Joseph S. Hass, Jr. v. Gallagher

• Court: Bankruptcy Appellate Panel of the First Circuit
• Decided: October 21, 1999
• Docket: BAP No. NH 99-012
• Status: Unpublished

Opinion

UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT

BAP No. NH 99-012 _______________________

IN RE: JOSEPH S. HAAS, JR., Debtor. _______________________

JOSEPH S. HAAS, JR., Appellant,

v.

LARRY SUMSKI, TRUSTEE, Appellee.

_______________________

Appeal from the United States Bankruptcy Court for the District of New Hampshire (Hon. Mark W. Vaughn, U.S. Bankruptcy Judge) _______________________

Before Queenan, Kenner and Feeney, U.S. Bankruptcy Judges _______________________

Joseph S. Haas, Jr., on brief for the appellant.

Lawrence P. Sumski, on brief for the appellee.

October 21, 1999 _______________________ Per Curiam.

I. INTRODUCTION

The matter before the Bankruptcy Appellate Panel is the

“Appeal” filed by Joseph Sanders Haas, Jr., a Chapter 13 Debtor

(“Haas” or the “Debtor”), on January 29, 1999 from one or more

orders of the United States Bankruptcy Court for the District of

New Hampshire.1 After reviewing the record on appeal and

applicable law, for the reasons discussed below, the Panel affirms

the bankruptcy court’s order dismissing the case and dismisses all

other appeals as untimely and for lack of jurisdiction.

II. FACTUAL AND PROCEDURAL BACKGROUND

The Debtor filed his Chapter 13 Petition on May 13, 1998.

Throughout the pendency of his case the Debtor appeared pro se.

Prior to 1979, Haas was the owner of real estate in Ashland,

New Hampshire (the “Property”). In 1979, Haas transferred the

Property to a corporation known as Cathedral of the Beechwoods,

Inc., a corporation in which Haas had an interest. On December 8,

1993, Haas’s interest in the corporation was sold by sheriff’s

sale. Brian Shedd (“Shedd”) purchased the Debtor’s interest at the

sale. Litigation followed in New Hampshire Superior Court for

1 As will be discussed infra, the Debtor, in his “Appeal” indicates that the Debtor is appealing the order of the bankruptcy court dated January 20, 1999 dismissing his Chapter 13 case. However, it is unclear what other orders the Debtor is appealing although it is clear that the Debtor is aggrieved by the events of his Chapter 13 case.

2 Crafton County. On March 10, 1997 the state court issued a

judgment quieting title to the Property and declared that Shedd

held title to the property.

In his Schedules of Assets, Schedule A, the Debtor listed an

ownership interest in the Property. In response to questions 6 and

10 of the Statement of Financial Affairs, the Debtor referenced the

state court litigation with Shedd in the New Hampshire Superior

Court as well as the New Hampshire Supreme Court.

The Debtor filed a Chapter 13 Plan on May 27, 1998. He filed

an adversary complaint against Shedd on May 29, 1998. In his

complaint, the Debtor sought to avoid the transfer of the Property

to Shedd as a fraudulent conveyance and sought turnover of the

Property to his estate. Thereafter, Shedd filed a motion for

relief from stay through which he sought to evict the Debtor from

the Property. The Debtor filed an objection to the motion. The

bankruptcy court allowed the motion on September 8, 1998, and

ordered that the Debtor remove his personal property from the

Property by September 22, 1998. The Debtor filed a motion for

reconsideration of the order granting Shedd’s motion for relief

from stay, which the bankruptcy court denied.

The bankruptcy court held a hearing on November 8, 1998, at

which it considered the issue of whether the Debtor had standing to

pursue the fraudulent conveyance action against Shedd. At the

hearing the Chapter 13 trustee indicated that he had no interest in

3 pursuing the action as it was of no value to the estate. The

trustee represented that he would abandon the cause of action if

necessary. The Debtor consented to the trustee’s proposal of

abandonment. Thereafter, the Chapter 13 trustee filed a “Motion to

Approve Abandonment” which the bankruptcy court granted by

endorsement order dated November 19, 1998. Thereafter, the Debtor

filed an “Objection to Motion to Approve Abandonment” which the

bankruptcy court treated as a motion for reconsideration. The

court dismissed the motion for reconsideration and again approved

the abandonment in a separate order dated December 30, 1998.

The Chapter 13 trustee filed a motion to dismiss the case or

convert it to Chapter 7 on November 12, 1998. In the motion, the

trustee alleged that: 1) the Debtor was delinquent in his plan

payments; 2) the success of the Debtor’s plan was dependent upon the

outcome of litigation that had inconsequential value; and 3) the

Debtor failed to disclose assets in his bankruptcy case, making it

impossible to determine the liquidation value of his estate. On

November 12, 1998, the bankruptcy court issued a notice of hearing

on the motion to dismiss or convert and scheduled a hearing for

January 15, 1999. The Debtor did not file an objection to the

motion to dismiss or convert in accordance with LBR 7012(b)(2) and

(c).2 Both the Chapter 13 trustee in his brief and the Debtor in

2 The pertinent text of the local rule is set forth infra at page 8.

4 his “Appeal” acknowledged that, due to a snowstorm, the court was

closed on January 15, 1999. On January 20, 1999, the bankruptcy

court held a hearing on the motion to dismiss or convert and entered

an order dismissing the case. The “Order of the Court - Proceeding

Memo” of the hearing held on January 20, 1999 indicates the Attorney

Lawrence Sumski appeared for the Chapter 13 trustee and that

Attorney Geraldine Karonis appeared for the United States Trustee

telephonically. The Proceeding Memo does not reflect that the

Debtor attended the hearing. On that date, the court also entered

an order denying confirmation of the Debtor’s Plan.

The Debtor includes in his Appendix a copy of a pleading dated

January 11, 1999 entitled “Amended Plan.” The Amended Plan does not

appear on the bankruptcy court’s docket. In the Amended Plan, the

Debtor requests “a halt to this [sic] dismissal of Chapter 13 or

conversion to Chapter 7 since a new trustee will [pursue the

adversary complaint against Shedd].” The Debtor also includes in

his Appendix a purported pleading dated December 3, 1998 entitled

“Motion for Monitor Hearing,” which like his “Appeal” is far from

clear. It appears to be addressed to Geraldine Karonis, Assistant

United States Trustee. In the Motion, which is difficult to

understand, the Debtor requests information about the United States

Trustee, Attorney Karonis, Attorney Sumski, certain events in his

case, and further expresses his dissatisfaction with the allowance

of the motion to approve abandonment. The bankruptcy court docket

5 does not reflect that this pleading was ever filed with the

bankruptcy court.

On January 29, 1999, the Debtor filed a pleading entitled

“Appeal.” It is far from clear which orders the Debtor is appealing

because the pleading is difficult to understand. The only fact that

is clear is that the Debtor expressly appealed the orders of the

bankruptcy court “dismissing the case and plan.” In the pleading,

the Debtor stated that he had not yet received “any reply” to the

Amended Plan or Motion for Monitor Hearing. It is impossible to

ascertain what relief he requests of the Panel with respect to those

motions. The Debtor may be seeking to appeal the orders denying the

motions to reconsider and dismiss Shedd’s motion for relief from

stay, which orders were entered on September 14, 1998 and September

16, 1998. In the “Appeal,” the Debtor also referenced his claim of

homestead on the Property and a cover letter to the Bankruptcy Court

Clerk dated March 13, 1998.3 It is unclear what action he requests

the Panel to take with respect to either of the documents, which are

not orders of the bankruptcy court. The Debtor further states that

he has been denied due process, apparently because he was not

successful in his complaint against Shedd, whereas another litigant

in a case the Debtor believes is similar to his was successful

before the late Judge Yacos. It is not clear what relief the Debtor

3 There is no letter dated March 13, 1998 in the record on appeal.

6 requests of the Panel.

III. JURISDICTION

The Bankruptcy Appellate Panel has jurisdiction to hear appeals

from final judgments orders and decrees issued by bankruptcy courts

in the same manner as civil appeals taken from district courts to

the courts of appeals and within the time limitations imposed by

Rule 8002 of the Federal Rules of Bankruptcy Procedure. 28 U.S.C.

§ 158(a)(1); Fed. R. Bankr. P. 8001. Rule 8002 states the a

“notice of appeal shall be filed within 10 days of the date of the

entry of the judgment, order or decree appealed from.” Fed. R.

Bankr. P. 8002. The dismissal of a Debtor’s Chapter 13 case is a

final judgment. See In re Molinary, Slip. Op. No. 98-090 at 7

(B.A.P. 1st Cir. July 8, 1999).

IV. DISCUSSION

An appellant has the burden of showing that the bankruptcy

court’s order is in error, and must point to the appropriate

sections of the record, including the transcript of the relevant

hearings, to support a claim of error. In re Grey, 902 F. 2d 1429

(10th Cir. 1990). A party who fails to object to a motion in the

bankruptcy court waives any argument on appeal that the bankruptcy

court erred in granting the motion. See In re Papatones, 143 F. 3d

23 (1st Cir. 1998); In re Image Worldwide, Ltd., 139 F. 3d 574 (7th

7 Cir. 1998); Matter of Novack, 39 F.2d 1274 (5th Cir. 1981). Issues

not raised or resolved in the bankruptcy court will not be

considered on appeal. See Taylor v. Freeland & Kronz, 503 U.S. 638

(1992); Jeffrey v. Desmond, 70 F. 2d 183 (1st Cir. 1995).

The allowance of a motion to dismiss will be reversed only if

the appellant establishes that the bankruptcy court committed a

clear abuse of discretion. In re Molinary, supra, at 9 (citations

omitted). “An abuse of discretion occurs when a relevant factor

deserving of significant weight is overlooked, or when an improper

factor is accorded significant weight, or when the court considers

the appropriate mix of factors, but commits a palpable error of

judgment in calibrating the decisional scales.” United States v.

Roberts, 978 F.2d 17, 21 (1st Cir. 1992).

In his brief, the Debtor presents his appeal as a “fraudulent

transfer,” complaining of the bankruptcy court’s “refusal to provide

‘equal’ rights,” and requesting that the Panel: 1) order the

bankruptcy court to find that the Property is property of the

estate; and 2) order the trustee to hire an independent appraiser.

For the reasons set forth below, we hold that the Debtor presents

no valid reasons for reversing any of the bankruptcy court’s

decisions in this case or for the Panel to order the relief he

requests.

Rule 7102(b)(2) of the Local Rules of the United States

Bankruptcy Court for the District of New Hampshire provides: “An

8 answer or response to every motion shall be filed with the Court.”

In addition, Local Rule 7102(c) provides: “Except as otherwise

required by law or order of the Court, every objection, except

objections to summary judgment motions, shall be filed within ten

(10) days from the date the motion is filed .... The Court shall

deem waived any objection not filed in accordance with this rule.”

The Debtor failed to file an objection to or rebut the

allegations of the trustee’s motion to dismiss or convert.

Accordingly, pursuant to Local Rule 7102(c), the Debtor waived any

objection or the opportunity to be heard in opposition to the motion

to dismiss or convert in the bankruptcy court. We conclude that the

bankruptcy court did not abuse its discretion in allowing the motion

to dismiss where the Debtor did not rebut the trustee’s allegations,

and did not file an opposition as required by the local rule. In

light of the Debtor’s failure to oppose the motion in the bankruptcy

court as required by the local rules, the Debtor cannot now be heard

to complain of the allowance of the motion where he failed to file

a written opposition as required by the local rule.

The Debtor has failed to present any ground or reason for

reversal of the bankruptcy court’s decision dismissing his case.

He has not argued that there was no cause for dismissal or

conversion, and has not provided a transcript of the relevant

hearing on the motion to dismiss. He has not satisfied his burden

of proving error in the order of dismissal. Instead, he merely

9 complains, in a confusing fashion, that he has been precluded from

pursuing his claim against Shedd in his Chapter 13 case. This is

not a ground for reversing the bankruptcy court’s order dismissing

the case. Moreover, the Debtor’s assertion is inconsistent with the

record of proceedings in the case in light of the abandonment of any

claim against Shedd to the Debtor.

The Debtor also appeals from the order denying confirmation of

his plan, which the bankruptcy court entered on the same day as the

dismissal order. The bankruptcy court properly denied confirmation

of the Debtor’s Plan because his plan became moot upon the dismissal

of the case.

The Debtor also complains of error in the bankruptcy court’s

denial of his motion to reconsider the order granting Shedd’s motion

for relief from stay, entered on September 14, 1998, and the denial

of his motion to dismiss Shedd’s motion for relief from stay,

entered on September 16, 1998. Rule 8002(a) provides that a “notice

of appeal shall be filed within 10 days of the date of the entry of

the judgment, order or decree appealed from.” Fed. R. Bankr. P.

8002(a). The filing of a notice of appeal within these time

limitations is jurisdictional. Browder v. Director, Dep. Of

Corrections of Illinois, 434 U.S. 257, 264 (1978).

The Debtor’s “Appeal” of these orders was filed on January 29,

1999 beyond the ten-day time limit. Thus, the Panel lacks

jurisdiction to review these orders of the bankruptcy court.

10 Accordingly, the Debtor’s appeal of the orders entered on September

14 and 16, 1998 is dismissed.

Finally, in his notice of appeal the Debtor makes reference to

a cover letter sent to the Clerk of the bankruptcy court and his

claim of homestead in the Property. It is unclear what grievance

the Debtor is pursuing with respect to these matters. Apparently,

the Debtor is aggrieved that the letter and his claim of homestead

did not effectuate the return of the Property to him. The

jurisdiction of the Bankruptcy Appellate Panel is to decide appeals

from final orders. 28 U.S.C. § 158(a)(1). There were no orders of

the bankruptcy court, final or otherwise, relating to the Debtor’s

claim of homestead or his letter to the bankruptcy court Clerk. The

court took no action on either the letter or the claim of homestead.

Accordingly, this Court has no jurisdiction over any appeal relating

to the homestead or letter to the Clerk.

Accordingly, the bankruptcy court’s order entered on January

20, 1999 is AFFIRMED. The remainder of the Debtor’s appeals are

DISMISSED.