Lon Jenkins v. United States Bankruptcy Court for the District of Utah

• Court: Bankruptcy Appellate Panel of the Tenth Circuit
• Decided: June 7, 2019
• Docket: 18-101
• Status: Published

Opinion

FILED U.S. Bankruptcy Appellate Panel of the Tenth Circuit NOT FOR PUBLICATION * June 7, 2019 UNITED STATES BANKRUPTCY APPELLATE PANEL Blaine F. Bates OF THE TENTH CIRCUIT Clerk _________________________________

IN RE SHERWIN V. KOYLE, BAP No. UT-18-101

Debtor. __________________________________

SHERWIN V. KOYLE, Bankr. No. 18-25827 Chapter 13 Appellant,

v. OPINION LON A. JENKINS, Chapter 13 Trustee and WELLS FARGO BANK, N.A.,

Appellees. _________________________________

Appeal from the United States Bankruptcy Court for the District of Utah _________________________________

Submitted on the briefs. ∗∗ _________________________________

Before ROMERO, JACOBVITZ, and MCNAMARA, 1 Bankruptcy Judges.

* This unpublished opinion may be cited for its persuasive value, but is not precedential, except under the doctrines of law of the case, claim preclusion, and issue preclusion. 10th Cir. BAP L.R. 8026-6. ∗∗ The parties did not request oral argument, and after examining the briefs and appellate record, the Court has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. Bankr. P. 8019(b). The case is therefore ordered submitted without oral argument. 1 Thomas B. McNamara, Bankruptcy Judge, United States Bankruptcy Court for the District of Colorado, sitting by designation. _________________________________

MCNAMARA, Bankruptcy Judge. _________________________________

Debtor-Appellant Sherwin V. Koyle (the “Debtor-Appellant”) filed for protection

under Chapter 13 of the Bankruptcy Code. Thereafter, the Chapter 13 Trustee moved to

dismiss the bankruptcy case for lack of good faith. 2 The Debtor-Appellant opposed

dismissal. 3 After notice to the parties, the bankruptcy court conducted a hearing on the

dismissal issue; however, the Debtor-Appellant failed to show up and participate. 4

Exactly what happened at the hearing is a bit of an appellate mystery since the Debtor-

Appellant did not include a transcript of the hearing in the record on appeal. However,

shortly after the hearing (on November 27, 2018), the bankruptcy court entered an order

dismissing the bankruptcy case. 5 Relying on 11 U.S.C. § 109(g), the bankruptcy court

also imposed “a bar to refiling any petition for 180-days beginning November 8, 2018

[the date of the hearing].” 6 The Debtor-Appellant appealed. He did not contest dismissal

of his bankruptcy case. Instead, he took issue only with the 180-day bar imposed on

refiling another bankruptcy case. 7 He did not request a stay of such injunction.

2 Appellant’s App. at 11. 3 Appellant’s App. at 21. 4 Appellant’s App. at 2; Appellant’s Br. 6. 5 Appellant’s App. at 1. 6 Appellant’s App. at 2. 7 Appellant’s Br. 3 (“Appellant requests that the Court reverse the Order Granting Motion to Dismiss with Prejudice issued on November 27, 2018 . . . pursuant to 11 U.S.C. § 109(g) regarding a bar to refiling any petition for 180 days beginning November 8, 2018, and ending May 7, 2019. Appellant requests that the bar only be lifted.”). 2 Both the Debtor-Appellant and the Appellees, Lon Jenkins, Chapter 13 Trustee,

and Wells Fargo Bank, N.A., agree that the 180-day prohibition against the Debtor-

Appellant refiling for bankruptcy protection expired on May 7, 2019. Today is June 7,

2019. Because the bankruptcy court’s injunction expired a month ago, that is the end of

the appeal. There is nothing for us to do. Binding appellate precedent dictates that the

bankruptcy court’s injunction “is not reviewable inasmuch as 180 days have passed.” 8

So, the Debtor-Appellant can try bankruptcy again — provided that all other

requirements are met — any time he wishes. 9 Accordingly, the appeal is dismissed as

moot.

8 Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1104 (10th Cir. 1991) (citing Travelers Ins. Co. v. Don-Lin Farms, 90 B.R. 48 (W.D.N.Y. 1988)). See also Carey v. Askenase (In re Carey), 221 B.R. 571, 572 (1st Cir. BAP 1998) (“[S]ince any injunction against refiling has expired, there is presently no reviewable controversy.” (citing In re Frieouf, 938 F.2d 1099)); Miller v. Deutsche Bank Nat’l Tr. Co. (In re Miller), No. 14-cv-03112-MSK, 2015 WL 13216407, at *4 (D. Colo. Aug. 7, 2015) (same). 9 11 U.S.C. § 362(c)(3) may limit the duration of the automatic stay for a debtor’s successive bankruptcy filing within a one year period. 3