Reilly v. Hussey (In re Reilly)

112 B.R. 1014, 1990 Bankr. LEXIS 961
CourtUnited States Bankruptcy Appellate Panel for the Ninth Circuit
DecidedMay 3, 1990
DocketBAP No. MT-89-1501 VJP; Bankruptcy No. 86-2004; Adv. No. 88-0065
StatusPublished
Cited by1 cases

This text of 112 B.R. 1014 (Reilly v. Hussey (In re Reilly)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Appellate Panel for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reilly v. Hussey (In re Reilly), 112 B.R. 1014, 1990 Bankr. LEXIS 961 (bap9 1990).

Opinion

OPINION

VOLINN, Bankruptcy Judge:

BACKGROUND

The debtors/appellants (husband and wife) were long-time farmers in Montana. In the years before their bankruptcy, their farming income decreased, and they were forced to supplement their income by engaging in non-farming occupations. They initially filed a bankruptcy case under chapter 11, but the bankruptcy court eventually converted the case to chapter 7 for failure to effectuate a plan. The debtors objected to conversion under § 1112(c),1 but the court held that the bar against involuntary conversions of farmers from chapter 11 to chapter 7 did not apply because the debtors did not qualify as farmers under § 101(19)2 since less than 80% of their income for the taxable year preceding their bankruptcy was from farming.

We considered the debtors’ appeal of the conversion order in a prior appeal, BAP No. MT-89-1501-VJP, affirming the bankruptcy court in a memorandum decision filed on October 25, 1989. The debtors moved for reconsideration, but the motion was both untimely and meritless, and we denied the motion on its merits.

The debtors have now initiated this second appeal. The debtors are representing themselves without the assistance of counsel, and by and large their submissions are unintelligible. The notice of appeal identifies the appealed orders as orders entered on May 8, 9, and 19, 1989, in an adversary proceeding pending in their bankruptcy case. In a supplemental pleading filed by the Reillys, they also request that we consider an order of the bankruptcy court entered on January 10, 1990, stating that the latter order pertains to the same subject matter as the previous three orders, and that the debtors filed a notice of appeal relating to that order on January 25 (which would not have been timely).

None of the appealed orders were included in the Reillys’ excerpts of record, although we were able to obtain copies of them from the bankruptcy court. Nor were any other pleadings from the adversary proceeding included in the excerpts of record. The only information before us as to the nature of the adversary proceeding [1016]*1016from which this appeal arose is the bankruptcy court’s comment in one of the appealed orders describing the adversary proceeding as “an action ... by the Chapter 7 Trustee to seek turnover of funds which the Trustee contends are property of the estate.”

In the May 8 order the bankruptcy court denied the debtors’ motion to dismiss the adversary proceeding. The bankruptcy court denied the motion, noting that “[t]he Motion to Dismiss is not only untimely, but has no basis in law.” The debtors have not provided copies of the complaint, answer, or motion to dismiss, nor do they discuss their contents or bases in their appellate briefing.

In the May 9 order, the bankruptcy court ordered the debtors to answer certain interrogatories propounded by the trustee, over the debtors’ objection as to relevancy. The court stated that the objection “has no basis in law.” The debtors have not provided copies of the interrogatories or their objection, nor do they discuss them in their brief.

In the May 19 order, the bankruptcy court did two things. First, it denied the debtors’ Motion to Alter, Modify and/or Vacate Orders of May 8 and 9, 1989. Second, it enjoined the Reillys from filing any further pleadings in the Reilly’s bankruptcy case “until further order of the Court.” The court stated that the debtors’ memorandum in support of their motion to alter, modify, or vacate was “incomprehensible and clearly frivolous.” The court noted that in the memorandum, the debtors denied that they live or own property in the United States, after they had spent three years in a chapter 11 proceeding trying to reorganize their “former farm property located in Ravalli County, Montana, where both Debtors live and one Debtor works.” The court then stated that “[i]n 26 years as a Bankruptcy Judge I have never experienced such blatant untruth and misrepresentation, or, giving the Debtors pro per the benefit of the doubt, such ignorance of fact or law.” The court then enjoined the debtors from filing “any further pleadings in this case until further order of the Court,” as a sanction under Bankruptcy Rule 9011, in order to prevent the court from being “further accosted by such frivolous pleadings.” The order is unclear as to whether the Reillys are enjoined from filing pleadings in the adversary proceeding only, or in their entire bankruptcy case.

In the January 10 order, the bankruptcy court clarified that its May 19 order was intended to enjoin the debtors from filing any pleadings in their entire bankruptcy case, including any adversary proceeding therein. The court also stated that on the previous day, the debtors had “filed a ‘Motion For Statis (sic) Hearing and Motion for Monthly Reports’ detailing 27 irrelevant requests to the Trustee.” The court reiterated that its injunction against the debtors was still in effect, struck the debtors’ pleading and the scheduled hearing, and admonished the debtors to comply with the injunction or face a contempt certification.

The trustee, who was named as the ap-pellee, has not filed a response or any other papers in this case. The bankruptcy court’s rulings have little or no discussion of the facts. The debtors have provided virtually nothing in the way of a record, so given the incoherent nature of the debtors’ brief, we know little of the facts underlying this appeal, other than those outlined above.

DISCUSSION

A. Conversion to Chapter 7

The debtors’ appeal brief is a rambling discussion, much of which concerns the debtors’ assertion that they are in fact farmers and therefore involuntary conversion from chapter 11 to chapter 7 was improper. To the extent the debtors’ statements challenge the bankruptcy court’s order converting the case from chapter 11 to chapter 7, those issues were the subject of a previous appeal in which we affirmed the bankruptcy court and denied the debtors’ motion for a rehearing. The conversion order is therefore the law of the case, and insofar as the debtors’ effort in this appeal is directed to that issue, it is frivolous.

[1017]*1017B. Denial of Dismissal Motion;

Discovery Order

Insofar as the debtors appeal the bankruptcy court’s May 8 order denying the debtors’ motion to dismiss, and its May 9 order compelling discovery, the appealed orders are interlocutory. The debtors have not provided copies of the appealed orders nor the underlying complaint, answer, interrogatories, motions, or memoranda. Nor does the debtors’ appeal brief address the substance of the discovery or dismissal motions. Effective review would be impossible, and we therefore decline to grant leave to appeal the foregoing orders.

C. Motion for Reconsideration

The May 19 order (1) denied the debtors’ Motion to Alter, Modify and/or Vacate the Orders of May 8 and 9, 1989, and (2) enjoined the debtors from filing any further pleadings in their bankruptcy case unless the court expressly authorizes such filing. Insofar as the May 19 order denies reconsideration of the May 8 and May 9 orders, its appeal is interlocutory for the reasons discussed above, and we decline to grant leave to appeal it. Again, the debtors have not supplied copies of the denied motion or the supporting memorandum, making effective review impossible.

D.Injunction

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Cite This Page — Counsel Stack

Bluebook (online)
112 B.R. 1014, 1990 Bankr. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reilly-v-hussey-in-re-reilly-bap9-1990.