Alan Boyd Curtis v. Patricia A. Segrave

Filing

OPINION FILED - THE COURT: Robert J. Kressel, Thomas L. Saladino and Anita L. Shodeen AUTHORING JUDGE:Thomas Saladino (PUBLISHED) [4340789] [15-6021]

United States Bankruptcy Appellate Panel
For the Eighth Circuit
___________________________
No. 15-6021
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In re: Patricia A. Segraves, formerly known as Patricia A. Curtis, also known as
Patricia L. Seagraves
lllllllllllllllllllllDebtor
-----------------------------Alan Boyd Curtis
lllllllllllllllllllllCreditor - Appellant
v.
Patricia A. Segraves
lllllllllllllllllllllDebtor - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Missouri - St. Louis
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Submitted: November 23, 2015
Filed: November 30, 2015
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Before KRESSEL, SALADINO and SHODEEN, Bankruptcy Judges.
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SALADINO, Bankruptcy Judge.

Appellate Case: 15-6021

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Date Filed: 11/30/2015 Entry ID: 4340789

Alan Boyd Curtis, the appellant, appeals from an order of the bankruptcy court1
denying his “motion to dismiss petitioner’s Chapter 13 bankruptcy petition for failure
to comply with 11 U.S.C.S. § 109(h)(3)(A); filed in bad faith to hinder, delay, and
defraud creditors.”2 The bankruptcy court’s order was previously determined to be a
final order, so we have jurisdiction over this appeal pursuant to 28 U.S.C. § 158(b).
For the reasons set forth below, we affirm.
The debtor, Patricia A. Segraves, filed her Chapter 13 voluntary petition on
September 27, 2012. On the same date, she filed a certificate certifying that she had
received the required credit counseling, via telephone and internet, on September 20,
2012, from a court-approved credit counseling agency. The certificate was signed by
a senior counselor of the agency.
Mr. Curtis is a creditor and argued that the debtor herself was required to sign
the statement of credit counseling under penalty of perjury. The bankruptcy court
disagreed, ruling that the Bankruptcy Code merely requires the debtor to establish that
she had received a briefing regarding credit counseling in compliance with 11 U.S.C.

1

The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
2

Although the caption of the motion filed by Mr. Curtis references “filed in bad
faith to hinder, delay, and defraud creditors,” no such allegations are made or
otherwise addressed in the body of the motion nor were any such issues addressed by
the bankruptcy court. Therefore, we will not address them on appeal. Arguments
raised but not developed are deemed waived. Garden v. Central Neb. Housing Corp.,
719 F.3d 899, 905 n.2 (8th Cir. 2013) (citing Cubillos v. Holder, 565 F.3d 1054, 1058
n.7 (8th Cir. 2009)). The court need not consider arguments or issues “not developed
in [a party’s] briefs as required by Federal Rule of Appellate Procedure 28(a)(9)(A).”
Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006). “It is thus considered
abandoned for failure ‘to provide any reasons or arguments' for his contentions.” Id.
at 854–55 (quoting United States v. Zavala, 427 F.3d 562, 564-65 n.1 (8th Cir. 2005)).
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§ 109(h)(1). The court found that the certificate of counseling was sufficient to meet
the statutory requirements and denied Mr. Curtis’ contention to the contrary because
it was “based on an erroneous interpretation of law.”
The bankruptcy court’s decision regarding whether to dismiss a bankruptcy case
is reviewed for an abuse of discretion. McCarty v. Jenkins (In re Jenkins), 428 B.R.
845, 848 (B.A.P. 8th Cir. 2010). The bankruptcy court abuses its discretion when it
fails to apply the proper legal standard or bases its order on findings of fact that are
clearly erroneous. Official Comm. of Unsecured Creditors v. Farmland Indus., Inc.
(In re Farmland Indus., Inc.), 397 F.3d 647, 651 (8th Cir. 2005) (citing Stalnaker v.
DLC, Ltd., 376 F.3d 819, 825 (8th Cir. 2004)).
11 U.S.C. § 109(h) provides in relevant part as follows:
(1) Subject to paragraphs (2) and (3) . . . an individual may
not be a debtor under this title unless such individual has,
during the 180-day period ending on the date of filing of
the petition by such individual, received from an approved
nonprofit budget and credit counseling agency . . . an
individual or group briefing . . . that outlined the
opportunities for available credit counseling and assisted
such individual in performing a related budget analysis.
***
(3)(A) [T]he requirements of paragraph (1) shall not apply
with respect to a debtor who submits to the court a
certification that –
(i) describes exigent circumstances that merit a
waiver of the requirements of paragraph (1)[.]
The language of section 109(h) is plain. Hedquist v. Fokkena (In re Hedquist),
342 B.R. 295, 300 (B.A.P. 8th Cir. 2006). It does not require that a debtor sign a credit
counseling certificate under penalty of perjury. Nor does 11 U.S.C. § 521(b)(1), which
simply requires an individual debtor to file with the court “a certificate from the
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approved nonprofit budget and credit counseling agency that provided the debtor
services under section 109(h) describing the services provided to the debtor. . . .” Mr.
Curtis seems to believe the “certificate” requirement of § 521(b)(1) somehow requires
a signature by the debtor under penalty of perjury. Clearly, it does not. In fact, it
doesn’t require a signature of the debtor at all. It only requires a certificate from the
credit counseling agency. The bankruptcy court did not fail to apply the proper legal
standard or base its decision on clearly erroneous findings of fact. Rather, it correctly
applied the law and denied Mr. Curtis’ motion.
Mr. Curtis also argues issues related to his appeal of an order granting the
debtor’s motion to sell certain real property free and clear of liens. That appeal was
docketed as Case No. 15-6027. However, the appeal was dismissed on September 24,
2015, because Mr. Curtis failed to pay the required fees. Accordingly, we lack
jurisdiction to decide that appeal. Moreover, Mr. Curtis’ motion to stay the sale
pending appeal was denied, so the sale proceeded and is now final. Therefore, the
appeal is moot. Sears v. U.S. Trustee (In re AFY, Inc.), 734 F.3d 810, 816-17 (8th Cir.
2013); 11 U.S.C. § 363(m).
Finally, Mr. Curtis raises a variety of other issues but we will not address
matters which were not presented to the bankruptcy court in the first instance or
otherwise are unrelated to the issue on appeal. Dapec, Inc. v. Small Bus. Admin. (In
re MBA Poultry, L.L.C.), 291 F.3d 528, 534 n.3 (8th Cir. 2002) (declining to address
argument not raised in the bankruptcy court).
For the reasons stated above, we affirm.
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