Rodriguez v. Banco Popular De Puerto Rico (In re Rodriguez)

• Decision Date: 26 August 2014
• Docket Number: Bankruptcy No. 13–06101–ESL.,BAP No. PR 14–003.
• Citation: 516 B.R. 177
• Parties: Luis Alberto Rodriguez RODRIGUEZ and Ada Alicia Rodriguez Rodriguez, Debtors. Luis Alberto Rodriguez Rodriguez and Ada Alicia Rodriguez Rodriguez, Appellants, v. Banco Popular De Puerto Rico, Appellee.
• Court: U.S. Bankruptcy Appellate Panel, First Circuit

516 B.R. 177

Luis Alberto Rodriguez RODRIGUEZ and Ada Alicia Rodriguez Rodriguez, Debtors.

Luis Alberto Rodriguez Rodriguez and Ada Alicia Rodriguez Rodriguez, Appellants

v.Banco Popular De Puerto Rico, Appellee.

BAP No. PR 14–003.

Bankruptcy No. 13–06101–ESL.

United States Bankruptcy Appellate Panel of the First Circuit.

Aug. 26, 2014.

Frederic Chardon Dubos, Esq., Moca, PR, on brief, for Appellants.

Jeséus R. Rabell Méndez, Esq., San Juan, PR, on brief, for Appellee.

Before HILLMAN, HOFFMAN, and FINKLE, United States Bankruptcy Appellate Panel Judges.

Opinion

HOFFMAN, Bankruptcy Judge.

Luis Alberto Rodriguez Rodriguez and Ada Alicia Rodriguez Rodriguez (the “Debtors”) appeal from the following orders of the bankruptcy court: (1) a November 15, 2013, order granting Banco Popular de Puerto Rico's (“BPPR”) motion for reconsideration and request for dismissal with bar to refiling; (2) a November 15, 2013, order denying the Debtors' motion to vacate an order dismissing their case; and (3) a January 8, 2014, order denying the Debtors' motion to vacate the order referred to in Item 1. For the reasons set forth below, we DISMISS the appeal as to the first two orders and we AFFIRM as to the third.

BACKGROUND

Prior to the filing of the bankruptcy case from which this appeal arises, the Debtors had undertaken three previous chapter 13 case filings (Case Nos. 10–05998, 11–01236, and 12–00842), all of which ended in dismissal. The bankruptcy court dismissed the Debtors' first chapter 13 case on October 4, 2010, due to their failure to comply with an order to show cause, and closed the case on January 31, 2011. Eighteen days later, on February 18, 2011, the Debtors filed their second chapter 13 case. The court dismissed that case on August 12, 2011, for failure to comply with certain court orders, and closed the case on March 28, 2012. The Debtors filed their third chapter 13 case on February 6, 2012, before the second case was even closed. The bankruptcy court dismissed that case for failure to file certain information required by § 1308 of the Bankruptcy Code,¹ and closed the case on July 31, 2013.

On July 30, 2013, the Debtors filed their fourth chapter 13 petition commencing the case from which this appeal emanates. On Schedule D of the schedule of assets and liabilities filed in support of their chapter 13 petition, the Debtors listed BPPR as a secured creditor with a claim in the amount of $345,832.38. According to BPPR, as of August 13, 2013, the Debtors owed BPPR $362,623.65.

On August 15, 2013, BPPR filed two motions (the “August Motions”). It filed a motion for in rem² relief from the automatic stay to permit it to proceed with a foreclosure of its mortgage on the Debtors' property, and a motion to dismiss the Debtors' chapter 13 case pursuant to Bankruptcy Code § 1307(c). The motion to dismiss contained a request that the Debtors be barred for two years from filing a bankruptcy petition on the ground that the Debtors were serial filers with no real intention of reorganizing and filed their chapter 13 petition in bad faith. After a hearing on September 13, 2013, the bankruptcy court entered an order granting the parties 30 days in which to negotiate a resolution of the August Motions and file a stipulation, and stating that if they failed to do so, the court would enter an order lifting the automatic stay. The order also stated that the motion to dismiss would be held in abeyance pending a decision on the stay relief motion. The parties did not file a stipulation.

Meanwhile, on September 10, 2013, three days before the hearing on the August Motions, the clerk of the bankruptcy court filed a motion to dismiss the case due to the Debtors' failure to pay the chapter 13 filing fee. Then, on September 27, 2013, the chapter 13 trustee filed a motion to dismiss the case due to the Debtors' failure to appear at the meeting of creditors required by § 341.

On October 21, 2013, the bankruptcy court entered an order dismissing the Debtors' case due to their failure to pay the filing fee, as requested in the motion filed by the clerk of the bankruptcy court (the “October 21, 2013 Dismissal Order”). On October 25, 2013, BPPR filed a Motion for Reconsideration and Request for Dismissal With Bar to Refile (“Motion for Reconsideration”), effectively repeating its request for the relief sought in the August Motions, namely, an order for in rem stay relief and an order dismissing the case with a two-year bar to refiling.

The Debtors did not oppose BPPR's Motion for Reconsideration. Instead, on October 28, 2013, they filed their own motion to vacate the October 21, 2013 Dismissal Order (“Debtors' Motion to Vacate October 21, 2013 Dismissal Order”), stating, simply, that “[t] he remaining filing fee is being paid today.” The Debtors also filed a motion to convert their case from chapter 13 to chapter 7. BPPR objected to both motions, raising the same arguments presented in its Motion for Reconsideration.

On November 15, 2013, the bankruptcy court entered an order denying the Debtors' Motion to Vacate October 21, 2013 Dismissal Order “for the reasons stated in the opposition filed by [BPPR] (docket # 40), which the court adopts as its own” (the “November 15, 2013 Order Denying Debtors' Motion to Vacate October 21, 2013 Dismissal Order”). On the same day, the bankruptcy court entered an order granting BPPR's Motion for Reconsideration (the “November 15, 2013 Order Granting Reconsideration and Dismissing Case With Bar to Refile”), ruling as follows:

Due notice having been given, there being no opposition, and good cause appearing thereof, the motion is hereby granted. The court grants in rem Relief from Stay in favor of Movant, so that the automatic stay in any future bankruptcy is inapplicable to BPPR's foreclosure procedure against the properties described [as] # 21,948 and # 21,060, regardless of who owns the properties or files the case; and the case is hereby dismissed with bar to refile for two (2) years.

On December 16, 2013, the Debtors filed a motion asking the court to reconsider and vacate the November 15, 2013 Order Denying Debtors' Motion to Vacate October 21, 2013 Dismissal Order (“Motion to Reconsider Denial of Debtors' Motion to Vacate October 21, 2013 Dismissal Order”). As grounds, the Debtors asserted that the bankruptcy court had dismissed their case due to their failure to pay the filing fee, which failure they had since cured, and that there had been a change in circumstances due to their filing of a motion to convert to chapter 7. Also on December 16, 2013, the Debtors filed a motion requesting the court to vacate the November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar To Refile (“Motion to Vacate November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar to Refile”). In this motion, the Debtors again asserted that there had been a change in circumstances due to their filing of a motion to convert to chapter 7. BPPR opposed both motions, incorporating their prior arguments alleging the Debtors' bad faith filing, and arguing that the Debtors had failed to show good cause for the relief requested.

On January 8, 2014, the bankruptcy court entered an order denying the Debtors' Motion to Vacate November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar To Refile (the “January 8, 2014 Order Denying Motion to Vacate November 15, 2013 Order Granting Reconsideration and Dismissing Case With Bar to Refile”) stating, simply, that “[t]he Motion to Vacate the Order Dismissing Case With Bar to Refile, filed by the Debtors (docket # 47), is hereby denied.”

On January 21, 2014, the Debtors filed a notice of appeal with respect to: (1) the January 8, 2014 Order Denying Motion to Vacate November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar to Refile; (2) the November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar to Refile; and (3) the November 15, 2013 Order Denying Debtors' Motion to Vacate October 21, 2013 Dismissal Order.³

October 21, 2013 Dismissal Order

? ?

BPPR Motion for Reconsideration and Request	Debtors' Motion to Vacate October 21, 2013
For Dismissal With Bar to Refile	Dismissal Order
[Filed October 25, 2013]	[Filed October 28, 2013]

? ?

November 15, 2013 Order Granting Reconsideration	November 15, 2013 Order Denying Debtors'
And Dismissing Case With Bar to Refile	Motion to Vacate October 21, 2013
[APPEALED]	Dismissal Order [APPEALED]

? ?

Debtors' Motion to Vacate November 15, 2013	Debtors' Motion to Reconsider Denial of
Order Granting Reconsideration And Dismissing	Debtors' Motion to Vacate October 21, 2013
Case With Bar to Refile	Dismissal Order
[Filed December 16, 2013]	[Filed December 16, 2013]

? ?

January 8, 2014 Order Denying Motion to Vacate	No order entered
November 15, 2013 Order Granting Reconsideration
And Dismissing Case With Bar to Refile
[APPEALED]

JURISDICTION

A. Finality

Before addressing the merits of an appeal, we must determine that we have jurisdiction, even if the litigants do not raise the issue. See Boylan v. George E. Bumpus, Jr. Constr. Co. (In re George E. Bumpus, Jr. Constr. Co.), 226 B.R. 724, 725–26 (1st Cir. BAP 1998). We have jurisdiction to hear appeals from final judgments, orders, and decrees. 28 U.S.C. § 158(a)(1). All of the orders in this appeal are orders granting or denying reconsideration. An order denying a motion for reconsideration is final if the underlying order is final and together the orders end the litigation on the merits. Garcia Matos v. Oliveras Rivera (In re Garcia Matos), 478 B.R. 506, 511 (1st Cir. BAP 2012) (citations omitted). The October 21, 2013 Dismissal Order was a final order, it ended the case, and, therefore, the November 15, 2013 Order Denying Debtors' Motion to Vacate October 21, 2013 Dismissal Order and the January 8, 2014 Order Denying Motion to Vacate November 15, 2013 Order Granting Reconsideration And Dismissing Case With Bar to Refile are also final orders. In addition, the November 15, 2013...