Greene v. US Department of Education

Filing 29

OPINION AND ORDER AFFIRMING DECISIONS OF BANKRUPTCY COURT; that the Court AFFIRMS the decisions of the bankruptcy court. The Court DENIES the 11 Motion for Guardian Ad Litem or Court Appointed Counsel, DENIES the 22 Motion for Reconsideration of Order on Motion for Leave to Proceed in Forma Pauperis, DENIES the 20 Second Motion for Leave to Proceed in Forma Pauperis, and DENIES the 27 Motion for Rehearing and Motion for Rehearing en Banc onAppellant's Motion for Certification for Direct Appeal. Signed by District Judge Robert G. Doumar on 10/1/2013 and filed on 10/2/2013. Copy mailed to appellant.(rsim, )

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

FILED

NEWPORT NEWS DIVISION

2 ?013
LURIA NICOLE GREENE,

CLERK. U.S. DISTRICT COURT
NORFOLK. VA

Plaintiff/Appellant,
CIVILN0.4:13cv79

V.

U. S. DEPARTMENT OF EDUCATION,

Defendant/Appellee.

OPINION AND ORDER AFFIRMING DECISIONS OF BANKRUPTCY COURT

This matter comes before the Court on Luria Nicole Greene's ("Greene") appeal from the

Unites States Bankruptcy Court for the Eastern District of Virginia's December 6, 2012 decision
dismissing Greene's amended complaint and April 22, 2013 decision denying Greene's Motion
to Reconsider and Motion to Amend and for a New Trial.

For the reasons set forth in this

opinion, the Court AFFIRMS the decisions of the bankruptcy court. At the time of this Order
there are four motions filed by Greene that are outstanding in this case, all of which are rendered
moot by this Order. Therefore, the Court DENIES the Motion for Guardian Ad Litem or Court
Appointed Counsel, ECF No. 11, DENIES the Motion for Reconsideration of Order on Motion
for Leave to Proceed in Forma Pauperis, ECF No. 22, DENIES the Second Motion for Leave to
Proceed in Forma Pauperis, ECF No. 20, and DENIES the Motion for Rehearing and Motion for
Rehearing en Banc on Appellant's Motion for Certification for Direct Appeal, ECF No. 27.
I.

PROCEDURAL HISTORY

Greene filed for Chapter 7 bankruptcy on or about June 7, 2010. On April 18, 2011,
Greene filed this adversary proceeding against the U.S. Department of Education ("DOE")

1

seeking to discharge her student loan indebtedness. After having her complaint dismissed in part
and being directed to file an amended complaint, Greene filed her amended complaint on August
22, 2011. DOE filed a timely answer.

On August 17, 2012, Greene filed a Motion for Continuance of Trial "to allow plaintiff
the opportunity to obtain additional information and documents needed for trial." Mot. for
Continuance of Trial, ECF No. 1 at 93. On August 22, the bankruptcy court denied the motion to

continue. Trial was held on September 7, 2012. At the trial, Greene testified on herown behalf,

submitting exhibits to the court, citing case authority, and asking for leave to file a post-trial
brief. Greene filed her post-trial briefon September 28. DOE filed its own briefon October 12,
after which Greene filed a reply brief on October 19.

The bankruptcy court issued its opinion and order dismissing the amended complaint on
December 6, 2012. On the whole, the court noted that:

Ms. Greene presented herself during the totality of the proceedings in this matter
as a very articulate, well-spoken individual. The Court further notes that Ms.
Greene's pleadings, including her twenty-four (24) page Brief and thirty-two (32)
page Reply Brief, are extremely well-drafted, particularly for an unrepresented
litigant.

In re Greene, 484 B.R. 98, 107 (Bankr. E.D. Va. 2012). The court found that Greene had failed

to satisfy any of the three prongs of the Brunner v. New York State Higher Ecluc. Servs. Corp.,
831 F.2d 395 (2nd Cir. 1987), test as adopted in the Fourth Circuit by In re Frushour, 433 F.3d
393 (4th Cir. 2005).

Following the December 6 decision, Greene began to file a multitude of motions. On
December 20, 2012, she filed her Motion for Reconsideration. In that motion she raised new

constitutional arguments that had not been presented at trial or in any earlier pleadings or briefs.
Greene also filed a Motion for a New Trial and Motion to Amend Findings of Fact on

December 20. In that motion, she attempted to submit to the court medical and job search

records that she did not submit at or before trial. She also asked the court to allow her to submit

the "professional conclusions" of Felicia Powell, DQS Behavioral Healthcare Group and to
amend findings of fact in the December 6 opinion.

On January 4,2013, Greene filed Plaintiffs Motion for a Court Appointed Attorney. The

court sua sponte denied that motion on January 17. The court observed that there was no
indication that Greene had been unable to competently represent herself during the nearly two

years that the matter had been pending. On January 25, Greene filed a motion to reconsider the
court's denial of the motion for a court appointed attorney. Included in that motion, in addition

to repetition of her conclusory allegations concerning her mental health, were a discharge paper
from Riverside Regional Medical Center and printouts from webpages concerning dissociative
disorder, which Greene alleged to suffer from.

The discharge paper provided little more

information than the fact that during her emergency room visit she was seen for post-traumatic
stress disorder and was diagnosed with dissociative disorder. However, nothing was included in

the report explaining what tests were conducted, how Greene was examined, or the severity of
any mental impairment. On February 19 the court denied the motion to reconsider. The court
found that the exhibits attached to the motion to reconsider did not meet the standard for
reconsideration.

Also on February 19, 2013, Greene filed her Reply for Motion to Reconsider Court

Appointed Counsel and Motion for Guardian Ad Litem or Other Order to Protect Incompetent.
The motion, like the others before it, contained more conclusory allegations about her mental
state.

On March 1 the court issued an order stating that it would not disturb its decisions of

January 17 or February 19 denying Greene court appointed counsel or guardian ad litem.
On April 22, 2013, the bankruptcy court issued its decision denying Greene's Motion to

Reconsider and Motion to Amend and for a New Trial. On May 6, Greene filed notice of appeal

from the bankruptcy court. However, on June 3, before the appeal was docketed in this Court,
Greene filed a Motion for Certification to Court of Appeals in the bankruptcy court. On June 10

the bankruptcy court sua sponte issued an order denying Greene's motion. Her appeal was then
docketed with this Court on June 10.

On June 24, Greene filed another Motion for Certification to Court of Appeals, this time

filing the motion with this Court. DOE filed their response to the motion on July 8.
On July 9, Greene filed her Appellant's Brief.

On July 12, she filed a Motion for Leave to Proceed in Forma Pauperis as well as a
Motion for Guardian Ad Litem or Appointed Counsel. DOE filed timely Responses to each
motion.

On July 30, DOE filed its Appellee's Brief. Greene filed a twenty-five page Reply Brief

on August 7. The second-to-last paragraph of that brief contained the following: "I understand
that I shouldn't really file papers in this case. But, this case is so compelling and plaintiffs
circumstances so pitiful that I felt compelled to help her...So I helped out." In light of the
admission that a ghost writer was being utilized by Greene, the Court entered an Order on

September 9 requiring that Greene disclose information concerning the identity of the ghost
writer. Greene gave the Court the name, address, and phone number of the ghost writer;
however, the Court did not use the information to make any further determination as to the ghost
writer.

On August 30, 2013, Greene filed a motion for an emergency injunction to prevent the

transfer of her student loan debt from DOE to a loan service provider. ^However, the Court found
no reason to believe that DOE was transferring actual ownership of the loan and therefore denied

the motion for emergency injunction on September 5.
The Court also denied the Motion to Proceed in Forma Pauperis on September 4 on

account of Greene's failure to provide any expenses or debts which might qualify her for such

relief. On September 5, Green filed a Motion to Reconsider the denial of her motion to proceed

in forma pauperis. On September 6, she filed a Second Motion to Proceed in Forma Pauperis,
and on September 9 she filed a "Supplement" to that motion.

On September 18, 2013, the Court denied Greene's Motion for Certification to Court of

Appeals on the grounds that her appeal was based on mixed questions of law and fact. On
September 20, Greene filed a motion seeking rehearing or rehearing en banc of her motion for
certification.

As noted at the beginning of this Opinion, the four outstanding motions are rendered
moot by this decision and are therefore denied.
II.

STANDARD OF REVIEW

The Court has jurisdiction over this appeal pursuant to 28 U.S.C. § 158(a).

The

Bankruptcy Court's application of the law is reviewed de novo while findings of fact will not be
set aside unless they are clearly erroneous. In re Biondo, 180 F.3d 126, 130 (4th Cir.1999). "A
finding is 'clearly erroneous' when[,] although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has been

committed." Anderson v. City ofBessemer City, 470 U.S. 564, 573 (1985) (quotation omitted).

"This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the case differently." Id.
In order to discharge a student loan obligation pursuant to § 523(a)(8) of the Bankruptcy
Code, a debtor must demonstrate that excepting such debt from discharge would impose an

undue hardship on the debtor and the debtor's dependents. 11 U.S.C. § 523(a)(8). In order to

establish undue hardship, the Fourth Circuit has adopted the Second Circuit's three-prong
Brunner test, requiring that a debtor demonstrate by a preponderance of the evidence that: (1) she
cannot maintain, based on current income and expenses, a "minimal" standard of living for

herself and her dependents if forced to repay her student loan obligation; (2) additional
circumstances exist indicating that her state of affairs is likely to persist for a significant portion

of the repayment period of the student loans; and (3) she has made good faith efforts to repay the
loans. In re Frushour, 433 F.3d at 400 (citing Brunner, 831 F.2d at 396).
III.

FACTUAL BACKGROUND

After reviewing whether the bankruptcy court's determinations of fact were "clearly
erroneous," the Court finds that the determinations were not clearly erroneous. The bankruptcy

court's summary of the stipulations of fact between the parties is as follows:
Prior to trial, Ms. Greene and the United States entered into an extensive

Stipulation ("Stipulation") regarding Ms. Greene's educational background, the
terms of the Student Loan, her income and expenses, and assets, which the Court
accepted at trial. In summary, the Stipulation provides that Ms. Greene is well-

educated, possessing two bachelor's degrees, including one in civil engineering
from The Johns Hopkins University, and has undertaken extensive graduate work
and other course work. Ms. Greene incurred a substantial amount of student loan

debt that was consolidated in 2004 into the Student Loan, which provides it will

be repaid under the Income Contingent Plan. Because Ms. Greene's adjusted
gross income since the Student Loan has entered repayment has always been less
than the Poverty Level Guidelines established by the United States Department of

Health and Human Services, her monthly payment under the Income Contingent
Plan has always been and remains $0.00. Accordingly, Ms. Greene is not in
default on the payment of the Student Loan. The Stipulation also establishes Ms.
Greene has lived in an impoverished state since obtaining the Student Loan and
currently owns minimal property.

Greene v. U.S. Dep't ofEduc. (In re Greene), 484 B.R. at 103-104 (footnote omitted). Per the
terms of the Income Contingent Plan, her student loan will be forgiven after twenty-five years,

with nine years having already passed since she consolidated her loans in 2004. Greene's
testimony at trial echoed the contents of the Stipulation. Id. at 105. Additionally, the court noted

that, although she asserts that she suffers from debilitating mental illness, Greene failed to
provide the court with any foundation for such allegations. Id. at 105-106. It is due to this

alleged mental illness that Greene claims to be unable to find gainful employment. Id. Finally,
the court noted, as has been cited supra in the section I of this Opinion, that:

Ms. Greene presented herself during the totality of the proceedings in this matter
as a very articulate, well-spoken individual. The Court further notes that Ms.
Greene's pleadings, including her twenty-four (24) page Brief and thirty-two (32)
page Reply Brief, are extremely well-drafted, particularly for an unrepresented
litigant.
Id. at 107.

IV.

ANALYSIS

In her appeal Greene utilized a "kitchen sink" approach.

That is, she challenged

seemingly anything and everything that she could think to challenge. Many of Greene's issues

on appeal are duplicative or subsumed by other issues.

The Court in this opinion has

consolidated the issues on appeal and will address the general categories of appeal.
A.

Greene Failed to Satisfy the First Prong of the Brunner Test

The first prong of the Brunner test, as adopted in the Fourth Circuit by Frushour, states
that the debtor must show "that the debtor cannot maintain, based on current income and

expenses, a 'minimal' standard of living for herself and her dependents if forced to repay the
loans." Frushour, 433 F.3d at 400.

The debtor has the burden of proving the factor by a

preponderance of the evidence. Id.

The bankruptcy court found that Greene maintained a minimal standard of living.
Greene, 484 B.R. at 110. While this Court agrees that her standard of living is below what most

people would wish to have, that does not mean that the bankruptcy court erred in making its
determination.

Given that she maintained a minimal standard, the question then becomes whether, if
7

forced to repay her loans, she would be unable to maintain a minimal standard of living.
However, her monthly payment is $0 under the Income Contingent Plan. As the bankruptcy

court properly noted, the Brunner analysis contemplates whether, based on "current income and

expenses, the necessity of making the monthly loan payment will cause his or her standard of
living to fall below a 'minimal' level." Id. at 115 n. 13 (quoting Brunner v. N.Y. State Higher
Educ. Servs. Corp. (In re Brunner), 46 B.R. 752, 754 (S.D.N.Y. 1985), affd, 831 F.2d 395 (2d
Cir. 1987) (emphasis in original).

Greene has put forth no arguments as to how her monthly payment of $0 causes her to
fall below her current standard of living, which the bankruptcy judge had adjudged to be

minimal. Her arguments as to how she is negatively affected by the student loan debt are that
she cannot obtain "steady or well-paying employment" or "affordable housing" as a result of the
negative impact that the debt has on her credit score. Appellant's Brief at 7. However, Greene
failed to introduce any evidence into the record that she has been so impacted. The Court does

not dispute that a poor credit score can hurt a person's employment prospects as to certain jobs.
However, it is not apparent to this Court that a poor credit report precludes one from all "steady
or well-paying employment." In fact, in light of Greene's earning history it appears that she has
never been able to obtain what she might consider steady or well-paying employment at any

time, regardless of the size of her loan debt.

Greene's allegations concerning affordable housing are equally unpersuasive. The Court

again does not dispute that poor credit scores can preclude one from certain types of housing.
However, Greene has not introduced any direct evidence of her inability to obtain housing due to

her credit score. The sole related exhibit that she has submitted is a one-page printout from the

Hampton Redevelopment and Housing Authority. The printout only states that in order to get on

the Public Housing waiting list one's credit history "must be satisfactory; no unsatisfied

judgments or collections for current or previous landlords." There is no further explanation of
what constitutes "satisfactory" or whether Greene's credit history would qualify. From her trial

testimony it appears that if Greene did actually apply to be put on the waiting list and was denied

it was not due to any negative affect that her student loan debt had on her credit score.1
Additionally, such potential negative credit score effects are not specific to Greene's
circumstances. Any person who takes on substantial loans also takes on the commensurate

burdens. The Brunner test, after all, ultimately asks whether the debt in the plaintiffs individual
case causes an undue burden due to "unique or extraordinary circumstances." Love v. U.S. (In re
Love), 33 B.R. 753, 755 (Bankr. E.D. Va.1983). Regardless, the affect that the debt may or may

not have on Greene's credit report and any subsequent consequences are not material to the

Brunner analysis.

"This kind of hardship, however, is not the hardship contemplated by

§ 523(a)(8) and Brunner. That 'undue hardship' is the hardship the payments would cause the
debtor, not the collateral effect of having the debts appear on her credit report." Robinson v.

Educ. Mgmt. Corp. (In re Robinson), 416 B.R. 275, 282 (Bankr. E.D. Va. 2009). Therefore,
even if Greene could show that her student loan debt would hurt her employment and housing

prospects, it would be irrelevant to whether or not her payments under her loan repayment plan
cause her undue hardship.

Greene finally argues that the bankruptcy court should have accounted for the potential
tax liabilities that she would incur once the 25 year repayment period is complete and her

remaining loan balance is written off by DOE. The bankruptcy court correctly found that this

1"1 had actually tried to get into public housing, and I actually had spoken to someone a couple of times
and the problem kept coming back to if you had - if you don't pay your utilities on time all the time or if you are
behind on your rent ever then that pretty much disqualifies you. It was in writing. I saw that. So I didn't qualify for
that." Trial Transcript at 13-14.

argument is too speculative. See In re Burton, 399 B.R. 856, 889 (Bankr. E.D. Va. 2006); Educ.
Credit Mgmt. Corp. v. Stanley (In re Stanley), 300 B.R. 813, 818 n. 8 (N.D. Fla. 2003). Even if
the Court were to assume, arguendo, that Greene's current situation would mirror her situation in
2029 at the end of the twenty-five year repayment period, her argument would still be

unpersuasive. 26 U.S.C. § 108(a)(1)(B) states that a debtor who is insolvent at the time of the
discharge will not have the discharge included in their gross income calculation. Greene's
asserted assets are around $2,200, while the amount of her student loan debt is well over

$200,000. This clearly makes her insolvent, which would nullify her tax liability.
The Court finds no reason to overturn the bankruptcy court's determination that Greene

maintains a minimal standard of living. Greene has not set forth any persuasive arguments as to

how her current monthly payment of $0 causes her to fall below her current standard of living.
Therefore, the Court affirms the bankruptcy court's finding that Greene has failed to satisfy the
first prong of the Brunner test.
B.

Greene Failed to Satisfy the Second Prong of the Brunner Test

Greene also asserts that the bankruptcy court incorrectly applied the second prong of the
Brunner test, which is that additional circumstances exist that show that the Debtor's current state

of affairs is likely to persist for a significant portion of the repayment period. Generally, the
second prong may be satisfied by proving that the debtor suffers from "illness, disability, a lack
of usable job skills, or the existence of a large number of dependents." Frushour, 433 F.3d at
401 (quoting Oyler v. Educ. Mgmt. Corp. (In re Oyler), 397 F.3d 382, 386 (6th Cir. 2005)).
Greene asserted that her mental illness and lack of usable job skills satisfied this requirement.

The opinion of the bankruptcy court quite adequately addressed those allegations and

properly found that Greene failed to prove them by a preponderance of the evidence. As to her
alleged mental illness, she has continually and strenuously asserted thrpughout these proceedings
10

that it is undisputed that she suffers from mental illness and that her illness is so severe as to

prevent her from accomplishing such menial tasks as filling out a simple two page form while
seeking leave to proceed in forma pauperis (despite her ability to spend fifteen years as a student
in higher education). See, e.g., PL's Mot. for Reh'g and Mot. for Reh'g En Banc on Appellant's
Mot. for Certification for Direct Appeal, ECF No. 27. However, this fact is very much disputed,

not only by DOE (See, e.g., Appellee's Brief at 16, ECF No. 14), but by the bankruptcy court's
own findings. See, e.g., Order Den. Mot. for Ct. Appointed Att'y, ECF No. 6. The only support
that Greene has provided throughout the entirety of these proceedings in support of her mental
illness has been twenty year old medical records, a completely uninformative emergency room

diagnosis, and her many conclusory allegations. Considering the dearth of support offered by
Greene, the Court can find nothing erroneous with the bankruptcy judge's determination, which
included consideration of his own in-person observations of Greene during trial, that Greene

failed to provide the court with enough evidence to establish that her mental condition exists or
that it would constitute an "additional circumstance" under the second Brunner prong.

As to Greene's alleged lack of usable job skills, Greene asserts that her education is

outdated and that she possesses minimal work experience. However, her extensive time spent in

higher education belies an intelligence that prevented the bankruptcy court and prevents this
Court from finding that she lacks usablejob skills or the ability to obtain such skills.
Greene failed to show that additional circumstances are present that show that the

Debtor's current state of affairs is likely to persist for a significant portion of the repayment

period. Therefore, the bankruptcy court properly found that Greene failed to satisfy the second
prong of the Brunner test.
C.

Greene Failed to Satisfy the Third Prong of the Brunner Test

The third Brunner factor required Greene to show that she had "made good faith efforts
11

to repay [her] loans." Frushour, 433 F.3d at 402 (quoting Brunner, 831 F.2d at 396). An

integral part of satisfying the third prong is showing that the debtor made efforts to "obtain

employment, maximize income, and minimize expenses." Burton, 339 B.R. at 882 (quoting
Goulet v. Educ. Credit Mgmt. Corp., 284 F.3d 773, 779 (7th Cir. 2002)). There is no dispute that

Greene minimized her expenses. However, the bankruptcy court found that she had not made
good faith efforts to obtain employment and maximize income:
Greene testified that she has dramatically limited the type of work she will accept
because of her anxiety disorder and her inability to work in an office environment

where men are present. If her disorder is genuine and her inability to work with
men present does in fact flow from her medical disorder, then her lack of success
in employment does not necessarily influence a finding of a lack of good faith on
her part. However, as detailed extensively earlier, absolutely no corroborating
evidence to support her claimed disorder was adduced. Ms. Greene is welleducated, including a degree in civil engineering from a most prestigious
university, and presented herself to this Court as a capable individual. The
absence of any corroborating proof prevents this Court from assuming that Ms.
Greene's long unemployment and underemployment are the product of a disability
or other events beyond her control. The resulting picture is of a well-educated,
articulate woman who has explained her chronic underemployment but failed to
produce any proof other than her admitted self-diagnosis that is unsupported by
any medical evidence.

Greene, 484 B.R. at 131. Even considering the medical evidence she submitted later in the

proceedings (namely, the 20 year old reports and uninformative emergency room discharge
report) Greene did not provide enough evidence of a mental illness such that this Court can find
error in the bankruptcy judge's determination that Greene made good faith efforts to obtain
employment and maximize her income. Therefore, the bankruptcy court correctly found that
Greene failed to satisfy the third prong of the Brunnertest.
D.

Greene Failed to Timely Raise Her Constitutional Objections

Greene also asserts that the bankruptcy court's decision denied her equal protection and

due process as provided by the Constitution. However, these arguments were not presented to
the bankruptcy court until Greene filed her Motion for Reconsideration on December 20, 2012.
12

Motions for reconsideration allow "a district court to correct its own errors,

'sparing the parties and the appellate courts the burden of unnecessary appellate
proceedings,'" Pac. Ins. Co. v. Am. Nat'! Fire Ins. Co., 148 F.3d 396, 403 (4th
Cir. 1998) (citations omitted). They "may not be used, however, to raise
arguments which could have been raised prior to the issuance of the judgment, nor
may they be used to argue a case under a novel legal theory that the party had the
ability to address in the first instance." Id.
First Cmty. Bank v. E.M. Williams & Sons, Inc., 2010 WL 1279094 at *4 (E.D. Va. March 30,
2010). Raising an issue for the first time in a motion for reconsideration is not appropriate unless

doing so will prevent manifest injustice. Id. at *5; see also Pole v. Randolph, 570 F.3d 922, 938
(7th Cir. 2010) ("Arguments raised or developed for the first time in a motion to reconsider are

generally deemed forfeited."). In this case, it does not appear that any manifest injustice will
result from declining to hear Greene's constitutional arguments. Therefore, the Court will not

address the constitutional questions tardily raised by Greene in her Motion for Reconsideration
and again in her appeal to this Court.
E.

The Bankruptcy Court Properly Denied the Motion for New Trial

The next issue before the Court is whether the bankruptcy court erred in denying
Greene's Motion for New Trial. In the Fourth Circuit, a new trial may be granted under Federal
Rule of Civil Procedure 59 "(1) if there are intervening changes in the law; (2) if new evidence
has been discovered that was not available at trial; or (3) to correct a clear error of law or prevent

a miscarriage of justice." McCain v. Educ. Credit Mgt. Corp. (In reMcCain), 353 B.R. 452, 461
(Bankr. E.D. Va. 2006) (citing E.E.O.C. v. Lockheed Martin Corp., 116 F.3d 110, 112 (4th Cir.
1997)).

Greene does not specifically refer to any of those three factors in her appeal brief, but it
appears that she is attempting to argue that new evidence had been discovered that was not
i

available at trial. However, all of the evidence that she submitted in support of her Motion for
New Trial was in fact available at the time of the trial. The problem was that Greene was not
13

diligent in finding and submitting that evidence. Greene attempts to justify her delay in
obtaining the evidence by citing her alleged mental illness. As noted previously in this opinion,
Greene never offered satisfactory evidence that supported her claims as to the existence and

severity of any mental illness. Regardless, the standard for granting of a new trial in the Fourth
Circuit is merely concerned with whether the evidence was available at trial, and the evidence
submitted in Greene's Motion for New Trial was clearly available at that point. Therefore, the

bankruptcy court did not abuse its discretion in denying the Motion for New Trial.
F.

The Bankruptcy Court Properly Denied Greene's Motion to Amend
the Findings of Fact

As the bankruptcy court properly noted in its April 22, 2013, opinion, Greene provided

no legitimate support for her requests that the court amend or change the relevant findings of
fact. Since the purpose of amending findings under Rule 52(b) "is to permit the trial court to
correct glaring errors of law or fact that are discovered upon reconsideration of an opinion,"
Golden Blount, Inc. v. Robert H. Peterson Co., 438 F.3d 1354, 1358 (Fed. Cir. 2006) (emphasis

added) and there are no such glaring errors on the face of the record, the bankruptcy court did not
abuse its discretion in denying Greene's motion to amend the findings of fact.
G.

The

Bankruptcy

Court

Properly

Denied

Greene's

Motion

for

Continuance

Continuances are generally granted at the discretion of the court.

Greene's motion

simply requested a continuance in order "to allow plaintiff the opportunity to obtain additional
information and documents needed for trial." PL's Mot. for Continuance of Trial, ECF No. 1.

She did not provide any further information as to what information and documents she was

seeking, and more importantly she did not provide any reason as to why she had been unable to
procure that information and documents in the year and three months that had passed since her
initial filing. Given that she provided no such reasons, the bankruptcy court did not abuse its
14

discretion in denying Greene's Motion for Continuance of Trial.
H.

The Bankruptcy Court did not Abuse its Discretion by Denying
Appointment of Counsel or Guardian Ad Litem

Throughout this proceeding Greene has adamantly and repeatedly asserted that she
suffers from severe mental illness. In keeping with this assertion she made numerous requests

for the appointment of counsel or a guardian ad litem. However, as noted earlier in this opinion,
Greene's evidence in support of her mental illness amounts to twenty year old medical records,
an uninformative emergency room

diagnosis,

and her many conclusory allegations.

Additionally, the bankruptcy court noted in its opinion that Greene "presented herself during the

totality of the proceedings in this matter as a very articulate, well-spoken individual." Greene,
484 B.R. at 107. Considering that Greene failed to provide substantive evidence of her mental

illness and the bankruptcy court, after observing her in person, did not note any indicia of mental
illness, the Court finds that the bankruptcy court did not abuse its discretion in denying
appointment of counsel or guardian ad litem for Greene.
I.

The Bankruptcy Court did not Abuse its Discretion in Sustaining
DOE's Objection to Greene's Testimony Concerning a Prior
Diagnosis of Dissociative Disorder

During trial the bankruptcy court sustained DOE's objection to Greene's testimony
regarding a purported prior diagnosis of dissociative disorder. No other evidence was submitted
during trial concerning that particular alleged diagnosis. Testimony regarding such a diagnosis
would then clearly have been hearsay.

Therefore, the court did not abuse its discretion in

sustaining DOE's objection.
V.

GHOST WRITER WARNING

During the course of this appeal it came to the Court's attention that Greene, although

proceeding pro se and receiving the forbearance afforded such status, was utilizing the services

15

of a ghost writer for many of her filings. The Court emphasizes that the practice of ghost-writing
is in no way permissible in the Eastern District of Virginia, or any federal court for that matter."
Even if the ghost writer is not an attorney, such practice is still considered the unauthorized
practice of law. Those who proceed pro se are afforded certain amounts of leniency that are not
afforded represented parties. Ghost writing inexcusably abuses this leniency.

2To the extent that the Plaintiffis being advised by counsel in a "ghost-writer" capacity, such a practice is
strongly disapproved as unethical and as a deliberate evasion of the responsibilities imposed on attorneys, and this
Order serves as a warning to that attorney that his actions may be unethical and could serve as a basis for sanctions.

See Clarke v. United States, 955 F.Supp. 593, 598 (E.D.Va.1997); Laremont-Loqez v. Se. Tidewater Opportunity
Ctr., 968 F.Supp. 1075, 1080-81 (E.D.Va.1997) ("[T]he practice of ghost-writing !legal documents to be filed with
the Court by litigants designated as proceeding pro se is inconsistent with the procedural, ethical and substantive
rules of this Court."); Chaplin v. DuPont Advance Fiber Sys., 303 F.Supp.2d 766, 773 (E.D.Va.2004) (quoting
Laremont-Lopez, 968 F.Supp. at 1077, 1080) ("[T]his Court 'considers it improper for lawyers to draft or assist in
drafting complaints or other documents submitted to the Court on behalf of litigants designated as pro se,"' and "the
practice of ghost writing documents 'will not be tolerated in this Court.'").
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VI.

CONCLUSION

For the reasons set forth in this opinion, the Court AFFIRMS the decisions of the

bankruptcy court. At the time of this Order there are four motions filed by Greene that are
outstanding in this case, all of which are rendered moot by this Order. Therefore, the Court
DENIES the Motion for Guardian Ad Litem or Court Appointed Counsel, ECF No. 11,
DENIES the Motion for Reconsideration of Order on Motion for Leave to Proceed in Forma

Pauperis, ECF No. 22, DENIES the Second Motion for Leave to Proceed in Forma Pauperis,
ECF No. 20, and DENIES the Motion for Rehearing and Motion for Rehearing en Banc on

Appellant's Motion for Certification for Direct Appeal, ECF No. 27.

If Greene wishes to appeal this decision she may do so as a matter of right within sixty
(60) days from entry of this Order.

The Clerk is DIRECTED to forward a copy of this Orderto all Co^nse^o^ Record.
IT IS SO ORDERED.

______
RobertG. Do
Senior United

strict Judge

UNITED STATES DISTRICT JUDGE

Newport News, VA

October^_, 2013

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