Miriam Soler v. Capital One Auto Finance

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 7, 2018
• Docket: 17-12855
• Status: Unpublished

Opinion

Case: 17-12855 Date Filed: 12/07/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-12855 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:16-cv-25119-KMW; 16-bkc-16898-RAM

In Re: MIRIAM SOLER,

Debtor. __________________________________________________________________ MIRIAM SOLER,

Plaintiff - Appellant,

versus

CAPITAL ONE AUTO FINANCE, a Division of Capital One, N.A.,

Defendant - Appellee.

________________________

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

(December 7, 2018) Case: 17-12855 Date Filed: 12/07/2018 Page: 2 of 4

Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

Miriam Soler, proceeding pro se, challenges the district court’s dismissal of

her appeal from the bankruptcy court’s order closing her Chapter 7 bankruptcy

proceedings. Liberally construing Soler’s contentions, she asserts that the district

court erred in dismissing her appeal because the bankruptcy court violated her due

process rights (1) by closing her Chapter 7 bankruptcy case before she could file

proofs of claim on behalf of her creditors, (2) by converting her motion for

reconsideration into a motion to reopen even though her case had not yet been

closed, and (3) by dismissing her claim challenging the validity of a mortgage on

her residence. After careful review, we affirm. 1

First, in a voluntary Chapter 7 case, a proof of claim is timely if it is filed no

later than 70 days after the order for relief under that Chapter. Fed. R. Bankr. P.

3002(c). The commencement of a voluntary case under Chapter 7 constitutes the

order for relief. 11 U.S.C. § 301. If a creditor does not timely file a proof of

claim, the debtor or trustee may file one on the creditor’s behalf within 30 days

after the expiration of the applicable time for filing claims. Fed. R. Bankr. P. 3004.

1 In the bankruptcy context, we sit “as a ‘second court of review’ and thus examine[] independently the factual and legal determinations of the bankruptcy court,” employing the same standards of review as the district court. In re Optical Techs., Inc., 425 F.3d 1294, 1299–300 (11th Cir. 2005) (quotation omitted). We review the bankruptcy court’s factual findings for clear error and the bankruptcy court’s and district court’s legal conclusions de novo. Id. at 1300. 2 Case: 17-12855 Date Filed: 12/07/2018 Page: 3 of 4

Here, Soler filed her voluntary petition on May 12, 2016. Accordingly, the

time for a creditor to file a proof of claim expired 70 days later, on July 21, 2016,

and Soler’s time to file a proof of claim on behalf of a creditor expired 30 days

after that, on August 20, 2016. See Fed. R. Bankr. P. 3002(c), 3004. Because no

proofs of claim had been filed by that date, the bankruptcy court discharged Soler

on September 13, 2016. Soler did not file any proofs of claim until September 26,

2016―13 days after her time to do so had expired. Accordingly, Soler has failed

to show that the bankruptcy court erred by closing her case when it did.

Second, Soler’s assertion that the bankruptcy court erroneously required her

to file her motion for reconsideration as a motion to reopen even though her case

had not yet been closed is belied by the record, as the bankruptcy court had closed

her case before she filed the motion. Moreover, and in any event, as a practical

matter the bankruptcy court’s decision had no negative effect on Soler because the

court accepted her pleading without requiring a filing fee and addressed all of the

arguments that she raised in support of her motion.

Lastly, the district court appropriately dismissed Soler’s claim challenging

the legality of Chase’s mortgage on her residence because it was not properly

raised before the bankruptcy court or in Soler’s district court brief, and could not

have been litigated in her bankruptcy proceeding, in any event. See Johnson v.

3 Case: 17-12855 Date Filed: 12/07/2018 Page: 4 of 4

Home State Bank, 501 U.S. 78, 83 (1991); In re Espino, 806 F.2d 1001, 1002 (11th

Cir. 1986).

AFFIRMED.