Ginger Sirikanjanachai v. Town of Hingham, Massachusetts

• Court: Bankruptcy Appellate Panel of the First Circuit
• Decided: December 4, 2019
• Docket: BAP No. MB 18-059
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT _______________________________

BAP NO. MB 18-059 _______________________________

Bankruptcy Case No. 17-12526-FJB Adversary Proceeding No. 17-01128-FJB _______________________________

GINGER SIRIKANJANACHAI, a/k/a Wanpen Florentine, a/k/a Penny Collins, a/k/a Laciga Rachaisri, a/k/a Penny Collins Siridee, Debtor. _______________________________

TOWN OF HINGHAM, MASSACHUSETTS, Plaintiff-Appellee,

v.

GINGER SIRIKANJANACHAI, Defendant-Appellant. _________________________________

Appeal from the United States Bankruptcy Court for the District of Massachusetts (Hon. Frank J. Bailey, U.S. Bankruptcy Judge) _______________________________

Before Lamoutte, Cary, and Fagone, United States Bankruptcy Appellate Panel Judges. _______________________________

Ginger Sirikanjanachai, pro se, on brief for Appellant. John D. Finnegan, Esq., on brief for Appellee. _________________________________

December 4, 2019 _________________________________ Cary, U.S. Bankruptcy Appellate Panel Judge.

The debtor, Ginger Sirikanjanachai (the “Debtor”), appeals from the bankruptcy court’s

judgment excepting from discharge her obligations to the Town of Hingham, Massachusetts (the

“Town”). For the reasons set forth below, we AFFIRM.

BACKGROUND1

Currently known as Ginger Sirikanjanachai, the Debtor has also used various other

names, including Wanpen Sirikanjanachai, Wanpen Florentine, Wanpen Collins, Penny Collins,

Penny Siridee, Penny Collins Siridee, and Laciga Rachaisri. She also claims to have created a

corporation called Laciga Rachaisri, Inc. In March 2006, the Debtor submitted an application to

the Town to purchase a condominium unit (the “Unit”) which was part of an affordable housing

program. Pursuant to the program, income and age eligible purchasers are given the opportunity

to purchase certain property at a discount if they agree to convey the property on resale to certain

entities, including the Town. The Debtor completed the application using two separate names:

Wanpen Florentine and Laciga Rachaisri, whom the Debtor identified as her sister. She did not

disclose that Laciga Rachaisri was one of her own names. She reported that Wanpen Florentine

and Laciga Rachaisri had different dates of birth and different Social Security numbers. She also

indicated that she had never owned a home. She certified that this information was true. Except

for the information regarding Wanpen Florentine, none of it was.

Through a lottery process, the Town selected the Debtor to purchase the Unit and the

closing took place in August 2008. Attached to the deed for the Unit was a rider, which the

1 All references to “Bankruptcy Code” or to specific statutory sections are to the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. §§ 101, et seq. All references to “Bankruptcy Rule” are to the Federal Rules of Bankruptcy Procedure.

2 Debtor executed as Wanpen Florentine. Pursuant to the deed rider, the Debtor granted the Town

a right of first refusal to purchase the Unit or to locate an eligible purchaser. She also agreed to

notify the Town of her intent to sell the Unit and to refrain from leasing, encumbering, or

mortgaging the Unit without the Town’s consent.

On February 6, 2013, the Debtor notified the Town that she wished to sell the Unit. The

Town informed her that it would exercise its right of first refusal to purchase the Unit. The

Debtor, however, refused to convey the Unit to the Town on the scheduled closing date. The

Town sued her in state court seeking specific performance of her obligations under the deed

rider, as well as damages for breach of contract and intentional and negligent misrepresentation.

The Town alleged, among other things, that the Debtor breached the deed rider in various ways,

including by: transferring the Unit to “Wanpen Florentine, Trustee”; encumbering the Unit with

three mortgages; and failing to convey title to the Unit to the Town.

The Town prevailed. In its June 2017 judgment (the “state court judgment”), the state

court declared as void not only the Debtor’s conveyance of the Unit to herself, as trustee, but

also the three mortgages which she granted on the Unit. The court also ordered her to convey the

Unit to the Town within 60 days.2

One week after entry of the state court judgment, the Debtor filed a petition for relief

under chapter 7 of the Bankruptcy Code, and thereafter received a chapter 7 discharge. In

October 2017, the Town commenced an adversary proceeding against her with a two-count

complaint. In Count I, the Town sought a judgment determining that the Debtor’s obligations to

provide the Town with a right of first refusal and to convey title to the Town were not subject to

2 The Massachusetts Appeals Court affirmed the state court judgment in December 2018. Town of Hingham v. Florentine, 111 N.E.3d 1114 (Mass. App. Ct. 2018). 3 her chapter 7 discharge. In Count II, the Town requested a determination under § 523(a)(2)(A)

or (a)(2)(B) that the Debtor’s obligations under the state court judgment were excepted from

discharge.

After conducting a trial, the bankruptcy court issued a memorandum of decision on

November 7, 2018, holding that the Debtor’s obligations to the Town were excepted from

discharge. See Town of Hingham v. Sirikanjanachai (In re Sirikanjanachai), 594 B.R. 1, 15

(Bankr. D. Mass. 2018). With respect to the first count, the bankruptcy court ruled that the

Debtor’s obligation under the deed rider (and under the equitable order of specific performance

in the state court judgment) did not give rise to a right of payment. Id. at 12. Accordingly, the

bankruptcy court determined that the Town’s right to specific performance was not a claim under

§ 101(5)(B) and was not subject to the Debtor’s discharge. Id. On the second count, the

bankruptcy court concluded that § 523(a)(2)(A) provided a further basis to except the Debtor’s

judgment obligations from discharge after finding that she knowingly made four

misrepresentations in connection with the application that were relied upon by the Town to its

detriment. Id. at 15. The bankruptcy court’s judgment entered the same day and the Debtor

appealed, pro se.

JURISDICTION

“Pursuant to 28 U.S.C. §§ 158(a) and (b), [we] may hear appeals from ‘final judgments,

orders, and decrees . . . .’” Fleet Data Processing Corp. v. Branch (In re Bank of New Eng.

Corp.), 218 B.R. 643, 645 (B.A.P. 1st Cir. 1998); see also Bullard v. Blue Hills Bank, 135 S. Ct.

1686, 1692 (2015). A bankruptcy court’s judgment determining dischargeability of a debt is a

final, reviewable order. Cambio v. Mattera (In re Cambio), 353 B.R. 30, 31 n.1 (B.A.P. 1st Cir.

2004) (citations omitted). Accordingly, we have jurisdiction to hear this appeal. 4 STANDARD OF REVIEW

We review the bankruptcy court’s findings of fact for clear error and its conclusions of

law de novo. Jeffrey P. White & Assocs., P.C. v. Fessenden (In re Wheaton), 547 B.R. 490, 496

(B.A.P. 1st Cir. 2016) (citation omitted); see also In re Cambio, 353 B.R. at 36 n.9. “The

determination of the nondischargeability of debt is an issue of law that we review de novo.” Cherry

v. Neuschafer (In re Neuschafer), No. KS-13-030, 2014 WL 2611258, at *5 (B.A.P. 10th Cir. June

12, 2014); see also Spagnuolo v. Brooke-Petit, 506 B.R. 1, 4 (D. Mass. 2014).

DISCUSSION

As a threshold matter, we are confronted with an opening brief that is seriously deficient

and in utter disregard of the applicable procedural rules. For example, the merits section of the

brief lacks any coherent argument, meaningful citation to legal authority, specific references to

evidence, and analysis of any standard of review. Reyes-Garcia v. Rodriguez & Del Valle, Inc.,

82 F.3d 11, 16 (1st Cir. 1996) (dismissing appeal due to appellant’s failure to comply with

procedural rules, including briefing requirements); see also Fed. R. Bankr. P. 8014(a)(1)-(10)

(setting forth the requirements for an appellant’s opening brief); 1st Cir. BAP L.R. 8014-1 (also

regarding briefing requirements). Additionally, the brief does not contain a proper jurisdictional

statement or a summary of the argument. See Fed. R. Bankr. P. 8014(a)(4) and (a)(7).

Although the Debtor identifies as an issue “[w]hether the Bankruptcy Court erred in . . .

declaring the Debtor’s obligations under the [s]tate [c]ourt judgment to be excepted from

discharge,” she does not adequately or clearly address that central question. The Debtor does not

specifically challenge any of the bankruptcy court’s findings of fact or conclusions of law

regarding either Count I or Count II, and the brief contains no reference to the controlling

5 statutes which form the basis of the bankruptcy court’s decision. Neither the Debtor’s reply brief

nor her representations at oral argument supply what her opening brief lacks.

We have previously stated that “[a]n appellate court may, in its discretion, deem an

argument waived if it is not presented in accordance with Bankruptcy Rule 8010,” the

predecessor to Bankruptcy Rule 8014. Ross v. Educ. Credit Mgmt. Corp. (In re Ross), BAP No.

MW 03-085, 2004 WL 6030762, at *3 (B.A.P 1st Cir. June 4, 2004) (citing Brewer v. Erwin &

Erwin, P.C. (In re Marquam Inv. Corp.), 942 F.2d 1462, 1467 (9th Cir. 1991), and Joelson v.

Brown (In re Brown Family Farms, Inc.), 872 F.2d 139, 142 (6th Cir. 1989)).3 This is consistent

with the well-established rules in this circuit that failure to brief an issue waives it, United States

v. Bayard, 642 F.3d 59, 63 (1st Cir. 2011), and that “issues averted to in a perfunctory manner,

unaccompanied by some effort at developed argumentation, [will also be] deemed waived for

purposes of appeal.” Grella v. Salem Five Cent Sav. Bank, 42 F.3d 26, 36 (1st Cir. 1994)

(citation omitted).

While pro se litigants are held to a less stringent procedural standard than others, they are

not granted immunity from compliance with procedural and substantive law. Aja v. Emigrant

Funding Corp. (In re Aja), 442 B.R. 857, 861 (B.A.P. 1st Cir. 2011); see also Andrews v.

Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985) (“The right of self-representation is not

‘a license not to comply with relevant rules of procedural and substantive law.’”) (citation

omitted). A pro se litigant’s obligation to comply with substantive and procedural rules applies

3 In addition, failure to comply with Bankruptcy Rule 8014 may be grounds for dismissing a bankruptcy appeal. In re Ross, 2004 WL 6030762, at *3 (citations omitted); see also Reyes-Garcia, 82 F.3d at 15-16. 6 to briefing requirements. See O’Neal v. Spota, 744 F. App’x 35, 36 (2d Cir. 2018) (“Despite

affording pro se litigants ‘some latitude’ in meeting procedural rules, [courts] ‘normally will

not[ ] decide issues that a party fails to raise in his or her appellate brief.’”) (citation omitted).

As we have previously stated, Bankruptcy Rule 8014 “is not only a technical or aesthetic

provision, but also has a substantive function—that of providing the other parties and the court

with some indication of which flaws in the appealed order or decision motivate the appeal.”

In re Ross, 2004 WL 6030762, at *3 (citations omitted) (internal quotation marks omitted).

“Appellate rules governing the form of briefs do not exist merely to serve the whimsy of

appellate judges. Some of the requirements . . . are essential for the proper disposition of an

appeal.” Id. (quoting Slack v. St. Louis Cnty. Gov’t, 919 F.2d 98, 99 (8th Cir. 1990)). A court is

not required to overlook the procedural and substantive omissions in a party’s briefing and to

stitch together a cogent argument or to guess what part of the record might be relevant. See id. at

*3-4; see also Eagle Eye Fishing Corp. v. U.S. Dep’t of Commerce, 20 F.3d 503, 506 (1st Cir.

1994) (stating “[t]he Constitution does not require judges . . . to take up the slack when a party

elects to represent himself”) (citation omitted). “If a claimant cannot, or will not, attempt a

succinct and cogent articulation of its claim in its appellate brief, it may not expect the court to

supply it.” Albright v. F.D.I.C., No. 93-1683, 1994 WL 109047, at *4 (1st Cir. Apr. 1, 1994).

Even viewing the Debtor’s briefing with the required latitude, see Aja, 442 B.R. at 861, it

is still woefully deficient. The burden was on her to demonstrate a basis for reversing the

bankruptcy court and entering judgment in her favor. Simply put, the Debtor failed to provide us

7 with any basis—either through her briefing or through the arguments she presented orally—to

conclude that the bankruptcy court’s judgment did not apply the correct law or rested on a clearly

erroneous finding of material fact.4

CONCLUSION

In light of the foregoing, we summarily AFFIRM. See 1st Cir. BAP L.R. 8013-1(c)(2)

(authorizing summary disposition, including affirmance, “if it appears that no substantial

question is presented”); see also United States v. Fortner, 455 F.3d 752, 754 (7th Cir. 2006)

(“Summary affirmance may also be in order when the arguments in the opening brief are

incomprehensible or completely insubstantial.”) (citations omitted); In re Ross, 2004 WL

6030762, at *4 (summarily affirming due to deficient brief).

4 Although we are not required to do so given the Debtor’s deficient brief, we have reviewed the record of this case, including the transcript of the trial below, and find no error, on the merits, in any of the bankruptcy court’s findings or conclusions. 8