In re Baer, 11-8062
| Decision Date | 22 June 2012 |
| Docket Number | No. 11-8062,11-8062 |
| Parties | In re: JOSEPH L. BAER, Debtor. |
| Court | U.S. Court of Appeals — Sixth Circuit |
By order of the Bankruptcy Appellate Panel, the precedential effect of this decision is limited to the case and parties pursuant to 6th Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1©.
File Name: 12b0007n.06
Appeal from the United States Bankruptcy Court
for the Eastern District of Kentucky, Covington Division.
No. 10-21096, Adv. Proc. No. 10-02062.
Before: McIVOR, PRESTON, SHEA-STONUM, Bankruptcy Appellate Panel Judges.
ON BRIEF: Elizabeth Brown Alphin, MAPOTHER & MAPOTHER P.S.C., Louisville, Kentucky, for Appellee. Joseph Lee Baer, Florence Kentucky, pro se.
MARILYN SHEA-STONUM, Bankruptcy Appellate Panel Judge. Joseph L. Baer, the pro se Chapter 7 debtor, appeals an order of the bankruptcy court finding: (1) the debtor failed to prove actual damages caused by a secured creditor's post-petition repossession of a Toyota Camry and (2) the creditor's actions did not violate the discharge injunction.
The issues presented by this appeal are whether the bankruptcy court erred in: (1) not extending the pre-trial discovery deadlines; (2) not awarding debtor damages pursuant to 11 U.S.C. § 362(k); (3) not finding that HSBC Auto had violated the discharge injunction; and (4) not granting debtor's post-trial motions for a new trial, for return of property and for temporary injunctive relief and a temporary restraining order.
For the reasons that follow, we affirm (1) the bankruptcy court's April 25, 2011 order denying the debtor's motion to extend the discovery deadlines without prejudice; (2) the bankruptcy court's August 22, 2011 judgment dismissing debtor's claim for violation of the discharge injunction pursuant to 11 U.S.C. § 524 and finding that while HSBC wilfully violated the automatic stay pursuant to 11 U.S.C. § 362(k), debtor was not entitled to damages; and (3) the bankruptcy court's September 2, 2011 order denying the debtor's motions for a new trial, for return of property, and for temporary injunctive relief and a temporary restraining order.
HSBC Auto also asserts that the debtor does not have standing to bring this appeal.
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal. The United States District Court for the Eastern District of Kentucky has authorized appeals to the Panel and no party has timely elected to have this appeal heard by the district court. 28 U.S.C. § 158(b)(6), (c)(1). A final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C. § 158(a)(1). For purposes of appeal, a final order "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (citations omitted).
All of the orders challenged by appellant are final, appealable orders. Pre-trial orders relating to discovery become final orders when the trial court enters final judgment on all claims. In re Gray, 447 B.R. 524, 531 (E.D. Mich. 2011). Because the bankruptcy court in this appeal has entered final judgment on the debtor's complaint, the court's denial of debtor's motion to extend the discovery deadlines is now final and ripe for appeal. The bankruptcy court's August 22, 2011 order which determined the issues of willfulness and sanctions is also final for purposes of appeal. Wicheff v. Baumgart (In re Wicheff), 215 B.R. 839, 843 (B.A.P. 6th Cir.1998) . The bankruptcy court's denial of debtor's motion for contempt for violation of the discharge injunction is also a final, appealable order. In re Glaspie, 410 B.R. 261, 266 (E.D. Mich. 2007). The bankruptcy court's order denying debtor's motion for a new trial under Federal Rule of Civil Procedure 59 is a final order for purposes of appeal. Dayton Title Agency, Inc. v. The White Family Cos., Inc. (In re Dayton Title Agency, Inc.), 337 B.R. 729 (B.A.P. 6th Cir. 2006) (unpub. table decision).
Although not specifically brought pursuant to Federal Rules of Civil Procedure 59, the debtor's post-trial motions for return of property and for temporary injunctive relief and a temporary restraining order are essentially requests to alter or amend and/or reconsider previous orders from the bankruptcy court. Debtor originally requested return of the vehicle in a motion for temporary injunctive relief and temporary restraining order filed contemporaneously with his complaint. The bankruptcy court denied that motion on March 25, 2011. Debtor originally sought to enjoin Appellee from disposing of the collateral in his complaint. In issuing its August 22, 2011 order, the bankruptcy court denied that requested relief. Orders denying a Rule 59(a) motion to alter or amend a judgment are final for purposes of appeal. Brock v. Branch Banking & Trust Co. (In re Johnson), 380 B.R. 455, 458 (B.A.P. 6th Cir. 2007).
The decision to grant or deny a request for an extension of discovery deadlines is within the bankruptcy court's sound discretion and is reviewed for an abuse thereof. Woods v. McGuire, 954 F.2d 388, 391 (6th Cir. 1992). Orders limiting discovery will only be reversed if they result in"substantial prejudice" to the non-prevailing party. Wayne v. Village of Sebring, 36 F.3d 517, 530 (6th Cir. 1994) (citation omitted). "An abuse of discretion occurs only when the [trial] court relies upon clearly erroneous findings of fact or when it improperly applies the law or uses an erroneous legal standard." Kaye v. Agripool, SRL (In re Murray, Inc.), 392 B.R. 288, 296 (B.A.P. 6th Cir. 2008) (citations omitted); See also Mayor of Balt., Md. v. W. Va. (In re Eagle-Picher Indus., Inc.), 285 F.3d 522, 529 (6th Cir. 2002) (). "The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court's decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion." Barlow v. M.J. Waterman & Assocs. Inc. (In re M.J. Waterman & Assocs., Inc.), 227 F.3d 604, 608 (6th Cir. 2000).
Rulings on Rule 59 motions to alter or amend or for a new trial are also reviewed for an abuse of discretion. Hamerly v. Fifth Third Mortg. Co. (In re J & M Salupo Dev. Co.), 388 B.R. 795, 800 (B.A.P. 6th Cir. 2008) (citing Pequeño v. Schmidt (In re Pequeño), 240 Fed. App'x 634, 636 (5th Cir. 2007)).
A bankruptcy court's determination that a party has willfully violated the automatic stay presents a mixed question of law and fact. In re Perrin, 361 B.R. 853 (B.A.P. 6th Cir. 2007). The decision that an award of damages is not warranted where debtor fails to prove actual damages is a question of statutory interpretation and is reviewed de novo. Id. at 855. "De novo means that the appellate court determines the law independently of the trial court's determination." Id. The determination that a party has willfully violated the automatic stay is a question of fact reviewed for clear error. TranSouth Fin. Corp. v. Sharon (In re Sharon), 234 B.R. 676, 688 (B.A.P. 6th Cir. 1999).
A bankruptcy court's application and interpretation of 11 U.S.C. § 524 also poses a mixed question of law and fact. Ford Motor Credit Co. LLC v. Morton (In re Morton), 410 B.R. 556, 559 (B.A.P. 6th Cir. 2009). The court's interpretation of § 524 is reviewed de novo. Id. The court'sdetermination that HSBC Auto did not violate the discharge injunction is reviewed for an abuse of discretion. Rajotte v. Carter (In re Rajotte), 81 Fed. App'x 29 (6th Cir. 2003).
On April 10, 2008, Joseph Lee Baer (hereinafter "Debtor"), purchased a 2009 Toyota Camry from Lakeside Toyota of Metarie, Louisiana, and financed the purchase price of approximately $26,000. The lien was perfected by notation on the certificate of title on May 21, 2008.
On April 21, 2010, Debtor filed his no asset chapter 7 petition for bankruptcy relief.1 The Debtor listed the Camry on Schedule C and noted the value of his claimed exemption in the vehicle as $0. On Schedule D, Debtor showed HSBC Auto ("Appellee") holding a "statutory lien" on the Camry in the amount of $23,557 with an unsecured portion of $3,557. Debtor listed total assets of $22,600, $20,000 of which represented the Camry's value, and total liabilities of $576,956.60. Debtor's § 341 meeting of creditors was set for June 16, 2010.
Debtor's Statement of Intention indicated that he proposed to retain the Camry by entering into a reaffirmation agreement with Appellee. Nothing in the Statement of Intention indicated Debtor intended to reaffirm the debt on the original contract terms. Debtor, however, never entered into a reaffirmation agreement for the debt secured by the Camry. Instead, on April 26, 2010, he filed a motion to redeem the vehicle from the Appellee.2 He sought to redeem the vehicle for$14,000. The bankruptcy court granted his motion on May 17, 2010 ("Redemption Order"). The Redemption Order required Debtor to remit the entire $14,000 in a lump sum to Appellee within forty-five days of entry of the order or to surrender the vehicle. The Redemption Order did not, however, provide that the automatic stay would be modified in the event Debtor did not comply with its terms. Debtor failed to remit the lump sum payment or to surrender the Camry to Appellee within the applicable time limit.
Debtor received his chapter 7 discharge on October 20, 2010. The Chapter 7 Trustee's Report of No Distribution was entered on the docket as a minute entry only on November 8, 2010. According to...
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