Balaguer v. Perez (In re Balaguer)

• Decision Date: 31 March 2017
• Docket Number: Civil No. 16-1359 (DRD), Bankruptcy Case No. 15-05521 BKT.
• Citation: 248 F.Supp.3d 329
• Parties: IN RE: Ricardo Jesus RIVERA BALAGUER, Debtor(s). Ricardo Jesus Rivera Balaguer, Appellant(s), v. Johanna Lanza Perez, Appellee(s), v. The United States Trustee, Interested Party.
• Court: U.S. District Court — District of Puerto Rico

248 F.Supp.3d 329

IN RE: Ricardo Jesus RIVERA BALAGUER, Debtor(s).

Ricardo Jesus Rivera Balaguer, Appellant(s),

v.Johanna Lanza Perez, Appellee(s),

v.The United States Trustee, Interested Party.

Civil No. 16-1359 (DRD), Bankruptcy Case No. 15-05521 BKT.

United States District Court, D. Puerto Rico.

Signed March 31, 2017

Maximiliano Trujillo–Gonzalez, Maximiliano L. Trujillo Law Office, San Juan, PR, for Appellant.

Teresa M. Lube–Capo, Lube & Soto Law Offices PSC, San Juan, PR, for Appellee.

Monsita Lecaroz–Arribas, U. S. Trustee Office, San Juan, PR, for Interested Party.

OPINION AND ORDER

DANIEL R. DOMINGUEZ, United States District Judge

Pending before the Court is an appeal filed by debtor-appellant Ricardo Jesus Rivera Balaguer ("Rivera Balaguer" or "Appellant"), on February 23, 2016, against creditor Johanna Lanza Perez ("Appellee"), and the United States Trustee, as an interested party. Appellant specifically appealed the Order denying the motion for reconsideration of dismissal entered on February 11, 2016 by the Bankruptcy Court.

For the reasons set forth below, the Order denying the motion for reconsideration of dismissal is affirmed, and the appeal filed by the Debtor/Appellant is dismissed.

Jurisdiction

The Court has jurisdiction to entertain appeals "from final judgments, orders, and decrees." 28 U.S.C. § 158(a)(1). (Emphasis ours). "A decision is final if it ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ " Fleet Data Processing Corp. v. Branch (In re Bank of New England Corp.) , 218 B.R. 643, 645–646 (1st Cir. BAP 1998) (citing 28 U.S.C. Section 158(a)(1) and (a)(3) ). See also In the Matter of SK Foods, L.P. and RHM Industrial/Specialty Foods, Inc. , 676 F.3d 798, 802 (9th Cir.2012) (quoting In re AFI Holding , 530 F.3d 832, 836 (9th Cir.2008) ).

Introduction

The issue before the Court is whether service of a motion related to a contested matter is to be made through summons, in the fashion provided by Rule 7004 of the Federal Rules of Bankruptcy Procedure ("Fed.R.Bankr.P."), as opposed to serve the motion in the manner in which the summons are served, as provided by Fed.R.Bankr.P. 9014.

Standard of Review

On bankruptcy appeals, the district court reviews rulings of law de novo and findings of fact for clear error. Prebor v. Collins (In re I Don't Trust) , 143 F.3d 1, 3 (1st Cir.1998). In Prebor , the United States Court of Appeals for the First Circuit ("First Circuit") held:

In an appeal from a bankruptcy court decision this court-like the district court or the bankruptcy appellate panel-affords the novo review to the bankruptcy court's conclusions of law. SeeIn re Healthco International, Inc. , 132 F.3d 104, 107 (1st Cir.1997) ; In re DN Associates , 3 F.3d 512, 515 (1st Cir.1993).

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Apart from the appellant's self-serving speculation, there is nothing in the record to suggest that the bankruptcy court did not appreciate the controlling legal rules, or, appreciating them, defied their dictates. Consequently, we uphold the district court's determination that abuse of discretion is the applicable standard of review. SeeReliance Steel Prods. Co. v. National Fire Ins. Co. , 880 F.2d 575, 577 (1st Cir.1989) (noting that an appellant cannot avoid a deferential standard of review by the simple expedient of dressing

factual disputes or judgment calls in "legal costumery").

Further, in In re Fahey , 779 F.3d 1, 3 (1st Cir.2015), the First Circuit held that "since no material facts are disputed and the issue before us turns entirely upon an interpretation of law, our review is plenary," citing Pasquina v. Cunningham (In re Cunningham) , 513 F.3d 318, 323 (1st Cir.2008) ; Brandt v. Repco Printers & Lithographics, Inc. (In re Healthco International, Inc.) , 132 F.3d 104, 107 (1st Cir.1997). See also In re Rodriguez , 516 B.R. at 183. "When ... the court below has not disclosed the findings and conclusions upon which relief was denied, we [Bankruptcy Appellate Panel] will sustain ‘on any independently sufficient ground made manifest by the record,’ " citing In re Aguiar , 311 B.R. 129, 132 (1st Cir. BAP 2004) (citations omitted).

Our analysis follows.

Factual and Procedural Background

The Bankruptcy Court record shows that Appellant Rivera Balaguer filed for relief under Chapter 7 of the Bankruptcy Code on July 19, 2015, Bankruptcy No. 15–05521 BKT. The instant appeal is related to Bankruptcy No. 15–05521 BKT. However, the Bankruptcy Court record shows that Mr. Rivera Balaguer is a repeated filer, and user of Bankruptcy requests.

First Bankruptcy Case No. 12–09037 BKT: On November 9, 2012, debtor Rivera Balaguer filed for relief under Chapter 11 of the Bankruptcy Code, eventually the case was voluntarily dismissed on October 7, 2013.

Second Bankruptcy Case No. 14–09144 BKT: On November 3, 2014, debtor Rivera Balaguer filed for relief under Chapter 13 of the Bankruptcy Code, which was later converted to Chapter 7, and dismissed again on December 19, 2014 for debtor's failure to file the requested documents.

Third Bankruptcy Case No. 15–05521 BKT: On July 19, 2015, debtor Rivera Balaguer filed for relief under Chapter 7 of the Bankruptcy Code, under Bankruptcy No. 15–05521 BKT, and the appeal is now pending before this Court. The bankruptcy record shows that the original Chapter 7 case was converted to Chapter 11, on October 2, 2015. A Chapter 11 Plan of Reorganization was filed on December 16, 2015. On that same date, the Bankruptcy Court held a Status Conference, and granted the debtor until January 30, 2016 to complete and comply with the small business requirements. The Court further set some other deadlines for debtor to comply. See Minutes and Order of December 16, 2015, Docket No. 28 of Bankruptcy No. 15–05521 BKT.

On January 13, 2016, creditor Johanna Lanza Perez, a Domestic Support Obligation creditor moved for the dismissal of the Chapter 11 bankruptcy proceeding with a bar to re-file of two years. (Johanna Lanza Perez had been a creditor in the previous bankruptcy petitions of debtor/appellant). See Docket No. 32 of Bankruptcy No. 15–05521 BKT. On January 16, 2016, the Debtor filed a Motion to Quash Motion to Dismiss under Docket No. 35 of Bankruptcy No. 15–05521 BKT. The Court record shows, however, that on January 18, 2016, Appellee filed the Certificate of Service of the motion to dismiss with a bar to re-file. See Docket No. 38 [re: Docket No. 32, Appellee's motion to dismiss with a bar to re-file] of Bankruptcy No. 15–05521 BKT.

On February 9, 2016, the Bankruptcy Court dismissed the bankruptcy case after ruling that Debtor's Motion to Quash Motion to Dismiss [Docket No. 35 of Bankruptcy No. 15–05521 BKT] "became moot as to the Debtor not been properly served with the certificate of service (docket No. 38)." See Order Dismissing Case filed under Docket No. 44 of Bankruptcy No. 15–05521 BKT. On even date, the Bankruptcy Court granted Appellee's Motion to Dismiss with a Bar to Re-file for Two Years . See also Order Dismissing Case , Docket No. 44 of Bankruptcy No. 15–05521 BKT.¹ Appellant moved for reconsideration of dismissal, on February 9, 2016. On February 11, 2016, the Court entered an Order denying the reconsideration of dismissal. See Docket entries No. 45, 46 of Bankruptcy No. 15–05521 BKT.² The Notice of Appeal followed on February 23, 2016, that is, within 14 days from the entry of the Order denying the motion for reconsideration of dismissal. See Fed.R.Bank.P. 8002(b), 9023, 9024. The instant appeal was filed in the district court, as elected by the debtor, and it was referred to the undersigned. See Civil No. 16–1359 (DRD).

Applicable Law and Discussion

Jurisdiction and Finality

As stated above, the Court has jurisdiction to entertain appeals "from final judgments, orders, and decrees." 28 U.S.C. § 158(a)(1). (Emphasis ours). Hence, in order to determine whether we have jurisdiction, we most first determine whether the appealed order is final.

In Bullard v. Blue Hills Bank , ––– U.S. ––––, 135 S.Ct. 1686, 191 L.Ed.2d 621 (2015), the Supreme Court of the United States thoroughly explains the distinction between a final appealable order in an ordinary civil litigation, as opposed to a final appealable order in a bankruptcy proceeding. Although, the issue of finality of a bankruptcy order is discussed in the context of a Chapter 13 of the Bankruptcy Code, the principle of finality and appealability of a bankruptcy court order is the same regardless of the relief requested under the Bankruptcy Code.

In ordinary civil litigation, a case in federal district court culminates in a "final decision[n]," 28 U.S.C. Section 1291, a ruling "by which a district court disassociates itself from a case," Swint v. Chambers County Commission , 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). A party can typically appeal as of right only from that final decision. This rule reflects the conclusion that "[p]ermitting piecemeal, prejudgment appeals ... undermines ‘efficient judicial administration’ and encroaches upon the prerogatives of district court judges, who play a ‘special role’ in managing ongoing litigation." Mohawk Industries, Inc. v. Carpenter , 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quoting Firestone Tire & Rubber Co. v. Risjord , 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) ).

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The rules are different in bankruptcy. A bankruptcy case involves "an aggregation of individual controversies," many of which would exist as stand-alone lawsuits but for the bankruptcy status of the debtor. 1 Collier on Bankruptcy ¶ 5.08[1][b], p. 5–42 (16^th ed. 2014). Accordingly, "Congress has long provided that orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case." Howard Delivery Service, Inc. v. Zurich American Ins. Co. , 547 U.S. 651, 657, n.3, 126 S.Ct. 2105, 165 L.Ed.2d 110 (2006) (internal quotation marks and emphasis omitted). The current bankruptcy appeals statute reflects

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