,
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1 940 (9th Cir. 1986). The bankruptcy court did not abuse its
2 discretion by proceeding with the hearing on February 20, 2013.
3 2. Standing to Pursue Third Party Rights
4 In his opening brief Debtor lists alleged grievances of a
5 “Minister Victor McGee.” The legal rights and interests of a
6 third party are not at issue when deciding whether the
7 bankruptcy court erred in dismissing Debtor’s chapter 7 case
8 with a two-year bar to refiling. Further Debtor does not have
9 prudential standing to assert any claims of Minister Victor
10 McGee as Debtor “cannot rest his claim to relief on the legal
11 rights or interests of third parties[.]” McMichael v. Napa
12 Cnty.,
709 F.2d 1268, 1270 (9th Cir. 1983) (citing Warth v.
13 Seldin,
422 U.S. 490, 499 (1975)). The bankruptcy court did not
14 commit clear error by failing to grant relief based upon the
15 alleged injuries to Minister Victor McGee.
16 3. Improper Venue
17 Under
28 U.S.C. § 1412 a party may transfer a case properly
18 filed in one district to another. Rule 1014(a)(1) provides “[a]
19 petition filed in a proper district . . . may be transferred to
20 any other district if the court determines that the transfer is
21 in the interest of justice or for the convenience of the
22 parties.” A party may object to venue in its answer to the
23 complaint or by filing a timely motion. See Civil Rule 12(h)
24 made applicable by Rule 7012; Costlow v. Weeks,
790 F.2d 1486,
25 1488 (9th Cir. 1986). The failure to do either results in
26 wavier of the objection. Costlow, 790 F.2d at 1488; Hoffman v.
27 Blaski,
363 U.S. 335, 343 (1960). The objection to venue is
28 also subject to waiver when a debtor chooses the forum where the
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1 case is filed. Lebbos v. Tr. (In re Lebbos),
2007 WL 7540977,
2 at *3 (9th Cir. BAP 2007); In re Fishman,
205 B.R. 147, 149
3 (Bankr. E.D. Ark. 1997) (same).
4 Venue is proper here. Debtor filed his bankruptcy case in
5 the Eastern District of California, the district in which his
6 domicile, residence, and principal assets were situated.
7
28 U.S.C. § 1408. The adversary proceeding was filed in the
8 same district in which the bankruptcy case was pending.
9
28 U.S.C. § 1409(a).
10 Debtor raised his objection to venue in the answer to the
11 complaint. However, when the U.S. Trustee brought the summary
12 judgment motion, Debtor failed to reassert his objection in the
13 response. The bankruptcy court granted the summary judgment
14 motion on the merits without addressing the validity of Debtor’s
15 objection. We find that the bankruptcy court’s non-response to
16 the objection of venue is not clear error.
17 First, because Debtor failed to assert the objection in his
18 response to the summary judgment motion, the objection was
19 deemed waived.
20 Second, Debtor waived any objection to venue when he chose
21 to file his bankruptcy petition in the Eastern District of
22 California. Debtor not only filed this case in his chosen
23 forum, he filed schedules and attended the initial § 341(a)
24 meeting, thereby pursuing the bankruptcy case. Only after the
25 U.S. Trustee initiated the adversary proceeding did Debtor seek
26 a change in venue. Moreover, by responding to the summary
27 judgment motion and appearing at the February 20, 2013 hearing
28 Debtor participated in the adversary proceeding. By proceeding
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1 with the bankruptcy case and the adversary proceeding, Debtor
2 waived any right to object to venue.
3 4. Due Process Claim
4 Debtor argues that he did not receive due process for
5 reasons that we have difficulty discerning. Because the
6 objection was not properly raised before the bankruptcy court,
7 and without exceptional circumstances justifying this failure,
8 we decline to address this issue. Rains v. Flynn (In re Rains),
9
428 F.3d 893, 902 (9th Cir. 2005) (waiving plaintiff’s due
10 process claim on appeal where it was raised for the first time
11 in a reply brief before the district court); Weber v. Dep’t of
12 Veterans Affairs,
521 F.3d 1061, 1068 (9th Cir. 2008).
13 5. Right to Jury Trial
14 Debtor argues that he was entitled to a jury trial. We
15 determine whether the Seventh Amendment applies to a given
16 proceeding by applying the two-part test in Granfinanciera, S.A.
17 v. Nordberg,
492 U.S. 33 (1989): “First, we compare the
18 statutory action to 18th-century actions brought in the courts
19 of England prior to the merger of the courts of law and equity.
20 Second, we examine the remedy sought and determine whether it is
21 legal or equitable in nature.”
Id. at 42. Actions to dismiss a
22 bankruptcy case and impose injunctive relief are equitable in
23 nature and thus, fail the second prong of this test.
24 Accordingly, Debtor does not have a right to a jury trial in an
25 action under §§ 707(b)(3) and 349(a).
26 Even if Debtor had a right to a jury trial, a summary
27 judgment proceeding does not deprive a litigant of its right to
28 a jury trial. Slatkin v. Neilson (In re Slatkin),
525 F.3d 805,
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1 811 (9th Cir. 2008); Diamond Door Co. v. Lane-Stanton Lumber
2 Co.,
505 F.2d 1199, 1203 (9th Cir. 1974) (“[S]ummary judgment is
3 granted as a matter of law where there is no genuine issue of
4 material fact, and, therefore, the province of the jury, fact
5 finding, is not invaded.”).
6 Lastly, Debtor waived any right to a jury trial by failing
7 to properly serve and file his demand for a jury trial within
8 fourteen days after the last pleading directed to the issue was
9 served. See Civil Rule 38(d).
10 B. Merits of the Summary Judgment Motion
11 Despite Debtor’s failure to establish error, our
12 independent review of the merits of the summary judgment motion
13 requires reversal.
14 Civil Rule 56 mandates entry of summary judgment if the
15 moving party shows that there is no genuine dispute as to any
16 material fact and the moving party is entitled to judgment as a
17 matter of law. See Civil Rule 56(a) made applicable by
18 Rule 7056; Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
19 “A fact is ‘material when, under the governing substantive law,
20 it could affect the outcome of the case.’” Thrifty Oil Co. v.
21 Bank of Am. Nat’l Trust & Sav. Ass’n,
322 F.3d 1039, 1046 (9th
22 Cir. 2003) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S.
23 242, 248 (1986)). The evidence and all inferences drawn from it
24 must be construed in the light most favorable to the nonmoving
25 party. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
26
809 F.2d 626, 630 (9th Cir. 1987). To carry its burden of
27 production, a moving party must “make a prima facie showing that
28 it is entitled to summary judgment.” Celotex,
477 U.S. at 331.
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1 1. Dismissal Under Section 707(b)
2 Section 707(b) provides in pertinent part:
3 After notice and a hearing, the court, on its own
motion or on a motion by the United States trustee,
4 trustee (or bankruptcy administrator, if any), or any
party in interest, may dismiss a case filed by an
5 individual debtor under this chapter whose debts are
primarily consumer debts . . . if it finds that the
6 granting of relief would be an abuse of the provisions
of this chapter . . . . (emphasis added).
7
8 “The first prerequisite to dismissal under section 707(b)
9 is that the debtor have primarily consumer debt; the second
10 requirement is a finding by the court that granting the debtor's
11 petition would be a ‘substantial abuse’ of Chapter 7.” Price v.
12 U.S. Tr. (In re Price),
353 F.3d 1135, 1138 (9th Cir. 2004)
13 (citing Zolg v. Kelly (In re Kelly),
841 F.2d 908, 912-13 (9th
14 Cir. 1988)). The Code defines “consumer debt” as debt incurred
15 by an individual primarily for a personal, family, or household
16 purpose. See § 101(8). Whether or not a particular secured
17 debt is included as “consumer debt” under § 707(b) depends on
18 the purpose of the debt. In re Kelly,
841 F.2d at 913. A
19 debtor is considered to have “primarily consumer debts” under
20 § 707(b) when consumer debts constitute more than half of the
21 total debt. Id.
22 The U.S. Trustee failed to meet his production burden to
23 show that Debtor had primarily consumer debt. Here, Debtor
24 indicated on his chapter 7 petition that debts are primarily
25 business debts. Debtor’s schedules reflect debt in the amount
26 of $2,775,000.00, which encompass loans on two homes in the
27 amount of $612,000.00, credit card claims in the amount of
28 $45,500.00, and an unclassified claim in the amount of $2.1
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1 million. Because the unclassified claim makes up more than half
2 of the total debt, there is a factual dispute as to whether
3 Debtor is considered to have primarily consumer debt.
4 The summary judgment motion, along with the statement of
5 undisputed facts, is silent on this point. The U.S. Trustee
6 argues that there is no genuine dispute because Debtor did not
7 assert, either in responding to the complaint or when opposing
8 the summary judgment motion, that § 707(b) did not apply to him
9 because his debts are not primarily consumer debts. The
10 U.S. Trustee’s reliance on the absence of evidence is mistaken.
11 The movant in a summary judgment motion on the merits of the
12 claim asserted has the production burden to establish the
13 elements of a prima facie case. Celotex,
477 U.S. at 331.
14 Here, the U.S. Trustee failed to address the primarily consumer
15 debt prong in his statement of undisputed facts. Moreover he
16 admits in his brief that the “chapter 7 case trustee was never
17 able to determine . . . whether [Debtor’s] debts are primarily
18 consumer debts.” The civil minutes which constitute the
19 bankruptcy court’s ruling also fail to address this element.
20 The decision therefore lacks a critical element of a claim for
21 dismissal under § 707(b) and the judgment must be reversed.
22 2. Abuse Under Section 707(b)(3)
23 However, the undisputed facts do decisively establish the
24 other elements for dismissal for abuse. Section 707(b)(3)
25 provides for a finding of abuse when the debtor has filed the
26 petition in bad faith or the totality of the circumstances of
27 the debtor’s financial situation demonstrates abuse. Whether a
28 chapter 7 petition was filed in bad faith under § 707(b)(3)(A)
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1 is determined according to the standards for bad faith dismissal
2 used in chapter 11 and chapter 13 cases. In re Mitchell,
3
357 B.R. 142, 154 (Bankr. C.D. Cal. 2006).
4 Courts may consider the following non-exclusive factors:
5 (1) whether the debtor has a likelihood of sufficient future
6 income to fund a Chapter 11, 12, or 13 plan which would pay a
7 substantial portion of the unsecured claims; (2) whether the
8 debtor’s petition was filed as a consequence of illness,
9 disability, unemployment, or some other calamity; (3) whether
10 the schedules suggest the debtor obtained cash advancements and
11 consumer goods on credit exceeding his or her ability to repay
12 them; (4) whether the debtor’s proposed family budget is
13 excessive or extravagant; (5) whether the debtor’s statement of
14 income and expenses is misrepresentative of the debtor’s
15 financial condition; (6) whether the debtor has engaged in
16 eve-of-bankruptcy purchases; (7) whether the debtor has a
17 history of bankruptcy petition filings and case dismissals;
18 (8) whether the debtor intended to invoke the automatic stay for
19 improper purposes, such as for the sole objective of defeating
20 state court litigation; and (9) whether egregious behavior is
21 present. In re Mitchell,
357 B.R. at 154; Leavitt v. Soto
22 (In re Leavitt),
171 F.3d 1219, 1224 (9th Cir. 1999).
23 Fraudulent intent is not required for a finding of bad faith,
24 In re Leavitt,
171 F.3d at 1224, and no single factor is
25 considered dispositive. In re Mitchell,
357 B.R. at 154.
26 The undisputed facts show that Debtor’s petition was filed
27 in bad faith. Debtor filed two previous chapter 7 cases in the
28 past fourteen months, both of which were dismissed within six
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1 months for failure to appear at the § 341(a) meeting. In the
2 second case, Debtor appeared at the initial § 341(a) meeting and
3 refused to answer the chapter 7 trustee’s questions regarding
4 his financial circumstances. In this current case, Debtor
5 failed to provide the chapter 7 trustee with tax returns and pay
6 stubs. Debtor’s failure to comply with basic procedural
7 requirements and insistence on filing incoherent statements on
8 the court’s docket constituted egregious behavior. Debtor also
9 engaged in serial filings and case dismissals. Accordingly, the
10 bankruptcy court’s finding of bad faith under § 707(b)(3)(A) was
11 proper given the undisputed facts.
12 “No guidance is provided in § 707(b)(3)(B) as to the
13 factors a bankruptcy court should consider in evaluating a
14 request for dismissal of a bankruptcy case for abuse under the
15 totality of the circumstances [of debtor’s financial
16 situation].” Ng v. U.S. Tr. (In re Ng),
477 B.R. 118, 126 (9th
17 Cir. BAP 2012). Courts continue to apply the Mitchell list of
18 non-exclusive factors.
Id. The Ninth Circuit has held that a
19 “debtor’s ability to pay his debts will, standing alone, justify
20 a section 707(b) dismissal,” In re Kelly,
841 F.2d at 914, but
21 does not compel a dismissal as a matter of law. In re Price,
22
353 F.3d at 1140.
23 The bankruptcy court also found that the totality of the
24 circumstances of the Debtor’s financial situation demonstrated
25 abuse. The bankruptcy court relied on the same two factors it
26 considered when finding that the Debtor filed in bad faith:
27 egregious behavior and a history of bankruptcy petition filings
28 and case dismissals. While the bankruptcy court was correct to
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1 consider the non-exclusive factors of Mitchell, its
2 consideration was limited to facts that did not indicate
3 Debtor’s ability to pay and were merely a repeat of the factors
4 which constitute bad faith. Since the § 707(b)(3)(B) ground is
5 an alternative, statutory construction would compel that the
6 factors considered be distinct from the § 707(b)(3)(A) factors.
7 United States v. Powell,
6 F.3d 611, 614 (9th Cir. 1993) (noting
8 that courts avoid a statutory construction that would render
9 another part of the same statute superfluous). Therefore the
10 undisputed facts do not support the alternative finding under
11 § 707(b)(3)(B). This failure, however, is immaterial because
12 the § 707(b)(3)(A) finding was sufficient for dismissal.
13 3. Two-Year Bar
14 Once a court has determined that cause to dismiss exists,
15 it must then decide what form of dismissal should apply.
16 Ellsworth v. Lifescape Med. Assocs., P.C. (In re Ellsworth),
17
455 B.R. 904, 922 (9th Cir. BAP 2011). Upon a finding of bad
18 faith, a bankruptcy court may dismiss a case with a permanent
19 bar to refiling bankruptcy to discharge existing, dischargeable
20 debt.
11 U.S.C. § 349(a); In re Leavitt,
171 F.3d at 1224 (bad
21 faith is “cause” for dismissal with prejudice under § 349(a)).
22 Implicit in this authority is the power to impose a bar of
23 shorter duration. In re Leavitt, 209 B.R. at 942 (9th Cir. BAP
24 1997), aff’d
171 F.3d 1219 (9th Cir. 1999) (§ 349(a) provides
25 courts with authority to control abusive filings beyond the
26 limits of § 109(g), even in cases where the bankruptcy court
27 imposes a bar to refiling for a period greater than 180 days).
28 When dismissing with prejudice courts are to consider the
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1 following: (1) whether debtor misrepresented facts in her
2 petition, unfairly manipulated the bankruptcy code, or otherwise
3 filed in an inequitable manner; (2) debtor’s filing history;
4 (3) whether debtor only intended to defeat state court
5 litigation; and (4) whether egregious behavior is present.
6 In re Leavitt,
171 F.3d at 1224.
7 The bankruptcy court’s finding of bad faith as grounds for
8 dismissal under § 707(b)(3)(A) alone is sufficient “cause” under
9 § 349(a) to impose a bar to refiling. In re Mitchell,
357 B.R.
10 at 157. While not explicitly stated, the bankruptcy court
11 applied the standard set forth in Leavitt by finding that Debtor
12 unfairly manipulated the bankruptcy code without the intent to
13 prosecute his numerous chapter 7 cases to discharge. The
14 bankruptcy court relied on the following undisputed facts: in
15 all three of his chapter 7 cases, Debtor failed to attend the
16 continued § 341(a) meetings, which resulted in the dismissal of
17 the two prior cases; and when he did appear, as in this current
18 case, he failed to provide required documents. Because the
19 bankruptcy court applied the correct legal test under Leavitt
20 and the undisputed facts support a finding of cause to dismiss
21 with prejudice, we cannot conclude that a two-year bar to
22 refiling was an abuse of discretion.
23 VI. CONCLUSION
24 For the reasons stated, we REVERSE and REMAND for further
25 proceedings consistent with this disposition.
26
27
28
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