Davis v. Bates

• Decision Date: 27 January 2020
• Docket Number: Civil Action No. 3:19cv388
• Court: U.S. District Court — Eastern District of Virginia
• Parties: DARLENE J. DAVIS, Appellant, v. CARL BATES, Trustee, Appellee.

DARLENE J. DAVIS, Appellant, v. CARL BATES, Trustee, Appellee.

Civil Action No. 3:19cv388

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

Filed: January 28, 2020

January 27, 2020

MEMORANDUM OPINION

This matter comes before the Court on pro se Appellant Darlene J. Davis's appeal from the August 30, 2018 and May 22, 2019 Orders of the Honorable Keith L. Phillips, U.S. Bankruptcy Court Judge, dismissing her Chapter 13 petition for failing to comply with the terms of the plan. (Bankr. Case No. 17-35566-KLP, ECF No. 6-1, 4). Appellee Carl Bates (the "Trustee") filed a Response Brief, (the "Appellee's Br.") (ECF No. 7), asserting that this Court should affirm the Bankruptcy Court's "Order of Dismissal entered August 30, 2018," and "the Bankruptcy Court's Order Denying the Motion to Reopen entered on May 6, 2019," because Davis did not timely file her notice of appeal and because it lacks merit. (Appellee's Br. 5, ECF No. 7.) Davis filed a reply (ECF No. 8),¹ and a letter (ECF No. 9) in opposition (the "Opposition"). The Trustee did not reply to the Opposition and the time to do so has expired.

The Court exercises jurisdiction pursuant to 28 U.S.C. § 158(a)(1).² For the reasons that follow, the Court will grant Davis's request for an extension of time to file her brief and dismiss Davis's appeal because she failed to timely file a notice of appeal, which divests this Court of jurisdiction.

I. Background

This case relates to Davis's efforts to prevent the foreclosure of her home. Generally, Davis claims that she "was forced again into a Chapter 13 due to foreclosure fraud and fraudulent transfer." (App. Br. 2, ECF No. 3.) She submits that her mortgage was never in default and that she has been "slandered by having to have numerous Chapter 13 filings that have not been allowed to be resolved fairly via adversarial proceedings due to manipulation, deceptions, coverups and apparent bias in systems." (Id.)

Davis filed the underlying Chapter 13 bankruptcy case on November 7, 2017. (Record ("R.") 1, 12, ECF No. 6-3.) On May 18, 2018, the Bankruptcy Court confirmed her plan. (R. 101-02, 110, ECF No. 6-3.) On June 19, 2018, the Trustee moved to dismiss Davis's case for failure to make the required payments in accordance with the confirmed plan. (R. 6, ECF No. 6-3.)

On August 29, 2018, the Bankruptcy Court held a hearing on the motion to dismiss and granted the motion in a written order entered the following day. (R. 7, ECF No. 6-3.) On September 12, 2018, Davis filed a motion to vacate the August 30, 2018 Order dismissing her case. (R. 8, ECF No. 6-3.) On October 10, 2018, the Bankruptcy Court held a hearing regarding Davis's motion to vacate and denied the motion. (Id.) Neither party took any further action inthe case, and, after the Trustee filed his final accounting, the Bankruptcy Court closed the case on December 6, 2018. (R. 9, ECF No. 6-3.)

Four months later, on March 5, 2019, Davis filed a second motion to vacate the August 30, 2018 Order dismissing her case. (Id.) The Bankruptcy Court Clerk's Office informed Davis that the Court would need to reopen her case before considering the new motion to vacate. On April 2, 2019, Davis moved to reopen her case. (Id.) On May 6, 2019, the Bankruptcy Court denied Davis's motion to reopen. (R. 10, ECF No. 6-3.)

On May 16, 2019, Davis filed an "Objection to Denial Orders (Objection to Order dated Aug. 30, 2018 and Objection to Order Dated May 6, 2019) and Notice of Appeal." (Id.) On May 22, 2019, the Bankruptcy Court denied in a memorandum order Davis's objection "insofar as it constitutes a motion for reconsideration under Bankruptcy Rules 9023 or 9024." (R. 120, ECF No. 6-3.) First, the Bankruptcy Court explained that, pursuant to Rule 9023, Davis did not timely file her objection. (R. 116, ECF No. 6-3.) Because Davis filed her objection "months after the entry of the August 30, 2018" Order, the Bankruptcy Court would not consider it in accordance with that rule. (Id.)

Second, the Bankruptcy Court found that while Rule 9024 provided a potential procedural avenue to consider Davis's late-filed objection, her objection did not meet the threshold requirements of that rule. (R. 117, ECF No. 6-3.) Rule 9024 "provides for a one-year period during which a party may request relief from an order." (R. 116, ECF No. 6-3.) The Bankruptcy Court explained that, to prevail under Rule 9024, which incorporates Rule 60 of the Federal Rules of Civil Procedure, a movant must meet "four threshold requirements: '(i) the motion must be timely; (ii) the movant must have a meritorious defense to the action; (iii) the opposing party must not be unfairly prejudiced by having the judgment set aside; and (iv) exceptional circumstances must warrant the requested relief.'" (R. 117, ECF No. 6-3.)(quoting In re Alpha Nat. Res., Inc., 554 B.R. 787, 798 (Bankr. E.D. Va. 2016)). Construing Davis's objection as a request for relief pursuant to Rule 9024, the Bankruptcy Court found that reopening Davis's case would prejudice her creditors and that no meritorious defense or extraordinary circumstance existed to warrant granting her such relief. (R. 117, ECF No. 6-3.) As a result, the Bankruptcy Court denied Davis's motion and did not reopen her case.

Pursuant to the Bankruptcy Court's May 22, 2019 Order, the clerk docketed Davis's "Objection as a Notice of Appeal as of the date of the entry of this order." (R. 120, ECF No. 6-3.) On June 24, 2019, Davis filed her Opening Brief in this appeal, one day after the deadline to do so.³ (ECF No. 3.) On June 25, 2019, Davis filed a request for extension of time to file her opening brief because traffic prevented her from reaching the Courthouse on time. (ECF No. 4.)

II. Standard of Review

Because Davis proceeds pro se, the Court liberally construes her filings. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.") (internal quotation marks and citations omitted). Nonetheless, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleading to allege facts that set forth a claim cognizable in a federal district court. See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Fed. R. Civ. P. 8 for "all civil actions"). A pro se plaintiff litigant must allege facts sufficient to state a cause of action. Bracey v. Buchanan, 55 F. Supp. 2d 416, 421 (E.D. Va. 1999) (citation omitted). The Court cannot act as a pro se litigant's "advocate and develop, sua sponte, statutory and constitutional claims that the [litigant] failed to clearly raise on the face of [the] complaint."Newkirk v. Cir. Ct. of Hampton, No. 3:14cv372, 2014 WL 4072212, at *1 (E.D. Va. Aug. 14, 2014) (internal quotation marks and citations omitted). The same principles of liberal construction apply to pro se litigants on appeal. See Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) ("Nor should appellate courts permit those same fleeting references to preserve questions on appeal.").

Furthermore, federal courts are courts of limited jurisdiction, "constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute." In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998). Accordingly, a federal court must, sua sponte, determine whether a valid basis for its jurisdiction exists "and to dismiss the action if no such ground appears." Id. Final orders of a bankruptcy court are appealable to a district court pursuant to 28 U.S.C. § 158(a)(1). The United States Court of Appeals for the Fourth Circuit has made clear that, in the bankruptcy context, "only a party who files a notice of appeal properly invokes the appellate jurisdiction of the district court." Smith v. Dairymen, Inc., 790 F.2d 1107, 1111 (4th Cir. 1986).

When evaluating a bankruptcy appeal, the court should determine, as a threshold matter, whether the appellant has timely filed the notice of appeal. Reig v. Wells Fargo Bank N.A., No. PWG-12-3518, 2013 WL 3280035 at *1 (D. Md. Jun. 26, 2013). Failing to timely file a notice of appeal divests the district court of jurisdiction. See Fed. R. Bankr. P. 8002; Bowles v. Russell, 551 U.S. 205, 214 (2007) ("[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement."); Chien v. Commonw. Biotechnologies, Inc., 484 B.R. 659, 663 (E.D. Va. 2012) (If a prospective appellant fails to timely file his or her notice of appeal, "the District Court is stripped of its jurisdiction to hear the appeal.").

Bankruptcy Rule 8002(a) establishes a 14-day period to appeal bankruptcy court orders. See Fed. R. Bankr. P. 8002(a)(1). Pursuant to Bankruptcy Rule 8002(b)(1), however, certainmotions will toll the appeal period if timely filed. See Fed. R. Bankr. P. 8002(b)(1). Relevant here, a motion may toll the appeal period when "a party files in the bankruptcy court [certain postjudgment] motions and does so within the time allowed by these rules, [then] the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion." Fed. R. Bankr. P. 8002(b)(1) (emphasis added).

Rule 8002(b)(1)(D) further specifies that motions for "relief under 9024 [only extends the appeal period] if the motion is filed within 14 days after the judgment is entered." Fed. R. Bankr. P. 8002(b)(1)(D) (emphasis added).⁴ Thus, "[t]o be timely for purposes of Bankruptcy Rule 8002(b), a motion to alter the judgment under Bankruptcy Rule 9023, or a motion for relief from judgment under Bankruptcy Rule 9024, must be filed within 14 days after the bankruptcy court entered the judgment." Asociacion de Titulares de Condominio Castillo, 581 B.R. 346, 354 (B.A.P. 1st Cir. 2018) (citing Fed. R. Bankr. P. 8002(b), 9023,...