Opinion
Bap No. PR 02-090, Bankruptcy Case No. 01-12092-ESL.
June 30, 2003
Jesús Santiago Malavet, Esq., on brief for Appellant.
Charles P. Gilmore, Esq., and Javier I. Arbona Azizi, Esq., on brief for Appellee.
Before VOTOLATO, FEENEY, and DEASY, U.S. Bankruptcy Appellate Panel Judges.
Appeal from the United States Bankruptcy Court for the District of Puerto Rico, (Hon. Enrique S. Lamoutte, U.S. Bankruptcy Judge).
This matter is before the Panel on an appeal from a November 15, 2002 order of the United States Bankruptcy Court for the District of Puerto Rico granting summary judgment in favor of the City of New York on its motion for relief from the automatic stay under 11 U.S.C. § 362. For the reasons discussed below, the order appealed from is affirmed.
STATEMENT OF FACTS
On October 29, 2001, Carmen Cosme Santiago (the "Debtor") filed a voluntary petition for relief under Chapter 13 of the United States Bankruptcy Code. In her Amended Schedules, the Debtor disclosed ownership of four properties located in New York, New York (154, 156, 160 and 162 E. 124th Street), as well as other real property located in Puerto Rico. The Debtor stated that she owns 154 and 156 E. 124th Street jointly with Ramon Figueroa a/k/a Ramon Figueroa Tejada. The parties dispute whether the Debtor holds title to 160 and 162 E. 124th Street jointly with Mr. Figueroa or solely in her own name.
Unless otherwise indicated, all references to the "Bankruptcy Code" or the "Code" and all references to statutory sections are to the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. § 101, et seq.
In her brief, the Debtor claims that, although she is not married, she and Mr. Figueroa have maintained a relationship for more than twenty-five years and have three children together.See Appellant's Brief at 2-3.
Prior to the bankruptcy filing, on August 9, 2000, the City of New York (the "City") obtained a tax foreclosure judgment against 154 and 156 E. 124th Street (the "Foreclosed Properties"). Pursuant to the foreclosure judgment and applicable local law, the Debtor had four months from the entry of the foreclosure judgment to pay the delinquent real estate taxes and charges, failing which the City had the right to transfer the Foreclosed Properties to a qualified third party. According to the City, the Debtor's right to pay off the taxes and charges expired on December 11, 2000, prior to the filing of the instant bankruptcy case.
On February 21, 2002, the City filed a motion for an order granting relief from the automatic stay under § 362(d)(1) to effectuate the transfer of the Foreclosed Properties pursuant to the foreclosure judgment, and to commence foreclosure proceedings against 160 and 162 E. 124th Street (the "Unforeclosed Properties"). Alternatively, the City sought dismissal of the Chapter 13 case. The City asserted that cause existed to lift the stay due to the continued accrual of real estate taxes and the deteriorating condition of the properties. Additionally, the City alleged that cause existed due to the Debtor's history of serial bankruptcy case filings which constituted an abuse of bankruptcy law, inconsistencies between the Debtor's Amended Schedules and schedules filed in previous bankruptcy cases, and admissions by the Debtor that the instant bankruptcy case was filed to prevent foreclosure. The Debtor filed a response to the relief from stay motion on March 5, 2002, requesting that the bankruptcy court deny the motion because the Debtor had requested authority to sell the properties in order to pay the outstanding property taxes to the City, and that the New York properties were to serve as collateral for a bridge loan to be used to satisfy the City's tax liens. The City filed a reply on April 30, 2002, again asserting that cause existed for relief from stay due to the Debtor's serial filings, her ineligibility for Chapter 13 relief and the inconsistencies in her amended schedules. Moreover, the City argued that although the Debtor contemplated borrowing money to redeem the Unforeclosed Properties, the Debtor would need authorization from the bankruptcy court to borrow money and pay the City's pre- and post-petition claims.
According to the City, the Debtor and Mr. Figueroa had, collectively, filed twelve bankruptcy petitions since 1991, all of which were dismissed with the exception of the instant case.
On May 9, 2002, the bankruptcy court conducted a hearing on the relief from stay motion. After hearing from the parties, the bankruptcy court directed the City to file two separate motions for summary judgment, one addressing its request for relief from the automatic stay and another addressing dismissal of the bankruptcy case. The bankruptcy court granted the Debtor twenty (20) days thereafter to respond to each of the motions, and informed the parties that once the pleadings were filed, it would schedule a hearing, if necessary; otherwise, the bankruptcy court would make a decision based upon the pleadings.
On June 7, 2002, the City filed two motions for summary judgment, one regarding its request for relief from stay and another regarding dismissal of the bankruptcy case. On that same date, the City filed a Statement of Uncontested Facts with respect to both motions, as well as an Affidavit of Michael J. Bosnick, the Assistant Commissioner of the Division of Anti-Abandonment in the New York City Department of Housing Preservation and Development ("Bosnick Affidavit), and a Certification of Hugh H. Shull, III, an Assistant Corporation Counsel in the Office of the Corporation Counsel of the City of New York Bankruptcy Division ("Shull Certification"). As provided in the bankruptcy court's May 9, 2002 order, the Debtor had twenty (20) days thereafter to reply to the summary judgment motions. On July 1, 2002, the Debtor requested an extension of time until August 30, 2002 to respond to the summary judgment motions. The Debtor did not file a response by August 30, 2002, and, on September 19, 2002, the City filed a motion requesting that the summary judgment motions be deemed unopposed and that the bankruptcy court rule upon them.
The Division of Anti-Abandonment oversees the in rem foreclosure process for the New York City Department of Housing Preservation and Development. See Bosnick Affidavit at ¶ 1, App. at 326.
In its response to the Debtor's motion, the City requested that the extended time period be shortened to July 31, 2002, arguing that a two-month extension was unwarranted and excessive. Apparently, the bankruptcy court never ruled upon the City's request.
On October 23, 2002, more than four months after the filing of the summary judgment motions, the Debtor filed a pleading entitled "Response to Motion of the City of New York For Summary Judgment on Its Motion of Dismiss [sic] and Request For Summary Judgment for Debtor." In the response, the Debtor, inter alia, opposed dismissal and requested conversion of the case to Chapter 11. The Debtor did not file a separate response to the City's motion for summary judgment on the request for relief from stay, although the Debtor argues on appeal that the response was intended to serve both as her opposition to the summary judgment motion on the request for dismissal and as her opposition to the summary judgment motion on the request for relief from stay.
According to the Debtor, the pleading was mistakenly titled as a response solely on the issue of dismissal.
On October 28, 2002, the bankruptcy court held a hearing to resolve pending matters unrelated to this appeal. At the hearing, the bankruptcy court discussed the status of the City's summary judgment motions, noting that although the Debtor had responded to the motion as to the dismissal of the case, the Debtor had not responded regarding the request for relief from stay. Therefore, the bankruptcy court deemed the summary judgment motion to be unopposed as to relief from stay and stated that a separate order would be entered regarding the motion for relief from stay. As to the summary judgment motion on the dismissal, in light of the Debtor's opposition and request for conversion to Chapter 11, the bankruptcy court ordered all parties in interest to show cause if there were any extenuating or extraordinary circumstances for not granting the conversion to Chapter 11.
The bankruptcy court characterized the hearing as a "Status Conference" regarding various pending matters, including the Debtor's application for approval of a settlement with the City regarding post-petition claims. At the status conference, the bankruptcy court noted that the Debtor's counsel had filed a motion requesting that the status conference be rescheduled due to her attorney's medical problems, and, therefore, that the Debtor was present but not represented by counsel at the status conference.
On November 15, 2002, the bankruptcy court entered an order granting the City's summary judgment motion on the request for relief from the automatic stay, noting that the motion stood "unopposed two months after the deadline for the Debtor to file her opposition thereto." The Debtor filed a Notice of Appeal from the order on November 25, 2002.
JURISDICTION
The Panel has jurisdiction to hear appeals from "final judgments, orders, and decrees" pursuant to 28 U.S.C. § 158(a)(1) or, "with leave of the court, from interlocutory orders and decrees" pursuant to 28 U.S.C. § 158(a)(3). See Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.), 218 B.R. 643, 645 (B.A.P. 1st Cir. 1998). "A decision is final if it `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Id. at 646. An interlocutory order "`only decides some intervening matter pertaining to the cause, and which requires further steps to be taken in order to enable the court to adjudicate the cause on the merits.'" Id. (quoting In re American Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir. 1985)).
Generally, orders granting relief from the automatic stay are final appealable orders. See Caterpillar Fin. Servs. Corp. v. Braunstein (In re Henriquez), 261 B.R. 67, 70 (B.A.P. 1st Cir. 2001); Banc of Am. Commer. Fin. Corp. v. CGE Shattuck, LLC (In re CGE Shattuck, LLC), 255 B.R. 334, 336 (B.A.P. 1st Cir. 2000);see also Tringali v. Hathaway Mach. Co., 796 F.2d 553, 557 (1st Cir. 1986). Moreover, a bankruptcy court's order granting a motion for summary judgment is a final order. See Weiss v. Blue Cross/Blue Shield of Delaware (In re Head Injury Recovery Ctr. at Newark, L.P.), 206 B.R. 622 (B.A.P. 1st Cir. 1997); see also DeNadai v. Preferred Capital Mkts., 272 B.R. 21 (D. Mass. 2001).
STANDARD OF REVIEW
Appellate courts reviewing an appeal from a bankruptcy court generally apply the clearly erroneous standard to findings of fact and conducts de novo review of conclusions of law. See, e.g., Prebor v. Collins (In re I Don't Trust), 143 F.3d 1, 3 (1st Cir. 1998); Brandt v. Repco Printers Lithographics, Inc. (In re Healthco Int'l, Inc.), 132 F.3d 104, 107 (1st Cir. 1997);TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir. 1995).
Generally, orders granting summary judgment are reviewed de novo, construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party's favor. See Gosselin v. Webb, 242 F.3d 412 (1st Cir. 2001) (citing Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607, 611 (1st Cir. 2000)); see also Rijos v. Vizcaya (In re Rijos), 263 B.R. 382, 388 n. 5 (B.A.P. 1st Cir. 2001);Campana v. Pilavis (In re Pilavis), 244 B.R. 173, 174 (B.A.P. 1st Cir. 2000). Courts may uphold an order granting summary judgment regardless of whether they reject or adopt its rationale, so long as an "independently sufficient ground" is made manifest by the record. See Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13 (1st Cir. 2000).
DISCUSSION
I. Response to Summary Judgment Motion.
As set forth above, the bankruptcy court concluded that although the Debtor had more than four months to respond to the City's motion for summary judgment regarding the request for relief from stay, either by opposing the motion and alleging the existence of material facts which would preclude summary judgment, or by requesting summary judgment in her favor, the Debtor failed to respond. Therefore, finding that the summary judgment motion was unopposed, the bankruptcy court granted summary judgment in favor of the City without conducting a hearing. See District Court Local Rule 311.9; see also Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576 (1st Cir. 1994) (affirming bankruptcy court's granting of summary judgment where appellant failed to respond to summary judgment motion).
Rule 311 of the Local Rules of the United States District Court for the District of Puerto Rico ("District Court Local Rules") is made applicable to bankruptcy proceedings pursuant to Rule 7001 of the Local Rules of the U.S. Bankruptcy Court for the District of Puerto Rico. District Court Local Rule 311.9 provides:
If no response to a motion is filed within ten (10) days, or within such additional or shorter period as may be fixed by the Court, the motion will be considered and decided without a hearing, unless otherwise ordered by the Court.
See District Court Local Rule 311.9 (emphasis added).
On appeal, the City argues that the Debtor failed to respond to the summary judgment motion on the request for relief from stay, and, therefore, the Debtor cannot now complain that the bankruptcy court erred in deeming the motion unopposed and granting the motion without a hearing. According to the City, the Debtor should not be permitted to correct her failure to respond to the motion for summary judgment by raising her opposition to the motion through an appeal.
The Debtor argues, however, that the bankruptcy court erred in deeming the summary judgment motion unopposed. According to the Debtor, her response to the summary judgment motion on the dismissal issue also served as her response to the summary judgment motion regarding the request for relief from stay, even though the title implied that it was limited to the dismissal issue. Therefore, the Debtor argues, the bankruptcy court erred in granting summary judgment without conducting a hearing.
Even assuming arguendo that the Debtor in fact responded to the summary judgment motion on the request for relief from stay in her pleading filed on October 23, 2002, the Panel finds that there was no error by the bankruptcy court in granting summary judgment in favor of the City. The Debtor failed to sustain her burden of proof under the summary judgment standards of the Federal Rules of Civil Procedure and District Court Local Rule 311.12, for the reasons discussed below.
II. The Summary Judgment Standard. A. Fed.R.Civ.P. 56.
Fed.R.Civ.P. 56 ("Federal Rule 56") is made applicable to bankruptcy proceedings pursuant to F.R.Bankr.P. 7056.
The standard for summary judgment is well established. An order granting summary judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Barbour v. Dynamics Research Corp., 63 F.3d 32, 36 (1st Cir. 1995), cert. denied, 516 U.S. 1113 (1996). It is generally stated that, when considering summary judgment, the court should draw all reasonable inferences from the facts in the manner most favorable to the nonmovant. See Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 763 (1st Cir. 1994); Piccicuto v. Dwyer, 39 F.3d 37, 40 (1st Cir. 1994).
The First Circuit Bankruptcy Appellate Panel has described the burden of proof for motions for summary judgment as follows:
"To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who `may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'" Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986)).
Weiss v. Blue Cross/Blue Shield, 206 B.R. at 624. Thus, the nonmovant bears the burden of placing at least one material fact into dispute once the moving party offers evidence of the absence of a genuine issue. See Crawford v. Lamantia, 34 F.3d 28, 31 (1st Cir. 1994) (citations omitted) (emphasis added),cert. denied, 514 U.S. 1032 (1995).
A "genuine" issue is one "that properly can be resolved only by a finder of fact because [it] may reasonably be resolved in favor of either party." Put another way, a "genuine" issue exists if there is "sufficient evidence supporting the claimed factual dispute" to require a choice between "the parties' differing versions of the truth at trial." A "material" issue is one that "affect[s] the outcome of the suit," that is, an issue which, perforce, "need[s] to be resolved before the related legal issues can be decided."
Maldonado-Denis, 23 F.3d at 581 (citations omitted).
Federal Rule 56(e) further provides that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added). Consequently, a party opposing summary judgment must "present definite, competent evidence to rebut the motion."Maldonado-Denis, 23 F.3d at 581; see also Torres v. E.I. Dupont de Nemours Co., 219 F.3d 13 (1st Cir. 2000) (citingAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) ("[T]he mere existence of a scintilla of evidence is insufficient to defeat a properly supported motion for summary judgment"). Motions for summary judgment must be decided "on the record as it stands, not on litigants' visions of what the facts might some day reveal." Maldonado-Denis, 23 F.3d at 581. "[B]rash conjecture, coupled with earnest hope that something concrete will eventually materialize, is insufficient to block summary judgment." Id.
Although the evidence presented is to be viewed in the light most favorable to the nonmoving party, "[a]s to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trial worthy issue warrants summary judgment to the moving party." McCrory v. Spigel (In re Spigel), 260 F.3d 27, 31 (1st Cir. 2001). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." 10 Lawrence P. King, Collier on Bankruptcy ¶ 7056.05 (15th ed. rev. 2002) (citing Anderson, 477 U.S. at 249). Therefore, an inadequate opposition to a motion for summary judgment can eliminate the objecting party's ability to raise factual issues warranting trial. See Adam Coop. Bank v. Greenberg (In re Greenberg), 229 B.R. 544, 546 (B.A.P. 1st Cir. 1999).
III. District Court Local Rule 311.12.
District Court Local Rule 311.12, which is applicable to bankruptcy proceedings in the District of Puerto Rico pursuant to Rule 7001 of the Local Rules of the U.S. Bankruptcy Court for the District of Puerto Rico, requires a party moving for summary judgment to file and annex to the motion a "separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried," properly supported by specific references to the record. See District Court Local Rule 311.12; see also Tirado v. Johnson Johnson D.O.C., Inc., 240 F. Supp.2d 144, 148 (D.P.R. 2003). Similarly, the rule requires the nonmoving party to file a statement of contested material facts. See District Court Local Rule 311.12. The Puerto Rico District Court has called this the "anti-ferret rule." See, e.g., Correa-Pagan v. Gulf Chem. Corp., 224 F. Supp.2d 393, 395 (D.P.R. 2002); Mendez-Marrero v. Toledo, 968 F. Supp. 27, 34 (D.P.R. 1997). The court is not required to "`ferret through the record' looking for facts that may favor [a party] when those facts were not proffered under a counter-designation of facts as required by Local Rule 311.12."See Correa-Pagan, 224 F. Supp. at 396 (citing Morales v. A.C. Orssleff's Eftf, 246 F.3d 32, 33 (1st Cir. 2001)). When a party opposing a motion for summary judgment fails to comply with the `anti-ferret rule,' the statement of material facts filed by the party seeking summary judgment is deemed admitted. See District Court Local Rule 311.12; see also Mendez-Marrero, 968 F. Supp. at 34. Although a nonmovant's failure to provide a statement of contested material facts does not automatically warrant the granting of summary judgment, "it launches the nonmovant's case down the road towards an easy dismissal." See id. Since all material facts in the movant's statement of uncontested material facts are deemed admitted, the court need only examine whether, given the uncontested facts, the nonmovant is entitled to judgment as a matter of law. See id.
District Court Local Rule 311.12 provides that all material facts set forth in the moving party's statement " shall be deemed to be admitted unless controverted by the statement required to be served by the opposing party." See District Court Local Rule 311.12 (emphasis added).
The First Circuit has consistently upheld the validity of District Court Local Rule 311.12. See, e.g., Morales, 246 F.3d at 33 (stating that "parties ignore [Rule 311.12] at their own peril" and that "failure to present a statement of disputed facts, embroidered with specific citations to the record, justifies deeming the facts presented in the movant's statement of undisputed facts admitted); Betances v. Sea-Land Serv., Inc., 248 F.3d 40 (1st Cir. 2001) (same); Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000) (finding that, wholly apart from the merits, appellant's "brazen disregard of Local Rule 311.12" constituted an independently sufficient ground for affirmance of summary judgment ruling); Rivas v. Federacion de Asociaciones Pecuarias de Puerto Rico, 929 F.2d 814, 816 n. 2 (1st Cir. 1991).
IV. Relief from the Automatic Stay.
The City alleged in its motion for summary judgment that cause existed for relief from the automatic stay under § 362(d)(1) because the Debtor filed her petition after twelve successive cases were dismissed, knowing that there was no hope of confirming a plan, and in violation of Chapter 13 eligibility requirements. In addition, the City argued that its interests in the subject properties were not adequately protected while the properties were declining in value as taxes and interest accrued on the properties, and that each of the properties were distressed and in violation of numerous local housing laws. The City's allegations were supported by a Statement of Uncontested Facts ("Statement"), the Bosnick Affidavit and the Shull Certification. As set forth below, the City met its burden of proof under the summary judgment standard through the submission of competent evidence that the Debtor failed to rebut.
Section 362 provides that the filing of a bankruptcy petition for relief operates as an automatic stay of all acts against a debtor and property of the debtor's estate, subject to limited exceptions. The automatic stay is one of the fundamental protections that the Bankruptcy Code affords to debtors — it gives the debtor a breathing spell from his creditors, by effectively suspending all collection efforts (including foreclosures). See Soares v. Brockton Credit Union (In re Soares), 107 F.3d 969, 975 (1st Cir. 1997); see also 11 U.S.C. § 362(a)(6). The automatic stay remains in effect unless and until a court either disposes of the underlying case, see § 362(c)(2), or grants relief to a particular creditor, see § 362(d)-(f).
Section 362(d)(1) provides that the bankruptcy court shall grant relief from the automatic stay for cause, including the lack of adequate protection of an interest in property of such party in interest." 11 U.S.C. § 362(d)(1). The burden of proof under § 362(d)(1) is a shifting one. See Sonnax Indus., Inc. v. Tri Component Prods. Corp. (In re Sonnax Indus., Inc.), 907 F.2d 1280, 1285 (2d Cir. 1990). The party seeking relief from the stay has the initial burden to present prima facie evidence showing that cause exists. See id. If the moving party succeeds in meeting this burden, then the burden of proof shifts to the debtor to show that the stay should remain in place. See 11 U.S.C. § 362(g).
Prima facie evidence is "[e]vidence that will establish a fact or sustain a judgment unless contradictory evidence is produced." Black's Law Dictionary 579 (7th ed. 1999).
In order to meet its initial burden of showing that cause existed for such relief, the City offered evidence of the Debtor's and Mr. Figueroa's serial and abusive filing of twelve successive bankruptcy petitions between 1991 and 2001, all of which were dismissed, many without confirmation of a plan, with the exception of the instant case. See Statement at ¶¶ 3-5, App. at 318. In addition, the City offered evidence that many of the bankruptcy petitions, including the petition commencing the instant case, were filed in an effort to effectuate a stay of action relating to the New York properties. See Bosnick Affidavit at ¶ 23, App. at 332. As the City stated in its summary judgment motion, the delay tactics by the Debtor and Mr. Figueroa to prevent the transfer of the Properties are "obvious from the fact that they jointly sought to stay the transfer [of the Properties] in State Court, and once denied, Figueroa filed within the 180 day bar period in New York, and once that case was dismissed, the Debtor filed herein. It fits a consistent pattern of serial filings." See Summary Judgment Motion at ¶ 9, App. at 282. Moreover, the City offered evidence that "the Debtor and [Mr.] Figueroa have obfuscated the ownership of the Properties." Finally, to further support its claims that cause existed for relief from stay, the City offered evidence of the continued accrual of real estate taxes and charges, the deteriorating condition of the properties, and the numerous housing code violations. See Statement at ¶¶ 11,12, 29, App. at 320, 323; Bosnick Affidavit at ¶¶ 5,6, App. at 327-28.
The City also notes that the Debtor failed to disclose in the instant case that she had filed any bankruptcy petitions within the six years prior to filing this case.
For example, the City offered evidence that the Debtor and Mr. Figueroa jointly sought to stay the transfer of the properties in a state court action and, once denied, Mr. Figueroa filed a bankruptcy petition in the Southern District of New York, despite a 180-day ban against filing, and once that case was dismissed, the Debtor filed herein.
In support of its relief from stay motion, the City submitted copies of the last recorded deeds to the New York properties, which show that the Debtor owns the Foreclosed Properties jointly with Mr. Figueroa but holds title to the Unforeclosed Properties solely in her own name. See App. at 25-30.
By offering such evidence, the City met its burden of proof under the summary judgment standard. The basic policy of a reorganization case is to permit a debtor to rehabilitate the financial affairs of a business or an individual, see N.L.R.B. v. Bildisco Bildisco, 465 U.S. 513 (1984); In re Corporacion de Servicios Medico Hospitalarios de Fajardo, 805 F.2d 440, 446 (1st Cir. 1986), and such a purpose must be pursued in good faith. The term "good faith" is not defined, and, therefore, the good faith inquiry is a "fact intensive determination better left to the discretion of the bankruptcy court." In re Love, 957 F.2d 1350, 1354-55 (7th Cir. 1992). Bankruptcy courts generally apply a totality of the circumstances test to determine whether a debtor lacked good faith when filing a Chapter 13 petition for purposes of § 1307(c). See, e.g., Mason v. Young (In re Young), 237 B.R. 791, 798 (B.A.P. 10th Cir. 1999) (good faith analysis is made on a case by case basis and should take a `totality of the circumstances' approach), aff'd, 237 F.3d 1168 (10th Cir. 2001); In re Lilley, 91 F.3d 491, 496 (3d Cir. 1996); Handeen v. LeMaire (In re LeMaire), 898 F.2d 1346, 1348-49 (8th Cir. 1990) (en banc) (confirming continued viability and general purpose of the totality of the circumstances analysis). The Panel originally did not adopt a totality of the circumstances approach to determine lack of good faith, but rather advocated an examination of only the circumstances relevant to the debtor's proposed plan and post-filing conduct.See Keach v. Boyajian (In re Keach), 243 B.R. 851, 856 (B.A.P. 1st Cir. 2000) (proposing a "standard of simply honesty"). Subsequently, other courts within the First Circuit expanded Keach's examination of the debtor's lack of good faith to include both preand post-petition conduct of the debtor. See, e.g., In re Scotten, 281 B.R. 147, 149 (Bankr. D. Mass. 2002); In re Virden, 279 B.R. 401, 407 (Bankr. D. Mass. 2002) (concluding that the bottom line in determining good faith in a debtor's filing is "whether the debtor is attempting to thwart his creditors, or is making an honest effort to repay them to the best of his ability"). Moreover, the Panel has impliedly adopted the totality of the circumstances test to determine lack of good faith by affirming a bankruptcy court's decision based on the totality of the circumstances test. See Cabral v. Shamban (In re Cabral), 285 B.R. 563, 573-74 (B.A.P. 1st Cir. 2002).
Lack of good faith in filing a bankruptcy petition may constitute cause to lift the stay. See, e.g., In re Lippolis, 228 B.R. 106, 112 (E.D. Pa. 1998) (citing cases). Serial filings and petitions filed solely to forestall creditors in Chapter 13 cases constitute cause to lift the automatic stay under § 362(d)(1). See, e.g., Casse v. Key Bank Nat'l Ass'n (In re Casse), 198 F.3d 327, 332 (2d Cir. 1999) (debtors who filed three bankruptcy petitions without filing a reorganization plan were bad faith serial filers); Sterling v. Merchant (In re Merchant), 256 B.R. 572, 577 (Bankr. W.D. Pa. 2000) (finding successive filings of bankruptcy petitions was done in bad faith); In re Felberman, 196 B.R. 678, 681 (Bankr. S.D.N.Y. 1995) (concluding that filing bankruptcy petition merely to prevent foreclosure, without the ability or the intention to reorganize, is an abuse of the Bankruptcy Code; serial filings are a badge of bad faith). Serial filers are "among the Hannibal Lecters of current bankruptcy litigation." In re Casse, 198 F.3d at 332.
In this case, the City offered sufficient evidence that the chronology of the twelve successive bankruptcy filings in relation to the dates of certain actions by the City with respect to the properties is indicative of the Debtor's lack of good faith. Therefore, the City met its initial burden of proof that cause existed for relief from stay.
In order to counter the City's allegations of cause, the burden then shifted to the Debtor to create a genuine issue of material fact by offering admissible evidence of specific facts that warrant the automatic stay remaining in place. In order to meet her burden under the summary judgment standard, the Debtor was required to offer some evidence that cause did not exist for relief from stay. The Debtor did not meet this burden. The Debtor did not rebut the City's evidence that she did not pursue her reorganization in good faith.
First, the Debtor created a procedural defect by not including a statement of contested issues of material facts along with her alleged opposition to the City's motion for summary judgment, as required by District Court Local Rule 311.12. Despite the rule's unequivocal requirement, the Debtor failed to submit an adequate statement of material facts duly supported by specific references to the record as to which she contends there are genuine issues to be tried. Further, the Debtor failed to contradict the averments presented by the City in its statement of facts. In accordance with District Court Local Rule 311.12, material facts not expressly disputed are deemed admitted. Therefore, in the case before us, the Debtor's failure to controvert the City's assertedly undisputed material facts rendered them to be admitted for purposes of the motion. See id.; see also Laracuente v. Chase Manhattan Bank, 891 F.2d 17 (1st Cir. 1989); Cardona v. Aramark Serv. of Puerto Rico, Inc., 9 F. Supp.2d 92, 95 (D.P.R. 1998) ("When a party opposing a motion for summary judgment fails to submit a statement of contested material facts, the court must deem to be admitted the movant's properly supported statement of material facts.").
Secondly, the Debtor did not in any other fashion allege the existence of any material disputed facts which would defeat summary judgment. The Debtor did not submit any statement of material facts, supporting affidavits, or other evidence to rebut the City's evidence that the condition of the property was deteriorating, that real estate taxes were accruing, or that the latest of twelve Chapter 13 cases was not a serial and abusive filing which was filed for an improper purpose. Without any admissible evidence of any circumstances which would defeat the City's prima facie evidence that cause existed for relief from stay, the City was entitled to summary judgment as a matter of law. In fact, any other result here would amount to reversible error.
CONCLUSION
For the foregoing reasons, the bankruptcy court's order granting the City's motion for summary judgment as to the request for relief from the automatic stay is hereby AFFIRMED.