Martha E. Echeverry v. Robin R. Weiner

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 23, 2018
• Docket: 17-12722
• Status: Unpublished

Opinion

Case: 17-12722 Date Filed: 01/23/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12722 Non-Argument Calendar ________________________

D.C. Docket Nos. 0:17-cv-60290-WPD; 16-bkc-24201-RBR

In re: MARTHA E. ECHEVERRY, Debtor. ________________________________________________________________

MARTHA E. ECHEVERRY, Plaintiff-Appellant,

versus

ROBIN R. WEINER,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(January 23, 2018)

Before MARCUS, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

Martha Echeverry, a Chapter 13 debtor proceeding pro se, appeals the

district court’s order affirming the bankruptcy court’s dismissal of her bankruptcy Case: 17-12722 Date Filed: 01/23/2018 Page: 2 of 8

case. The district court, relying on the facts as asserted in the Trustee’s district

court brief, found that: (1) at a meeting of creditors in the bankruptcy case, the

Trustee provided Echeverry with a list of deficiencies in her proposed Chapter 13

Plan and other filings and informed her that the deficiencies needed to be corrected

before a confirmation hearing that was to be held a month later; and (2) Echeverry

did not appear at that confirmation hearing, and did not correct any of the problems

in the Trustee’s list of deficiencies. The district court concluded that, based on

these findings, the bankruptcy court did not abuse its discretion in dismissing the

case. On appeal, Echeverry argues that the bankruptcy court erred in dismissing

the case: (1) without first holding a hearing; and (2) because “according to the

docket,” the Trustee did not file a notice of deficiency or any objections to

confirmation of her proposed Chapter 13 Plan. After careful review, we affirm.

As the second court of review of a bankruptcy court’s judgment, we

independently examine the factual and legal determinations of the bankruptcy

court and employ the same standards of review as the district court. In re Int’l

Admin. Servs., Inc., 408 F.3d 689, 698 (11th Cir. 2005) (quotation omitted).

Specifically, we review the bankruptcy court’s factual findings for clear error and

the legal conclusions of both the bankruptcy court and the district court de novo.

Id. We review the dismissal of a bankruptcy case “for cause” for abuse of

discretion. In re Piazza, 719 F.3d 1253, 1271 (11th Cir. 2013) (reviewing

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dismissal of Chapter 7 case “for cause” under statute that contains similar

operative language to the “for cause” dismissal provision in Chapter 13). The

abuse of discretion standard allows for a “range of choice” by the lower court, so

long as that choice does not constitute a clear error of judgment. In re Rasbury, 24

F.3d 159, 168 (11th Cir. 1994).

Although we liberally construe briefs filed by pro se litigants, issues not

briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson,

518 F.3d 870, 874 (11th Cir. 2008); see also Albra v. Advan, Inc., 490 F.3d 826,

829 (11th Cir. 2007) (holding that pro se litigants are required to conform to

procedural rules). We’ve also held that a party fails to adequately “brief” an issue

when she does not “plainly and prominently” raise it in her brief. Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). In other words, an

appellant abandons a claim when she either makes only passing references to it or

raises it in a perfunctory manner without supporting arguments or authority. Id.

When appealing a bankruptcy-court order to the district court, the appellant

must designate the items to be included in the record on appeal, including

transcripts of oral rulings and any transcript ordered. Fed. R. Bankr. P.

8009(a)(1)(A), (4). To challenge a finding or conclusion as unsupported by, or

contrary to the evidence, the appellant must designate the transcript of any relevant

testimony or exhibits as a part of the record on appeal. Id., 8009(b)(5). Similarly,

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the Federal Rules of Appellate Procedure specify that if an appellant intends to

urge on appeal that a finding or conclusion is unsupported by the evidence, the

appellant must include in the record a transcript of all evidence relevant to that

finding or conclusion. Fed. R. App. 10(b)(2). A pro se litigant’s pleadings are

construed liberally, but pro se litigants must nonetheless conform to procedural

rules, including the requirement that an appellant provide relevant transcripts for

the record on appeal. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002)

(discussing the requirements of Fed. R. App. P. 10(b)(2), which has the same

requirements as Fed. R. Bankr. P. 8009(b)(5)). We’ve explained that an appellant

has the burden “to ensure the record on appeal is complete, and where a failure to

discharge that burden prevents us from reviewing the district court’s decision we

ordinarily will affirm the judgment.” Selman v. Cobb Cty. Sch. Dist., 449 F.3d

1320, 1333 (11th Cir. 2006); see also Pensacola Motor Sales Inc. v. E. Shore

Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012). In Selman, we referred to this

as the “absence-equals-affirmance rule.” 449 F.3d at 1333.

The Bankruptcy Code provides that, upon request by a party in interest and

after notice and a hearing, a Chapter 13 case may be dismissed “for cause,”

including failure to commence making timely plan payments; denial of

confirmation of a Chapter 13 plan; and material default by the debtor of a

confirmed plan. 11 U.S.C. § 1307(c). The Code further provides that if a debtor

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was required by applicable law to file a tax return, she must “file with appropriate

tax authorities all tax returns for all taxable periods ending during the 4-year period

ending on the date of the filing of the petition.” Id. § 1308(a). It requires the

debtor to commence making Chapter 13 plan payments not later than 30 days after

the date of the filing of the plan in the amount proposed in the plan. Id. §

1326(a)(1)(A). The Code instructs the bankruptcy court to confirm a plan if, inter

alia, it complies with the terms of Chapter 13, and if the debtor will be able to

make all payments under the plan and comply with the plan. Id. § 1325(a)(1), (6).

Finally, the Federal Rules of Bankruptcy Procedure provide that the

“business of the” meeting of creditors “shall include the examination of the debtor

under oath . . . .” Fed R. Bankr. P. 2003(b)(1). Any examination under oath at that

meeting “shall be recorded verbatim,” and upon request of any entity, “the United

States trustee shall certify and provide a copy or transcript of such recording at the

entity’s expense.” Id., 2003(c).

Here, Echeverry argues that the bankruptcy court erred in dismissing the

case: (1) without first holding a hearing; and (2) because “according to the docket,”

the Trustee did not file a notice of deficiency or any objections to confirmation of

her proposed Chapter 13 Plan. However, Echeverry did not include in the record a

transcript of the evidence relevant to the issues she challenges. For starters,

Echeverry failed to order transcripts or otherwise provide a record of the

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proceedings that occurred at the confirmation hearing, and the bankruptcy court’s

order denying confirmation and dismissing the case does not set forth the

reasoning for its decision. Without this transcript, we are left to guess as to the

court’s reasoning and as to what transpired at that hearing in terms of the problems

with the proposed Chapter 13 Plan and the Trustee’s asserted deficiencies. Nor

can we determine whether the bankruptcy court found that Echeverry received the

Trustee’s list of deficiencies, and whether she failed to correct them. A record was

also ostensibly created, according to the Federal Rule of Bankruptcy Procedure

2003(b)(1), (c), at the meeting of creditors she admits she attended, yet, again, she

failed to obtain a transcript of that proceeding as well. Echeverry does not

expressly deny that the Trustee provided her with the list of deficiencies at that

meeting, nor that the deficiencies were indeed present in her case. Because she

failed to order transcripts or otherwise provide a record of the proceedings that

occurred at the meeting of creditors, or at the confirmation hearing, and records

from those hearings are not otherwise available to us, we are unable to conduct a

full and meaningful review of the case, and affirm under the absence-equals-

affirmance rule. Pensacola Motor Sales Inc., 684 F.3d at 1224.

In any event, Echeverry has also arguably abandoned any challenge to the

district court’s findings. Although she asserted in her original brief to the district

court that the “Trustee did not send any notice” of the deficiencies, she never

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replied to the Trustee’s brief nor challenged the Trustee’s assertion that the notice

was provided to her at the hearing, and she never moved the district court to

reconsider after it found in its order that she received the list of deficiencies. She

now claims on appeal that the Trustee’s list or “notice” of deficiencies, “according

to the Docket,” was never filed or “was not properly filed.” She does not,

however, deny receiving the list at the meeting of creditors, which she admits she

attended. She has thus abandoned any challenge to the district court’s finding that

she received the list of deficiencies, which informed her that she needed to correct

them prior to the confirmation hearing. Timson, 518 F.3d at 874. Because she

never replied to the Trustee’s brief nor challenged the Trustee’s other claims, and

never moved the district court to reconsider anything, Echeverry likewise has

abandoned her challenges to the lack of notice and a hearing, and to the claims that

she was behind in making Plan payments, failed to appear at the January 19, 2017

confirmation hearing, failed to file tax returns, filed a certificate showing that she

completed credit counseling after she filed her Chapter 13 petition, had calculation

errors in her plan. 11 U.S.C. §§ 1308(a), 1325(a)(1), (6), 1326(a)(1)(A).

For these reasons, we are compelled to conclude that the bankruptcy court

did not abuse its discretion in dismissing the case. Notably, nothing in the record

suggests that dismissal of the case with these deficiencies as “cause” was outside

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the range of reasonable choices. In re Rasbury, 24 F.3d at 168. Accordingly, we

affirm. 1

AFFIRMED.

1 What’s more, the Bankruptcy Code provides that “an individual may not be a debtor under this title unless” she has, during the 180-day period ending on the date the petition was filed, received from an approved provider a briefing that outlines the opportunities for available credit counseling and assistance. 11 U.S.C. § 109(h)(1) (referencing 11 U.S.C. § 111(a)’s criteria for approved providers). Although we’ve not addressed, in a published opinion, the consequences of failing to fulfill this requirement, the Sixth Circuit Bankruptcy Appellate Panel has persuasively held that a putative debtor who fails to complete this requirement prior to filing a petition is not a debtor, and that the case is subject to dismissal. In re Ramey, 558 B.R. 160, 163-64 (6th Cir. B.A.P. 2016) (persuasive authority). The only exceptions to this requirement apply (1) where the debtor, due to incapacity, disability, or active military duty, is unable to complete the requirement, or (2) where the debtor describes exigent circumstances that merit a waiver of the requirement, and states that she requested credit counseling services but was unable to obtain them within seven days of the request. 11 U.S.C. § 109(h)(3), (4).

Here, Echeverry’s certificate showed that she completed her credit counseling after she filed her petition, and the bankruptcy clerk’s notice of deficiency, entered the same day that Echeverry filed her petition, clearly indicated that failure to file a certification showing compliance with this requirement could result in dismissal of the bankruptcy case. It is also worth noting that this was Echeverry’s sixth Chapter 13 filing in as many years, and that each of her previous five filings were also dismissed prior to confirmation. Thus, although the district court did not base its dismissal on this ground, the record supports the conclusion that Echeverry failed to comply with the Bankruptcy Code’s plain language requirement that a debtor complete the counseling prior to the filing of the case. See Wright v. City of St. Petersburg, Fla., 833 F.3d 1291, 1294 (11th Cir. 2016) (holding that we will affirm for any reason supported by the record, regardless of whether it was relied upon below); see also In re Ramey, 558 B.R. at 163-64 (6th Cir. B.A.P. 2016). 8