Robert Brown v. Bank of North Dakota, et al

Filing

OPINION FILED - THE COURT: ARTHUR B. FEDERMAN, JERRY W. VENTERS and CHARLES L. NAIL, JR.. Jerry Venters, Authoring Judge (PUBLISHED) [3773551] [10-6087]

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
_______________
No. 10-6087
________________
In re:

*
*
*
*
*
*
*
* Appeal from the United States
* Bankruptcy Court for the District of
* North Dakota
*
*
*
*
*
*
*
*
*
_____

Robert A. Brown,
Debtor.
Robert A. Brown,
Debtor – Appellant,
v.
Bank of North Dakota,
Creditor – Appellee,
Wayne Drewes,
Trustee – Appellee.

Submitted: March 15, 2011
Filed: April 5, 2011
_____
Before FEDERMAN, VENTERS, AND NAIL, Bankruptcy Judges.
_____
VENTERS, Bankruptcy Judge.

Appellate Case: 10-6087

Page: 1

Date Filed: 04/05/2011 Entry ID: 3773551

The Debtor, Robert A. Brown, appeals three bankruptcy court1 orders: (1) the
order denying confirmation of the Debtor’s Second Amended Chapter 13 Plan, (2) the
order granting creditor Bank of North Dakota’s motion for relief from the automatic
stay, and (3) the order granting the Chapter 13 trustee’s motion to dismiss the
Debtor’s bankruptcy case based on his failure to make his Chapter 13 Plan payments.
We affirm all of these orders.
STANDARD OF REVIEW
Findings of fact are reviewed for clear error, and legal conclusions are reviewed
de novo.2
BACKGROUND
The following facts have been gleaned from the pleadings filed in the Debtor’s
bankruptcy case. No further record is available due to the Debtor's failure to provide
us with a transcript of the confirmation hearing and the fact that the orders granting
Bank of North Dakota relief from the stay and dismissing the case were unopposed
by the Debtor and, consequently, were entered without a hearing.
The Debtor filed a Chapter 13 bankruptcy petition on June 18, 2010. He filed
three Chapter 13 plans: one on July 21, 2010, an amended plan on August 16, 2010,
and a second amended plan on September 20, 2010. Bank of North Dakota, a creditor
holding an allegedly fully secured claim in excess of $35,752.00, objected to the
Debtor’s plan, arguing, inter alia, that the amended plan failed to adequately provide
for the payment of the bank’s claim and that the plan was not feasible.

1

The Honorable William A. Hill, Chief Bankruptcy Judge for the District of
North Dakota.
2

See In re Waterman, 248 B.R. 567, 570 (B.A.P. 8th Cir. 2000).
2

Appellate Case: 10-6087

Page: 2

Date Filed: 04/05/2011 Entry ID: 3773551

The bankruptcy court held a hearing on Bank of North Dakota’s objection on
September 28, 2010. The Debtor appeared at the hearing and (presumably) had an
opportunity to argue and present evidence in support of his Chapter 13 plan. The
bankruptcy court orally denied confirmation of the Debtor’s plan. That same day, the
bankruptcy court entered an order memorializing its ruling. The written order does
not provide the basis for the court’s ruling, and, as noted, no transcript of this hearing
has been provided.
Shortly thereafter, Bank of North Dakota filed a motion for relief from the
automatic stay and the Chapter 13 trustee, Wayne Drewes (“Trustee”), filed a motion
to dismiss the Debtor’s case “for failure to make plan payments.”3 The record
indicates that the Debtor was served with the motions and notices that no hearing
would be held unless an objection was filed. The notice of motion attached to the
Bank of North Dakota’s motion for relief specifically stated that an order granting the
motion would be entered without further notice in the absence of an objection. The
Debtor did not respond to either motion. Consequently, the Court granted both
motions without a hearing.
The Debtor timely appealed these orders.

3

The motion to dismiss was docketed with the description that it was for a
failure to make plan payments, but the brief text of the motion stated only that
“[t]he debtor has indicated that he will not be filing an amended plan nor seeking
confirmation.” Trustee’s Motion to Dismiss, p.1 (Bankruptcy Court Doc. No. 30).
3

Appellate Case: 10-6087

Page: 3

Date Filed: 04/05/2011 Entry ID: 3773551

DISCUSSION
Without delving into the substance of the Debtor’s appeal,4 we affirm the
bankruptcy court’s orders based on well-established principles of appellate
jurisprudence. The bankruptcy court’s order denying confirmation of the Debtor’s
Second Amended Chapter 13 Plan cannot be reviewed because the Debtor failed to
provide an adequate record of that decision.5 And we will not consider any
challenge to the orders granting Bank of North Dakota’s motion for relief and the
Trustee’s motion to dismiss the case because the Debtor failed to object to those
motions in the bankruptcy court. A party that fails to object to a motion cannot
seek review of an adverse decision on that motion on appeal.6
Therefore, for the reasons stated above, the bankruptcy court’s orders
denying confirmation of the Debtor’s Second Amended Chapter 13 Plan, granting

4

Even under a generous reading of the Debtor’s pro se briefs, we are hard
pressed to find any arguments pertaining to an alleged error committed by the
bankruptcy court, other than a groundless contention that the bank, a secured
creditor, lacked standing to object to the Debtor’s plan. The Debtor’s arguments
are directed more at various alleged misdeeds committed by the bank.
5

See In re Webb, 212 B.R. 320, 321 n.1 (B.A.P. 8th Cir. 1997) (“The Panel
does not have before it a transcript of the proceedings below. Inasmuch as it is the
appellant's burden to demonstrate the merits of her appeal, she must bear the
burden of the deficient record.”) (citations omitted). See also Schmid v. United
Brotherhood of Carpenters and Joiners of America, et. al., 827 F.2d 384 (8th Cir.
1987) (“It is important, if not essential, to the reviewing court that an appellant
under Rule 10, Fed. R. App. P., bring before this court all parts of the proceedings
below necessary for a determination of the validity of any claimed error.” (quoting
Ries v. Lynskey, 452 F.2d 172, 178 (7th Cir.1971)).
6

See United States v. Bentley, 82 F.3d 222, 223 (8th Cir. 1996) (arguments
not raised at trial are deemed waived on appeal); Keene Corp. v. Int'l Fid. Ins., Co.,
736 F.2d 388, 393 (7th Cir. 1984) (“It is axiomatic that arguments not
raised below are waived on appeal.”).
4

Appellate Case: 10-6087

Page: 4

Date Filed: 04/05/2011 Entry ID: 3773551

Creditor Bank of North Dakota’s motion for relief from the automatic stay, and
granting the Chapter 13 Trustee’s motion to dismiss are hereby affirmed.

5

Appellate Case: 10-6087

Page: 5

Date Filed: 04/05/2011 Entry ID: 3773551