In re: Theodorico Erum, Jr.

FILED
NOV 29 2017
SUSAN M. SPRAUL, CLERK
1 NOT FOR PUBLICATION U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
2
3 UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
4
5 In re: ) BAP No. HI-17-1144-BTaL
)
6 THEODORICO ERUM, JR. ) Bk. No. 17-00270
)
7 Debtor. )
)
8 )
THEODORICO ERUM, JR., )
9 )
Appellant, )
10 )
v. ) M E M O R A N D U M1
11 )
WELLS FARGO BANK, N.A.; CIT )
12 BANK, N.A., )
)
13 Appellees. )
______________________________)
14
Submitted Without Argument on October 26, 2017
15
Filed - November 29, 2017
16
Appeal from the United States Bankruptcy Court
17 for the District of Hawaii
18 Honorable Robert J. Faris, Chief Bankruptcy Judge, Presiding
19
Appearances: Appellant Theodorico Erum, Jr., pro se, on brief.2
20
21 Before: BRAND, TAYLOR, and LAFFERTY, Bankruptcy Judges.
22
23
24
1
25 This disposition is not appropriate for publication.
Although it may be cited for whatever persuasive value it may have
26 (see Fed. R. App. P. 32.1), it has no precedential value. See 9th
Cir. BAP Rule 8024-1.
27
2
Although Wells Fargo Bank, N.A. and CIT Bank, N.A. were
28 named as appellees in this appeal, they did not appear.
1 Theodorico Erum, Jr. appeals an order dismissing his
2 chapter 133 case and imposing a 180-day refiling bar. The
3 bankruptcy court dismissed his case sua sponte for failure to file
4 the required case opening documents after he received an extended
5 deadline beyond the 14 days proscribed in Rule 1007(c). We AFFIRM
6 the dismissal. However, because the 180-day bar expired on
7 October 28, 2017, the appeal of that aspect of the order is moot.4
8 I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY5
9 A. Events prior to the instant chapter 13 case
10 Mr. Erum is 84 years old and in poor health. In 2007, to
11 secure a mortgage note for $45,000, Mr. Erum executed a mortgage
12 against his property in Kapaa, Hawaii in favor of Wells Fargo.
13 The mortgage was recorded.
14 1. The first bankruptcy case - 2009
15 On July 17, 2009, Mr. Erum filed a skeletal chapter 13
16 bankruptcy case. All required case opening documents were to be
17 filed by August 3. On August 3, Mr. Erum moved to dismiss the
18
3
19 Unless specified otherwise, all chapter, code and rule
references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and
20 the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
21 4
Although the issue of the 180-day refiling bar was not
technically moot on the submission date of Thursday, October 26,
22 2017, it became moot two days later on Saturday, October 28, 2017.
Given this short time period, we could not issue a decision
23 vacating that portion of the order, assuming it was incorrect, in
time to allow Mr. Erum to file another bankruptcy case before the
24 bar date expired on October 28, 2017; thus, we could not provide
effective relief on this issue.
25
5
The record Mr. Erum submitted, which included only the
26 order on appeal, is inadequate for proper review of this appeal.
We have taken the liberty of reviewing relevant documents filed on
27 the bankruptcy court's electronic docket. See Atwood v. Chase
Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th
28 Cir. BAP 2003).
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1 case, noting that he was unable to file the required documents by
2 the deadline. The court dismissed the case on August 5, 2009.
3 2. The second bankruptcy case - 2013
4 On May 17, 2013, Mr. Erum filed a skeletal chapter 11
5 bankruptcy case and requested to pay the filing fee in
6 installments. The court granted the installment payment request,
7 giving Mr. Erum until June 10 to pay the filing fee in full. The
8 court's order warned that failure to pay by the June 10 deadline
9 would result in dismissal with a 180-day refiling bar.
10 Mr. Erum had also not submitted proof of prepetition credit
11 counseling. The court denied his request for a temporary waiver
12 of that requirement. Mr. Erum obtained credit counseling on
13 May 30, 2013.
14 On June 7, 2013, Mr. Erum moved to dismiss his chapter 11
15 case so that he could file another case now that he had obtained
16 the required credit counseling. On June 11, 2013, the court
17 dismissed the chapter 11 case with a 180-day refiling bar for
18 failure to pay the filing fee.
19 B. The third bankruptcy case - 2017
20 1. Events leading to the instant bankruptcy case
21 In 2013, Wells Fargo initiated judicial foreclosure
22 proceedings for the Kapaa property. In 2014, Wells Fargo obtained
23 an order for interlocutory decree of foreclosure and judgment.
24 Thereafter, Mr. Erum filed various motions to vacate or stay the
25 foreclosure; he also filed an appeal to the state appellate court.
26 The Kapaa property was sold to a third party in 2016.
27 In February 2017, Wells Fargo moved to confirm the sale and
28 for a writ of ejectment. A hearing on the motion was scheduled
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1 for March 17, 2017. Mr. Erum's third bankruptcy case, filed on
2 March 16, 2017, stayed that proceeding.
3 2. The instant bankruptcy case
4 Like his prior two bankruptcy cases, this chapter 13 filing
5 was also a skeletal filing. Mr. Erum again asked to pay the
6 filing fee in installments. Just above his signature on Official
7 Form 103A — Application for Individuals to Pay the Filing Fee in
8 Installments — it warns that a debtor's case may be dismissed for
9 failure to make any payment when due. The court denied Mr. Erum's
10 request, ordering that the $310 filing be paid by March 30, 2017.
11 Mr. Erum had also again failed to obtain prepetition credit
12 counseling and requested a temporary waiver of that requirement
13 due to exigent circumstances. The court denied Mr. Erum's request
14 for waiver as inadequate and warned that the case was subject to
15 dismissal.
16 On March 18, 2017, the clerk issued an Order to File
17 Documents and Notice of Intent to Dismiss Case, ordering Mr. Erum
18 to file all required documents by March 30, 2017. The clerk's
19 order warned:
20 Pursuant to LBR 1007-1(a)(2),6 failure to comply timely
21
6
22 Local Bankruptcy Rule 1007-1(a)(2) provides:
23 Dismissal Upon Failure to File Case Opening Documents. In a
voluntary case where case opening documents are not filed
24 with the petition, the clerk is authorized to issue an order
to satisfy the deficiency and to give notice that failure to
25 file the subject documents within a specified number of days
after the date the petition was filed, or some later date as
26 the court directs, may result in dismissal of the case
without further notice, unless on or before the filing
27 deadline the court enters an order extending the time to file
the documents. An order dismissing the case under this
28 (continued...)
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1 with this order by filing all the missing documents may
result in dismissal of the case as a willful failure to
2 abide by a court order within the meaning of 11 U.S.C.
sec. 109(g)(1). This means that the debtor(s) will be
3 ineligible to file another bankruptcy petition for
180 days after the entry of the order dismissing the case.
4
5 On March 31, 2017, the court entered an order dismissing
6 Mr. Erum's chapter 13 case with a 180-day refiling bar for failure
7 to file the required documents and to pay the filing fee. Notice
8 of the dismissal order was sent to Mr. Erum on April 5, 2017.
9 On April 5, 2017, Mr. Erum filed a motion to extend time to
10 pay the $310 filing fee to April 6, 2017, and paid the filing fee.
11 On April 10, 2017, Mr. Erum filed a motion to extend time to
12 file case opening documents, stating that because of his poor
13 mental and physical health he was unable to complete and file the
14 required documents by the due date of March 30. He requested an
15 extension until April 19, 2017 to file them. At the bottom of the
16 motion — Local Form H1007-1a — signed by Mr. Erum it states:
17 Debtor acknowledges that the failure to file the required
documents by any extended deadline will result in
18 dismissal of the case with a bar to refiling a subsequent
bankruptcy petition for 180 days following the entry of a
19 dismissal order, under 11 U.S.C. § 109(g)(1).
20 The court treated Mr. Erum's motion to extend time to file
21 documents as a motion to reconsider the dismissal order. On
22 April 12, 2017, the court vacated the dismissal order, reinstated
23 the case and gave Mr. Erum until April 19 to file the required
24 documents. The order warned that "the case will be dismissed
25 without a hearing" if the documents were not timely filed.
26
27 6
(...continued)
provision may include a 180-day bar to refiling a subsequent
28 petition under § 109(g)(1).
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1 The deadline of April 19 passed with nothing filed by
2 Mr. Erum.
3 On May 1, 2017, the court sua sponte and without a hearing
4 dismissed Mr. Erum's bankruptcy case for failure to file the
5 required case opening documents. Citing to § 109(g)(1), the court
6 further imposed a 180-day refiling bar for Mr. Erum's "failure to
7 abide by a court order." This timely appeal followed.
8 II. JURISDICTION
9 The bankruptcy court had jurisdiction under 28 U.S.C. §§ 133410 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.
11 III. ISSUE
12 Did the bankruptcy court abuse its discretion in dismissing
13 Mr. Erum's bankruptcy case?
14 IV. STANDARDS OF REVIEW
15 We review the bankruptcy court's decision to dismiss a
16 chapter 13 case for abuse of discretion. Ellsworth v. Lifescape
17 Med. Assoc., P.C. (In re Ellsworth), 455 B.R. 904, 914 (9th Cir.
18 BAP 2011). A bankruptcy court abuses its discretion if it applies
19 the wrong legal standard, misapplies the correct legal standard,
20 or if its factual findings are illogical, implausible or without
21 support in inferences that may be drawn from the facts in the
22 record. TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820,
23 832 (9th Cir. 2011).
24 V. DISCUSSION
25 The bankruptcy court did not abuse its discretion in
dismissing Mr. Erum's bankruptcy case.
26
27 Mr. Erum requested an extension to file the required case
28 opening documents by April 19, 2017, even though his case had
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1 already been dismissed for failure to file them. Nonetheless,
2 given Mr. Erum's alleged unfortunate circumstances, the bankruptcy
3 court opted to vacate the dismissal, reinstate the case and grant
4 the extension. Despite this, Mr. Erum did not file the required
5 documents or seek a further extension by the deadline.
6 By dismissing Mr. Erum's case for failure to file the
7 required case opening documents, the court was enforcing a portion
8 of Rule 1007(c), which required Mr. Erum to file the documents by
9 the extended deadline or to seek an additional extension of time.
10 To enforce its April 12 order to file the documents and
11 Rule 1007(c), the court was authorized to dismiss Mr. Erum's case
12 sua sponte under § 105(a).7 Tennant v. Rojas (In re Tennant),
13 318 B.R. 860, 869 (9th Cir. BAP 2004).
14 Mr. Erum raises only one argument with respect to the
15 dismissal order, that the bankruptcy court erred by dismissing his
16 case without a hearing in violation of Rule 1017(c).8 That rule
17
18
7
Section 105(a) provides:
19
The court may issue any order, process, or judgment that is
20 necessary or appropriate to carry out the provisions of this
title. No provision of this title providing for the raising
21 of an issue by a party in interest shall be construed to
preclude the court from, sua sponte, taking any action or
22 making any determination necessary or appropriate to enforce
or implement court orders or rules, or to prevent an abuse of
23 process.
24 8
Rule 1017(c) provides:
25 Dismissal of voluntary chapter 7 or chapter 13 case for
failure to timely file list of creditors, schedules, and
26 statement of financial affairs. The court may dismiss a
voluntary chapter 7 or chapter 13 case under § 707(a)(3) or
27 § 1307(c)(9) after a hearing on notice served by the United
States trustee on the debtor, the trustee, and any other
28 entities as the court directs.
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1 applies only if the court dismisses a case on a motion under
2 § 707(a)(3) or § 1307(c)(9); it does not govern the procedure if
3 the court chooses to dismiss the case sua sponte under § 105(a),
4 which is what occurred here. In re Tennant, 318 B.R. at 870
5 (trial court's authority to dismiss a case sua sponte under
6 § 105(a) is not restricted by Rule 1017(c)).
7 In response to this same argument raised by the debtor and
8 rejected in Tennant, the Panel stated that, "if a case involves
9 only very narrow procedural aspects, a court can dismiss a
10 Chapter 13 case without further notice and a hearing if the debtor
11 was provided with notice of the requirements to be met." Id.
12 Thus, if the debtor has been notified of the deficiencies in the
13 petition but fails to file the required forms within a deadline,
14 the court can dismiss the case sua sponte without further notice
15 and a hearing. Id. at 871.
16 Mr. Erum knew of the filing deficiencies in his case and was
17 warned by the court in the April 12 order that failure to file the
18 required documents by the extended April 19 deadline would result
19 in dismissal of his case without a hearing. The court even waited
20 until May 1, 2017, to dismiss it. In addition, Local Bankruptcy
21 Rule 1007-1(a)(2) warns that failure to file case opening
22 documents within the specified number of days after the date the
23 petition was filed, or some later date as the court directs, "may
24 result in dismissal of the case without further notice." Finally,
25 Mr. Erum, who is no stranger to bankruptcy, is familiar with
26 bankruptcy filing requirements and the consequences if those
27 requirements are not satisfied. Accordingly, Mr. Erum's due
28 process rights were not violated.
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1 Mr. Erum also argues that the record does not support the
2 court's imposition of a 180-day refiling bar. Although we are not
3 convinced that the imposition of a refiling bar was justified
4 absent an explicit finding of a "willful" failure to abide by a
5 court order,9 as we explained above this issue is now moot. See
6 Fernandez v. GE Capital Mortg. Servs., Inc. (In re Fernandez),
7 227 B.R. 174, 178 (9th Cir. BAP 1998). Therefore, because we lack
8 jurisdiction over that aspect of the dismissal order, we are
9 unable to address it. See I.R.S. v. Pattullo (In re Pattullo),
10 271 F.3d 898, 900 (9th Cir. 2001) (we lack jurisdiction over moot
11 appeals).
12 VI. CONCLUSION
13 For the foregoing reasons, we conclude that the bankruptcy
14 court did not abuse its discretion in dismissing Mr. Erum's
15 chapter 13 case. Accordingly, we AFFIRM the dismissal.
16
17
18
19
20
21
22
23
24
25
26
9
Under § 109(g), a 180-day bar to refiling may be imposed
27 if "the case was dismissed by the court for willful failure of the
debtor to abide by orders of the court, or to appear before the
28 court in proper prosecution of the case."
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