Sanders v. U.S. Tr. (In re Sanders)
| Decision Date | 11 April 2013 |
| Docket Number | Bk. No. 8:11-24594-ES,BAP No. CC-12-1398-KiPaTa |
| Parties | In re: MARSHALL SAMUEL SANDERS, Debtor. MARSHALL SAMUEL SANDERS, Appellant, v. UNITED STATES TRUSTEE, Appellee. |
| Court | U.S. Bankruptcy Appellate Panel, Ninth Circuit |
NOT FOR PUBLICATION
Submitted Without Oral Argument
on March 22, 20132
Appeal from the United States Bankruptcy Court
for the Central District of California
Appearances:
Appellant Marshall Samuel Sanders pro se on brief;
United States Trustee.
Before: KIRSCHER, PAPPAS, and TAYLOR, Bankruptcy Judges.
Appellant, chapter 113 debtor Marshall Samuel Sanders ("Sanders"), appeals an order from the bankruptcy court which: (1) dismissed his bankruptcy case; (2) entered judgment in favor of appellee, United States Trustee Peter C. Anderson ("UST"), for unpaid quarterly fees in the amount of $2,277.86; and (3) dismissed all pending adversary proceedings. We AFFIRM the dismissal of the chapter 11 case and the adversary proceedings. We also AFFIRM the bankruptcy court's decision to award the UST quarterly fees, but we modify the amount awarded to $977.06.4
We begin by noting that Sanders's opening brief fails to set forth the facts of this appeal. His brief is also rife with other deficiencies. Although it contains a "Table of Contents" and a "Table of Authorities," these take up fifteen of the brief's seventeen pages, and nothing stated within those pages corresponds to the arguments presented, such as they are. Sanders's brief also fails to provide a statement of the basis of appellate jurisdiction, a statement of the issues presented and the applicable standard of review, a proper statement of the case, a summary of the argument, and any citations to the record or any relevant authority, with the exception of string citations to somecases to support his argument about the dismissal of the adversary proceedings. See Rule 8010(a)(1)(A)-(F).
Pro se litigants are not excused from complying with the rules of appellate procedure. Clinton v. Deutsche Bank Nat'l Trust Co. (In re Clinton), 449 B.R. 79, 83 (9th Cir. BAP 2011) . As such, we have the authority to strike Sanders's brief and dismiss his appeal for failing to comply with the rules of appellate briefing. See N/S Corp. v. Liberty Mut. Ins. Co., 127 F.3d 1145, 1146 (9th Cir. 1997) (); Cmty. Commerce Bank v. O'Brien (In re O'Brien), 312 F.3d 1135, 1136 (9th Cir. 2002).
Fortunately for Sanders, the UST has provided in his response brief a proper accounting of the facts and (nearly) complete excerpt of the record, including the required transcript. We are further persuaded to not dismiss because the UST has conceded the amount awarded for quarterly fees was in error and must be corrected. Accordingly, we exercise our discretion to review the merits of this appeal, keeping in mind that we can affirm on any basis supported by the record. Shanks v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
Sanders filed an individual chapter 11 bankruptcy case pro se on October 20, 2011. In his schedules filed on October 26, 2011, Sanders disclosed an interest in two parcels of real property --- his residence in Santa Ana, California valued at $750,000 and secured by a total debt in the disputed amount of $1,825,000 (including a first lien held by Bank of America), and a rental property in Tustin, California valued at $300,000 and secured by a total debt of $961,500, of which $605,000 was disputed. Sanders also listed $750,000 in disputed priority tax debt and a total of $1,235,000 in disputed general unsecured claims, which consists primarily of student loans.
On October 27, 2011, the bankruptcy court entered an order directing Sanders to attend a status conference on January 5, 2012, and to file a status report at least fourteen days beforehand (i.e., by December 23, 2011) that addressed, among other things, the reasons for filing a chapter 11, whether he was in compliance with all duties imposed on chapter 11 debtors under §§ 521, 1106 and 1107, and when a plan and disclosure statement would be filed ("First Status Order"). The First Status Order specifically warned that "failure to timely comply with any provisions of this order may be deemed consent to the conversion or dismissal of this case . . . ."
In response to the First Status Order, the UST filed a statement on December 27, 2011, informing the court that Sanders had not timely filed a status report or the monthly operating reports ("MORs") for October and November 2011.
Sanders belatedly filed the missing MORs and status report on January 5, 2012, the day of the hearing. After the hearing, the bankruptcy court entered an order on January 10, 2012, directing Sanders to file a plan and disclosure statement by March 30, 2012, and to file and serve an updated status report by April 12, 2012, for the continued status conference on April 19, 2012 ("Second Status Order"). The Second Status Order warned that "failure of Debtor to file a plan and disclosure statement by such date may result in the dismissal or conversion of this case upon submission of a declaration by the U.S. Trustee indicating Debtor's non-compliance with this provision."
Just prior to the January 5 status conference, Sanders filed a complaint against Bank of America and Chex Systems, Inc. ("Chex"), a credit reporting agency, asserting twenty-one claims regarding an alleged false credit report Sanders claimed caused him damages ("Chex Adversary Proceeding"). Although the complaint's cover sheet asserted twenty-one claims, the body of the complaint consisted of one page with nine sentences.
On January 30, 2012, LBS Financial Credit Union ("LBS") filed a nondischargeability complaint against Sanders seeking to except its debt from discharge under § 523(a)(6) for Sanders's alleged concealment and conversion of a vehicle in which LBS held a security interest ("Nondischargeability Adversary Proceeding").
In response to the Second Status Order, Sanders filed the court-ordered form plan for individual debtors on March 30, 2012; however, he failed to file the ordered disclosure statement. The form plan was blank, other than a statement near the end that "All legitimate creditors will be paid in full," with no explanationregarding who these creditors were or how they were to be paid. On April 12, 2012, Sanders filed another status report indicating that he had already filed a complaint against Bank of America and Chex, and that he had filed a reorganization plan. Sanders stated that he intended to file various lien stripping motions and to possibly seek a hardship discharge for his student loans. He also contemplated filing an adversary complaint against certain parties for an apparent botched repossession of his vehicle because DNA, fingerprint, photographic, video and audio surveillance camera evidence revealed that these parties were liable for damages.
Prior to the continued April 19 status conference, the bankruptcy court issued a tentative ruling expressing "serious concerns about this debtor's ability to administer this bankruptcy estate." The court noted the following issues with Sanders's latest status report: (1) he had not filed the ordered disclosure statement; (2) the plan filed was blank; it designated no classes of creditors and stated only that legitimate claims would be paid, notwithstanding that several creditors had filed proofs of claim; (3) the plan was unconfirmable on its face; (4) Sanders's debt in excess of $4 million and negative income disclosed in his Schedule J raised a question as to the feasibility of funding a plan; and (5) Sanders had not discussed any cash collateral issues with respect to his rental property.
At the April 19 status conference, the bankruptcy court elaborated on its concerns about Sanders's ability to reorganize and the lack of progress made in his case. The court began by informing Sanders, in painstaking detail, about the deficiencies with his bankruptcy case. Sanders then asserted various reasonsas to why he had no creditors. The court pointed out, among other things, that despite Sanders's assertion, numerous proofs of claim had been filed, which were presumed valid until an objection had been filed and decided. The court then asked Sanders to explain why he was in a chapter 11 case attempting to reorganize if he had no creditors. Sanders had no real response. The UST stated that its office would proceed with a motion to dismiss or convert the case if Sanders failed to make progress toward a plan of reorganization.
Observing that the case had been sitting idle since its filing in October 2011, the bankruptcy court ordered a new deadline of May 18, 2012, for Sanders to file a disclosure statement and amended plan, scheduled another status conference for June 21, 2012, and directed Sanders to file an updated status report by June 14, 2012. The court warned Sanders that failing to file a disclosure statement and amended plan by May 18 would be grounds for dismissal or conversion of the case, but the UST would have to file the appropriate motion.
Sanders filed an amended plan on May 18, 2012, but failed to file the ordered disclosure statement until May 21, 2012. As with the first plan, the amended plan was blank. The disclosure statement was essentially blank as well,...
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