Opinion
NOT FOR PUBLICATION
Submitted without oral argument at Pasadena, California July 25, 2008
We unanimously determine that oral argument should not be allowed. Fed.R.Bankr.P. 8012(1)-(3).
Appeal from the United States Bankruptcy Court for the Central District of California. Bk. No. LA 07-16464 VK. Honorable Victoria S. Kaufman, Bankruptcy Judge, Presiding.
Before: KLEIN, PAPPAS and MARKELL, Bankruptcy Judges.
This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have (see Fed. R. App. P. 32.1), it has no precedential value. See 9th Cir. BAP Rule 8013-1.
Pro se debtor Ramona Fontaine appeals two orders. In No. CC-07-1403, she questions an order declining to prevent a creditor holding a joint money judgment against her and three of her relatives from pursuing judgment-enforcement actions against the relatives. We AFFIRM that order because 11 U.S.C. § 1301 does not impede judgment-enforcement on nonconsumer debts against joint judgment debtors who are not themselves bankruptcy debtors, and the court did not otherwise abuse its discretion.
We DISMISS No. CC-07-1435, for three independent reasons: mootness, failure to prosecute, and nonpayment of the filing fee. Although the debtor contends it was error to dismiss her chapter 13 case instead of converting to chapter 7, the bankruptcy court later granted the debtor's motion for permission to file a chapter 7 case, which she filed. The debtor did not respond to our ensuing order to show cause why we should not dismiss the appeal as moot or for not paying the filing fee.
FACTS
Appellee, Robert Conn, obtained a state court judgment in 2004 against Ramona Fontaine, her son, Marcus Fontaine, and her nieces, Laura Ortiz and Norma Ruiz. Conn v. Marcus A. Fontaine, et al., No. BC 291117, Los Angeles County S.Ct. (Mar. 29, 2004). The judgment awarded $185,000 in damages, plus $100,000 in punitive damages, resulting from three fraudulent transfers involving the same residence at 3986 Astaire Ave., Culver City, California (" 3986 Astaire") and a pattern by defendants of filing forged Acknowledgment of Satisfaction of Judgment forms to evade enforcement of a $65,672 judgment rendered in 1991. All four defendants were jointly and severally liable for the $185,000 damage award, and all except Ortiz were jointly and severally liable for the $100,000 in punitive damages.
The backstory, derived from the two judgments rendered by the state superior court is as follows. The 1991 judgment on proceedings to confirm an arbitration award in favor of plaintiff, Morris Fox, who was represented by Conn, established that: (1) Marcus Fontaine breached a contract with Fox as of November 20, 1985; (2) Marcus Fontaine libeled Fox with malicious intent to injure, vex, and annoy; (3) the purchase of 3986 Astaire in the names of Ramona Fontaine and Barbara Fontaine on February 3, 1986, was done with the actual intent by Marcus Fontaine to hinder or delay Fox in recovery of claims and constituted a fraudulent transfer. Damages of $63,672 in favor of Fox were awarded jointly against Marcus, Ramona, and Barbara Fontaine, together with $1,745 in costs (total = $65,417). Order & J. Confirming Arb. Award, Fox v. Marcus A. Fontaine, et al., No. WEC 099510, Los Angeles County S.Ct. (Jan. 9, 1991).
Conn obtained a writ of execution on June 27, 2006, under which the Los Angeles County Sheriff levied on 3986 Astaire on June 22, 2007, and set an auction date of August 1, 2007.
On July 30, 2007, Ramona Fontaine filed a chapter 13 case. In Schedule I, she averred that she had monthly income of $8,782, consisting of $751 in Social Security income and $8,031 from " Contribution of Family."
On September 4, 2007, Conn filed what he styled as a motion for relief from the codebtor stay under § 1301 to proceed with judgment-enforcement of the state court action. Conn contended that relief should be granted for the following reasons: (1) the state court judgment was not for a " consumer debt" within the terms of § 1301; (2) Ramona Fontaine was not eligible for chapter 13 because her unsecured debts exceeded $336,900; (3) Ramona Fontaine was not eligible for chapter 13 because she was not " an individual with regular income"; and (4) the chapter 13 case was filed in bad faith.
On October 11, 2007, Ramona Fontaine's attorney, Lester Blanchard, filed a Notice of Non-Opposition to Conn's motion, supported by a declaration stating that he received no response from his client to his repeated correspondence regarding the motion and response deadline, even though other communications with family members indicated that it had been received.
At the hearing on October 17, 2007, the bankruptcy court made findings of fact and conclusions of law orally on the record regarding Conn's motion. The actual findings, however, were not made part of the appellate record because the appellant did not provide a transcript of those findings. Reciting in the order that it was acting based on its oral findings, the bankruptcy court entered an order declaring that Conn was free to take judgment-enforcement actions necessary against the nondebtor coobligors on the state court judgment.
Ramona Fontaine filed a timely notice of appeal on October 24, 2007, which became No. CC-07-1403. The filing fee has still not been paid for the appeal, despite Notices of Deficiency and of possible dismissal issued October 30 and November 19, 2007.
The order dismissing Ramona Fontaine's chapter 13 case with a 180-day bar to refiling without prior permission of the court was entered on November 1, 2007. Ramona Fontaine filed a timely notice of appeal on November 9, 2007, which became No. CC-07-1435. The filing fee has still not been paid for this appeal despite notices of possible dismissal on that account issued November 26, 2007, and June 13, 2008.
On November 1, 2007, a substitution of attorney dated September 27, 2007, was filed indicating Ramona Fontaine would thereafter represent herself pro se. On October 31, 2007, Marcus Fontaine filed a notice of appearance announcing that he would be representing Ramona Fontaine as " next friend."
As a part of our denial of Ramona Fontaine's request for stay pending appeal, on November 26, 2007, we also noted that we did not express an opinion at that time as to the validity of Marcus Fontaine's " apparently self-designated status" as " next friend" " or his standing to make motions in the bankruptcy case or appeals." However, we informed Marcus Fontaine that " proof of his status as next friend or guardian ad litem under relevant law" was required before be could participate further.
During the pendency of both appeals, various motions have been filed in the name of Ramona Fontaine with the bankruptcy court and with the BAP for stay pending appeal to maintain the status quo as to 3986 Astaire. Her requests have been denied.
In our February 8, 2008, order denying Ramona Fontaine's renewed request for a stay pending appeal as to her real property (No. CC-07-1403) and denying her apparently additional request for a stay of the order dismissing her bankruptcy case (No. CC-07-1435), we explained that Ramona Fontaine had not established she was entitled to a stay under the factors enunciated in Wymer v. Wymer (In re Wymer), 5 B.R. 802, 806 (9th Cir. BAP 1980). We determined that Ramona Fontaine did not establish that there was sufficient likelihood of success on the merits to warrant a stay, and, to the contrary, ruled that the balance of hardships tipped in favor of Conn and the chapter 13 trustee. We further determined that the order dismissing the chapter 13 case was not an absolute bar to another bankruptcy filing, but merely required that Ramona Fontaine obtain prior court permission before filing another bankruptcy case.
In our February 20, 2008, order granting in part Conn's request for extension of time to file his brief, we ordered that, because Marcus Fontaine had not submitted any " proof of his status as next friend or guardian ad litem under relevant law" to allow him to proceed as such, all references to him as the appellant on and in the opening brief were to be stricken.
By order entered March 10, 2008, the bankruptcy court granted Ramona Fontaine's motion for permission to file a chapter 7 case, which she filed the same day as No. LA 08-13012 BR.
The mootness analysis is informed by events in the new chapter 7 case.
On June 13, 2008, we issued an order to show cause why No. CC-07-1435 should not be dismissed as moot or for nonpayment of the appeal filing fee. We noted that it appeared Ramona Fontaine had achieved the goal of filing a chapter 7 case and that the matter may be moot. She was instructed to file a response by June 27, 2008, explaining why this appeal should not be dismissed as moot and how the filing fee requirement was satisfied. No response was filed.
JURISDICTION
The bankruptcy court had jurisdiction via 28 U.S.C. § 1334. We have jurisdiction under 28 U.S.C. § 158(a)(1).
ISSUES
(1) Whether the bankruptcy court abused its discretion in dismissing Ramona Fontaine's chapter 13 case, instead of converting to chapter 7.
(2) Whether the bankruptcy court erred in ruling that Conn was free to pursue judgment-enforcement actions against nondebtor co-obligors on a state court judgment.
STANDARDS OF REVIEW
We review an order dismissing a chapter 13 bankruptcy case for abuse of discretion, Nelson v. Meyer (In re Nelson), 343 B.R. 671, 674 (9th Cir. BAP 2006), and also review the order regarding § 1301 for abuse of discretion. See Duvar Apt., Inc. v. FDIC (In re Duvar Apt., Inc.), 205 B.R. 196, 199 (9th Cir. BAP 1996) (11 U.S.C. § 362(d)).
A trial court abuses its discretion if it bases its ruling on an erroneous view of the law or clearly erroneous factual findings. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990). Otherwise, to reverse for abuse of discretion we must have a definite and firm conviction that the bankruptcy court committed a clear error of judgment in the conclusion it reached. SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001); Hansen v. Moore (In re Hansen), 368 B.R. 868, 874-75 (9th Cir. BAP 2007).
DISCUSSION
Before addressing the merits of whether error infected the ruling that Conn was free to take judgment-enforcement actions against the nondebtor co-obligors, we deal with the implications of the subsequent chapter 7 case on the question whether it was error to have dismissed, and not converted, the chapter 13 case.
I
The order dismissing the Ramona Fontaine chapter 13 case with a 180-day bar to refiling without prior permission of the court did not erect an absolute bar to another bankruptcy filing. Rather, it merely required that Ramona Fontaine obtain prior court permission before filing another bankruptcy case.
On March 10, 2008, the bankruptcy court granted Ramona Fontaine's motion for permission to file a chapter 7 case, which she filed on the same day.
Although there could be plausible reasons -- such as loss of avoiding actions and of the protection of the automatic stay -- why a later-filed chapter 7 case would not moot an issue about whether a chapter 13 case should have been converted instead of dismissed, no likely reason appeared to apply to Ramona Fontaine. No avoiding actions appear to have been lost, and she refiled two days before the March 12 sheriff's sale, with the consequence that she had the benefit of the same automatic stay that she would have had if the chapter 13 case had been converted to chapter 7. Hence, we issued an order to show cause why BAP No. CC-07-1435 should not be dismissed as moot.
We ordered Ramona Fontaine to show cause by June 27, 2008, why the appeal should not be dismissed as moot or for nonpayment of the filing fee. No response was received. The filing fee remains unpaid.
Accordingly, BAP No. CC-07-1435 is ordered dismissed for three reasons. First, it was mooted by the subsequent chapter 7 filing. Second, the appellant has failed to prosecute the appeal. Third, the filing fee has not been paid. Each of these reasons provides an adequate, independent reason to dismiss.
II
In addressing the question in BAP No. CC-07-1403 whether the bankruptcy court erred in ruling that Conn was free to pursue judgment-enforcement actions against Ramona Fontaine's fellow judgment debtors with respect to the state court judgment, we start with Marcus Fontaine's standing.
A
On November 26, 2007, in denying Ramona Fontaine's emergency motion for a stay pending appeal, our motions panel noted that the motion was signed by Marcus Fontaine as " next friend" to the debtor-appellant. We advised that, if Marcus Fontaine were to return to this Panel and if he wished to represent Ramona Fontaine as " next friend, " then we would require proof of his status as next friend or guardian ad litem under relevant law. See Fed.R.Bankr.P. 1004.1 & Fed.R.Bankr.P. 7017 (incorporating Fed.R.Civ.P. 17(c)).
On February 20, 2008, in a BAP order granting in part Conn's request for an extension of time, we also noted that Marcus Fontaine had not submitted the required proof of his status as next friend or guardian ad litem before he proceeded as such on behalf of Ramona Fontaine. As the appellant's brief appeared to be on behalf of both Ramona Fontaine and her son Marcus Fontaine " for himself and as next friend" for his mother, we ordered that the appellant's brief applied only to Ramona Fontaine and ordered stricken Marcus Fontaine's signature and all references to him as the appellant on and in the brief.
We emphasize that the main issue here is whether the court erred in ruling that Conn was free to pursue judgment-enforcement actions against the co-obligors of Ramona Fontaine with respect to the state court judgment. We disregard the grievances of Marcus Fontaine. He has submitted no proof to us regarding his status as his mother's next friend or guardian ad litem. Hence, he lacks standing. Marcus Fontaine is not a party to this appeal. He cannot hide behind someone else's bankruptcy.
We note that, on May 5, 2008, in Ramona Fontaine's chapter 7 Case No. 08-13012 currently pending before the bankruptcy court, Ramona Fontaine filed a document entitled, " Marcus A. Fontaine's submission of 'Power of Attorney-General' and 'Durable Power of Attorney' executed by Ramona G. Fontaine, appointing Marcus A. Fontaine, as her true and lawful attorney in fact." On May 7, 2008, the bankruptcy court ruled that, in spite of Marcus Fontaine's statements in the above document filed with the court, under federal law, Marcus Fontaine was not authorized to sign on behalf of his mother any document filed with the court.
We are also mindful that there is merit to Conn's observation that Ramona Fontaine's alleged signatures in the notice of appeal and in her opening brief (as well as multiple other documents filed with the bankruptcy court during the pendency of this appeal) do not match the multiple signatures for Ramona Fontaine on her original bankruptcy petition and do not match the signature on her substitution of attorney.
Conn emphasizes the possibility of forgeries because the state court judgment he holds relates to damages resulting from Conn's own signature having been forged on multiple Acknowledgment of Satisfaction of Judgment forms, which were then recorded to make it appear that the judgment lien was satisfied.
We agree and are persuaded that Marcus Fontaine brought this appeal for Ramona Fontaine without authority and forged Ramona Fontaine's signature on the notice of appeal.
On such facts, we could dismiss, impose sanctions, and award damages and costs for an illegitimate appeal. See Fed.R.Bankr.P. 8020 & Fed.R.Bankr.P. 9011. Nevertheless, we recognize that the court of appeals could disagree with us regarding such measures and could grant in forma pauperis status so as to excuse the unpaid filing fee. Hence, we will proceed to the merits.
B
Although the contentions of Ramona Fontaine via Marcus Fontaine, as complicated by personal accusations about Conn, are difficult to follow, the crux of Ramona Fontaine's position appears to be that the interests of the other judgment debtors in 3986 Astaire are invulnerable to judgment-enforcement actions on account of her bankruptcy case.
Generally speaking, we construe a pro se appellate brief liberally even when it is difficult to ascertain the appellant's contentions. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Thus, we assess the arguments as sympathetically as possible.
Nevertheless, assuming (solely for purposes of argument) that the § 1301 codebtor stay would apply, the standard of review for an order allowing judgment-enforcement actions to be taken against Ramona Fontaine's fellow judgment debtors, the equivalent of granting stay relief, is reviewed for abuse of discretion.
We would not reverse for abuse of discretion where the court accurately assessed the standard of law and the facts, unless we have a definite and firm conviction that the court committed a clear error of judgment in the conclusion it reached. Coldicutt, 258 F.3d at 941.
Ramona Fontaine has the burden of providing a sufficient record on appeal -- including a transcript of relevant hearings -- and the omission to provide an adequate record is grounds for affirming the bankruptcy court's decision. Abrams v. Sea Palms Assocs. (In re Abrams), 229 B.R. 784, 789 (9th Cir. BAP 1999). By not providing a transcript of the trial court's oral findings of fact and conclusions of law as required by Federal Rules of Bankruptcy Procedure 8006 and 8009(b)(5), the appellant handicapped her ability to demonstrate error. McCarthy v. Prince (In re McCarthy), 230 B.R. 414, 416 (9th Cir. BAP 1999).
The burden is on the appellant to demonstrate that the court abused its discretion when it held that § 1301 did not impede Conn from judgment-enforcement actions against the judgment debtors who were not in bankruptcy. Ashley v. Church (In re Ashley), 903 F.2d 599, 603 (9th Cir. 1990); United States v. Mills, 597 F.2d 693, 698 (9th Cir. 1979); Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81 (9th Cir. BAP 1994), aff'd, 92 F.3d 1192 (9th Cir. 1996).
The face of the order on appeal reflects that the court made findings of fact and conclusions of law orally on the record. Ramona Fontaine chose to omit those findings and conclusions notwithstanding the command of Rules 8006 and 8009(b)(5). We are entitled to presume that she does not think including a copy of the transcript of the findings would be helpful to carrying her appellate burden. Gionis, 170 B.R. at 681.
In short, Ramona Fontaine has not met her appellate burden to demonstrate error. We have conscientiously reviewed the record and do not perceive an abuse of discretion.
As a matter of law, § 1301 does not apply to debts that are not " consumer debts." See 11 U.S.C. § 1301. The fraud-based judgment held by Conn does not constitute a debt " incurred by an individual primarily for a personal, family, or household purpose" within the meaning of the definition of " consumer debt" of 11 U.S.C. § 101(8).
Thus, the bankruptcy court did not apply an incorrect legal standard and did not otherwise err in ordering that Conn was free to pursue judgment-enforcement actions against the co-obligors of Ramona Fontaine regarding the state court judgment.
CONCLUSION
For the reasons set forth above, No. CC-07-1435, in which Ramona Fontaine appeals the bankruptcy court order dismissing her chapter 13 bankruptcy case, is DISMISSED for three adequate, independent reasons: mootness; failure to prosecute; and nonpayment of filing fee.
As to No. CC-07-1403, which is also eligible to be dismissed for non-payment of filing fee, we hold that the bankruptcy court did not err in ordering that Conn was free to pursue judgment-enforcement actions against Ramona Fontaine's fellow judgment debtors with respect to the state court judgment. We AFFIRM.
The rest of the backstory is established by the 2004 judgment. Amended J., Conn v. Marcus A. Fontaine, et al., No. BC 291117, Los Angeles County S.Ct. (Mar. 29, 2004).
Fox assigned his $65,417 judgment to Conn, who renewed the judgment in 1999.
On at least four occasions between 1994 and 2002, there were recorded forged Acknowledgment of Satisfaction of Judgment forms purporting to extinguish the 1991 judgment. The last such form was recorded February 22, 2002.
On March 4, 2002, Ramona Fontaine deeded 3986 Astaire to her niece Ruiz, and there was recorded a deed of trust executed by Ruiz as trustor on February 25, 2002, securing a promissory note in favor of SIB Mortgage Corp. On March 10, 2002, there was also recorded a deed of trust for $425,000 executed by Ruiz as trustor in favor of Ramona Fontaine's niece Ortiz.
The 2004 judgment decreed that the forged Acknowledgment of Satisfaction of Judgment forms were invalid, but that the SIB Mortgage deed of trust was valid and senior to the 1991 judgment lien. It also established that the transfer from Ramona Fontaine to Ruiz and the related deed of trust in favor of Ortiz constituted two fraudulent transfers by Marcus and Ramona Fontaine, Ruiz, and Ortiz " done in combination with the recording of a forged Acknowledgment of Satisfaction of Judgment on February 25, 2002, [recording citation omitted] with the actual intent of said defendants to hinder, delay and defraud" Conn. Hence, $185,000 in damages was awarded jointly and severally against Marcus and Ramona Fontaine, Ruiz, and Ortiz, together with joint and several punitive damages of $100,000 against all except Ortiz.
At a sheriff's sale on March 12, 2008, Conn purchased Ruiz's alleged interest in 3986 Astaire for $162,000.
Marcus Fontaine sent a letter to the sheriff alleging the March 12 sale of Ruiz's interest violated the automatic stay.
Ramona Fontaine also filed adversary proceeding No. 08-01419 seeking a declaration that the March 12 sheriff's sale of Ruiz's interest in 3986 Astaire is void in violation of the automatic stay. On May 7, 2008, the court dismissed the action without prejudice after Ramona Fontaine admitted on the record that she did not sign her declaration attached to the complaint, but that her son, Marcus Fontaine, signed her name to the pleadings.
On May 19, 2008, the court denied a motion to set aside the March 12 sheriff's sale, making findings of fact and conclusions of law that the sale was of the ownership interest of codefendant Ruiz in 3986 Astaire, rather than of any ownership interest of Ramona Fontaine and that she did not actually sign the motion -- her name was signed by Marcus Fontaine.
On July 3, 2008, Ramona Fontaine moved to convert the case from chapter 7 to chapter 13. Whether the requested conversion occurs does not affect our analysis.