Opinion
NOT FOR PUBLICATION
Submitted Without Oral Argument at Pasadena, California, March 16, 2011
Appeal from the United States Bankruptcy Court for the District of Oregon. Bk. No. 10-33473-RLD. Honorable Randall L. Dunn, Bankruptcy Judge, Presiding.
Berenice Carol Glover, Pro se on brief.
Before: JURY, MARKELL and HOLLOWELL 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.
Debtor Berenice Carol Glover appeals the bankruptcy court's order dismissing her chapter 13 bankruptcy case with a five year bar to refiling. We AFFIRM.
Unless otherwise indicated, all chapter, section and rule references are to the Bankruptcy Code, 11 U.S.C. § § 101-1532, and to the Federal Rules of Bankruptcy Procedure, Rules 1001-9037.
I. FACTS
Debtor has filed eight bankruptcy cases in the District of Oregon. Her first chapter 13 case (Bankruptcy Case No. 88-33517), jointly filed with her husband in 1988, was converted to chapter 7 and was the only case in which debtor received a discharge. From 1999 to 2009, Debtor filed six chapter 13 cases, none of which resulted in a confirmed plan and all of which had either been voluntarily dismissed or dismissed by the court for various reasons. Her most recent chapter 13 case filed on April 22, 2010, is the subject of this appeal.
These cases are as follows:
On April 27, 2010, the bankruptcy court issued an Order To Show Cause (" OSC") as to why debtor's case should not be dismissed with a bar to refiling or with prejudice. At the June 2, 2010 hearing, the bankruptcy court dismissed debtor's case with a five year bar to refiling based on the totality of circumstances test set forth in Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1224 (9th Cir. 1999). The order was entered on June 7, 2010.
Debtor timely filed this appeal. The Panel issued an order waiving the requirement under Rule 8009(b) that debtor file and serve an appendix to the brief containing excerpts of the record because the transcript of the OSC hearing was on the bankruptcy court's docket. We take judicial notice of the copy of the transcript as it appears in the publicly available official record of the bankruptcy case at Docket Entry 33. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003).
II. JURISDICTION
The bankruptcy court had jurisdiction over this proceeding under 28 U.S.C. § § 1334 and 157(b)(1) and (2). We have jurisdiction under 28 U.S.C. § 158.
III. ISSUE
Whether the bankruptcy court abused its discretion by dismissing debtor's chapter 13 bankruptcy case with a five year bar to refiling.
IV. STANDARD OF REVIEW
We review the bankruptcy court's decision to dismiss a bankruptcy case with prejudice for abuse of discretion. Leavitt, 171 F.3d at 1224. We follow a two-part test to determine objectively whether the bankruptcy court abused its discretion. United States v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc). First, we " determine de novo whether the bankruptcy court identified the correct legal rule to apply to the relief requested." Id . Second, we examine the bankruptcy court's factual findings under the clearly erroneous standard. Id . at 1262 n.20. We affirm the court's factual findings unless those findings are " (1) 'illogical, ' (2) 'implausible, ' or (3) without 'support in inferences that may be drawn from the facts in the record.'" Id . (internal quotation marks omitted). If the bankruptcy court did not identify the correct legal rule, or its application of the correct legal standard to the facts was illogical, implausible, or without support in the record, then the bankruptcy court abused its discretion. Id.
V. DISCUSSION
Debtor argues on appeal that § 1307(c) is the only provision in the Bankruptcy Code applicable to the dismissal of her case and points out that none of the factors listed in that section apply. Debtor further argues that § 1307(c) authorizes only a party in interest or the United States trustee to request dismissal of her case, implying that the bankruptcy court did not have the authority to issue its OSC regarding dismissal of her case. Debtor's reliance on § 1307(c) is misplaced.
Section 1307(c) provides that " on request of a party in interest or the United States trustee . . . the court may . . . dismiss a case under this chapter, . .., for cause . . . ." The subsection then lists eleven nonexclusive factors that may constitute " cause" for dismissal. The bankruptcy court did not rely on these factors to determine whether there was " cause."
Here, the bankruptcy court's order dismissed debtor's case as an abuse, with prejudice. The inclusion of the phrase " with prejudice" in the order necessarily implicated § § 105(a) and 349(a) as appropriate sources for the court's authority.
Section 105(a) states:
The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process.
The plain language of § 105(a) authorizes the bankruptcy court to sua sponte raise the issue of dismissal of debtor's case to prevent an abuse of process.
Section 349(a) which governs the dismissal of a bankruptcy case with prejudice states:
Unless the court, for cause, orders otherwise, the dismissal of a case under this title does not bar the discharge, in a later case under this title, of debts that were dischargeable in the case dismissed; nor does the dismissal of a case under this title prejudice the debtor with regard to the filing of a subsequent petition under this title, except as provided in section 109(g) of this title.
" The phrase '[u]nless the court, for cause, orders otherwise' in Section 349 authorizes the bankruptcy court to dismiss the case with prejudice." Leavitt, 171 F.3d at 1223. Dismissal of a case with prejudice involves the application of the " totality of the circumstances" test which requires consideration of the following: (1) whether the debtor misrepresented facts in the petition or plan, unfairly manipulated the Code or otherwise filed the chapter 13 petition or plan in an inequitable manner; (2) the debtor's history of filings and dismissals; (3) whether the debtor only intended to defeat state court litigation; and (4) whether egregious behavior is present. Id . at 1224.
Relying on Leavitt, the bankruptcy court made the following factual findings: First, the court found that by filing eight bankruptcy cases over a number of years, debtor had unfairly manipulated the Bankruptcy Code to prevent creditor activity. The court further found that debtor filed the current chapter 13 case in an inequitable manner knowing that the plan she filed was patently not confirmable on its face. Second, the court found that debtor's filings represented a " pattern of abuse" because she filed the chapter 13 cases without ever completing her obligations or receiving a discharge. Next, the court determined that debtor filed many of her chapter 13 cases to " impose a series of stays to prevent strategically creditor foreclosures on property." The court observed that foreclosure of debtor's residence was completed in the seventh case, in part because the case was filed so soon after the prior two cases that no stay had gone into effect.
In this regard, debtor's plan showed that she owed Yamhill County $39, 624.86 in back taxes. Debtor proposed to pay $124 a month under her plan, which the court calculated would amount to a total payment of $7, 440 over 60 months. Further, the taxes bore interest at 16% and the chapter 13 trustee would also have to be paid a commission. Based on these numbers, the court found that the plan was " woefully not feasible."
In her seventh case, Bankruptcy Case No. 09-30250-13, the bankruptcy court entered an order for the creditor whose note was secured by debtor's residence. The order stated that if no objection was filed within fourteen days of the order, the automatic stay would be determined to have terminated or to never have gone into effect. Debtor did not file an objection to the court's order nor did she move to reimpose the automatic stay. We take judicial notice of the underlying docket in Bankruptcy Case No. 09-30250-13. Atwood, 293 B.R. at 233 n.9.
Finally, the bankruptcy court found egregious behavior was present. In that regard, the bankruptcy court stated that debtor had been using chapter 13 as her " tool of choice to use as a shield against creditor action without . . . fulfilling her obligations as a debtor in chapter 13." For all these reasons, the court dismissed debtor's case with a five year bar to refiling.
Contrary to debtor's suggestion otherwise, the court's findings were explicit and concise. As a result, there is little doubt about the court's reasons for dismissal. Notably, debtor did not assign error to any of the court's factual findings on appeal. Rather, she simply states in conclusory fashion that the court's order was not supported under Leavitt. Debtor is mistaken.
The bankruptcy court identified and applied the correct legal test under Leavitt when considering whether to dismiss debtor's case with prejudice. Further, the record supports the bankruptcy court's factual findings with respect to each element under the totality of circumstances test in Leavitt. Debtor provided no evidence, or even an explanation, as to why her numerous filings did not amount to an abuse of the system. She had several opportunities to avail herself of meaningful bankruptcy relief, but in none of her chapter 13 cases did debtor attempt to complete her case. Instead, debtor attributed all of her failed chapter 13 cases to everyone else and accepted no responsibility whatsoever for the dismissal or other failure of any of these cases.
Finally, the record indicates that debtor filed four of her cases between 2008 and 2010. Given this pattern, we cannot conclude that a five year bar to refiling was unreasonable or amounted to an abuse of the court's discretion. In short, under the totality of the circumstances test espoused in Leavitt, we perceive no error.
VI. CONCLUSION
For the reasons stated above, we AFFIRM.
Case No. 99-36297-13 - Debtor filed her second case on August 18, 1999, which was dismissed on October 26, 2000, on debtor's motion. Case No. 01-35166-13 - Debtor filed her third case on May 25, 2001. The case was dismissed on June 28, 2001, because the plan was not complete (the certificate of service was not signed and there was no matrix). Debtor moved to set aside the dismissal and reopen the case. The bankruptcy court granted her motion by order entered on September 6, 2001. The trustee moved to dismiss the case pre-confirmation due to missed plan payments. The bankruptcy court granted the trustee's motion by order entered on December 3, 2001. Case No. 02-35185-13 - Debtor filed her fourth case on May 15, 2002. The case was dismissed on July 18, 2002, on debtor's motion. At that time, the bankruptcy court issued a two year bar against refiling. Case No. 08-33163-13 - Debtor filed her fifth case on June 27, 2008. That case was dismissed on August 18, 2008, based on debtor's failure to file documents and pay the filing fee. Case No. 08-35558-13 - Debtor filed her sixth case on October 17, 2008. The case was dismissed on December 5, 2008, on debtor's motion. Case No. 09-30250-13 - Debtor filed her seventh case on January 16, 2009, despite the fact she was not eligible to file chapter 13 under § 109(g)(2) because of the voluntary dismissal of her previous case after a motion for relief from stay had been filed. Thereafter, debtor voluntarily dismissed the case.