Summary
affirming dismissal for cause under § 1307(c) due to "discrepancies" on debtor's schedules and petition
Summary of this case from Karamoussayan v. Mass. Dep't of Revenue (In re Karamoussayan)Opinion
1:11-cv-1423 (GLS)
04-02-2012
ARTHUR L. BAKER, Appellant, v. KENNETH SALAMONE, Appellee.
FOR THE APPELLANT: Richard Croak & Associates Albany, NY 12203 OF COUNSEL: RICHARD CROAK, ESQ. FOR THE APPELLEE: Deily, Mooney Law Firm 8 Thurlow Terrace Albany, NY 12203-1006 LEIGH A. HOFFMAN, ESQ.
APPEARANCES:
FOR THE APPELLANT:
Richard Croak & Associates
Albany, NY 12203
OF COUNSEL:
RICHARD CROAK, ESQ.
FOR THE APPELLEE:
Deily, Mooney Law Firm
8 Thurlow Terrace
Albany, NY 12203-1006
LEIGH A. HOFFMAN, ESQ.
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Appellant Arthur L. Baker appeals from an October 14, 2011 order of the Bankruptcy Court (Robert E. Littlefield, Jr., Chief Judge), dismissing his Chapter 13 case with prejudice and barring him from refiling for "relief under the bankruptcy code" for 180 days. (See Dkt. No. 1, Attachs. 2-3.) Baker argues that the Bankruptcy Court's decision was inconsistent with its own rules, due process and fundamental fairness. (See Dkt. No. 6 at 1.) For the reasons that follow, the Bankruptcy Court's order is affirmed.
II. Background
On July 29, 2011, appellant-debtor Baker filed a voluntary petition under Chapter 13 of the Bankruptcy Code and listed appellee Salamone as a secured creditor. (See Dkt. No. 4 ¶ 14; Dkt. No. 2, Attach. 9 at 13.) However, this was the not the first time that Salamone was involved in a bankruptcy proceeding with Baker. (See Dkt. No. 4 ¶ 6.) Prior to commencing the instant action, Baker was either associated with, or the debtor in, three separate bankruptcy proceedings; the second of which—another Chapter 13 case filed in May 2010—also involved Salamone's secured claim. (See id. ¶¶ 1-11; Dkt. No. 2, Attach. 9 at 2.)
With respect to the events leading up to this appeal, Salamone filed a motion to dismiss with prejudice on September 13, 2011, citing numerous inaccuracies in Baker's petition. (See Dkt. No. 4 at 5-10.) At the conclusion of the motion hearing, Chief Judge Littlefield found that because of Baker's intentional lack of candor with respect to the disclosure of his interests in corporate, real and personal property, cause for dismissal under 11 U.S.C. § 1307(c) existed. (See Tr. at 135:23-137:2, Dkt. No. 3.) Calling it a "deliberate manipulation of schedules and petitions," Chief Judge Littlefield granted Salamone's motion and dismissed Baker's petition with prejudice. (Id. at 137:1; see Dkt. No. 1, Attach. 2.)
"Tr." refers to the transcript from Baker's motion to dismiss hearing on October 5, 2011. (See generally Dkt. No. 3.) Pincites to the transcript are to the page numbers in the top right corner of the pages.
III. Standard of Review
District courts have jurisdiction to hear both interlocutory and final appeals from orders of the bankruptcy court. See 28 U.S.C. § 158(a). In exercising its appellate jurisdiction, the district court distinguishes between findings of fact and conclusions of law; reviewing the former under the "clearly erroneous" standard, and the latter de novo. See, e.g., Midland Cogeneration Venture Ltd. P'ship v. Enron Corp (In re Enron), 419 F.3d 115, 124 (2d Cir. 2005); see also United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) ("A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed."). Where a finding is mixed—i.e., contains both law and fact—the de novo standard applies. See Travellers Int'l A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1575 (2d Cir. 1994). After applying these standards to the questions of law and fact, the district court "may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings." Fed. R. Bankr. P. 8013.
IV. Discussion
Baker's principal argument is that dismissal under section 1307 was not the appropriate remedy for the errors in his petition and schedules.(See Dkt. No. 6 at 4-8.) Salamone counters that Chief Judge Littlefield was justified in dismissing Baker's case for cause under 11 U.S.C. § 1307(c). (See Dkt. No. 7 at 7-11.) The court agrees with Salamone.
Baker also argues that the Bankruptcy Court's expedited proceedings and the Chapter 13 trustee's decision to join Salamone's motion at the conclusion of the hearing violated, inter alia, his due process rights. (See Dkt. No. 6 at 1-4.) Though Baker objected to the trustee's action at the proceeding as "irregular," (Tr. at 135:7), the record is devoid of any reference to a due process violation. Moreover, Baker failed to show that he raised any of these concerns with the Bankruptcy Court. Because these grounds were not preserved for review, no further discussion is required. See, e.g., Greene v. United States, 13 F.3d 577, 586 (2d Cir. 1994).
"Full disclosure is the cornerstone and capstone of any bankruptcy case and is necessary for the successful administration of a bankruptcy estate." Goodmar, Inc. v. Hamilton (In re Hamilton), 306 B.R. 575, 585 (Bankr. W.D. Ky. 2004). To this end, 11 U.S.C. § 1307(c) provides, in relevant part, "on request of a party in interest or the United States trustee and after notice and a hearing, the court may . . . dismiss a case under this chapter . . . for cause." In evaluating a dismissal under section 1307(c), courts "apply a totality of circumstances test," which considers, among other things, "whether the debtor has stated his debts and expenses accurately . . . [or] has made any fraudulent representation to mislead the bankruptcy court." In re Armstrong, 409 B.R. 629, 634 (Bankr. E.D.N.Y. 2009) (internal quotation marks and citation omitted). Though not explicitly articulated in the text of section 1307(c), "fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor" is cause for dismissal. Marrama v. Citizens Bank of Mass., 549 U.S. 365, 374-75 (2007).
Here, the Bankruptcy Court held that the "deliberate manipulation of schedules and petitions" was cause for dismissal under section 1307(c). (Tr. at 135:23-137:2.) Indeed, in his summation, Chief Judge Littlefield noted the following discrepancies: a mischaracterization of Baker's real property; a failure to disclose the existence of at least one checking account, and his interests in an insurance policy and corporate assets; an omission of his real property income; and issues with a payment to his attorney and the transfer of a luxury vehicle. (See id. at 135:23-136:16.) Moreover, Baker, who now claims that his erroneous filings were the result of a "disagreement on how assets are to be listed," (Dkt. No. 6 at 6), has yet to offer a genuine explanation for the inconsistencies Salamone highlighted in his 2010 and 2011 petitions, (see Dkt. No. 4 at 5-10). Had this been Baker's first filing in bankruptcy court, such "disagreements" would be conceivable. However, this was not only the fourth bankruptcy case Baker was associated with, but he was also represented by the same counsel in both the 2010 and 2011 cases. (See, e.g., id. ¶¶1-11; Tr. at 125:19-126-3.) Thus, the totality of circumstances unequivocally support the Bankruptcy Court's decision to dismiss Baker's case. See In re Armstrong, 409 B.R. at 634.
Having reviewed the Bankruptcy Court's findings of fact for clear error, and its conclusions of law de novo, the court concludes that Baker disregarded his fundamental duty of full disclosure, see In re Hamilton, 306 B.R. at 585, and exemplifies the "atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor." Marrama, 549 U.S. at 374-75. As such, the Bankruptcy Court's decision to dismiss the petition with prejudice under 11 U.S.C. § 1307(c) is affirmed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby ORDERED that the judgment of the Bankruptcy Court is AFFIRMED; and it is further
ORDERED that the Clerk enter judgment and provide copies of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
April 2, 2012
Albany, New York
__________________
Gary L. Sharpe
Chief Judge
U.S. District Court