Susan H. Mello v. Paul M. Wojciechowski

United States Bankruptcy Appellate Panel
For the Eighth Circuit
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No. 16-6037
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In re: Paul M. Wojciechowski; Mary E. Wojciechowski, also known as Mary Aubertin
lllllllllllllllllllllDebtors
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Susan H. Mello; Susan H. Mello, LLC
lllllllllllllllllllllCreditors - Appellants
v.
Paul M. Wojciechowski; Mary E. Wojciechowski
lllllllllllllllllllllDebtors - Appellees
Diana Spuhl Daugherty
lllllllllllllllllllllTrustee - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Missouri - St. Louis
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Submitted: May 2, 2017
Filed: June 15, 2017
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Before KRESSEL, NAIL, and SHODEEN, Bankruptcy Judges.
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NAIL, Bankruptcy Judge.
Susan H. Mello and Susan H. Mello, LLC (collectively, "Mello") appeal the
October 21, 2016 order of the bankruptcy court1 confirming Debtors Paul M.
Wojciechowski and Mary E. Wojciechowski's second amended plan.2 We affirm.
BACKGROUND
Debtors filed a petition for relief under chapter 13 of the bankruptcy code in
April 2016. Debtors listed Mello, who had represented Debtor Paul Wojciechowski
in his pre-petition divorce proceeding and was still owed attorney fees for her
services, on their schedule E/F.
Over the next several months, Mello filed numerous motions, objections, and
an adversary proceeding.3 Two ultimately led to this appeal: Mello's amended
motion to dismiss Debtors' case and Mello's amended objection to Debtors' second
amended plan.4
1
The Honorable Kathy A. Surratt-States, Chief Judge, United States
Bankruptcy Court for the Eastern District of Missouri.
2
In her notice of appeal, Mello also purported to appeal several other orders.
However, she did not meaningfully address these other orders in her opening brief.
Consequently, we do not address them, either. See Reuter v. Cutcliff (In re Reuter),
686 F.3d 511, 515 n.3 (8th Cir. 2012).
3
These are cogently summarized in Debtors' brief and need not be repeated
here.
4
Two earlier iterations of Debtors' plan had not been confirmed. With certain
exceptions, the proponent of a chapter 13 plan may modify his or her plan at any time
either before or after confirmation. 11 U.S.C. §§ 1323 (modification of plan before
confirmation) and 1329 (modification of plan after confirmation). In some
jurisdictions, such modified plans are referred to as amended plans.
-2-
In her amended motion to dismiss, Mello alleged Debtors had filed their
petition in bad faith and listed a number of perceived errors and omissions in Debtors'
schedules and statements and in Debtors' testimony at their meeting of creditors. In
her amended objection to Debtors' second amended plan, Mello alleged Debtors'
second amended plan had not been proposed in good faith and again listed a number
of perceived errors and omissions in Debtors' schedules and statements and in
Debtors' testimony at their meeting of creditors.5 Mello also alleged Debtors had not
applied their disposable income to payments under their second amended plan,
Debtors' second amended plan was not feasible, and Debtors had failed to pay a
domestic support obligation.
Both Mello's amended motion to dismiss and Debtors' second amended plan
came before the bankruptcy court in October 2016. After hearing the arguments of
counsel and considering the voluminous record, the bankruptcy court denied Mello's
amended motion to dismiss, overruled Mello's objections to confirmation,6 and
confirmed Debtors' second amended plan. The bankruptcy court's oral rulings were
memorialized in an order confirming Debtors' second amended plan entered
October 21, 2016 and an order denying Mello's amended motion to dismiss entered
November 10, 2016.
On October 24, 2016, Mello filed a motion to amend, inter alia, the bankruptcy
court's order confirming Debtors' second amended plan. On November 10, 2016, the
bankruptcy court entered an order denying Mello's motion to amend. On
5
While differently formatted, Mello's amended motion to dismiss and her
amended objection to Debtors' second amended plan appear to identify the same
perceived errors and omissions.
6
The trustee also objected to Debtors' second amended plan. The trustee's
objections were resolved on the record.
-3-
November 23, 2016, Mello filed a notice of appeal.7 Mello's appeal is therefore
timely. See Fed.R.Bankr.P. 8002(a) and (b).
STANDARD OF REVIEW
Mello contends the bankruptcy court erred in confirming Debtors' second
amended plan. To the extent this implicates the bankruptcy court's findings of fact,
we review those findings for clear error. Islamov v. Ungar (In re Ungar), 633 F.3d
675, 679 (8th Cir. 2011). To the extent it implicates the bankruptcy court's
conclusions of law, we review those conclusions de novo. Ungar, 633 F.3d at 679.
Mello also contends the bankruptcy court erred in denying her request for an
evidentiary hearing on the confirmation of Debtors' second amended plan. We review
the bankruptcy court's decision not to conduct an evidentiary hearing for an abuse of
discretion. United States v. Lange (In re Netal, Inc.), 498 B.R. 225, 228 (B.A.P. 8th
Cir. 2013).
DISCUSSION
Mello's principal argument is the bankruptcy court erred in not conducting an
evidentiary hearing on Debtors' second amended plan. We disagree.
7
In her notice of appeal, Mello did not elect to have her appeal heard by the
district court. See Fed.R.Bankr.P. 8005(a). Mello then filed an "amended/corrected"
notice of appeal in which she attempted to elect to have her appeal heard by the
district court. By order dated December 1, 2016, we deemed Mello's
"amended/corrected" notice of appeal to be untimely and therefore ineffective to
deprive us of jurisdiction. Mello also filed a "Motion for Appeal to go to District
Court not to BAP" and a "Supplemental Motion for Appeal to go to District Court not
to BAP." By order dated December 6, 2016, we denied Mello's supplemental motion.
-4-
While the parties appear to assume Mello requested such an evidentiary
hearing, the record is not entirely clear on this point. During the hearing on Mello's
amended motion to dismiss, Mello stated unambiguously, "I would like to have an
evidentiary hearing . . . ." During the hearing on Mello's amended objection to
Debtors' second amended plan, however, Mello asked only "to be heard on [her
objections]" and to "have a chance to keep the record open." Neither was a clear
expression of a desire for an evidentiary hearing.
In any event, "[n]othing in the statutes or case law requires a hearing every time
the issue of good faith is raised in a Chapter 13 proceeding. The bankruptcy court,
exercising its sound discretion, is in the best position to determine when an
evidentiary hearing on the issue of good faith is necessary." Noreen v. Slattengren,
974 F.2d 75, 76 (8th Cir. 1992).
As previously noted, in both her amended motion to dismiss and her amended
objection to Debtors' second amended plan, Mello identified a number of perceived
errors and omissions in Debtors' schedules and statements and in Debtors' testimony
at their meeting of creditors. In denying Mello's amended motion to dismiss, the
bankruptcy court heard Mello's argument and considered both the voluminous record
and the perceived errors and omissions. The bankruptcy court then explained why
it did not believe the perceived errors and omissions demonstrated a lack of good
faith on Debtors' part, referencing changes in Debtors' circumstances over time, the
oft seen necessity for chapter 13 debtors to amend their schedules and statements, and
the trustee's role in reviewing chapter 13 debtors' schedules and statements.
Mello did not identify–and indeed has yet to identify–what additional evidence
she would offer at an evidentiary hearing. See Yehud-Monosson USA, Inc. v. Fokkena
(In re Yehud-Monosson USA, Inc.), 458 B.R. 750, 756 (B.A.P. 8th Cir. 2011). Under
the circumstances, even assuming Mello's requests "to be heard" and "to keep the
record open" could reasonably be construed as a request for an evidentiary hearing
-5-
on Debtors' second amended plan, we cannot say the bankruptcy court abused its
discretion in denying Mello's request.
Mello also argues the bankruptcy court erred in not considering her objections
to confirmation because the trustee did not join in Mello's objections. Again, we
disagree.
Mello points to three statements made by the bankruptcy court, the first two in
connection with Mello's amended motion to dismiss and the third in connection with
Mello's objections to confirmation: (1) "I'm looking to the trustee to see, based on the
trustee's review of these schedules and statements, I haven't seen anything filed by the
trustee"; (2) "[I]t's hard for me to believe that [the trustee's] office has missed this
many things"; and (3) "[I]f the trustee hasn't raised that issue, then certainly I would
overrule that objection."
None of these statements support Mello's argument. A chapter 13 trustee is
statutorily obligated to "investigate the financial affairs of the debtor" and "appear
and be heard at any hearing that concerns . . . confirmation of a plan[.]" 11 U.S.C.
§§ 704(a)(4) (incorporated by reference in 11 U.S.C. § 1302(b)(1)) and 1302(b)(2).
The bankruptcy court's first statement is a confirmation that the trustee had taken no
formal action regarding Debtors' schedules and statements. The bankruptcy court's
second statement is a recognition of how well the trustee ordinarily carried out the
trustee's duties. Neither can reasonably be construed to suggest the bankruptcy court
did not consider Mello's objections to Debtors' second amended plan.
The bankruptcy court's third statement followed a discussion regarding an
alleged domestic support obligation.8 Without providing any specifics, Mello
8
One of the requirements for confirmation of a chapter 13 plan is "the debtor
has paid all amounts that are required to be paid under a domestic support obligation
-6-
objected to confirmation because Debtors' second amended plan did "not seem to
meet the requirement to see all DSOs are paid." (Emphasis added.) The bankruptcy
court's statement was clearly made in reference to this particular objection, not
Mello's other objections. The trustee, who–it bears repeating–was statutorily
obligated to investigate Debtors' financial affairs, did not object to Debtors' second
amended plan on this basis, and Mello did not identify–and indeed has yet to
identify–any amounts that Debtors were required to pay post-petition and that they
had not paid prior to the confirmation hearing. In light of the foregoing, we construe
the bankruptcy court's statement to be the result of the bankruptcy court's weighing
Mello's vague and unsupported objection against the fact that the trustee did not
object to Debtors' second amended plan on this basis, not support for Mello's
argument that the bankruptcy court did not consider Mello's objections to
confirmation.9 See Fonder v. United States, 974 F.2d 996, 999-1000 (8th Cir. 1992)
("Oral findings and conclusions under [Fed.R.Civ.P.] 52(a) [made applicable to
confirmation hearings by Fed.Rs.Bankr.P. 3015(f), 7052, and 9014(c)] 'must be
liberally construed and found to be in consonance with the judgment if the judgment
has support in the record evidence.'").
Finally, Mello argues the bankruptcy court erred in overruling her objections
and confirming Debtors' second amended plan. Again, we disagree.
As previously noted, Mello objected to Debtors' second amended plan on
several grounds: She alleged Debtors' second amended plan was not proposed in
and that first become payable after the date of the filing of the petition if the debtor
is required by a judicial or administrative order, or by statute, to pay such domestic
support obligation[.]" 11 U.S.C. § 1325(a)(8).
9
The bankruptcy court questioned–without deciding–whether Mello had
standing to raise this particular objection. Because neither Debtors nor the trustee
raised this issue on appeal, we do not address it.
-7-
good faith; she alleged Debtors had not applied their disposable income to payments
under their second amended plan; she alleged Debtors' second amended plan was not
feasible; and she alleged Debtors had failed to pay a domestic support obligation.
However, in her opening brief, Mello addressed only the first and the last of these
grounds. Consequently, she has waived any issue regarding Debtors' commitment of
their disposable income and any issue regarding the feasibility of Debtors' second
amended plan. See Reuter v. Cutcliff (In re Reuter), 686 F.3d 511, 515 n.3 (8th Cir.
2012).
With respect to her objection that Debtors' second amended plan was not
proposed in good faith, Mello contends the perceived errors and omissions she
identified in both her amended motion to dismiss and her amended objection to
Debtors' second amended plan demonstrate a lack of good faith on Debtors' part.
Though this is one permissible view of the record, the bankruptcy court determined
otherwise, for the reasons stated above. This is also a permissible view of the record.
That being so, we cannot say the bankruptcy court's decision to overrule this
objection was clearly erroneous. Anderson v. City of Bessemer City, North Carolina,
470 U.S. 564, 574 (1985) ("Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be clearly erroneous.”).
With respect to her objection that Debtors had allegedly failed to pay a
domestic support obligation, as previously noted, Mello did not identify any amounts
that Debtors were required to pay post-petition and that they had not paid prior to the
confirmation hearing. Mello's objection was, therefore, hypothetical at best.
Moreover, the bankruptcy court properly noted the absence of Debtor Paul
Wojciechowski's ex-spouse, who was in the best position to know if Debtors had
made all required post-petition domestic support obligation payments and would have
had every reason to object to Debtors' second amended plan if Debtors had not made
those payments. For these reasons, we cannot say the bankruptcy court's decision to
overrule this objection was clearly erroneous, either.
-8-
CONCLUSION
The bankruptcy court did not abuse its discretion in denying Mello's request
for an evidentiary hearing on Debtors' second amended plan, and its decision to
overrule Mello's objections and confirm Debtors' second amended plan was not
clearly erroneous. Thus, we affirm the bankruptcy court's October 21, 2016 order
confirming Debtors' second amended plan.
-9-