Theresa Marshall v. Mark T. McCarty

United States Bankruptcy Appellate Panel
For the Eighth Circuit
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No. 19-6024
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In re: Theresa Marshall
Debtor
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Theresa Marshall
Debtor - Appellant
v.
Mark T. McCarty
Trustee - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 14, 2020
Filed: February 18, 2020
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Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges.
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DOW, Bankruptcy Judge
In her Chapter 13 bankruptcy case, Theresa Marshall (“Debtor”) filed an
Objection to Trustee’s Final Report (“Objection”). The Bankruptcy Court held a
hearing at which it overruled Debtor’s Objection because Debtor failed to appear.
Debtor appeals. For the reasons that follow, we find we lack jurisdiction and
dismiss the appeal without addressing the merits.
BACKGROUND
Debtor filed a petition under Chapter 13 of the Bankruptcy Code on October
26, 2016. On December 6, 2017, the case was dismissed for Debtor’s failure to
make payments under an order of strict compliance. Debtor appealed the dismissal
of her case which was dismissed for lack of jurisdiction.
The Chapter 13 Trustee, Mark T. McCarty (the “Trustee”), issued a Chapter
13 Standing Trustee’s Final Report and Account (“Final Report”) on July 26, 2018,
which was withdrawn, and on March 27, 2019, he filed a subsequent Final Report.
The Trustee’s Final Report included summaries of Receipts, Expenses of
Administration, Scheduled Creditors, Summary of Disbursements to Creditors and
Total Disbursements. Debtor attempted to appeal the March 27 Final Report, but
that appeal was dismissed because the Final Report was not an appealable order.
Debtor then filed her Objection to Trustee’s Final Report with the
bankruptcy court and a hearing date was set, and continued at Debtor’s request, to
July 23, 2019. Debtor failed to appear at that hearing and the bankruptcy court
overruled Debtor’s Objection. The Order overruling Debtor’s Objection to the
Trustee’s Final Report was entered on July 24, 2019, and Debtor filed this appeal
on July 30, 2019.
DISCUSSION
Debtor’s Notice of Appeal filed in this matter states that she is appealing the
Final Report filed on March 27, 2019; the Final Report filed on July 26, 2018; and
the July 24, 2019 Order overruling her objection to the Trustee’s Final Report.
The July 26, 2018 Final Report was withdrawn and is therefore moot. The March
27, 2019 Final Report is not a final order and thus, this Court has no jurisdiction
over such an appeal. The Court has already ruled to that effect in its dismissal
order entered on April 8, 2019, and for those same reasons, the appeal of the March
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27, 2019 Final Report will once again be dismissed. That leaves Debtor’s appeal
of the bankruptcy court’s Order entered on July 24, 2019, that overruled her
objection to the Trustee’s Final Report based on her failure to appear.
In Debtor’s Brief filed in this appeal, she lists 14 “issues” that she purports
to appeal on page six. Issues 1-31 and 6 are merely factual recitations of events.
Issues 5, 7 and 9-13 were never raised below and accordingly, this Court will not
entertain them. “[I]ssues raised for the first time on appeal are ordinarily not
considered by an appellate court as a basis for reversal.” In re Hansmeier, 558 B.R.
299, 301 (B.A.P. 8th Cir. 2016) (citing Wendover Fin. Servs. v. Hervey (In re
Hervey), 252 B.R. 763, 767 (8th Cir. BAP 2000)). An exception may be made in
“exceptional cases where the obvious result would be a plain miscarriage of justice
or inconsistent with substantial justice.” Kelley v. Crunk, 713 F.2d 426, 427 (8th
Cir.1983) (per curiam) (emphasis added). We do not believe this to be such an
exceptional case. Debtor also lists 8 “Issues Appealing” on page 11 of her Brief,
all of which were likewise never raised below and will not be entertained in this
appeal.
The remaining issues for the Court to review are Debtor’s allegations that
Arvest Bank made no appearance in the case for unsecured debt and should not be
included in the Final Report; that the information in the Final Report for Wells
Fargo Bank NA was incorrect and that the Trustee did not have a balance due
section for any of the scheduled creditors. As to the first two, Debtor has not
provided any indication as to how such information contained in the Report was
incorrect nor why it is relevant. As to the issue regarding the absence of a section
in the Final Report, Debtor has not explained why such a section was necessary or
of what consequence was its absence.
This Court has an independent duty to examine our jurisdiction. Belew v.
Rucker (In re Belew), 608 B.R. 206, 208 (8th Cir. B.A.P. 2019). If the appellant
does not have standing, we do not have jurisdiction. Id.
To have standing to appeal an order, an appellant must
demonstrate he or she is a person aggrieved by the order.
Under the “person aggrieved” doctrine, only appellants
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There are duplicate number threes. The Court is referring to the first number 3.
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who are directly and adversely affected pecuniarily by an
order have standing to appeal that order. Put another
way, only appellants who have a financial stake in an
order have standing to appeal that order.
Id.
“‘Person aggrieved’ is, of course, a term of art: almost by definition, all
appellants may claim in some way to be ‘aggrieved,’ else they would not bother to
prosecute their appeals.” Travelers Ins. Co. v. H.K. Porter Co., 45 F.3d 737, 741
(3d Cir.1995). “The doctrine limits standing to persons with a financial stake in
the bankruptcy court's order, meaning they were directly and adversely affected
pecuniarily by the order.” In re Peoples, 764 F.3d 817, 820 (8th Cir. 2014). An
appellant is a party aggrieved “if the bankruptcy court order diminishes the
person's property, increases the person's burdens, or impairs the person's rights.”
Opportunity Fin., LLC v. Kelley, 822 F.3d 451, 458 (8th Cir. 2016) (citing In re
Marlar, 267 F.3d 749, 753 n. 1 (8th Cir. 2001)).
In this case, Debtor questioned the accuracy of some of the information in
Trustee’s Final Report such as creditor information and the omission of certain
balances due. However, Debtor did not challenge in her Objection, nor on appeal,
the amount the Trustee reported had been returned to her following dismissal of
her case. Debtor has failed to demonstrate how the bankruptcy court’s Order
overruling her Objection may have diminished her property, increased her burdens
or impaired her rights as to make her an aggrieved party with standing. Nor has
she demonstrated that the bankruptcy court’s Order directly and adversely affected
her pecuniarily.
CONCLUSION
Debtor has not shown she is a person aggrieved by the bankruptcy court’s
Order overruling her objection to the Trustee’s Final Report and thus, does not
have standing to appeal the bankruptcy court’s Order. Consequently, we lack
jurisdiction and the appeal is DISMISSED.
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