Eula Mystery Willis v. M. Randy Rice

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
___________________
05-6058EA
___________________
In re : Eula Mystery Willis, *
*
Debtor. *
*
Eula Mystery Willis, * Appeal from the United States
* Bankruptcy Court for the
Debtor - Appellant, * Eastern District of Arkansas
*
v. *
*
M. Randy Rice; Midfirst Bank; *
Midland Mortgage Company; *
John Walker; Michael Byrd; *
Albert Sweets; Jacqueline Ogden, *
*
Objectors - Appellees. *
____________________
Submitted: May 22, 2006
Filed: June 29, 2006
____________________
FEDERMAN, MAHONEY AND McDONALD, Bankruptcy Judges.
____________________
FEDERMAN, Bankruptcy Judge.
This is an appeal from an Order of the United States Bankruptcy Court for the
Eastern District of Arkansas1 issued on November 29, 2005, in which the court denied
the Debtor’s Motion to Convert or Dismiss. We affirm.
FACTUAL BACKGROUND
Debtor Eula Mystery Willis is the sole owner of three corporate entities:
Mystery Properties, Inc., a real estate development company with a number of real
estate projects in varying stages of progress; First Start Properties, Inc., a real estate
holding company with a number of rental properties occupied by tenants; and Q
Solutions, Inc., a software engineering company. By the summer of 2005, many of
the loans secured by the companies’ various parcels of real estate were in default, and
the lenders had begun foreclosure proceedings. Willis was also being sued by other
creditors and at least one of them had obtained a judgment against her. Sometime
around June of 2005, she sought the advice of counsel regarding filing for bankruptcy
protection to prevent the lenders from foreclosing and the creditors from executing on
judgments. She paid her attorney $1,500, plus the filing fee, in anticipation of filing
a bankruptcy petition.
On July 21, 2005, Willis’ attorney filed an individual Chapter 13 bankruptcy
Petition on her behalf. Although Willis’ name was typed on the signature line on the
original Petition and Schedules, as is customary when a case is filed electronically,
Willis states she did not sign the original documents prepared by her attorney, nor was
she able to review them prior to filing. She states she did not authorize the filing of
the Petition that day.
The next day, July 22, 2005, Willis’ attorney filed a Motion to Dismiss the case,
requesting “permission to dismiss her previously filed Chapter 7 [sic], which was filed
1
The Honorable Audrey R. Evans, United States Bankruptcy Court for the Eastern
District of Arkansas.
2
inadvertently.”2 Willis says this Motion to Dismiss was also filed without her
authority. On July 25, 2005, Willis’ attorney filed a motion to convert the case to
Chapter 7, saying “[t]he Chapter 13 bankruptcy was inadvertently filed and should
have been filed as a Chapter 7.” On July 27, he filed a “Notice of Conversion” to
Chapter 7. That same day, the case was converted to Chapter 7. Willis then
requested, and obtained, a continuance of an August 17 Meeting of Creditors.3
Shortly thereafter, the mortgage holders on several of Willis’ companies’ real
properties began filing motions for relief from stay. Willis filed responses to each of
these motions, requesting that they be denied.
On August 15, Willis moved to convert the case back to Chapter 13. She
requested a continuance of the § 341 Meeting of Creditors then set for September 1,
asserting that her attendance at the September 1 Meeting would be needless if the case
was converted back to Chapter 13. The Chapter 7 Trustee opposed the request to
convert to Chapter 13. He also opposed the request for continuance of the September
1 Meeting of Creditors, asserting that Willis had refused to turn over requested
documents, and suggesting that continuing the Meeting again would result in undue
delay, particularly since several motions for relief from stay were pending. The
Trustee further requested the court to compel Willis to appear at the September 1
Meeting, which the court did.
On August 30, Willis filed a Motion to Withdraw the July 22 Motion to
Dismiss, which had not been ruled by the court, although it was probably moot due
to the subsequent conversion of the case from Chapter 13 to Chapter 7 and the
2
Although the Motion to Dismiss referred to the case as a Chapter 7 case, it was filed
under Chapter 13.
3
Although Willis’ counsel requested a continuance of the August 17 Meeting of
Creditors because he was unable to attend that day, the Meeting was actually continued
automatically due to the conversion of the case to Chapter 7.
3
pending motion to convert the case back to Chapter 13. Willis attended the September
1 Meeting of Creditors, at which she stated, in response to a question by a judgment
creditor, that she had not signed the original Petition. This was the first time she had
mentioned this to anyone in the case.
On September 8, 2005, attorney Andrew L. Clark filed a Motion to Substitute
Attorney on Willis’s behalf, saying that Willis had discharged her prior attorney. The
next day, September 9, through her new counsel, Willis filed a Motion to Dismiss or
Convert to Chapter 11, for the first time saying to the court that she did not sign the
original Petition and Schedules, and saying that she never intended for her assets to
be liquidated. Counsel pointed out that Willis did not qualify for Chapter 13 because
her liabilities exceeded the statutory limits for Chapter 13. He requested her case be
either dismissed or converted to Chapter 11, asserting that unsecured creditors would
fare better in a reorganization than they would in a Chapter 7 liquidation.
Again, the Chapter 7 Trustee opposed the Motion to Dismiss or Convert,
alleging, among other things, that Willis had benefitted from the automatic stay; she
had transferred virtually all of her assets to insiders and such transfers could be
recovered for the benefit of the estate; some of the parcels of real estate subject to
pending motions for relief from stay had equity; Willis had acted in bad faith
throughout the proceedings; and she would continue to make fraudulent transfers if
the case was dismissed. Several creditors also opposed the motion, also pointing out
that Willis had benefitted from the automatic stay; that she had been several months
delinquent in payments prior to filing the Petition; that she had not made any post-
petition payments; and that the creditors would suffer detriment and delay if the case
were to be dismissed.
Meanwhile, numerous additional motions for relief from stay were filed by
creditors, and Willis responded to each of those, requesting that the relief be denied.
4
In so doing, she asked the court to continue giving her the benefit of the automatic
stay.
On November 15, the court held a hearing on Willis’ Motion to Dismiss or
Convert to Chapter 11. At the conclusion of the hearing, the court denied the Motion
to Dismiss or Convert, issuing its rulings from the Bench. On November 29, the court
entered an Order memorializing that ruling, and further ordering Willis to account for
and turn over to the Chapter 7 Trustee all proceeds from the real properties received
by Mystery Properties or First Start Properties, or any other entity in which Willis
held an interest, except for proceeds Willis collected from the operation of her
computer software business, Q Solutions. Willis was also ordered to turn over to the
Chapter 7 Trustee all deeds and mortgages associated with all properties owned by
Willis, Mystery Properties, Fresh Start Properties, and any other entity owned by
Willis.
Willis appeals from this Order. Meanwhile, she filed a Motion for Stay
Pending Appeal or for Supersedeas, which the bankruptcy court denied, again
ordering Willis to turn over documents. On January 10, 2006, we also denied an
Emergency Motion for Stay Pending Appeal. And, on December 9, 2005, the court
granted the Chapter 7 Trustee’s motion to take over operations of Willis’ businesses.
STANDARD OF REVIEW
A bankruptcy appellate panel shall not set aside findings of fact unless clearly
erroneous, giving due regard to the opportunity of the bankruptcy court to judge the
credibility of the witnesses.4 We review the legal conclusions of the bankruptcy court
4
Gourley v. Usery (In re Usery), 123 F.3d 1089, 1093 (8th Cir. 1997); O'Neal v.
Southwest Mo. Bank (In re Broadview Lumber Co., Inc.), 118 F.3d 1246, 1250 (8th Cir. 1997)
(citing First Nat'l Bank of Olathe v. Pontow, 111 F.3d 604, 609 (8th Cir.1997)). Fed. R. Bankr.
P. 8013.
5
de novo.5 A decision whether to dismiss a case “will only be reversed if the court
abused its broad discretion.”6
DISCUSSION
Willis argues that the bankruptcy court erred in denying her Motion to Dismiss
or Convert because she did not sign the original Petition and Schedules and, therefore,
they were deficient and invalid.
Rule 1008 requires that “[a]ll petitions, lists, schedules, statements and
amendments thereto shall be verified or contain an unsworn declaration as provided
in 28 U.S.C. § 1746.”7 In addition, Rule 9011 requires that:
Every petition, pleading, written motion, and other paper, except a list,
schedule, or statement, or amendments thereto, shall be signed by at least
one attorney of record in the attorney’s individual name. A party who is
not represented shall sign all papers. . . . . An unsigned paper shall be
stricken unless omission of the signature is corrected promptly after
being called to the attention of the attorney or party.8
Willis also cites cases in which courts have dismissed bankruptcy cases because the
debtors did not sign the petitions or other documents requiring signature.9 No one
disputes the premise that dismissal will generally be appropriate in cases where the
5
First Nat’l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609 (8th Cir. 1997);
Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir. 1997).
6
In re Cedar Shore Resort, Inc., 235 F.3d 375, 378 (8th Cir. 2000).
7
Fed. R. Bankr. P. 1008.
8
Fed. R. Bankr. P. 9011(a).
9
See e.g., In re Phillips, 433 F.3d 1068 (8th Cir. 2006); In re Wenk, 296 B.R. 719, 727
(Bankr. E.D. Va. 2002); In re Harrison, 158 B.R. 246, 248 (Bankr. M.D. Fla. 1993).
6
debtor did not sign the petition and fails to promptly correct the deficiency. But, as
the bankruptcy court in this case found, the facts here mandate a different result.
To summarize, the bankruptcy court held that Willis was estopped from
asserting the deficiency in her Petition and Schedules because she enjoyed the
benefits, and none of the detriments (such as filing accurate schedules and cooperating
with the trustee), of filing a bankruptcy petition, and because of the complete
disrespect she had shown to her creditors. We agree.10
To constitute an equitable estoppel, there must exist a false
representation or concealment of material facts; it must have been made
with knowledge, actual or constructive, of the facts; the party to whom
it was made must have been without knowledge or the means of
knowledge of the real facts; it must have been made with the intention
that it should be acted upon; and the party to whom it was made must
have relied on or acted upon it to his prejudice.
To sustain an estoppel because of the omission to speak, there must be
both the specific opportunity and the apparent duty to speak. The party
maintaining silence must have known that some one was relying thereon,
and was either acting, or about to act, as he would not have done had the
truth been told.
In order to constitute an equitable estoppel by silence or acquiescence,
it must be made to appear that the facts upon which it is sought to make
10
We do not, by this Opinion, trivialize the importance of filing properly executed and
verified documents as required under the Bankruptcy Code, Rules, and applicable local rules and
procedures. The manner in which this case was originally filed and handled was clearly
inappropriate and, perhaps, as the bankruptcy court noted, subject to disciplinary action or
sanctions. See In re Phillips, 433 F.3d at 1071-72 (noting that a bankruptcy court may award
sanctions against an attorney under Rule 9011 for filing a petition without the debtor’s signature,
but finding they were not warranted in that particular case). However, under the circumstances
of this case, including Willis’ pre- and post-bankruptcy conduct, we agree with the bankruptcy
court that Willis is estopped from seeking a dismissal here. Alternatively, as discussed more
fully below, we find that she ratified the defective filing.
7
the estoppel operate were known to the parties against whom the
estoppel is urged.11
Willis concedes that she learned that her attorney had filed the original Petition,
without her signature, very shortly after it was filed. She also does not dispute that
she had an affirmative obligation to speak up about the defective filing. Instead, she
argues that she did speak up and that “[m]otions were timely filed, but were not timely
heard” by the bankruptcy court. The record, however, belies this assertion.
Despite knowing about the filing, Willis did not mention to anyone that she had
not signed the original Petition until her § 341 Meeting on September 1, 2005, nearly
ten weeks after the bankruptcy petition was filed. Prior to that time, Willis’ attorney
had requested a continuance of the original Meeting, which had been set for August
17, because he was unable to attend. Willis’ attorney also requested a continuance of
the September 1 Meeting on the ground that Willis had filed the motion to convert the
case to Chapter 13. The Chapter 7 Trustee opposed this motion to continue the
Meeting, alleging that Willis had refused to turn over requested documents, and
suggesting that continuing the Meeting again would result in undue delay, particularly
since several motions for relief from stay were pending. The Trustee even requested
the court to compel Willis to appear at the September 1 Meeting, which the court did.
In addition, prior to the September 1 Meeting, Willis had filed three motions to
convert or dismiss, in none of which did she mention that she had not signed her
original Petition.12 Furthermore, by the time of the Meeting, she had amended her
11
Rath Packing Co. v. Paul Blood Farms, Inc., 419 F.2d 13, 17 (8th Cir. 1969) (citation
omitted). See also Wiser v. Lawler, 189 U.S. 260, 270, 23 S. Ct. 624, 628, 47 L.Ed.802 (1903)
(to constitute an estoppel by silence there must be something more than an opportunity to speak,
there must be an obligation); Brixey v. Union Oil Co. of Calif., 283 F. Supp. 353 (W.D. Ark.
1968) (“[e]stoppel by silence or inaction is often referred to as estoppel by ‘standing by’”; the
underlying principle is embodied in the maxim “one who is silent when he ought to speak will
not be heard to speak when he ought to be silent.”).
12
Presumably, these are what counsel refers to as Willis’ “timely filed” motions which
were not “timely heard.” Although Willis’ current counsel was not involved in the case until
8
schedules five times and responded in opposition to three motions for relief from stay.
She also filed a Motion to Withdraw the original Motion to Dismiss, again failing to
mention that she did not sign the original documents. In addition, throughout this
time, the Trustee was communicating with Willis or her attorney in attempts to obtain
documents. Nevertheless, despite these numerous opportunities to do so, both in court
and out, at no time up to the actual September 1 Meeting did Willis indicate she had
not signed the petition.
Even after that point, after she fired her previous attorney and hired her current
counsel, her actions have consistently reinforced her desire to enjoy the benefits of her
bankruptcy case. She has filed numerous responses in opposition to motions for relief
from stay and she has amended her schedules on several occasions. And, although
her new attorney filed the instant Motion to Dismiss or Convert her case to Chapter
11 shortly after he was hired (finally alleging in a court document that she had not
signed the original Petition), that Motion sought conversion as an alternative to
dismissal.
Finally, it is abundantly clear from the Willis’ testimony at the hearing on the
Motion that she intended, and still desires, to be in a bankruptcy case, thereby
enjoying the benefits and protections associated with being a debtor in bankruptcy.
We found no less than ten instances in the transcript where Willis testified she wanted
to be in bankruptcy, albeit in a reorganization case.13 At one point, she even testified
later, we find the allegation that the motions were not “timely heard” somewhat disingenuous in
view of the fact that none of those previous motions to dismiss and convert mentioned that she
had not signed the Petition. And, in the meantime, Willis requested continuances of both her
August 17 and September 1 Meetings of Creditors, and she repeatedly failed to appear at
scheduled hearings, appearing only when specifically ordered to do so under threat of contempt.
13
Tr. at 25 (stating that one of the reasons why she sought protection of the bankruptcy
court was because she was “getting behind on some of these mortgages or some of these
payments”); Tr. at 48 (stating that “difficulty servicing the mortgages”. . . “was one of the things
that prompted [her] to file [her] original bankruptcy petition”); Tr. at 48 (stating that she “needed
to get [her] Mystery Property debt under reorganization”); Tr. 49 (stating that she went in to her
9
that if her case were dismissed, she intended to file a new Chapter 11 case and that she
would do so “today” if she could.14
We conclude that the record contains ample support for the bankruptcy court’s
conclusion that Willis is estopped from seeking a dismissal based on the deficiencies
in her original Petition. “A decision of whether to grant a motion to voluntarily
dismiss a bankruptcy petition lies within the discretion of the bankruptcy judge and
is reviewed only for an abuse of discretion.”15 Accordingly, the bankruptcy court’s
order denying Willis’ motion to dismiss her case was not an abuse of discretion.
Moreover, although it did not expressly form a basis for the bankruptcy court’s
decision to deny the Motion to Dismiss, the record also supports a finding that Willis
ratified the defective filing by actively participating in the bankruptcy case, albeit only
in ways she deemed beneficial to her. Although she has repeatedly failed to turn over
documents, failed to appear at hearings, and refused to abide by the orders of the
court, she has also, among other things, affirmatively taken advantage of the automatic
stay by keeping proceeds from her real estate without making payments to creditors,
she has opposed numerous motions for relief from stay, and she has filed several
original bankruptcy attorney’s office and told him she wanted to do a reorganization); Tr. at 52
(stating that her understanding in July 2005 was that she was “going to be in a business 13
reorganization”); Tr. at 54 (stating she did not discharge her original attorney when she
discovered her case had been converted to Chapter 7 because the attorney told her he could get
everything straightened out and that she would be “back in a 13"); Tr. at 71 (responding in the
affirmative that “you wanted to go bankruptcy, didn’t you?” and stating she had paid her
attorney $1,500 in June of 2005); Tr. at 72 (stating, in response to the question that she “wanted
in bankruptcy,” “Yes, I wanted reorganization”); Tr. at 80 (stating that she planned to file a
Chapter 11 reorganization if her case is dismissed, and that she would do so “today”); Tr. at 110
(responding in the affirmative that she wants “some relief in bankruptcy court some kind of
way”); Tr. at 124 (stating that, in July 2005, she “intended to file a reorganization bankruptcy”).
14
Tr. at 80.
15
In re Turpen, 244 B.R. 431, 433 (B.A.P. 8th Cir. 2000) (citations omitted).
10
amendments to her schedules.16 Accordingly, the court’s refusal to dismiss the case
for defective filing is further supported by Willis’ ratification of it.
Furthermore, based on Willis’ conduct in this case, we cannot say that the
bankruptcy court’s refusal to convert the case to Chapter 11 was erroneous. Under §
706(a), ‘[t]he debtor may convert a case under this chapter to a case under chapter 11
. . . at any time, if the case has not been converted under section 1112, 1208, or 1307
of this title.”17 Since this case has been previously converted under § 1307, this
provision is not applicable.18
16
Accord In re Beshears, 196 B.R. 468, 473 (Bankr. E.D. Ark. 1996) (finding that an
individual debtor ratified her schedules at the § 341 meeting and by filing amended schedules,
“such that she is a debtor in bankruptcy” and that her failure to sign the original schedules did
not relieve her of her obligations under § 727(a)(5) to explain the loss of assets); In re Hager,
108 F.3d 35, 39-40 (4th Cir. 1997) (listing cases applying ratification to validate by relation-back
a jurisdiction originally lacking); In re Martin-Trigona, 760 F.2d 1334, 1341 (2d. Cir. 1985)
(holding that ratification may be established by proof that benefits were derived through the act
in question or through participation in the act itself, and that the debtor-corporation and sole
stockholder “acquiesced in and ratified” filing by their ensuing participatory conduct); Boyce v.
Chem. Plastics, Inc., 175 F.2d 839, 842-44 (8th Cir.1949) (holding that an unauthorized
bankruptcy filing was ratified and jurisdiction thereby validated by later board of directors’
resolution; “[a] corporation, like an individual, may ratify and thereby render binding upon it the
originally unauthorized acts . . . of its officers or other agents”), cert. denied 338 U.S.828, 70
S. Ct. 77, 94 L.Ed.503 (1949); In re I.D. Craig Serv. Corp., 118 B.R. 335, 337-38 (Bankr. W.D.
Pa 1990) (finding unauthorized filing by corporation president ratified by ensuing conduct of
board of directors and denying the debtor’s motion to dismiss the case).
17
11 U.S.C. § 706(a).
18
We note that, even in cases which have not been previously converted, there is a split
of authority as to whether the right to convert is absolute, and the Supreme Court has recently
agreed to hear the issue. See In re Marrama, 430 F.3d 474 (1st Cir. 2005), cert. granted ___
S.Ct. ____, 2006 WL 316685 (June 12, 2006). See also In re Copper, 426 F.3d 810 (6th Cir.
2005) (holding that the right to convert a case is not absolute); In re Young, 269 B.R. 816
(Bankr. W.D. Mo. 2001) (holding that the better reasoned cases have held that the court has
discretion to deny conversion of a previously unconverted case when there is a showing of bad
faith, abuse of the bankruptcy process, or where conversion would violate the purposes and
policy of the Bankruptcy Code).
11
Section 706(b), which is applicable, provides that, on request of a party in
interest, and after notice and hearing, the court may convert a Chapter 7 case to
Chapter 11 at any time.19 “The decision whether to convert is left in the sound
discretion of the court, based on what will most inure to the benefit of all parties in
interest.”20
The record in this case amply supports the court’s decision on this issue because
it is rife with examples of Willis’ evasiveness and lack of cooperation with the
Trustee. For example, Willis has continually refused to turn over documents to the
Trustee, despite numerous requests and court orders requiring that she do so. She
repeatedly claimed that she has not produced documents on the advice of her counsel.
When she finally appeared at a show cause hearing relating to document production,
she showed up without a single document, saying she was waiting to be specifically
ordered, by a written order of the court, to produce them. The court was finally forced
to threaten Willis with contempt and incarceration if she did not produce the
documents.
Similarly, Willis candidly testified that she advised her tenants to send rent
payments directly to her, in direct contravention of a letter from the Trustee to the
tenants directing them to make payments to him. She has refused to make an
accounting or turn over funds relating to proceeds from her rental and real estate
development properties and, it appears, those monies may have been in the process of
disappearing, if they have not already disappeared. Willis testified that she collects
around $7,800 per month in rent, plus she has collected deposits from renters, and at
least $10,000 on a contract to purchase one of the parcels of property. She never
clearly testified what has happened to any of that money, except that she had “set
19
11 U.S.C. § 706(b).
20
H.R. Rep. No. 595, 95th Cong., 1st Sess. at 380 (1977), 1978 U.S.C.C.A.N. 5963; S.
Rep. No.989, 95th Cong.2d Sess. at 94 (1978), 1978 U.S.C.C.A.N. 5787.
12
aside” the deposits of about $4,500 which she was storing in cash in a safe deposit box
at her residence. She testified she receives some of the rents and deposits in cash, and
she pays some expenses in cash, but that she does not keep records of every bill she
pays. She certainly has not been using any of those funds to pay the secured lenders
on those properties.
Finally, the Trustee has raised some very serious allegations as to Willis’
prepetition conduct, in essence alleging significant fraudulent transfers to insiders.
For example, the record suggests that Willis formed Fresh Start Properties in about
April of 2005.21 Around that same time, she transferred several parcels of real
property she had held in her individual name to Fresh Start.22 In addition, in February
2005, she transferred, for no consideration, real estate that had previously been owned
in Mystery Property’s name to her 22-year old son who was unemployed, purportedly
to obtain refinancing under his name.23 She did so without notifying the lenders who
held mortgages on those properties at the time, and the son never acquired the
refinancing on the properties. This was also about the same time some of Willis’
creditors were filing lawsuits against her.
In sum, in light of the evidence of Willis’ fraudulent, evasive, and
uncooperative behavior, we agree with the bankruptcy court that this case belongs in
a Chapter 7. Accordingly, the bankruptcy court did not err in denying the Motion to
Dismiss or Convert to Chapter 11.
21
Tr. at 38-39.
22
Tr. at 40-42.
23
Tr. at 59-66.
13
CONCLUSION
For the reasons discussed above, we conclude that the bankruptcy court did not
err in finding that Willis is equitably estopped from relying on the fact that she did not
sign her original Petition and Schedules as grounds to have her case dismissed. In
addition, her post-petition conduct ratified its filing. Consequently, the bankruptcy
court did not err in denying Willis’ Motion to Dismiss or Convert her case to Chapter
11. The judgment is affirmed.
______________________________
14