In re: Joshua Neil Harrell

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: March 30, 2021
• Docket: EC-20-1091-BTL
• Status: Unpublished

Opinion

FILED MAR 30 2021 SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT

In re: BAP No. EC-20-1091-BTL JOSHUA NEIL HARRELL, Debtor. Bk. No. 20-21228

JOSHUA NEIL HARRELL, Appellant, v. MEMORANDUM1 UNITED STATES TRUSTEE; ALAN S. FUKUSHIMA, Chapter 7 Trustee, Appellees.

Appeal from the United States Bankruptcy Court for the Eastern District of California Frederick E. Clement, Bankruptcy Judge, Presiding

Before: BRAND, TAYLOR, and LAFFERTY, Bankruptcy Judges.

1 This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 1 INTRODUCTION

Appellant, Joshua Neil Harrell, appeals an order dismissing his chapter

7 2 case for failure to file documents. We AFFIRM.

FACTS

Harrell is incarcerated at Folsom State Prison in California. He filed a

"skeletal" chapter 7 bankruptcy case on March 2, 2020.3 Later that day, the

clerk issued a Notice of Incomplete Filing ("Notice"), instructing Harrell to file

by March 9 a Statement of SSN (Form 121) and Verification and Master

Address List, and to file by March 16 the Statement of Monthly Income,

Schedules A-J, Statement of Financial Affairs, and Summary of Assets and

Liabilities. The Notice stated that if two filing dates were shown, each date

must be timely satisfied as to the documents governed by that date.

On March 10, Harrell filed all of the documents listed in the Notice,

with the exception of the Verification and Master Address List, which was

due March 9.

On March 11, Harrell requested, and the bankruptcy court granted, an

extension of time to file missing documents. Harrell was given until March 30

to file them.

2 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all "Rule" references are to the Federal Rules of Bankruptcy Procedure. 3 Harrell did not file excerpts of the record. Therefore, we exercised our discretion to

review the bankruptcy court's electronic docket and the relevant pleadings. See Atwood v. 2 On March 26, Harrell filed a "Request for Assistance Giving Notice to

Creditors." Harrell stated that he was unable to provide notice of his case to

creditors, because he filed his only copy of his bankruptcy documents on

March 10 and Folsom was on lockdown due to the COVID-19 pandemic.

On March 31, the clerk issued an Order Dismissing Case for Failure to

Timely File Documents, stating that the case was dismissed for failure to

comply with the Notice. This timely appeal followed.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and

157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Did the bankruptcy court err in dismissing Harrell's chapter 7 case?

STANDARD OF REVIEW

A determination to dismiss a chapter 7 case is reviewed for an abuse of

discretion. Mendez v. Salven (In re Mendez), 367 B.R. 109, 113 (9th Cir. BAP

2007). A trial court abuses its discretion if it applies the wrong legal standard

or if its factual findings were clearly erroneous. United States v. Hinkson, 585

F.3d 1247, 1262 (9th Cir. 2009) (en banc).

Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 3 DISCUSSION

Harrell argues that the bankruptcy court erred by dismissing his case

for failure to file documents. Harrell maintains that he was unable to

complete and file the missing documents because of Folsom's change in

access to the law library due to the COVID-19 pandemic.

The dismissal order did not state what documents listed in the Notice

were missing, but we assume it was the Verification and Master Address List.

Section 521(a)(1)(A) requires that debtors file a separate "list of creditors."

Rule 1007(a)(1) provides that, "[i]n a voluntary case, the debtor shall file with

the petition a list containing the name and address of each entity included or

to be included on Schedules D, E/F, G, and H as prescribed by the Official

Forms." Further, Local Bankruptcy Rule 1007-1(b) requires that debtors

submit a "Master Address List which includes the name, address, and zip

code of all of the debtor's known creditors," and that it "be prepared in strict

compliance with . . . Form EDC 2-190[.]" Form EDC 2-190 instructs that the

Master Address List is used for noticing creditors and must be filed at the

time the petition is filed.

Given the mandate of § 521(a)(1)(A), Rule 1007(a)(1), and Local

Bankruptcy Rule 1007-1(b), we conclude that the bankruptcy court did not err

in dismissing Harrell's chapter 7 case. The creditor list "is a critical part of the

functioning of the bankruptcy court system, ensuring that notice of the

bankruptcy proceedings is given to all interested parties." Wilcox v. Anderson 4 (In re Wilcox), No. 10-32828, 2011 WL 3347772, at *5 (10th Cir. BAP Aug. 4,

2011). The Verification and Master Address List was due on March 9. The

Notice warned that the court could dismiss the case without further notice if

(1) the Verification and Master Address List was not filed by March 9, or (2) if

a motion for an extension of time to file it was not filed on or before March 9.

Neither of those things occurred. On March 10, Harrell requested an

extension of time to file missing documents. However, as to the Verification

and Master Address List, his request was untimely.

Even if Harrell had until the extended deadline of March 30 to file the

document, he did not do so. The extension order directed the clerk to dismiss

the case without further notice if Harrell did not file missing documents by

March 30. On March 26, Harrell requested assistance in notifying his

creditors, which could have been construed as a second request for an

extension of time to file missing documents. His request was filed ex parte –

i.e., not served on the chapter 7 trustee or the U.S. Trustee – but the extension

order expressly stated that no further extensions of time to file missing

documents would be granted by ex parte application.

Further, the bankruptcy court is not obliged to assist a pro se debtor in

notifying his or her creditors. That minimal burden in exchange for relief in

bankruptcy is on the debtor. As the court in Wilcox noted:

Shifting the burden of entering names and addresses of all creditors and other parties of interest into the court's CM/ECF 5 system in each case to bankruptcy court clerks would both seriously tax the bankruptcy courts' already limited resources and, more importantly, would significantly delay the receipt of notice of bankruptcy filings by parties in interest. When one considers that each bankruptcy district receives literally thousands of bankruptcy petitions each year, the possibility of a system breakdown under such circumstances is real. Therefore, placing the minimal burden of performing this function in their own case on debtors is both reasonable and necessary.

Id. at *5.

CONCLUSION

For the reasons stated above, we AFFIRM. Harrell is free to file another

chapter 7 case if he so chooses. 4

4 Harrell had also requested appointment of counsel, which the bankruptcy court denied. We do not address his argument that the court erred by failing to appoint counsel. That was a separate order which Harrell did not timely appeal. 6