In re: Kirell Francis Taylor

• Court: United States Bankruptcy Appellate Panel for the Ninth Circuit
• Decided: April 5, 2012
• Docket: EC-11-1341-MkPaD EC-11-1432-MkPaD (Consolidated)
• Status: Unpublished

Opinion

FILED APR 05 2012 1 SUSAN M SPRAUL, CLERK U.S. BKCY. APP. PANEL 2 OF THE NINTH CIRCUIT

3 UNITED STATES BANKRUPTCY APPELLATE PANEL 4 OF THE NINTH CIRCUIT 5 In re: ) BAP Nos. EC-11-1341-MkPaD ) EC-11-1432-MkPaD 6 KIRELL FRANCIS TAYLOR, ) (Consolidated) ) 7 Debtor. ) Bk. No. 11-14192 ______________________________) 8 ) KIRELL FRANCIS TAYLOR, ) 9 ) Appellant, ) 10 ) v. ) MEMORANDUM* 11 ) UNITED STATES TRUSTEE; JEFFREY) 12 M. VETTER, Chapter 7 Trustee, ) ) 13 Appellees. ) ______________________________) 14 Submitted Without Oral Argument 15 on March 22, 2012 16 Filed - April 5, 2012 17 Appeal from the United States Bankruptcy Court for the Eastern District of California 18 Honorable W. Richard Lee, Bankruptcy Judge, Presiding 19 20 Appearances: Appellant Kirell Francis Taylor, pro se on brief; no appearance by either Appellee. 21 22 Before: MARKELL, PAPPAS and DUNN, Bankruptcy Judges. 23 24 25 26 * This disposition is not appropriate for publication. 27 Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. 28 See 9th Cir. BAP Rule 8013-1. 1 INTRODUCTION 2 Debtor Kirell Taylor (“Taylor”) appeals from the bankruptcy 3 court’s denial of his motion asking the bankruptcy court (1) to 4 initiate proceedings to enable Taylor to renounce his United 5 States citizenship, (2) to declare him a “stateless person” and 6 an “alien” and (3) to declare that California’s courts and penal 7 system have no authority to continue to incarcerate him. Taylor 8 also appeals from the bankruptcy court’s dismissal of his 9 bankruptcy case based on Taylor’s failure to appear at his 10 § 341(a)1 meeting of creditors. We AFFIRM. 11 FACTS 12 According to Taylor, he is a convicted felon serving a life 13 sentence, without possibility of parole, in the California 14 Department of Corrections (“CDC”) facility located in Tehachapi, 15 California. Taylor apparently desires to renounce his United 16 States citizenship, to leave the country, and to establish his 17 own sovereign nation, the Kingdom of Kirell, on an islet off the 18 coast of Dubai. 19 Taylor commenced his chapter 7 bankruptcy case in April 20 2011, and Jeffrey Vetter was appointed to serve as chapter 7 21 trustee (“Trustee”).2 22 1 23 Unless specified otherwise, all chapter and section references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532, and 24 all "Rule" references are to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037. 25 2 26 Taylor filed an involuntary chapter 7 bankruptcy petition against himself, which the bankruptcy court treated as a 27 voluntary chapter 7 petition under § 301(a). Because Taylor has not complied with Rule 8009(b) and 9th Cir. BAP R. 8009(b)-1 and 28 (continued...)

2 1 Shortly thereafter, on May 19, 2011, Taylor filed a motion 2 (“First Release Motion”) seeking to be released from prison so 3 that he could appear for examination at the initial meeting of 4 creditors to be held in accordance with § 341(a). Taylor did not 5 attach any proof of service to the First Release Motion or 6 otherwise indicate in the motion that he had served the motion on 7 anyone. The one-page motion requested the court to order that 8 Taylor be delivered into the custody of the United States 9 Marshals Service (“USMS”), so that the USMS could transport him 10 to the § 341(a) meeting of creditors scheduled for June 3, 2011. 11 The bankruptcy court denied the First Release Motion without 12 a hearing in an order and memorandum entered on May 26, 2011. As 13 the court put it, it had no authority over the CDC and could not 14 order the CDC to release Taylor, temporarily or otherwise, 15 because the CDC was neither a party to the bankruptcy case nor 16 had it been served. The court suggested that Taylor contact the 17 Trustee directly, with a request to appear by telephone for his 18 examination at the § 341(a) meeting of creditors. 19 On June 6, 2011, the Trustee filed a motion to dismiss 20 Taylor’s bankruptcy case because Taylor did not appear for 21 examination at his § 341(a) meeting of creditors. In response, 22 23 2 (...continued) 24 provided us with any excerpts of the record, we have relied upon what information we could obtain by reviewing the items on the 25 bankruptcy court's automated bankruptcy case docket in Taylor’s 26 bankruptcy case. We may take judicial notice of the contents and filing of these items. See Atwood v. Chase Manhattan Mortg. Co. 27 (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003) (citing O'Rourke v. Seaboard Sur. Co. (In re E.R. Fegert, Inc.), 887 F.2d 28 955, 957-58 (9th Cir. 1989)).

3 1 Taylor filed an opposition to the dismissal motion. In his 2 opposition, Taylor merely stated that he was going to file a new 3 motion to be released from prison for the continued § 341(a) 4 meeting of creditors (tentatively set for July 15, 2011, but 5 subject to the outcome of the Trustee’s dismissal motion). 6 On June 15, 2011, Taylor filed a motion entitled: “Ex Parte 7 Motion to Initiate Right of Expatriation and for the Court to 8 Issue Interlocutory Orders” (“Expatriation Motion”). In his 9 Expatriation Motion, Taylor asked the court for a hearing and 10 ultimately for a judgment providing the following injunctive and 11 declaratory relief: 12 1. declaring Taylor to be “expatriated,” based on Taylor’s 13 stated intent to renounce his United States citizenship; 14 2. declaring Taylor to be a “stateless person” and an 15 “alien”; 16 3. acknowledging Taylor’s fundamental religious right to be 17 his own sovereign; 18 4. acknowledging Taylor’s entitlement to enforce any 19 privileges and immunities afforded to aliens under the United 20 States Constitution; 21 5. declaring the United States, and all state and local 22 governments within the United States, to have no jurisdiction 23 over Taylor as a citizen, but only as an alien and only to the 24 extent he is indicted for violating state or federal law; 25 6. requiring the United States or various agencies thereof 26 to issue a form or notice declaring that Taylor had effectively 27 renounced his United States citizenship; 28 7. directing the United States or various agencies thereof

4 1 to take custody of Taylor and ultimately to deport him, with 2 Taylor’s consent; and 3 8. declaring the prior state court criminal proceedings 4 against Taylor closed “for lack of Jurisdiction over the debtor 5 as an alien.” 6 Expatriation Motion (June 15, 2011) at pp. 3-5. According to 7 Taylor, the court had jurisdiction and authority to grant him the 8 relief requested under 8 U.S.C. § 1481(a)(6), and 28 U.S.C. 9 §§ 451, 1651, 2201 and 2256. 10 Five days later, on June 21, 2011, the bankruptcy court 11 denied Taylor’s Expatriation Motion without a hearing based on a 12 lack of jurisdiction. Taylor timely filed a notice of appeal of 13 the order denying his Expatriation Motion (“First Notice of 14 Appeal”). 15 On June 27, 2011, Taylor filed a new motion seeking to be 16 released from prison, this time so that he could attend the 17 continued § 341(a) meeting of creditors tentatively set for 18 July 15, 2011 (“Second Release Motion”). The First Release 19 Motion and the Second Release Motion (jointly, “Release Motions”) 20 are virtually identical, except that Taylor attached to the 21 Second Release Motion a proof of service indicating that he had 22 served the Trustee, the United States Trustee, and the USMS. On 23 June 29, 2011, the bankruptcy denied the Second Release Motion. 24 That order is similar to the order denying the First Release 25 Motion, except that the court the second time around noted the 26 upcoming July 14, 2011 hearing on the Trustee’s dismissal motion 27 and indicated that Taylor and the Trustee might be able to 28 discuss at the July 14, 2011 hearing alternate arrangements for

5 1 Taylor to telephonically appear at the continued July 15, 2011 2 meeting of creditors. 3 But Taylor did not appear, telephonically or otherwise, at 4 the July 14, 2011 hearing on the Trustee’s dismissal motion. Nor 5 did Taylor submit to the bankruptcy court anything indicating 6 what steps (if any) he had taken to attempt to appear 7 telephonically at the June 3, 2011 initial § 341(a) meeting of 8 creditors, at the July 14, 2011 hearing on the Trustee’s 9 dismissal motion, or at the July 15, 2011 continued § 341(a) 10 meeting of creditors. The bankruptcy court granted the Trustee’s 11 dismissal motion by minute order entered on July 15, 2011,3 and 12 Taylor filed a notice of appeal from the dismissal order (“Second 13 Notice Of Appeal”).4 14 JURISDICTION 15 We have jurisdiction over Taylor’s appeals pursuant to 16 28 U.S.C. § 158. The bankruptcy court had jurisdiction over the 17 Trustee’s dismissal motion pursuant to 28 U.S.C. §§ 1334 and 18 19 3 The court’s dismissal order does not contain a statement of 20 the grounds the court relied on in granting the dismissal motion, but rather references the “findings of fact and/or conclusions of 21 law . . . stated orally on the record.” Taylor has not provided 22 us with the transcript from the July 14, 2011 hearing containing the court’s oral findings and conclusions. 23 4 The bankruptcy case docket indicates that the bankruptcy 24 court did not receive Taylor’s Second Notice of Appeal until August 9, 2011, after the fourteen-day deadline for filing an 25 appeal from the dismissal order. See Rule 8002(a). However, on 26 September 16, 2011, a motions panel of this Panel issued an order deeming the Second Notice Of Appeal timely filed on July 26, 27 2011, pursuant to the “prison mailbox rule,” citing Houston v. Lack, 487 U.S. 266 (1988). We hereby adopt the motions panel’s 28 timeliness ruling.

6 1 157(b)(2)(A), and we discuss below whether the bankruptcy court 2 had jurisdiction over Taylor’s Expatriation Motion. 3 ISSUES 4 1. Did the bankruptcy court have subject matter 5 jurisdiction over the Expatriation Motion? 6 2. Did the bankruptcy court abuse its discretion when it 7 dismissed Taylor’s bankruptcy case because he failed to appear at 8 his § 341(a) meeting of creditors? 9 STANDARDS OF REVIEW 10 We review de novo issues concerning the bankruptcy court's 11 jurisdiction. See Rosson v. Fitzgerald (In re Rosson), 545 F.3d 12 764, 769 n.5 (9th Cir. 2008); Cal. Franchise Tax Bd. v. Wilshire 13 Courtyard (In re Wilshire Courtyard), 459 B.R. 416, 423 (9th Cir. 14 BAP 2011). 15 The bankruptcy court’s dismissal of a chapter 7 case “for 16 cause” is reviewed for abuse of discretion. Sherman v. SEC (In 17 re Sherman), 491 F.3d 948, 969-70 (9th Cir. 2007). Under the 18 abuse of discretion standard of review, we first "determine de 19 novo whether the [bankruptcy] court identified the correct legal 20 rule to apply to the relief requested." United States v. 21 Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc). And if 22 the bankruptcy court identified the correct legal rule, we then 23 determine under the clearly erroneous standard whether its 24 factual findings and its application of the facts to the relevant 25 law were: "(1) illogical, (2) implausible, or (3) without support 26 in inferences that may be drawn from the facts in the record." 27 Id. (internal quotation marks omitted). 28

7 1 DISCUSSION 2 A. The bankruptcy court correctly determined that it lacked jurisdiction over Taylor’s Expatriation Motion. 3 4 The scope of the bankruptcy court’s jurisdiction is set by 5 statute; the bankruptcy court only may hear or determine a matter 6 to the extent that matter falls within the boundaries of the 7 bankruptcy court’s jurisdiction as set forth in 28 U.S.C. 8 §§ 1334(b), 157(a), and 157(b). In re Wilshire Courtyard, 9 459 B.R. at 424. Pursuant to these statutes, in order for the 10 bankruptcy court to have jurisdiction over a matter, it must 11 arise under title 11, arise in a case under title 11, or be 12 related to a case under title 11. Id. A matter “arises under” 13 title 11 if it invokes a right to relief created by title 11. 14 Id. In turn, even though a matter may not arise under title 11, 15 it still “arises in a case under title 11” when it is an 16 “administrative matter unique to the bankruptcy process that has 17 no independent existence outside of bankruptcy and could not be 18 brought in another forum . . . .” Id. at 425. Finally, the 19 broadest category of bankruptcy jurisdiction is “related to” 20 jurisdiction, which merely requires the matter to have some 21 relationship to and/or impact on the bankruptcy case. See Sasson 22 v. Sokoloff (In re Sasson), 424 F.3d 864, 868–69 (9th Cir. 2005) 23 (“A bankruptcy court's ‘related to’ jurisdiction is very broad, 24 ‘including nearly every matter directly or indirectly related to 25 the bankruptcy.’”) (quoting Mann v. Alexander Dawson (In re 26 Mann), 907 F.2d 923, 926 n.4 (9th Cir. 1990)). 27 But the key to all three aspects of bankruptcy court 28 jurisdiction is the need to discern a connection between the

8 1 matter in question and the bankruptcy. When there is no material 2 connection, there cannot be any bankruptcy court jurisdiction. 3 See Battle Ground Plaza, LLC v. Ray (In re Ray), 624 F.3d 1124, 4 1131-35 (9th Cir. 2010). 5 Taylor claims that the bankruptcy court erroneously 6 concluded that it lacked jurisdiction over his Expatriation 7 Motion. According to Taylor, bankruptcy courts have broad 8 authority to issue writs of habeas corpus and grant declaratory 9 and other relief regardless of the subject matter of the 10 underlying proceeding. But Taylor simply is mistaken. As 11 explained above, a bankruptcy court’s jurisdiction is limited by 12 statute to those matters having the requisite connection to the 13 bankruptcy case. See 28 U.S.C. §§ 1334(b), 157(a), and 157(b). 14 Here, Taylor has not pointed us to any connection between his 15 bankruptcy case and his Expatriation Motion, nor do we perceive 16 any. The Expatriation Motion only concerned Taylor’s expressed 17 desires (1) to renounce his citizenship, (2) to end his 18 incarceration as a convicted felon, (3) to leave the country, and 19 (4) to reconfigure his relationship with state and federal 20 governments to fit his personal conception of the rights and 21 duties of an “alien” and a “stateless person” vis-à-vis those 22 government entities. Simply put, none of the relief sought in 23 the Expatriation Motion was connected in any way to Taylor’s 24 bankruptcy case. Accordingly, the bankruptcy court did not err 25 when it denied the Expatriation Motion for lack of jurisdiction. 26 B. The bankruptcy court did not abuse its discretion when it dismissed Taylor’s bankruptcy case based on his failure to 27 appear at his § 341(a) meeting of creditors. 28 We reiterate that the standard of review of a bankruptcy

9 1 court’s dismissal of a chapter 7 case “for cause” is whether the 2 court abused its discretion. Sherman v. SEC (In re Sherman), 3 491 F.3d 948, 969-70 (9th Cir. 2007). As a threshold matter, 4 however, we note that Taylor never obtained the transcript of the 5 July 14, 2011 hearing, at which the bankruptcy court orally 6 stated on the record its findings of fact and conclusions of law 7 in support of its decision to dismiss Taylor’s bankruptcy case. 8 As appellant, Taylor was required to obtain that transcript to 9 facilitate our review. See Rule 8009(b)(5); 9th Cir. BAP 10 R. 8006-1; McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 417 11 (9th Cir. BAP 1999). 12 Without the July 14, 2011 hearing transcript, it is at best 13 difficult (if not impossible) for us properly to determine 14 whether the bankruptcy court abused its discretion in dismissing 15 Taylor’s bankruptcy case. Thus, Taylor’s failure to obtain the 16 transcript is sufficient by itself to justify our dismissal of 17 his appeal from the dismissal order. See Syncom Capital Corp. v. 18 Wade, 924 F.2d 167, 169 (9th Cir. 1991) (dismissing appeal based 19 on appellant’s failure to provide necessary transcripts); see 20 also Jones v. City of Santa Monica, 382 F.3d 1052, 1057 (9th Cir. 21 2004) (dismissing portion of appeal dependent on hearing 22 transcripts not provided).5 23 5 24 Although the governing procedural rules make it clear that Taylor was required to obtain the July 14, 2011 hearing 25 transcript, on December 27, 2011, the BAP Clerk’s Office took the 26 extra step of issuing a Clerk’s Order re Transcript, which directed Taylor to “take all steps necessary to have the 27 transcript of the July 14, 2011 hearing prepared by the court reporter and filed with the BAP . . . .” In response to the 28 (continued...)

10 1 Nonetheless, given Taylor’s incarceration, we will exercise 2 our discretion to conduct whatever review we can in light of the 3 thin record available. However, in doing so, Taylor’s failure to 4 provide the July 14, 2011 hearing transcript works against his 5 appeal in two ways. First, “we are entitled to presume that the 6 appellant does not regard the [bankruptcy] court's findings of 7 fact and conclusions of law as helpful to his appeal.” In re 8 McCarthy, 230 B.R. at 417 (citing Gionis v. Wayne (In re Gionis), 9 170 B.R. 675, 680–81 (9th Cir. BAP 1994), aff'd mem., 92 F.3d 10 1192 (9th Cir. 1996)). And second, “we look for any plausible 11 basis upon which the bankruptcy court might have exercised its 12 discretion to do what it did. If we find any such basis, then we 13 must affirm.” Id. 14 As best we can tell from the record provided, the bankruptcy 15 court granted the Trustee’s motion to dismiss based on the 16 grounds stated in the motion, because Taylor did not, as required 17 under § 343, appear for examination at his § 341(a) meeting of 18 creditors. When a debtor does not comply with his or her duty 19 under § 343 to appear for examination, the bankruptcy court may 20 dismiss his or her bankruptcy case. See § 707(a); 3 Collier on 21 Bankruptcy ¶¶ 343.02[2], 343.09[1](Alan N. Resnick and Henry J. 22 Sommer, eds., 16th ed. 2011). 23 5 24 (...continued) December 27, 2011 Clerk’s Order, Taylor merely filed in the 25 bankruptcy court a “Request For Production of Reporter’s 26 Transcript” which by itself was insufficient to obtain the required transcript. See Rule 8006; Hearing Transcript Request 27 Procedures (Bankr. E.D. Cal. 2012), available at, http://www.caeb.uscourts.gov/documents/Forms/ 28 Misc/transcript_requests.pdf (last modified Feb. 22, 2012).

11 1 Under § 707(a), the bankruptcy court may dismiss a 2 bankruptcy case “for cause.” That section provides: 3 (a) The court may dismiss a case under this chapter only after notice and a hearing and only for cause, 4 including– 5 (1) unreasonable delay by the debtor that is prejudicial to creditors; 6 (2) nonpayment of any fees or charges required 7 under chapter 123 of title 28; and 8 (3) failure of the debtor in a voluntary case to file, within fifteen days or such additional time 9 as the court may allow after the filing of the petition commencing such case, the information 10 required by paragraph (1) of section 521(a), but only on a motion by the United States trustee. 11 12 Congress meant the types of cause described in § 707(a) to be 13 illustrative and not exhaustive. See Neary v. Padilla (In re 14 Padilla), 222 F.3d 1184, 1191 (9th Cir. 2000), partially 15 superseded by statute on other grounds, Bankruptcy Abuse 16 Prevention and Consumer Protection Act of 2005, Pub.L. 109–8, 119 17 Stat. 23; Dinova v. Harris (In re Dinova), 212 B.R. 437, 442 18 (2d Cir. BAP 1997) (citing H.R. Rep. No. 595, 95th Cong., 19 1st Sess. 380 (1977); S. Rep. No. 989, 95th Cong., 2d Sess. 94 20 (1978)). In order to determine whether particular conduct should 21 constitute cause for dismissal under § 707(a), we apply a two- 22 part test: 23 If the asserted “cause” is contemplated by a specific Code provision, then it does not constitute “cause” 24 under § 707(a). . . . If, however, the asserted “cause” is not contemplated by a specific Code 25 provision, then we must further consider whether the circumstances asserted otherwise meet the criteria for 26 “cause” for [dismissal] under § 707(a). 27 Sherman v. SEC (In re Sherman), 491 F.3d at 970 (citing In re 28 Padilla, 222 F.3d at 1193–94).

12 1 Here, Taylor’s noncompliance with § 343 satisfies both 2 elements of Sherman’s two-part test. First, no other Bankruptcy 3 Code section provides a remedy for debtor’s non-appearance at the 4 § 341(a) meeting of creditors. And second, because § 343's 5 requirements are sufficiently similar in nature and importance to 6 the particularized procedural requirements enforced by 7 § 707(a)(2) and (3), we hold that it is appropriate also to apply 8 § 707(a) to debtors who do not comply with their duties under 9 § 343. 10 In his appeal brief, Taylor claims for the first time that 11 he attempted to make arrangements both with prison officials and 12 with the Trustee to appear telephonically at the § 341(a) meeting 13 of creditors, but that both the prison officials and the Trustee 14 ignored his requests. However, we have reviewed all of Taylor’s 15 bankruptcy court submissions, and nowhere in them did he ever 16 argue that he had made such efforts. Nor did he present any 17 evidence to that effect to the bankruptcy court. We cannot 18 consider facts that were not before the bankruptcy court. See 19 Oyama v. Sheehan (In re Sheehan), 253 F.3d 507, 512 n.5 (9th Cir. 20 2001) (“[E]vidence that was not before the lower court will not 21 generally be considered on appeal.”); Kirschner v. Uniden Corp. 22 of Am., 842 F.2d 1074, 1077–78 (9th Cir. 1988) (papers not filed 23 or admitted into evidence by the trial court prior to judgment on 24 appeal were not part of the record on appeal and thus were 25 stricken). As stated by the Ninth Circuit in Kirschner, “‘We are 26 here concerned only with the record before the trial judge when 27 his decision was made.’” Kirschner, 842 F.2d at 1077 (quoting 28 United States v. Walker, 601 F.2d 1051, 1055 (9th Cir.1979)).

13 1 Consequently, we cannot and will not consider Taylor’s belated 2 and unsubstantiated claims regarding his alleged efforts to 3 arrange for a telephonic appearance. 4 Taylor also argues that the bankruptcy court should have 5 excused his nonappearance at his § 341(a) meeting of creditors 6 because the court wrongly denied his two Release Motions. 7 According to Taylor, the court had the authority to direct the 8 CDC to release him from prison so that he could attend the 9 meeting of creditors. 10 But Taylor’s arguments lack merit. Taylor never served 11 either of his Release Motions on the CDC, even though the CDC has 12 custody over Taylor as an inmate in California’s prison system, 13 and even though his Release Motions sought to require the CDC to 14 release Taylor into the custody of the USMS. There was thus no 15 jurisdiction over the CDC, and thus no power to consider the 16 questions Taylor raises about the bankruptcy court’s power to 17 compel the CDC to release him to the custody of the USMS. 18 Moreover, at the time the court granted the Trustee’s motion 19 to dismiss Taylor’s bankruptcy case, there was absolutely nothing 20 in the record indicating that Taylor had taken any steps seeking 21 to appear telephonically at the meeting of creditors. Nor did 22 Taylor oppose the motion to dismiss by stating that he needed 23 more time or any court process to facilitate his making 24 arrangements to appear telephonically. Rather, he merely stated 25 in his opposition to the motion to dismiss that he would file his 26 Second Release Motion, even though the court already had denied 27 his First Release Motion. We thus cannot say, on this record, 28 that the bankruptcy court abused its discretion in dismissing

14 1 Taylor’s bankruptcy case based on his failure to appear at his 2 § 341(a) meeting of creditors. Hinkson, 585 F.3d at 1262; see 3 also Yadidi v. Herzlich (In re Yadidi), 274 B.R. 843, 847-48 (9th 4 Cir. BAP 2002) (stating that bankruptcy court’s application of 5 its equitable powers under § 105 is reviewed for abuse of 6 discretion). 7 CONCLUSION 8 For all of the reasons set forth above, we AFFIRM the 9 bankruptcy court’s orders. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28