In re Ramey

558 B.R. 160, 76 Collier Bankr. Cas. 2d 685, 2016 Bankr. LEXIS 3595, 2016 WL 5539789
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedSeptember 30, 2016
DocketNo. 16-8015
StatusPublished
Cited by4 cases

This text of 558 B.R. 160 (In re Ramey) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Ramey, 558 B.R. 160, 76 Collier Bankr. Cas. 2d 685, 2016 Bankr. LEXIS 3595, 2016 WL 5539789 (bap6 2016).

Opinion

OPINION

GUY R. HUMPHREY, Bankruptcy Appellate Panel Judge.

ISSUES ON APPEAL

This appeal concerns the dismissal of a Chapter 7 case due to a debtor failing to complete the pre-petition briefing requirement of 11 U.S.C. § 109(h) and the denial of a motion to vacate the dismissal order.

JURISDICTION AND STANDARD OF REVIEW

The Bankruptcy Appellate Panel of the Sixth Circuit (“BAP”) has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has authorized appeals to the BAP. A final order of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1). For purposes of appeal, an order is final if it “ ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Midland Asphalt Corp. v. United States, 489 [162]*162U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (citations omitted). An order dismissing a bankruptcy case is a final order. Raynard v. Rogers (In re Raynard), 354 B.R. 834, 836 (6th Cir. BAP 2006).

“Dismissal of a bankruptcy case is reviewed for abuse of discretion.” Riverview Trenton R.R. Co. v. DSC, Ltd (In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir.2007) (citing Booher Enters. v. Eastown Auto Co. (In re Eastown Auto Co.), 215 B.R. 960, 963 (6th Cir. BAP 1998)). A bankruptcy court abuses its discretion when “it relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard.” Id. Factual determinations are reviewed under the clearly erroneous standard. Fed. R. Bank. P. 8013. A finding of fact 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. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). Conclusions of law are reviewed de novo. Nicholson v. Isaacman (In re Isaacman), 26 F.3d 629, 631 (6th Cir.1994).

FACTS

The Debtor, Naomi Kidd Ramey, filed a pro se Chapter 7 petition on December 2, 2015. Along with her petition, Ramey filed a motion for waiver of the pre-petition credit counseling or briefing requirement of 11 U.S.C. § 109(h).1 Section 109 requires a debtor to undergo the counseling or briefing as a prerequisite to filing a petition for relief under the Bankruptcy Code. The motion sought a permanent waiver of the requirement under 11 U.S.C. § 109(h)(4),2 essentially arguing incapacity, but also appeared to raise what can best be described as exigent circumstances that would be relevant for a temporary waiver under § 109(h)(3).3 In any event, on De[163]*163cember 7, 2015, the bankruptcy court entered an order that the motion failed to comply with the court’s local rules for noticing and provided that unless the filing was noticed properly within 7 days, the motion would be denied, Ramey renewed the motion, but a similar order was entered for the same noticing error. On December 23, 2015, the case was dismissed, not due to the missing credit briefing, but because Ramey failed to comply with an order to file her schedules and other initial documents. Ramey had filed some, but not all of those documents and was noticed by the clerk, prior to dismissal, that the initial filing documents for her case were incomplete.

On January 4,2016, Ramey filed a credit briefing certificate that was completed post-petition and filed additional initial documents for her case. On January 13, 2016, Ramey sought to vacate the dismissal order, but that filing did not address the credit briefing issue. That motion was refiled after yet another order concerning procedural error, and ultimately the court set a hearing on the motion to vacate for March 9, 2016. Following that hearing, the court entered an order denying Ramey’s motion, specifically mentioning the lack of a pre-petition credit briefing.

On April 20, 2016, Ramey again moved for an order waiving the credit briefing requirement under § 109(h) and vacating the dismissal of her case. Ramey essentially argued various medical issues demonstrated her incapacity or disability justifying a permanent waiver under § 109(h)(4). The court denied this latest motion on April 26, 2016 explaining, among other points, that Ramey demonstrated she did not meet the narrow definition of incapacity or disability by virtue of having successfully completed a credit briefing, albeit post-petition. To the extent Ramey wanted a temporary waiver under § 109(h)(3), the court noted that Ramey had not alleged exigent circumstances or that she timely requested a briefing but could not obtain it within 7 days of that request.

Ramey raised this issue again in further correspondence with the court, and ultimately appealed the denial of her motion to vacate the court’s dismissal order.

DISCUSSION

As part of the Bankruptcy Abuse and Consumer Protection Act of 2005, Congress amended the Bankruptcy Code to require all individual debtors to complete a pre-petition credit briefing. 11 U.S.C. § 109(h)(1). Pursuant to § 109 of the Bankruptcy Code, if the briefing is not completed, the debtor is not eligible for bankruptcy relief and the bankruptcy court may dismiss the case. In re Ingram, 460 B.R. 904, 910 (6th Cir. BAP 2011).

The exceptions to this requirement are narrowly tailored. The requirement does not apply to a debtor who “the court determines, after notice and a hearing, is unable to complete those requirements because of incapacity, disability, or active military duty in a military combat zone.” 11 U.S.C. § 109(h)(4). Incapacity “means that the debtor is impaired by reason of mental illness or mental deficiency so that he is incapable of realizing and making rational decisions with respect to his financial responsibilities, ...” Id. Disability [164]*164means that “the debtor is so physically-impaired as to be unable, after reasonable effort, to participate in an in person, telephone, or Internet briefing required under paragraph (1).” Id.

The record shows that Ramey was able to complete a briefing. Although it was post-petition, the bankruptcy court’s conclusion that Ramey did not meet the strict definitions of incapacity or disability is supported by the record.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: Rodney Thomas Riddle
Sixth Circuit, 2020
Bunyan v. Remick
M.D. Florida, 2019

Cite This Page — Counsel Stack

Bluebook (online)
558 B.R. 160, 76 Collier Bankr. Cas. 2d 685, 2016 Bankr. LEXIS 3595, 2016 WL 5539789, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ramey-bap6-2016.