Robinson v. Roberts & Stevens, P.A.

Filing 10

ORDER denying 5 Motion for Leave to Appeal; IT IS FURTHER ORDERED that to the extent the Appellant attempted to appeal from the November 25, 2009 order converting his Chapter 13 case to a Chapter 7 case, such appeal is untim ely and DISMISSED; denying as moot 9 Motion for Extension of Time to prepare transcripts; IT IS FURTHER ORDERED that this matter is hereby REMANDED tothe United States Bankruptcy Court. Signed by District Judge Martin Reidinger on 9/9/10. (Pro se litigant served by US Mail.)(siw)

Robinson v. Roberts & Stevens, P.A.

Doc. 10

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION C IV IL CASE NO. 1:09cv453

IN RE: AL AN LEWIS ROBINSON, D e b to r. C h a p te r 7 Case No.: 09-11109

AL AN LEWIS ROBINSON, A p p e lla n t , vs . R O B E R TS & STEVENS, P.A., A p p e lle e .

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ORDER

TH IS MATTER is before the Court on the following: 1. 2. 3. T h e Appellant's pro se Notice of Appeal [Doc. 1]; T h e Appellant's pro se Notice of Withdrawal of Pro Se Appeal [Doc. 2]; T h e submission by the United States Bankruptcy Court for the Western D is tric t of North Carolina of an Order in the underlying bankruptcy case [D o c . 3];

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4.

T h e submission by the United States Bankruptcy Court for the Western D is tric t of North Carolina of a Notice of Appeal filed by counsel for the A p p e lla n t in the underlying bankruptcy case [Doc. 4];

5.

T h e Appellant's Motion for Leave to Appeal pursuant to Rule 8003 of th e Bankruptcy Rules of Procedure [Doc. 5];

6.

T h e submission by the United States Bankruptcy Court for the Western D is tric t of North Carolina of the Appellant's pro se Amendment for Leave to Appeal pursuant to Rule 8003 of the Bankruptcy Rules of Procedure file d in the underlying bankruptcy case [Doc. 6];

7.

T h e submission by the United States Bankruptcy Court for the Western D is tric t of North Carolina of the Appellant's Amended Motion for Leave to Appeal pursuant to Rule 8003 of the Bankruptcy Rules of Procedure file d in the underlying bankruptcy case [Doc. 7-2];

8.

T h e submission by the United States Bankruptcy Court for the Western D is tric t of North Carolina of a Response to Motion for Leave to Appeal p u rs u a n t to Rule 8003 of the Bankruptcy Rules of Procedure filed in the u n d e rlyin g bankruptcy case [Doc. 7-3];

9.

T h e Memorandum from the United States Bankruptcy Court for the W e s te rn District of North Carolina [Doc. 8]; and

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10.

T h e Appellant's pro se Motion for Extension of Time for 30 Days to P re p a re Transcripts for the District Appellate Division of my B a n k ru p tc y/In vo lu n ta ry Chapter 7 Appeal [Doc. 9]. P R O C E D U R AL HISTORY O n November 25, 2009, Hon. George R. Hodges, United States

B a n k ru p tc y Judge, granted the Trustee's motion to modify the Appellant's C h a p te r 13 bankruptcy and converted the bankruptcy to a Chapter 7 liq u id a tio n . [Doc. 1, at 18]. No appeal was taken from this Order. On the s a m e day, the Appellant filed a pro se motion for voluntary dismissal of the C h a p te r 13 case. [Id., at 17]. Judge Hodges denied that motion and ruled that th e dismissal was ineffective because he had already converted the case to C h a p te r 7. [Id.]. The Bankruptcy Court's order denying the motion for

vo lu n ta ry dismissal was entered on December 1, 2009. [Id., at 17]. T h e Appellant then filed a pro se motion to reconsider the denial of the m o tio n for voluntary dismissal. [Id., at 15]. That motion was denied on

D e c e m b e r 4, 2009. [Id., at 15-16]. On December 15, 2009, the Appellant file d a pro se notice of appeal in which he sought to appeal the denial of his m o tio n for voluntary dismissal of the Chapter 13 case and the denial of the m o tio n to reconsider. [Doc. 1]. The Appellant did not appeal the Bankruptcy

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C o u rt's Order converting the case to a Chapter 7 proceeding. In the notice of a p p e a l, the Appellant noted that the appeal was interlocutory and required le a ve to appeal. [Id., at 2]. Attached to the notice of appeal was a pro se brief. [Id ., at 4-14]. On January 15, 2010, two attorneys, Angela Beeker and Dawn Skerrett, file d a Notice of Withdrawal of Pro Se Appeal. [Doc. 2]. In that document, c o u n s e l state that the "Appellant received an extension of time from Judge H o d g e s to give co-counsel adequate time to withdraw this appeal and to refile it with the Bankruptcy Court." [Id.]. They did not attach a copy of the order fro m Bankruptcy Court. O n January 25, 2010, the Bankruptcy Court submitted to this Court a c o p y of an Order entered by Judge Hodges on January 8, 2010. [Doc. 3]. In th a t Order, Judge Hodges granted the Appellant's motion for an extension of tim e within which to file a notice of appeal and provided an extension through J a n u a ry 22, 2010 to file a notice of appeal. [Id.]. In his Order, Judge Hodges s p e c ific a lly directed the extension of time to the Appellant's appeal of the D e c e m b e r 1, 2009 order denying the motion for voluntary dismissal of the C h a p te r 13 proceeding and the December 4, 2009 order denying re c o n s id e ra tio n thereof. [Id., at 1, 3]. The Order makes no mention of the

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N o v e m b e r 25, 2009 Order converting the Appellant's case to a Chapter 7 p r o c e e d in g and there was no extension of time provided to appeal that Order. [Id .]. T h e Appellant's attorneys filed the second notice of appeal in B a n k ru p tc y Court on January 15, 2010. [Doc. 4]. In that notice, they stated th a t the appeal is from the order of the bankruptcy judgment entered on December 4, 2009 d e n yin g Debtor's motion for reconsideration, order of the b a n k ru p tc y judge entered on December 1, 2009, denying Debtor's m o tio n for voluntary dismissal of Chapter 13 petition/case, order o f the bankruptcy judge on November 24, 2009 involuntarily c o n v e r tin g Debtor's Chapter 13 case to Chapter 7. [D o c . 4, at 1] (emphasis provided). C o u n s e l did not file a statement of issues on appeal or a designation of items to be included in the record. Bankruptcy Rule 8006.1 Instead, on January 18, 2 0 1 0 , counsel filed in the record of the bankruptcy court case a motion for le a v e to appeal which was subsequently submitted to this Court on January 2 5 , 2010. [Doc. 5]. Counsel filed an amended motion for leave to appeal on J a n u a ry 21, 2010. [Doc. 7-2]. O n January 22, 2010, the Appellant, acting pro se, filed an amendment
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Bankruptcy Rule 8006 requires that these items be filed within fourteen days of the filing of the notice of appeal. Where leave to appeal is required, these items must be filed within fourteen days of an order granting leave to appeal. Bkr.R. 8006.

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to the motion. [Doc. 6]. On February 10, 2010, the Bankruptcy Court submitted a filing made by R . Kelly Calloway, Jr. in that Court. [Doc. 7-3]. T h e Bankruptcy Court notified this Court on February 11, 2010 that the A p p e lla n t had failed to file a designation of items to be included in the record a n d a statement of issues to be presented on appeal. [Doc. 8]. Apparently in re s p o n s e , the Appellant filed a pro se motion for an extension of time within wh ic h to "prepare transcripts." [Doc. 9]. In that document, the Appellant d is c lo s e d that his attorneys were no longer representing him. [Id.]. D I S C U S S IO N It is first noted that the Appellant, through counsel, attempted to b o o ts tra p an appeal of the November 25, 2009 Order converting the A p p e lla n t's Chapter 13 case to a Chapter 7 proceeding. That attempt fails b e c a u s e any such appeal is untimely. Judge Hodges' Order granting an e xte n s io n of time within which to appeal was limited to an appeal from his O r d e r of December 1, 2009 which denied the motion for voluntary dismissal a n d the Order of December 4, 2009 which denied the motion for re c o n s id e ra tio n . Since the Appellant did not receive an extension of time with in which to appeal the November 25, 2009 Order, any attempt to appeal

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c o n ta in e d within the January 15, 2010 notice is untimely. The Court therefore d is m is s e s any such appeal as untimely. A s counsel for the Appellant recognized, the orders from which appeal is sought are interlocutory orders which require leave to appeal.2 A motion for leave to appeal under 28 U.S.C. §158(a) shall c o n ta in : (1) a statement of the facts necessary to an u n d e rs ta n d in g of the questions to be presented by the appeal; (2) a statement of those questions and of the relief sought; (3) a s ta te m e n t of the reasons why an appeal should be granted; and (4 ) a copy of the judgment, order, or decree complained of and of a n y opinion or memorandum relating thereto. B k r .R . 8003(a). T h e Appellant has provided a statement of facts in which he makes the fo llo win g allegations. The attorney he hired to represent him in connection with the Chapter 13 filing advised him that filing a Chapter 13 petition would s a ve the Appellant's residence from foreclosure and that during the b a n k ru p tc y, the Appellant was not required to pay the mortgage. [Doc. 7-2, at

The fact that counsel moved for leave to appeal is telling. An order converting a case from Chapter 13 to Chapter 7 is not interlocutory and no leave would be required. In re Fraidin, 110 F.3d 59 (4th Cir. 1997) ("[T]he bankruptcy court's conversion order was immediately appealable."); In re Rosson, 545 F.3d 764, 770 (9th Cir. 2008) ("We therefore hold, in accordance with all other courts of which we are aware that have considered the issue, that a bankruptcy court order converting a case from one under another chapter of the Bankruptcy Code to one under Chapter 7 is a final and appealable order."). However, the orders denying voluntary dismissal and reconsideration thereof are interlocutory and require permission. See, In re Davis, 144 Fed.Appx. 200 (2nd Cir. 2005).

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1 -3 ]. Counsel agreed to move for special circumstances in order to postpone fo re c lo s u re and to provide time for the Appellant to sell the house. [Id.]. C o u n s e l also agreed to falsify Schedule J of the petition. [Id.]. The Appellant n o te s that the petition was filed, the motion for special circumstances was filed a n d a motion for a stay was filed. [Id., at 3]. The motion to stay was denied b e c a u s e the Bankruptcy Court found the Chapter 13 petition had not been file d in good faith. [Id.]. The Appellant did attend the meeting of the creditors b u t did not have the first plan payment because his attorney did not tell him it was necessary. [Id.]. At that meeting, the attorney disclosed that the A p p e l la n t, without permission from the Bankruptcy Court, had conveyed his in te re s t in the residence to his mother and obtained a reverse mortgage in o rd e r to pay off the mortgage holder. [Id.]. As a result, the trustee moved to d is m is s the Chapter 13 petition. [Id., at 4]. The Appellant did not attend the h e a rin g on this motion because his attorney told him he did not need to a p p e a r. [Id.]. The Appellant filed a motion to voluntarily dismiss the Chapter 1 3 petition at 2:33 p.m. on November 25, 2009 but it was not entered into the e le c tro n ic docket until 3:29 p.m. [Id.]. Judge Hodges' Order converting the c a s e to a Chapter 7 proceeding was filed at 3:10 p.m. [Id.]. K e lly Calloway, Jr. was the attorney who represented the Appellant in

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h is Chapter 13 proceeding. [Doc. 7-3].

He has filed a response to the

a lle g a tio n s contained within the Appellant's statement of facts in which he re fu te s the Appellant's claims. [Id.]. Mr. Calloway does explain, however, that d u e to his ethical obligations, he was required to inform the Bankruptcy Court th a t the Appellant had conveyed his interest in the residence and obtained a re ve rs e mortgage without court approval. [Id., at 8-9]. In its Order converting the Chapter 13 case to a Chapter 7 proceeding, J u d g e Hodges noted that a post-petition conveyance without authority of the C o u rt had been made by the Appellant and that the conveyance was fra u d u le n t. [Doc. 7-2, at 14]. With the exception of the date and time when the Appellant claims he file d his motion to voluntarily dismiss the petition, the purported facts c o n ta in e d in the motion for leave to appeal all relate to the conversion of the C h a p te r 13 petition to a Chapter 7 case. As such, they do not meet Rule 8 0 0 3 's requirement that a motion for leave to appeal contain a statement of fa c ts necessary to understand the questions to be presented on appeal. L ik e wis e , the Appellant listed the questions to be presented on appeal a s including whether the involuntary conversion violated his due process rig h ts . [Doc. 7-2, at 6]. Since there is no appeal from the November 25, 2009

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O rd e r of conversion, these questions are not a part of this appeal or pertinent to the appeal. In the Order denying the Appellant's motion for voluntary dismissal of th e Chapter 13 petition, Judge Hodges ruled as follows: T h e court conducted a hearing on the Trustee's Motion on N o ve m b e r 24, 2009. The debtor did not appear. The Trustee ra is e d questions about a possible post-petition real estate transfer b y the debtor without court approval, which if true, would c o n s titu te serious misconduct by the debtor. Consequently, at the N o ve m b e r 24, 2009 hearing the court converted the debtor's C h a p te r 13 case to a case under Chapter 7 of the Bankruptcy C o d e . On November 25, 2009, at 3:10 p.m. EST the court e n te re d its own Order Affecting Plan by which the case was c o n v e r te d to Chapter 7. About 20 minutes later the court d o c k e te d the debtor's handwritten "request [for] voluntary d is m is s a l" of his Chapter 13 case. The debtor's request ... is not e ffe c tiv e because it occurred after his case had been converted to a Chapter 7 case ­ which does not permit a voluntary d is m is s a l. Moreover, to permit the debtor to dismiss his case ­ if th e re has been an improper transfer of property ­ would work a fra u d on his creditors. [D o c . 7-2, at 10]. In the motion for leave to appeal, the Appellant claims that denying him th e right to voluntarily dismiss the petition violated his due process rights b e c a u s e he did not have notice and an opportunity to be heard. He also c la im s that ruling on his motion to reconsider without a hearing violated the s a m e rights. He claims the appeal involves "substantial constitutional due

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p ro c e s s issues," a "matter of public importance," and "questions of law as to wh ic h there is no controlling decision." [Doc. 7-2, at 6]. None of the reasons c ite d in support of allowing an appeal addresses the Court's holding that p e rm ittin g the Appellant to dismiss his case when there has been a fraudulent c o n ve ya n c e of property would defraud creditors. The Court finds that the m o tio n for leave to appeal does not properly address the factors listed in Rule 8 0 0 3 . In re Fillard Apartments, Ltd., 104 B.R. 480, 481 (S.D.Fla. 1989) (d e n yin g leave for failure to comply); accord, In re Campbell, 48 B.R. 820, 822 (D .C . Colo. 1985); Mitchell v. Smith, 2004 WL 1326477 (S.D.Iowa 2004). This fa ilu re alone warranted denial of the motion. Section 158(a)(3) of Title 28 provides that district courts have jurisdiction to hear appeals of interlocutory orders of bankruptcy judges with leave of c o u r t. Section 158(c) ... provides that bankruptcy appeals `shall be taken in the same manner as appeals in civil proceedings generally are ta k e n to the courts of appeals from the district courts.' A c c o rd in g ly, although section 158 provides no direct guidance c o n c e r n in g the grant or denial of leave to appeal interlocutory o rd e rs , many courts apply an analysis similar to that employed by th e district court in certifying interlocutory review by the circuit c o u r t of appeals under 28 U.S.C. §1292(b). In re Hickory Ridge, LLC, 2010 WL 2816670 **1 (N.D.W.Va. 2010), quoting A tla n tic Textile Group, Inc. v. Neal, 191 B.R. 652, 653 (E.D.Va. 1996). 11

S e c tio n 1292(b) of Title 28 provides that leave to appeal an interlocutory o rd e r may be granted when it involves (1) a controlling question of law; (2) as to which there is substantial ground for difference of opinion; and (3) an im m e d ia te appeal from the order may materially advance the ultimate te rm in a tio n of the litigation. 28 U.S.C. §1292(b). Counsel for the Appellant h a s merely mimicked this standard in the motion. For example, Appellant has not identified the purported "controlling q u e s tio n of law" and has not cited a single case in support of the his position. In re National Metalcraft Corp., 211 B.R. 905, 907 (8 th Cir. 1997) (the appeal d o e s not place before the court solely an issue of law). The Fourth Circuit has s ta te d that an order involves a "controlling question of law" when reversal of th e bankruptcy court's order would be dispositive of the case as either a legal o r practical matter and determination of the issue on appeal will materially a ffe c t the outcome. In re Rood, 426 B.R. 538, 548 (D.Md. 2010), citing F a n n in v. CSX Transp., Inc., 1989 W L 42583 **5 (4 th Cir. 1989). Reversal of th e Bankruptcy Court's refusal to allow a voluntary dismissal of the Chapter 1 3 petition will not terminate the case because the Bankruptcy Court had a lre a d y ordered conversion of the case to Chapter 7. Id. "While ongoing b a n k ru p tc y proceedings do not preclude review of an order which finally

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a d ju d ic a te s a relevant unit of the case, the denial [of the motion for voluntary d is m is s a l] did not resolve any discrete segment of the bankruptcy p ro c e e d in g s " because the case had already been converted and no appeal fr o m that order was taken. In re M&S Grading, Inc., 526 F.3d 363, 368-69 (8 th C ir. 2008). The purported appeal therefore does not involve a controlling q u e s tio n of law. In re Rood, 426 B.R., at 549 (because there is no controlling q u e s tio n of law, the remaining two factors of §1292(a) are moot). Nor is there any explanation of the manner in which the appeal would m a te ria lly advance the bankruptcy proceeding. Because the case has already b e e n converted to a Chapter 7 proceeding, any ruling reversing the order so a s to allow the Appellant's motion for voluntary dismissal would be futile. In re National Metalcraft, 211 B.R. at 907 (interlocutory appeal not appropriate if issue rendered moot); In re Buccolo, 2009 WL 1610100 (3 rd Cir. 2009). To th e contrary, the appeal appears to have been taken solely to prolong matters. Id .; Mitchell, 2004 WL 1326477. (the appeal would only slow down the b a n k ru p tc y action). Interlocutory appeals should be granted only in

e xc e p tio n a l circumstances. Coopers & Lybrand v. Livesay, 437 U.S. 463, 4 7 5 , 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The Appellant has not shown "th a t exceptional circumstances justify a departure from the basic policy of

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p o s tp o n in g appellate review until after the entry of a final judgment." Id. In fa c t, the Appellant has not alleged, much less shown, that any issue he seeks to raise on appeal could not be raised at the conclusion of the case. Matter o f Magic Restaurants, Inc., 202 B.R. 24, 26 (D.Del. 1996) (failure to show e xc e p tio n a l circumstances justifying need for immediate review). The problem with the Appellant's case is that he did not appeal Judge H o d g e s ' Order converting his Chapter 13 case to a Chapter 7 liquidation. Rather than waiting for a procedurally clean case, the [Appellant] a tte m p te d to cure [his] procedural problem[] with this case by m o vin g [to dismiss and then] for reconsideration of the in te rlo c u to ry order in question and then assaying a[n] appeal from th e bankruptcy court's denial of that motion. In so doing, [he] c re a te d other procedural problems[.] ... B u t the [Appellant] failed to file a timely notice of appeal from [the] d e c is io n [to convert his case]. Despite this omission, the [A p p e lla n t's ] present notice of appeal purports to appeal not only fro m the bankruptcy court's recent denial of [his] motion for re c o n s id e ra tio n but also from the original [conversion order] itself. ... "[This, however,] does not automatically produce a Lazarus-like e ffe c t; it cannot resurrect appellant[`s] expired right to contest the m e r its of the underlying [conversion], nor bring the [order] itself b e fo re [the appellate court] for review." In re Weaver, 319 Fed.Appx. 1 (1 st Cir. 2009) (citations omitted); Gregory v. U n ite d States Bankruptcy Adm'r, 302 Fed.Appx. 216 (4 th Cir. 2008). The A p p e lla n t's attempt to seek relief from this Court is premature. As a result, the

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C o u rt will not grant leave to appeal but will remand this case to the B a n k ru p tc y Court. Id. (dismissing appeal to the Fourth Circuit). In short, the Appellant did not appeal from the Order converting A p p e lla n t's case from a Chapter 13 to a Chapter 7. The conversion is, th e r e fo re , an accomplished fact. The question the Appellant presents,

wh e th e r he may dismiss his Chapter 13 proceeding, if therefore purely a c a d e m ic because no Chapter 13 proceeding remains pending. Appellant h a s made no motion to dismiss the Chapter 7 and has made no argument p e r tin e n t to a dismissal of a Chapter 7 proceeding. No such issue is before th e Court. Since the only question presented is of no consequence to the p ro g re s s of the Bankruptcy proceeding, there is no point to allowing an in te rlo c u to ry appeal. Such appeal, even if allowed, would accomplish nothing - a fool's errand for the parties and the Court. The Court, therefore, declines to allow this interlocutory appeal. ORDER IT IS, THEREFORE, ORDERED as that the Appellant's Motion for L e a v e to Appeal pursuant to Rule 8003 of the Bankruptcy Rules of Procedure [D o c . 5]; the Appellant's pro se Amendment for Leave to Appeal pursuant to R u le 8003 of the Bankruptcy Rules of Procedure [Doc. 7]; and the Appellant's

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A m e n d e d Motion for Leave to Appeal pursuant to Rule 8003 of the B a n k ru p tc y Rules of Procedure [Doc. 7-2] are hereby DENIED. IT IS FURTHER ORDERED that to the extent the Appellant attempted to appeal from the November 25, 2009 order converting his Chapter 13 case to a Chapter 7 case, such appeal is untimely and DISMISSED. IT IS FURTHER ORDERED that the Appellant's pro se Motion for E xte n s io n of Time for 30 Days to Prepare Transcripts for the District Appellate D ivis io n of my Bankruptcy/Involuntary Chapter 7 Appeal [Doc. 9] is hereby D E N IE D as moot. IT IS FURTHER ORDERED that this matter is hereby REMANDED to th e United States Bankruptcy Court.
Signed: September 9, 2010

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