IN RE: LORRAINE E. KNAUSS

Filing 11

MEMORANDUM AND/OR OPINIONSIGNED BY HONORABLE WILLIAM H. YOHN, JR ON 11/5/13. 11/6/13 ENTERED AND COPIES MAILED TO PRO SE'S, E-MAILED.(rf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN THE MATTER OF
LORRAINE E. KNAUSS
CA 13-01131-WY
BKY 12-17482-SR

MEMORANDUM
YOHN, J.

November 5, 2013

Lorraine Knauss (“Appellant”) has appealed from the bankruptcy court’s January 30,
2013 order dismissing her Chapter 13 petition with prejudice. I affirm the order of the
bankruptcy court for the following reasons.
I.

Background
Appellant’s Chapter 13 petition relates to debts owed to Clearvue Opportunity XV

(“Clearvue”) arising from a mortgage and a note on 3604 Genesee Place, Philadelphia, PA 19154
(“the Property”). 1
The involvement of Appellant and her daughter, Jessica Knauss, 2 with the Property dates
to 1982, when Appellant purchased it with her late husband. Ownership of the Property
subsequently changed twice among the Knausses. On April 28, 2006, while a previous Chapter
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This was Appellant’s sixth personal bankruptcy filing. Her previous filings included Chapter 13 cases in 2002,
2003, and 2006 that were dismissed or withdrawn before a reorganization plan was confirmed. Appellant’s Chapter
13 action in 1989 and Chapter 7 action in 2001 went to completion and resulted in discharges. Although not party to
the instant case, Appellant’s daughter, Jessica Knauss, had a Chapter 7 bankruptcy filing in 2007 dismissed for
failure to file missing documents.
2

To avoid possible confusion between Appellant Lorraine Knauss and her daughter Jessica Knauss, I refer to
Lorraine Knauss as “Appellant” and Jessica Knauss as “Jessica.”

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13 bankruptcy of Appellant was pending, Appellant deeded the Property outright to Jessica. That
same date, Jessica mortgaged the Property with Clearvue (formerly Madison Equity). When
neither Jessica nor Appellant paid the mortgage in a timely fashion, Clearvue foreclosed in the
Philadelphia Court of Common Pleas. Clearvue won summary judgment on its foreclosure action
on December 20, 2011.
Foreclosure in hand, Clearvue scheduled the Property to be sold at a Philadelphia County
Sheriff’s Sale on August 7, 2012 at 10:00 a.m. However, on August 6, 2012, Jessica transferred
the Property to herself and Appellant jointly, for a stated consideration of $10. 3 Appellant then
filed the Chapter 13 petition at issue here on August 7, 2012 at 9:57 a.m. In the view of the
Sheriff’s office, Appellant’s filing automatically stayed the Sheriff’s Sale by the terms of 11
U.S.C. § 362.
On August 15, 2012, Clearvue moved to dismiss Appellant’s Chapter 13 petition under
11 U.S.C. § 1307(c), claiming Appellant filed her petition in bad faith. On August 29, 2012, the
bankruptcy court held a hearing on Clearvue’s motion at which Appellant and Clearvue were
represented by counsel. The court heard arguments and Appellant and Jessica testified. The
bankruptcy court found the following additional facts: the Property was sufficiently encumbered
that Appellant had negligible equity in it, if any, and the August 6 conveyance from Jessica to
Appellant was a bad faith, evasionary tactic to forestall the Sheriff’s Sale. See Transcript of
August 29, at *7-8. Despite finding the case for dismissal to be “exceedingly strong,” the
bankruptcy court allowed the action—and the stay of the Sheriff’s Sale—to continue while
Appellant pursued relief under a Pennsylvania mortgage assistance program. Id. at *46-47. As
ordered on September 19, 2012, the stay was conditional and Clearvue’s motion for dismissal
3

Appellant alleges the Property has been her home since 1982 and the 2006 transfer had been an unintended
consequence of an attempt to refinance the Property. She alleges the purpose of this 2012 transfer was to undo the
allegedly unintended 2006 transfer, at least in part.

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would be re-listed if Appellant and/or Jessica did not apply for the mortgage assistance program,
failed to diligently pursue program benefits, or had their application denied. Further, any failure
by Appellant and/or Jessica to make full, timely payments to Clearvue under a modified loan
repayment schedule would result in an automatic lifting of the § 362 stay.
On January 3, 2013, Clearvue filed a certification that Appellant and/or Jessica had been
late on their October 2012 scheduled payment. At a subsequent hearing on January 30, 2013, the
Chapter 13 Trustee informed the bankruptcy court—and Appellant’s counsel conceded—that
Appellant had been denied the benefits she had applied for under the Pennsylvania mortgage
assistance program. Thereafter, the bankruptcy court noted the terms of the September 19, 2012
order and its previous assessment of the merits of Clearvue’s motion to dismiss for a bad faith
filing. The bankruptcy court’s January 30, 2013 order dismissed Appellant’s case with prejudice
and, as amended on February 4, 2013, barred Appellant and Jessica from filing a new bankruptcy
petition for 180 days without prior leave of the court. The bankruptcy court denied Appellant’s
emergency petition to stay the dismissal pending appeal, and the Property was sold by Sheriff’s
Sale on February 5, 2013.
On June 10, 2013, Appellant filed this appeal from the bankruptcy court’s January 30,
2013 dismissal of her Chapter 13 claim. She seeks reversal of that order to the extent that it was
based on the bankruptcy court’s finding that her filing was fraudulent or in bad faith. If the order
is not reversed, she seeks that the order be curtailed insofar as it applies to Jessica.
II.

Jurisdiction and Standard of Review
28 U.S.C. § 158(a) grants me jurisdiction to hear this appeal. See 28 U.S.C. § 158(a).
Under 11 U.S.C. § 1307(c), the bankruptcy court may dismiss for cause a Chapter 13

filing made in bad faith. In re Myers, 491 F.3d 120, 125 (3d Cir. 2007) (citing In re Lilley, 91
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F.3d 491, 496 (3d Cir. 1996)). “Once a party [to a bankruptcy] calls into question a petitioner’s
good faith, the burden shifts to the petitioner to prove his good faith.” In re Tamecki, 229 F.3d
205, 207 (3d Cir. 2000).
Determining whether a filing has been made in good faith is “a fact intensive
determination better left to the discretion of the bankruptcy court.” Myers, 491 F.3d at 125;
Lilley, 91 F.3d at 496. Such an inquiry turns on conclusions about the petitioner’s purpose and
credibility, which the bankruptcy court is particularly well-positioned to assess. See id.
Moreover, bankruptcy courts possess a “broad power to ‘decide whether the petitioner has
abused the provisions, purpose, or spirit of bankruptcy law.’” Myers, 491 F.3d at 126 (quoting
Tamecki, 229 F.3d at 207). Accordingly, I will not set aside the factual findings of the
bankruptcy court unless they are clearly erroneous, and I review with deference the bankruptcy
court’s discretionary decision to dismiss under § 1307(c). See id. at 125.
III.

The Dismissal of Appellant’s Petition For Cause
In finding cause to dismiss under § 1307(c), the bankruptcy court proceeded from its

finding that the August 6 conveyance of the Property to Appellant and Appellant’s immediate
filing of the petition constituted “evasionary tactic[s]” to forestall the court-ordered Sheriff’s
Sale, “possibly grounded in fraud, but, at a minimum, bad faith.” See Transcript of Aug. 29,
2012, at *8. Explaining why it was “difficult to view this in any other fashion than a desperate
litigation tactic,” the bankruptcy court noted (1) the summary judgment order for Clearvue in the
underlying state foreclosure action; (2) the timing of the transfer on the eve of the scheduled
Sheriff’s Sale; (3) the lack of meaningful consideration given by Appellant; (4) Appellant’s
history of serial bankruptcy filings, including years of litigation adverse to Appellant; and (5)

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Appellant’s previous transfer of the Property on the eve of a different scheduled Sheriff’s Sale.
See Transcript of Aug. 29, 2012, at *14-15.
The bankruptcy court’s determinations about Appellant’s motivations are factual findings
subject to only clear error review. See Myers, 491 F.3d at 125. The determinations were based on
undisputed facts, and even Appellant’s own counsel conceded the conveyance was
“problematic.” See Transcript of Jan. 30, 2013, at *10-12. The bankruptcy court’s finding that
Appellant acted with evasionary intent in filing was not clearly erroneous, and my review
proceeds accordingly. See Myers, 491 F.3d at 125.
In the Third Circuit, courts assess the good faith of a bankruptcy petition according to the
totality of the circumstances. Myers, 491 F.3d at 125; Lilley, 91 F.3d at 496. Relevant
considerations may include “the nature of the debt . . . ; the timing of the petition; how the debt
arose; the debtor’s motive in filing the petition; how the debtor’s action affected creditors; the
debtor’s treatment of creditors both before and after the petition was filed; and whether the
debtor has been forthcoming with the bankruptcy court and the creditors.” Id. Where a debtor has
a history of past filings and dismissals, the court may take that into account as probative of a
present intent to abuse the bankruptcy process. See In re Kostyshyn, 2011 WL 815103, at *2
(D. Del. March 1, 2011) (citing In re Dami, 172 B.R. 6, 10 (Bankr. E.D. Pa. 1988) and In re
Oglesby, 161 B.R. 917 (Bankr. E.D. Pa. 1993)); In re Barr, 263 B.R. 496, 498 n. 6 (Bankr.
E.D. Pa. 2001).
Within this broader framework, the Third Circuit held in Myers that “bankruptcy courts
may reasonably find that bad faith exists when the purpose of the bankruptcy filing is to defeat
state court litigation without a reorganization purpose.” Myers, 491 F.3d at 125. Likewise, this
judicial district has held that filing a Chapter 13 petition for the sole purpose of preventing

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foreclosure is ground for dismissal, In re Lippolis, 288 B.R. 106, 112 (E.D. Pa. 1998), and it has
further counseled that “the probability of success of the debtor’s plan is the most important factor
in evaluating the good faith of the petition.” In re Jooben, 385 B.R. 599, 611 (E.D. Pa. 2008).
Here, the bankruptcy court reasonably found that Appellant’s Chapter 13 filing was part of a
scheme by Appellant and Jessica to evade a foreclosure sale ordered by the Court of Common
Pleas. And because Appellant had no meaningful equity in the Property, there were no assets to
reorganize, such that there could not be a valid reorganizational plan. On such facts, the caselaw
of this jurisdiction strongly supports the bankruptcy court’s authority to dismiss. See Myers, 491
F.3d at 125; Lippolis, 288 B.R. at 112; Jooben, 385 B.R. at 611.
Moreover, looking to the totality of the circumstances, this was indeed a case where
“evidence of bad faith, abuse, and fraudulent conduct was overwhelming.” See Order of
February 4, 2013, at *n.1. By virtue of the automatic § 362 stay, Appellant’s filing secured
extended possession of property which a state court had ruled must rightly be sold, even though
the Chapter 13 reorganizational functions were inapposite. This subversion of the bankruptcy
code’s protections strongly implies bad faith. And there are numerous additional indicators of
bad faith in Appellant’s filing: the “timing of the petition” one day after acquisition of the
Property and moments before a Sheriff’s Sale; “the debtor’s motive in filing the petition,” which
was to evade a Sheriff’s Sale; and “how the debtor’s action affected creditors,” namely by
denying Clearvue the relief that it was entitled to by judgment of the Court of Common Pleas.
See Myers, 491 F.3d at 125; Lilley, 91 F.3d at 496. Insofar as there is doubt, Appellant’s history
of failed Chapter 13 filings means she does not get the benefit of it. See Kostyshyn, 2011 WL
815103 at 2; Barr, 263 B.R. at 498 n.6.

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Dismissal under § 1307 exercises a “broad power” of the bankruptcy court to prevent
petitioners from “abus[ing] the provisions, purpose, or spirit of bankruptcy law.” See Myers, 491
F.3d at 125 (quoting Tamecki, 229 F.3d at 207). Given the circumstance of Appellant’s filing, the
bankruptcy court was well within its discretion to dismiss Appellant’s case.
IV.

The Ban on Future Filings As Applied to Jessica
Appellant’s brief contends that the bankruptcy court abused its discretion by applying the

180 day filing ban to Jessica. Appellant does not provide the court with any explanation of her
position or legal authority in support thereof. Appellant’s claim, however, is not justiciable. First,
as the duration of the ban was 180 days from January 30, 2013, the ban no longer binds Jessica
and/or Appellant and so any repeal of that ban is moot as incapable of providing relief. See
Calderon v. Moore, 518 U.S. 149, 150 (1996). Second, because Jessica is not party to this
appeal, I lack jurisdiction to adjudicate her rights. See Hansberry v. Lee, 311 U.S. 32, 40 (1940).
Third, because my order today affirms the dismissal of Appellant’s Chapter 13 petition, orders
issued by the bankruptcy court imposing a 180-day ban on subsequent filings by Jessica at this
time no longer have force.
An appropriate order follows.

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