Opinion
CIVIL ACTION NO. 02-2095 SECTION M
March 20, 2003
ORDER
Before the Court is Edward Mendy's appeal of two orders of the Bankruptcy Court, which came for hearing today, March 19, 2003 with oral argument. Present were Edward Mendy, representing himself, and Anita Warner, representing Hibernia Bank. After consideration of the record on appeal and the arguments of counsel, the Court has determined that the appeal should be dismissed.
The first order sought by Mendy to be appealed is a June 6, 2002 order granting Hibernia Bank relief from Stay, which permitted Hibernia to enforce its security rights in Mendy's residence at 4141 Vendome Place. The second order is a dismissal of the debtor's bankruptcy proceeding with a Section 109(g) finding on the basis that Mendy had failed to comply with the court's orders. The second order was entered July 26, 2002, after the Notice of Appeal was filed. The Court previously held a hearing with oral argument at which time the appeal was stayed pending a final determination by the bankruptcy court.
11 U.S.C. § 109 (g) provides:
(g) Notwithstanding any other provision of this section, no individual or family farmer may be a debtor under this title who has been a debtor in a case pending under this title at any time in the preceding 180 days if-(1) the case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case; or (2) the debtor requested and obtained the voluntary dismissal of the case following the filing of a request for relief from the automatic stay provided by section 362 of this title.
I. Standard of Review
The Court will set aside the bankruptcy court's findings of fact only if they are clearly erroneous, giving due regard to the opportunity of the bankruptcy court to judge the credibility of the witnesses. Oldendorf v. Buckman, 173 B.R. 99, 100 (E.D.La. 1994). The Court reviews the bankruptcy court's conclusions of law de novo. Westridge v. Chestnut Street Condominiums, lnc., 169 B.R. 594, 596 (E.D.La. 1994).
II. Contentions
Hibernia Bank seeks dismissal of this appeal on the basis that it is moot because the underlying bankruptcy case has been dismissed. Alternatively, Hibernia Bank contends dismissal is appropriate based on appellants failure to timely file its brief, failure to request any extensions of time or leave to file a late brief and failure to file the transcript. In addition, Hibernia contends that the only matter properly before the Court is the June 6 order lifting the stay. Hibernia contends that the July 26 dismissal order was entered after the Notice of Appeal was lodged. As to the lifting of the stay, Hibernia contends that the bankruptcy court's decision to lift an automatic stay is discretionary and may be reversed only upon a showing of abuse of discretion.
Appellant ignores these contentions in his reply brief and focuses solely on the merits of the appeal. Appellant contends that the debtor's wife, Cheryl Mendy was improperly included in the orders because she is not a party to the bankruptcy. In addition, appellant contends that the bankruptcy court erred in making a 109(g) finding because no bad faith was shown.
III. Law and Analysis
Rule 8001(a) states that "[a]n appellant's failure to take any step other than timely filing a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the district court . . . deems appropriate, which may include dismissal of the appeal." Thus dismissal of an appeal for a breach of procedural rules is within the discretion of the court. In the Matter of CPDC. Inc., 221 F.3d 693, 698-699 (5th Cir. 2000). Bankruptcy Rule 8009 provides that "[t]he appellant shall serve and file his brief within 15 days after entry of the appeal on the docket . . . ." Here, appellant filed his brief more than two months after filing the notice of appeal and also failed to file the transcript.
As to the June 6, 2002 Order Lifting the Stay, the procedural deficiencies notwithstanding appellant has not shown abuse of discretion in lifting the stay. The record shows that there was no equity in the property and it was encumbered beyond its worth. As to the July 25, 2002 Dismissal, the Court finds that the appeal is fraught with incurable procedural deficiencies and is otherwise moot.
Accordingly, for these reasons and for the reasons more fully stated by counsel for Hibernia at the hearing of this matter, the, appeal is DISMISSED.