Jackson v. Germeraad

Filing 16

ORDER BY RICHARD MILLS, U.S. District Judge: The Court hereby ADOPTS the Report and Recommendation (d/e 5 ) of Chief United States Bankruptcy Judge Mary P. Gorman and ALLOWS the Trustee-Appellee's Motion to Dismiss (d/e 3 ).The Trustee-Appellee's Motion to Strike Notice of other Evidence (d/e 15 ) is ALLOWED. The Debtor-Appellant's appeal is DISMISSED for failure to pay thefiling fee. The Clerk will terminate this action. SEE WRITTEN ORDER. Entered on 1/7/2016. (MJ, ilcd)

E-FILED

Monday, 11 January, 2016 03:42:18 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
IN RE:
CLARENCE JACKSON,

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Debtor,

CLARENCE JACKSON, DebtorAppellant,
v.
JOHN H. GERMERAAD, TrusteeAppellee.

No. 15-3255
Appeal from Bankruptcy
Case No. 14-71973

ORDER
RICHARD MILLS, U.S. District Judge:
This case is before the Court on appeal from the United States
Bankruptcy Court for the Central District of Illinois. Pending before the
Court is the Report and Recommendation from Chief Bankruptcy Judge
Mary P. Gorman.

Pending also is the Motion to Dismiss Appeal by

Trustee-Appellee John H. Germeraad.
I.
According to Chief Judge Gorman’s Report and Recommendation,

Debtor-Appellant Clarence Jackson commenced the bankruptcy case on
November 5, 2014. Following an August 25, 2015 hearing, the bankruptcy
court entered an order denying conformation of Jackson’s Seventh
Amended Chapter 13 Plan.
Subsequently, Jackson filed a motion to dismiss case. The bankruptcy
court entered an order granting the motion to dismiss pursuant to 11
U.S.C. § 1307(b). On September 3, 2015, Jackson filed a notice of appeal,
appealing the dismissal of his case.
The bankruptcy court entered an order requiring payment of the filing
fee of $298. On September 10, 2015, Jackson filed an application to waive
the filing fee. The matter was set for hearing. Chief Judge Gorman’s
Report and Recommendation states that, because Jackson failed to appear
for the hearing and for other reasons given on the record, the application
to waive filing fee was denied in an order entered on September 22, 2015.
Jackson was ordered to pay the filing fee in full within fourteen days.
The filing fee was not paid by the due date of October 6, 2015, and
no extension was sought. According to the report and recommendation,

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Jackson claimed to have $905 in monthly income in excess of his monthly
expenses. Additionally, the Trustee issued a refund of several thousand
dollars to Jackson upon the dismissal of the case. Chief Judge Gorman
found that no excuse for the failure to pay the filing fee had been provided.
II.
The applicable bankruptcy procedural rule provides, “An appellant’s
failure to take any step other than timely filing a notice of appeal does not
affect the validity of the appeal, but is grounds only for such action as the
district court or bankruptcy appellate panel deems appropriate, which may
include dismissal of the appeal.”

Fed. R. Bankr. P. 8001(a).

The

bankruptcy judge recommends dismissal of the appeal commenced by the
Debtor for failure to pay the filing fee, even after he was given additional
time to pay the $298.
Upon considering the entire record, the Court concludes that
dismissal of Debtor Clarence Jackson’s appeal is the appropriate sanction
for his failure to pay the filing fee of $298, after failing to appear for a
hearing or request an extension of time. Accordingly, the Court will Adopt

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Chief Judge Gorman’s Report and Recommendation.
Even if dismissal was not the appropriate sanction for failure to pay
the filing fee, the Court concludes that dismissal of the appeal is warranted
for other reasons. The Trustee notes that Jackson has another case (No.
15-71416) pending in the bankruptcy court.

Because an individual

generally cannot be a debtor in two bankruptcy cases at one time, see In re
Sidebottom, 430 F.3d 893, 898-99 (7th Cir. 2005), the existence of
Jackson’s new case forecloses the possibility of reinstatement of the other
case.
Additionally, no effective relief is available to Jackson. He requested
the precise relief that the bankruptcy court granted–dismissal of his case.
This Court cannot grant any relief that would affect the Debtor-Appellant’s
legal interests.
Ergo, the Court hereby ADOPTS the Report and Recommendation
[d/e 5] of Chief United States Bankruptcy Judge Mary P. Gorman and
ALLOWS the Trustee-Appellee’s Motion to Dismiss [d/e 3].
The Trustee-Appellee’s Motion to Strike Notice of other Evidence [d/e

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15] is ALLOWED.
The Debtor-Appellant’s appeal is DISMISSED for failure to pay the
filing fee.
The Clerk will terminate this action.
ENTER: January 7, 2016
FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

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