Stephen Carlson, I v. U.S. Bank, N.A. ( 2014 )

United States Bankruptcy Appellate Panel
For the Eighth Circuit
___________________________
No. 14-6013
___________________________
In re: Stephen Wayne Carlson, I; Victoria Leah Carlson, also known as Vikki Carlson
lllllllllllllllllllllDebtors
------------------------------
Stephen Wayne Carlson, I
lllllllllllllllllllllDebtor - Appellant
v.
U.S. Bank, N.A.
lllllllllllllllllllllCreditor - Appellee
___________________________
No. 14-6024
___________________________
In re: Stephen Wayne Carlson, I; Victoria Leah Carlson, also known as Vikki Carlson
lllllllllllllllllllllDebtors
------------------------------
Stephen Wayne Carlson, I
lllllllllllllllllllllDebtor - Appellant
v.
U.S. Bank, N.A.
lllllllllllllllllllllCreditor - Appellee
Party Gallery Tower Condominium Association
lllllllllllllllllllllInterested party - Appellee
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Appeal from United States Bankruptcy Court
for the District of Minnesota - St. Paul
____________
Submitted: October 7, 2014
Filed: October 17, 2014
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Before FEDERMAN, Chief Judge, SALADINO and SHODEEN, Bankruptcy
Judges.
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FEDERMAN, Chief Judge
Debtors Stephen Wayne Carlson and Victoria Leah Carlson appeal from the
Bankruptcy Court’s Order1 denying their Motion for Violation of Automatic Stay,
Violation of Homestead Exemption, Violation of Discharge and Creditor
Misconduct. They also appeal from the Order dismissing their case and imposing a
180-day bar for refiling. For the reasons that follow, we AFFIRM.
The Debtors filed a pro se Chapter 13 bankruptcy case on January 17, 2014.
One of the reasons they filed the case was to stop a pending foreclosure of their
residential unit at the Gallery Tower Condominiums. The foreclosing lender, U.S.
Bank National Association filed a Motion to Dismiss and Bar from Filing
Bankruptcy for One Year, or Alternatively, Motion for Relief from Stay. The
Debtors filed a Motion for Violation of Automatic Stay, Violation of Homestead
1
The Honorable Katherine A. Constantine, United States Bankruptcy Judge
for the District of Minnesota.
2
Exemption, Violation of Discharge and Creditor Misconduct (the “Debtor’s
Violation Motion”).
Following a hearing held April 17, 2014, the Court entered a one-page Order
on April 18, 2014, denying the Debtors’ Violation Motion “for the reasons set forth
by the Court on the record” at the hearing. The Debtors timely appealed from that
ruling. On May 13, 2014, following a hearing, the Court entered a one-page Order
denying confirmation of the Debtor’s proposed Chapter 13 Plan, again “for the
reasons set forth by the Court on the record.” The Debtors timely appealed that
Order, but that appeal was dismissed as interlocutory. Finally, on June 18, 2014,
following another hearing, the Court entered an Order of Dismissal with Refiling
Bar in which the Court denied the Debtors’ motion to stay pending appeal, granted
U.S. Bank’s motion to dismiss (which had been joined on the record by the
Chapter 13 Trustee), and dismissed the case with a bar from refiling another
bankruptcy case for 180 days. As before, this Order was a one-page order “[b]ased
upon the file and proceedings, including the reasons, findings, conclusions and
decision set forth by the court on the record in open court” at the June 17, 2014
hearing. The Debtors timely appealed this Order as well, and the appeals have
been consolidated.
The Bankruptcy Court’s denial of the Debtors’ motion based on violation of
the discharge injunction, its granting relief from the automatic stay, and its
dismissal of a Chapter 13 case with limitations on refiling, are all reviewed under
an abuse of discretion standard.2 “An abuse of discretion will be found if the
2
In re Smith, 488 B.R. 101 (B.A.P. 8th Cir. 2013) (citation omitted) (“We
review the bankruptcy court’s denial of the motion for contempt [for violation of
the discharge injunction] ‘for abuse of discretion, giving plenary review to
conclusions of law and reviewing factual findings for clear error.’”); In re Borm,
508 B.R. 104, 106 (B.A.P. 8th Cir. 2014) (“We review a bankruptcy court’s
decision regarding whether to grant relief from the automatic stay for an abuse of
discretion.”) (citation omitted); In re Marshall, 407 B.R. 359, 361 (B.A.P. 8th Cir.
2009) (“The Bankruptcy Court has discretion to dismiss a Chapter 13 case and to
impose limitations on refiling. Both decisions are reviewed under an abuse of
3
court’s judgment was based on clearly erroneous factual findings or erroneous
legal conclusions.”3
As stated, all three Orders being appealed were one-page Orders referring to
findings and conclusions made on the record at the relative hearings. However, the
Debtors have not provided us with transcripts of the hearings, as required by
Federal Rules of Bankruptcy Procedure 8006 and 8009(b). Even if we were able to
ascertain from the Debtors’ briefs on appeal what factual errors, if any, they assert
the Court committed, we are unable to review the Bankruptcy Court’s Orders
because the Debtors have failed to provide an adequate record of the Court’s
decisions.4 Since we do not know the factual basis for the dismissal and bar to
refiling, we cannot hold that such factual basis was clearly erroneous.
Further, to the extent we can consider the Debtors’ legal arguments without
having been provided with their factual basis, none of those legal arguments has
merit. It appears that many of the Debtors’ arguments are premised on the notion
that the liens against their residence did not survive their previous Chapter 7
discharges. That simply is not correct: liens do survive discharge unless expressly
avoided.5 Other arguments seem to be based on Debtors’ assertion that their
discretion standard.”) (citations omitted).
3
In re Borm, 508 B.R. at 106.
4
Brown v. Bank of North Dakota (In re Brown), 446 B.R. 270, 271-72
(B.A.P. 8th Cir. 2011) (citing In re Webb, 212 B.R. 320, 321 n. 1 (B.A.P. 8th Cir.
1997) (“The Panel does not have before it a transcript of the proceedings below.
Inasmuch as it is the appellant's burden to demonstrate the merits of her appeal, she
must bear the burden of the deficient record.”) (citations omitted); Schmid v.
United Brotherhood of Carpenters and Joiners of America, et. al., 827 F.2d 384
(8th Cir.1987) (“It is important, if not essential, to the reviewing court that an
appellant under Rule 10, Fed. R. App. P., bring before this court all parts of the
proceedings below necessary for a determination of the validity of any claimed
error.”) (citation omitted)).
5
4
homestead exemption somehow trumps or wipes out the liens. Again, that is not
correct.6 Still other arguments by the Debtors seem to be based on the assertion
that the mere postponing of a foreclosure sale violates the automatic stay. That is
also incorrect.7 Any other bases for reversal argued by the Debtors are similarly
lacking in merit.
ACCORDINGLY, the Orders of the Bankruptcy Court are AFFIRMED.
Farrey v. Sanderfoot, 500 U.S. 291, 297, 111 S. Ct. 1825, 1829, 114 L. Ed. 2d
337 (1991) (“Ordinarily, liens and other secured interests survive bankruptcy.”);
Long v. Bullard, 117 U.S. 617, 620-21, 6 S. Ct. 917, 918 (1886) (holding that a
creditor’s security was preserved notwithstanding the bankruptcy of the debtor).
6
Soost v. NAH, Inc. (In re Soost), 262 B.R. 68, 74 n. 4 (B.A.P. 8th Cir. 2001)
(“Ordinarily, property cannot be exempted from the bankruptcy estate to the extent
it is encumbered by a consensual lien or security interest. Thus, a debtor’s
exemptible interest is defined by his or her equity in the property.”) (citation
omitted).
7
In re Fine, 285 B.R. 700 (Bankr. D. Minn. 2002) (postponement of a
sheriff’s sale is not a continuation of any action or proceeding against the debtor;
an act to obtain possession of property of the estate or property from the estate; an
act to enforce a lien against property of the estate; or an act to enforce a lien against
property of the debtor).
5