McCann
Filing
14
OPINION on Appeal. (Signed by Judge Lynn N. Hughes) Parties notified. (ghassan, 4)
UNITED STATES DISTRICT COURT
Michael McCann, DDS,
Appellant,
versus
Unites States T rusteejudy A. Robbins,
Appellee.
INRE:
Michael McCann, DDS,
Debtors.
SOUTHERN DISTRICT OF TEXAS
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Bankruptcy 15'30299
Opinion on Appeal
1.
Introduction.
Michael McCann filed for Chapter 7 bankruptcy. Within that case, he filed an adversary
proceeding against the United States of America asserting that it was illegally trying to collect
his taxes. In his original filing he did not include the information required to be included by
statute. The bankruptcy court dismissed his petition for cause. Because the bankruptcy court
did not abuse its discretion, its dismissal will be affirmed.
2.
Background.
McCann is a dentist in Brazoria County. He disputes the amount of money he owes to
the Internal Revenue Service. He has filed six different bankruptcy cases - each have been
dismissed for his deficiencies. In some, he did not file the proper documents with the court. In
another, he did not make his promised payments to the plan.
On March 5, 2014, he filed the petition underlying this appeal. He did not file a list of
creditors, a statement of financial affairs, a statement of intention, and copies of any payment
advice he had received within 60 days before filing for bankruptcy. As part of the bankruptcy
he filed an adversary complaint against the Service for illegally trying to collect taxes, for
intentionally inflicting emotional distress, and for" 20-plus years of harassment."
Later, he moved for continuances in both cases. The bankruptcy court granted the
continuance in the adversary proceeding and denied the continuance for the bankruptcy. The
United States Trustee moved to dismiss his petition because it was facially deficient. The
motion notified McCann that he needed to respond to it within 21 days or it could be granted
Five days after the deadline, McCann responded to the motion. The next day the bankruptcy
court dismissed the case with a I 80-day bar to refiling. McCann moved for the court to
reconsider the dismissal claiming that it had continued the case and that he had been denied
due process. He asked the court to hold a hearing, re-open the case, and admonish the Service.
The bankruptcy court denied his motion. McCann appealed - albeit with another facially
deficient pleading.
3.
RClJicw of Dismissal.
A bankruptcy court may dismiss a case for cause when a debtor does not file the
documents required by the bankruptcy code. It requires a debtor to file a list of creditors, a
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statement of their financial affairs, and copies of all payments advice or other evidence of
payment received from the debtor's employer within 60 days before filing for bankruptcy.'
Because McCann did not file these documents with the court with his petition, the bankruptcy
court acted within its discretion when it dismissed his case for cause.
When a bankruptcy court dismisses a case for cause it also may impose a I 80-day bar
to refiling. The bankruptcy court precluded McCann from refiling until February 8, 2015.
Because McCann had filed six other bankruptcy petitions and in them had not supplied the
court with even the most basic information needed to maintain a bankruptcy action, the court
concludes that the imposed bar to refiling was justified.
On appeal McCann says that the United States did not have jurisdiction and was never
his creditor. He also asks the court to address the substance of his dispute with the Service over
taxes, harassment, and his land sold at foreclosure. His complaints are misplaced in this forum.
III
2
II
U.s.c.A. § 707 (West).
U.s.c. 521 (a)(I)(West).
A debtor waives an issue ifhe does not include it in his statement of issues on appeaP Not only
did McCann not properly preserve his objections, he raises new claims that were never
mentioned - let alone addressed - in the underlying bankruptcy proceeding. It would be
improper for the court to now consider the merits of those claims.
4.
Conclusion.
Because McCann filed a deficient petition, and the bankruptcy court was justified in
dismissing his petition for cause and precluding him from refiling for I 80,days, the bankruptcy
court did not abuse its discretion. The bankruptcy court will be affirmed.
Signed on September 27, 2015, at Houston, Texas.
Lynn N. Hughes
United States Districtludge
3
th
Zimmerman v.Jenkins (In re GGM, P.c.) 165 F. 3d 1026, 131'32 (5 Cir. 1999).
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