In re: Ernest Henry
OPINION filed : AFFIRMED, decision fully precedential pursuant to local BAP rule 8013-1(b). Paulette Delk, Marian F. Harrison, and Joan A. Lloyd (authoring judge), Bankruptcy Appellate Panel Judges.
ELECTRONIC CITATION: 15 FED App.0005P (6th Cir.)
File Name: 15b0005p.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: ERNEST KEN HENRY
Appeal from the United States Bankruptcy Court
for the Southern District of Ohio.
Case No. 14-33789
Decided and Filed: August 3, 2015
Before: DELK, HARRISON and LLOYD, Bankruptcy Appellate Panel Judges.
ON BRIEF: Scott G. Stout, Dayton, Ohio, for Appellee. Ernest Ken Henry, Springfield, Ohio,
JOAN LLOYD, Bankruptcy Appellate Panel Judge. In this appeal, Debtor Ernest K.
Henry (pro se) appeals the Bankruptcy Court’s Order Dismissing Case. The Bankruptcy Court
held that the Debtor-Appellant failed to timely file an amended Chapter 13 plan. For the reasons
set forth below, the Bankruptcy Court’s ruling dismissing the case is affirmed.
No. 15-8004, In re Henry
ISSUE ON APPEAL
The issue on appeal is whether the Bankruptcy Court erred in dismissing the case where
the Bankruptcy Court ordered Debtor-Appellant to file an amended Chapter 13 plan within two
weeks of a hearing in which the Debtor-Appellant was informed of the situation and his
responsibilities as a pro se debtor.
JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this
appeal. The United States District Court for the Southern District of Ohio has authorized appeals
to the Panel, and none of the parties has timely elected to have these appeals heard by the district
court. 28 U.S.C. §§ 158(b)(6), (c)(1). A bankruptcy court’s final order may be appealed as of
right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.”
Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989)
(citation and quotation marks omitted).
An order dismissing a bankruptcy case is reviewed under an abuse of discretion standard.
See Riverview Trenton R.R. Co. v. DSC, Ltd. (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.
2007). “An abuse of discretion occurs only when the [bankruptcy] court ‘relies upon clearly
erroneous findings of fact or when it improperly applies the law or uses an erroneous legal
standard.’” In re Bever, 300 B.R. 262, 264 (6th Cir. BAP 2003) (quoting Corzin v. Fordu (In re
Fordu), 209 B.R. 854, 857–58 (6th Cir. BAP 1997)). “We will find an abuse of discretion only
upon a definite and firm conviction that the district court committed a clear error of judgment.”
In re Kisseberth, 273 F.3d 714, 721 (6th Cir. 2001). The question is not “not how the reviewing
court would have ruled, but rather whether a reasonable person could agree with the bankruptcy
court's decision.” In re M. J. Waterman & Assocs., 227 F.3d 604, 608 (6th Cir. 2000).
No. 15-8004, In re Henry
The following facts are undisputed:
On October 27, 2014, Debtor-Appellant Ernest K. Henry filed a Chapter 13 Bankruptcy
Petition in the Bankruptcy Court for the Southern District of Ohio. Debtor-Appellant acted
without counsel and continued to act without counsel for this appeal.
On November 5, 2014, the Debtor-Appellant filed the Chapter 13 plan. A Meeting of
Creditors was held on December 2, 2014. The meeting was continued to December 16, 2014.
On December 18, 2014, the Trustee-Appellee objected to the confirmation of the plan.
According to the Trustee-Appellee, the plan was not feasible because the repayment period
exceeded five years and was too speculative; there was no evidence the Debtor-Appellant would
be able to meet the payments required by the plan.
A confirmation hearing was held on January 8, 2015. At this meeting, the parties
discussed what the Debtor-Appellant needed to do to get the Chapter 13 plan confirmed. As a
result of these conversations, the Debtor-Appellant agreed to have his original plan denied and
was given fourteen days to remedy the errors in the plan. This arrangement was entered into the
record through an order on January 9, 2015. Debtor-Appellant could satisfy this requirement by
filing an amended plan by January 22, 2015.
Debtor-Appellant maintains that an amended plan was mailed to the Bankruptcy Court on
January 22, 2015, but the Bankruptcy Court never received an amended plan, nor did the
Trustee-Appellee. With nothing submitted to the Bankruptcy Court, Trustee-Appellee submitted
an order for dismissal, which was entered on February 4, 2015. Debtor-Appellant received this
order dismissing the case on February 9, 2015 and immediately went to the Bankruptcy Court to
rectify the error, filing amended schedules and appealing the case to the Bankruptcy Appellate
Panel for the Sixth Circuit. At this point, however, the Debtor-Appellant’s bankruptcy case had
No. 15-8004, In re Henry
Debtor-Appellant cites no legal authority justifying the position that the Bankruptcy
Court’s dismissal of his case should be overturned. The proper legal standard for overturning a
final order from a bankruptcy court judge is to determine if there was an abuse of discretion.
The standard for “abuse of discretion” requires that the bankruptcy judge “committed a clear
error of judgment.” Mayor of Baltimore v. West Virginia (In re Eagle-Picher Industries, Inc.),
285 F.3d 522, 529 (6th Cir. 2002). Giving as much weight possible to the arguments provided
by the Debtor-Appellant, it is impossible to conclude that the bankruptcy judge acted improperly.
Debtor-Appellant’s main frustration is that, despite representing himself pro
se, he was held
access to the tools and knowledge of an attorney.
expresses frustration over his inability
Court Electronic Records) or file electronically.
that both PACER and the ability
Ohio Bankruptcy Court for limited use
More specifically, Debtor-Appellant
e-file are available in the Southern
non-attorney users. See OBTAINING
LOGIN AND PASSWORD, UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT
visited July 1, 2015). Furthermore, access to PACER would not have mattered because DebtorAppellant needed to file the amended plan and nothing in the PACER record would have assisted
the Debtor-Appellant with filing the plan. Indeed, no notice or other documentation would have
appeared in PACER after the order was handed down by the Bankruptcy Court.
Appellant knew that there was a fourteen day window to submit an altered plan after meeting
with the Trustee-Appellee on January 8. The Trustee-Appellee was extremely thorough in
explaining to the Debtor-Appellant what was expected and what to file with the Bankruptcy
Court. Additionally, the Debtor-Appellant was receiving communications from the Bankruptcy
Court through traditional mail. Anything of merit would have properly been sent to DebtorAppellant’s home address.
No. 15-8004, In re Henry
The Debtor-Appellant knew that documents needed to be filed. If there was any doubt
that the documents would arrive through the mail, the debtor should have made arrangements to
present the documents physically to the Court. Filing requirements and deadlines are necessary
to an orderly bankruptcy process. See generally In re Greene, 127 B.R. 805 (Bankr. N.D. Ohio
1991). With nothing filed, the Bankruptcy Court was justified in granting the Motion to Dismiss.
For the reasons stated, we AFFIRM the Bankruptcy Court.
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