Robinson v. Roberts & Stevens, P.A.
Filing
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Order denying Appellant's 1 Notice of Appeal construed as a motion for leave to appeal; dismissing as untimely Appellant's appeal of 11/25/09 Order of the Bankruptcy Court converting his Ch. 13 case to a Ch. 7 case ; affirming Order of Bankruptcy Court denying Appellant's motion to dismiss Ch. 7 case as amended; and remanding this matter to the U.S. Bankruptcy Court for further proceedings. Signed by District Judge Martin Reidinger on 5/2/11. (Pro se litigant served by US Mail.)(nll)
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:10cv226
In re: ALAN LEWIS ROBINSON,
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)
Debtor.
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_______________________________ )
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ALAN LEWIS ROBINSON,
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)
Appellant,
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vs.
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ROBERTS & STEVENS, P.A.,
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Appellee.
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_______________________________ )
Bankruptcy Case
No. 09-11109
ORDER
THIS MATTER is before the Court on the Appellant’s pro se Notice of
Appeal of the Bankruptcy Court’s Order denying the Debtor’s motion to
dismiss. For the reasons stated herein, the Order of the Bankruptcy Court
is affirmed.
I.
PROCEDURAL HISTORY
This is the second appeal filed by the Appellant from the underlying
bankruptcy proceedings. A full recounting of the procedural history of this
case is set forth in this Court’s Order disposing of the Appellant’s first
appeal [see Civil Case No. 1:09cv453, Doc. 10], and thus will be
summarized only briefly here.
On November 25, 2009, the Honorable George R. Hodges, United
States Bankruptcy Judge, granted the Trustee’s motion to modify the
Appellant’s Chapter 13 bankruptcy and to convert it to a Chapter 7
liquidation. [Bankr. Doc. 28].1 No appeal was taken from that Order. On
the same day, the Appellant filed a pro se motion for voluntary dismissal of
the Chapter 13 case. [Bankr. Doc. 29]. On December 1, 2009, the
Bankruptcy Court denied that motion, ruling that the dismissal was
ineffective because the case already had been converted to Chapter 7.
[Bankr. Doc. 35]. The Appellant then filed a pro se motion for
reconsideration of the denial of the motion for voluntary dismissal. [Bankr.
Doc. 37]. That motion also was denied. [Bankr. Doc. 40]. The Appellant
then appealed to this Court. In an Order entered September 9, 2010, this
Court held that to the extent that the Appellant was attempting to appeal
the November 25, 2009 order converting his Chapter 13 case to a Chapter
7 case, such appeal was untimely. This Court further denied the
1
Documents filed in the underlying bankruptcy proceeding will be hereinafter
identified as “Bankr. Doc. __.” Any documents filed in this appeal before the District
Court will be identified as “Doc. __.”
2
Appellant’s request to file an interlocutory appeal with respect to the
Bankruptcy Court’s Orders denying the Appellant’s motion to dismiss the
Chapter 13 proceeding and his motion for reconsideration, and this matter
was remanded to the Bankruptcy Court for further proceedings. [Civil Case
No. 1:09cv453, Doc. 10].
Upon remand, the Appellant filed a pro se motion to dismiss the
Chapter 7 case. [Bankr. Doc. 89]. The Bankruptcy Court held a hearing on
this motion on September 22, 2010, and announced its decision to deny
the Appellant’s motion at that hearing. The Bankruptcy Court entered an
Order denying the motion to dismiss on October 4, 2010 [Bankr. Doc. 92],
and an amended Order denying the motion on October 5, 2010 [Bankr.
Doc. 95].
Before these Orders were entered, the Appellant filed a pro se filing
entitled “Notice of Appeal to United States Court of Appeals for the Fourth
Circuit,” purporting to appeal the denial of his motion to dismiss the
Chapter 7 proceeding. [Bankr. Doc. 93]. On October 7, 2010, the
Bankruptcy Court entered an Order treating the Appellant’s filing as one
seeking certification of direct appeal to the Fourth Circuit and denying the
Appellant’s request for certification. The Bankruptcy Court then ordered
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the Appellant’s filing to be docketed as a notice of appeal to this Court.
[Bankr. Doc. 96].
The Bankruptcy Court further noted in its order that because of the
confusion caused by the caption of the Appellant’s filing, the Bankruptcy
Clerk charged and received only the $200 fee required for a direct appeal
to the Fourth Circuit, instead of the $255 required for the filing of a notice of
appeal with this Court. The Bankruptcy Court therefore extended the
deadline for the Appellant to pay the balance of the filing fee to October 21,
2010. [Id.]. On October 19, 2010, the Appellant filed a pro se motion to
extend the deadline for paying the remainder of the filing fee. [Bankr. Doc.
100]. That motion was denied on October 21, 2010. [Bankr. Doc. 103].
There is no indication in the Bankruptcy Court record that the remainder of
the filing fee was ever paid.
II.
DISCUSSION
At the outset, the Court notes that the Appellant has paid only $200
of the $255 filing fee required for this appeal. Rule 8001(a) of the Federal
Rules of Bankruptcy Procedure requires that an appeal of a Bankruptcy
Court decision “be accompanied by the prescribed fee.” Failure to comply
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with the requirements of Rule 8001(a) may constitute grounds for dismissal
of an appeal if the Court deems such action appropriate. See id. While the
Appellant’s failure to pay the full filing fee could serve as grounds to justify
the dismissal of his appeal, the Court is mindful of the Fourth Circuit’s
admonition that “justice is better served when controversies are decided on
their merits rather than procedural technicalities.” In re SPR Corp., 45 F.3d
70, 73 (4th Cir. 1995) (citation omitted). Accordingly, the Court in its
discretion will proceed to address the merits of the Appellant’s appeal.
The Appellant’s Notice of Appeal states that the Appellant seeks to
appeal from the Bankruptcy Court’s denial of his motion to dismiss the
involuntary Chapter 7 proceeding. [Doc. 1]. In his appellate brief,
however, the Appellant again attempts to challenge the November 25,
2009 Order converting his Chapter 13 case to Chapter 7. To the extent
that the Appellant again seeks to appeal the conversion of his Chapter 13
case, that attempt fails because any such appeal is untimely. The Court
therefore will dismiss any such appeal for that reason.
With respect to the Appellant’s appeal of the denial of his motion to
dismiss the Chapter 7 proceeding, the order from which appeal is being
sought is an interlocutory order. See Culver v. Molinario, No. 94-1974,
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1995 WL 570437, at *1 (4th Cir. Sep. 28, 1995) (per curiam) (holding that
an order denying dismissal of Chapter 7 case “is clearly interlocutory in
nature”); see also In re Hickman, 384 B.R. 832, 836 (9th Cir. BAP 2008)
(“An order denying a motion to dismiss a bankruptcy case is ordinarily
interlocutory.”). An appeal from an interlocutory order may lie only upon
obtaining leave of court. See 28 U.S.C. § 158(a). Although the Appellant
has not made a formal request for leave to appeal in this case, the Court
will construe his timely-filed notice of appeal as a motion for leave to
appeal. See Fed. R. Bankr. P. 8003(c).
“In seeking leave to appeal an interlocutory order or decision [of the
Bankruptcy Court], the appellant must demonstrate that exceptional
circumstances justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.” KPMG Peat
Marwick, L.L.P. v. Estate of Nelco, Ltd., 250 B.R. 74, 78 (E.D. Va. 2000)
(citations and internal quotation marks omitted). In determining whether to
grant leave to appeal an interlocutory order of the Bankruptcy Court, the
Court employs an analysis similar to that employed by the Court of Appeals
in certifying interlocutory review under 28 U.S.C. § 1292(b). Atlantic Textile
Group, Inc. v. Neal, 191 B.R. 652, 653 (E.D. Va. 1996). Under that
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analysis, leave to appeal an interlocutory order should be granted only
when (1) it involves a controlling question of law, (2) as to which there is
substantial ground for a difference of opinion, and (3) and an immediate
appeal would materially advance the termination of the litigation. 28 U.S.C.
§ 1292(b).
The Appellant fails to address any of the § 1292(b) factors in either
his Notice of Appeal or his appellate brief. Upon review of the record, the
Court concludes that none of the factors are present in this case. The
denial of Appellant’s motion to dismiss does not present any controlling
question of law over which there exists a substantial ground for difference
of opinion. The determination of whether to grant or deny a dismissal of a
bankruptcy case is a matter of discretion with the bankruptcy court. In re
Turpen, 244 B.R. 431, 433 (8th Cir. BAP 2000). In exercising that
discretion, the court must “consider the impact that a dismissal will have on
the various entities involved in the case and . . . ascertain which direction
satisfies the best interest of all parties.” In re McCullough, 229 B.R. 374,
376 (Bankr. E.D. Va. 1999). Even if a debtor can show cause, the motion
should be denied “if there is any showing of prejudice to creditors.”
Turpen, 244 B.R. at 434; McCullough, 229 B.R. at 376.
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At the hearing on the Appellant’s motion to dismiss, the Trustee
represented to the Court that she intended to file an adversary proceeding
seeking to set aside the Appellant’s post-petition transfer of real estate,
which was done without court approval. Based on the Trustee’s
representation, the Bankruptcy Court found that dismissing the case would
not be in the best interest of all parties, and particularly, the creditors of the
estate. [Bankr. Doc. 95]. The decision to deny Appellant’s motion was
based on the specific facts presented by the particular case and involved a
question committed to the discretion of the bankruptcy judge. See In re
1820-1838 Amsterdam Equities, Inc., 176 B.R. 127, 130 (S.D.N.Y. 1994)
(“The decision not to dismiss [the debtor’s] case was fact-specific and
based on the particular circumstances of the case. This sort of situation,
absent ‘extraordinary circumstances,’ should not be appealed.”).
Nor has the Appellant made any showing as to how this appeal would
materially advance the bankruptcy proceeding. Any appeal of the Order
denying the motion to dismiss necessarily would involve a review of the
facts as found by the Bankruptcy Court. These factual findings are subject
to review only for clear error. See In re Kirkland, 600 F.3d 310, 314 (4th
Cir. 2010). “Because the fact-specific conclusions will be given the benefit
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of a ‘clearly erroneous’ standard on appeal, an immediate appeal is unlikely
to materially advance the ultimate termination of this litigation . . . .” 18201838 Amsterdam Equities, 176 B.R. at 130. For these reasons, the Court
declines to allow this interlocutory appeal.
ORDER
Accordingly, IT IS, THEREFORE, ORDERED that the Appellant’s
Notice of Appeal [Doc. 1] is construed as a motion for leave to appeal
pursuant to Rule 8003 of the Federal Rules of Bankruptcy Procedure and is
hereby DENIED.
IT IS FURTHER ORDERED that to the extent that the Appellant
again seeks to appeal the November 25, 2009 Order of the Bankruptcy
Court converting his Chapter 13 case to a Chapter 7 case [Bankr. Doc. 28],
such appeal is untimely and is hereby DISMISSED.
IT IS FURTHER ORDERED that the Order of the Bankruptcy Court
denying the Appellant’s motion to dismiss the Chapter 7 case [Bankr. Doc.
92], as amended [Bankr. Doc. 95], is AFFIRMED.
IT IS FURTHER ORDERED that this matter is hereby REMANDED to
the United States Bankruptcy Court for further proceedings.
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IT IS SO ORDERED.
Signed: May 2, 2011
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