Witkowski v. Boyajian (In re Witkowski), BAP No. RI 14–040
| Decision Date | 13 November 2014 |
| Docket Number | Bankruptcy No. 14–10149–DF.,BAP No. RI 14–040 |
| Citation | 523 B.R. 300 |
| Parties | Mary E. WITKOWSKI, Debtor. Mary E. Witkowski, Appellant, v. John Boyajian, Chapter 13 Trustee, and Kevin Knight, Appellees. |
| Court | U.S. Bankruptcy Appellate Panel, First Circuit |
Mary E. Witkowski, Coventry, RI, pro se, on brief for Appellant.
John Boyajian, Esq., Providence, RI, on brief for Appellee, John Boyajian, Chapter 13 Trustee.
Before TESTER, GODOY, and HARWOOD, United States Bankruptcy Appellate Panel Judges.
Mary E. Witkowski (the “Debtor”) appeals from the bankruptcy court's orders dismissing her chapter 13 case and denying her motion for reconsideration.1 For the reasons discussed below, we AFFIRM the orders.
The Debtor filed a pro se, skeletal petition for chapter 13 relief on January 28, 2014.2 On the same date, the bankruptcy court issued an order instructing the Debtor to file her missing documents by February 11, 2014, and issued a notice scheduling her § 3413 meeting of creditors for March 7, 2014.
The Debtor timely filed her missing documents, including her chapter 13 plan of reorganization (the “Plan”), in which she proposed to make monthly payments of $1,410.38 for a period of thirty-six months. On March 7, 2014, the day of the § 341 meeting of creditors, the Debtor filed a Motion to Continue Meeting of Creditors, asserting that she needed additional time to gather documentation and hire an attorney. The bankruptcy court issued a notice on the same date, informing the Debtor that the court does not act on such requests. John Boyajian, the chapter 13 trustee (the “Trustee”), convened the § 341 meeting of creditors as scheduled, and the Debtor failed to appear.
On March 24, 2014, the Trustee filed a Motion to Dismiss the Debtor's chapter 13 case. Although the Trustee did not identify the statutory authority upon which he relied, he cited the Debtor's failure to appear at the § 341 meeting of creditors as the sole ground for dismissal. Noting the history of prior filings by the Debtor and her husband (collectively the “Witkowskis”), the Trustee asked the court hold a hearing to consider the imposition of a “360–day bar to refiling except with the prior approval of the court.”
The Debtor filed an objection to the Motion to Dismiss, arguing that she had requested a continuance of the March 7, 2014 creditors' meeting, and explaining that she and her husband filed the prior bankruptcy cases based on the advice of counsel.
The bankruptcy court conducted a hearing on the Motion to Dismiss on April 16, 2014, at which the Debtor appeared pro se.4 During the hearing, the Trustee again complained that the Debtor failed to attend her § 341 meeting of creditors, and asserted that the court could “draw certain inferences” from the Witkowskis' pattern of bankruptcy filings. The Trustee asked the court to bar the Debtor from refiling without prior court approval.
Thereafter, the court inquired of the Debtor: “Why were your cases dismissed?” The Debtor responded: “We went on what our attorney was telling us[.]” After rejecting this excuse, the court next asked the Debtor: “Why didn't you show up at the [§ ] 341 meeting?” The Debtor answered: “[W]e were having problems with ... our car.” While the Trustee could neither confirm nor deny he had received a telephonic request for a continuance of the § 341 meeting of creditors by or on behalf of the Debtor, he explained that in the case of repeat filers, he generally requires attendance regardless of whether papers are filed.
When the bankruptcy court asked the Debtor if she had made any Plan payments to the Trustee, the Debtor ambiguously responded, “It never went through.” She also contended that she had not received the Trustee's letter informing her that she was required to commence Plan payments within thirty days of filing the case. During the course of the hearing, the Debtor subsequently conceded that she had not made any payments:
The record reflects that after considering the Debtor's failure to attend the § 341 meeting, her failure to commence Plan payments, and her inability to adequately explain these failures, the bankruptcy court decided to dismiss her case. The court declined, however, to bar the Debtor from refiling. On April 16, 2014, the bankruptcy court entered an order granting the Motion to Dismiss (the “Dismissal Order”) which was silent as to the statutory basis for dismissal.
On April 30, 2014, without citing any legal authority, the Debtor filed a Motion to Vacate Dismissal Order (the “Reconsideration Motion”), arguing simply that she had requested a continuance of the § 341 meeting “due to transportation issues.” The Trustee filed an objection to the ReconsiderationMotion, asserting the Debtor had failed to offer any legitimate reason to vacate the Dismissal Order.5
On May 13, 2014, the bankruptcy court entered an order denying the Reconsideration Motion (the “Reconsideration Order”), concluding that the Debtor had “not shown sufficient cause to vacate” the Dismissal Order. The court observed that the Debtor's justification for reconsideration—namely, her transportation problem—was “the very same excuse” which she proffered at the hearing on the Motion to Dismiss. The court elaborated:
After considering the various excuses offered by the Debtor regarding her failure to satisfy her duties as a Chapter 13 debtor, I found her explanations inconsistent and lacking credibility. The objections to the Debtor's Motion to Vacate filed by both the Trustee and the secured creditor Kevin Knight, who seems to have borne the brunt of the repeated petition filings by the Debtor and her husband, are well-founded. The Debtor has set forth nothing in her Motion to Vacate that convinces me otherwise.
The Debtor timely filed a Notice of Appeal in which she listed only the Reconsideration Order. In her Statement of Issues and her Brief, she primarily addressed the circumstances surrounding her absence at the § 341 meeting of creditors. On the other hand, the Trustee addressed, albeit vaguely, both the Dismissal Order and the Reconsideration Order in his Brief, arguing that the Debtor “demonstrated no reason why the Judge's decisions were incorrect.”
Before addressing the merits of an appeal, we must determine that the Panel has jurisdiction, even if the issue is not raised by the litigants. 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) (quoting Fleet Data Processing Corp. v. Branch (In re Bank of New Eng. Corp.), 218 B.R. 643, 645 (1st Cir. BAP 1998) ). We have jurisdiction to hear appeals from final judgments, orders, and decrees. 28 U.S.C. § 158(a)(1).
To determine our jurisdiction, we must first decide if both the Reconsideration Order and the Dismissal Order are properly before the Panel.6 In her Notice of Appeal, the Debtor listed only the Reconsideration Order, while in her Statement of Issues and her Brief, the Debtor recounts the circumstances surrounding her failure to attend the § 341 meeting. It appears from an examination of the Trustee's Brief that he regarded this appeal as encompassing both orders. Because the issues in both orders are inextricably intertwined, and the Trustee did not object to the Panel's examination of both orders, the Notice of Appeal does not present a jurisdictional bar to our consideration of the two orders. See St. Peter v. Hutchings (In re Hutchings), No. MW 10–078, 2011 WL 4572017, at *2 (1st Cir. BAP May 25, 2011) () (citing Alstom Caribe, Inc. v. George P. Reintjes Co., 484 F.3d 106, 112 (1st Cir.2007) ).
An “order dismissing a chapter 13 case is a final, appealable order.” Pellegrino v. Boyajian (In re Pellegrino), 423 B.R. 586, 589 (1st Cir. BAP 2010) ). An “order denying reconsideration is final if the underlying order is final and together the orders end the litigation on the merits.” United States v. Monahan (In re Monahan), 497 B.R. 642, 646 (1st Cir. BAP 2013) (citation omitted). Because the Dismissal Order and Reconsideration Order each meet the test for a final order, we have jurisdiction over the appeal of both orders.
We review a bankruptcy court's decision to dismiss a chapter 13 case for abuse of discretion. Howard v. Lexington Invs., Inc., 284 F.3d at 322 (citations omitted). Likewise, a decision to grant or deny a motion for reconsideration is reviewed for abuse of discretion. Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 81 (1st Cir.2008) (citations omitted); see also In re Hutchings, 2011 WL 4572017, at *2 (citation omitted). “An abuse of discretion occurs when the trial court ignores a material factor deserving significant weight, relies upon an improper factor, or assesses all proper and no improper factors, but makes a serious mistake in weighing them.” Bellas Pavers, LLC v. Stewart (In re Stewart), No. MB 12–017, 2012 WL 5189048, at *5 (1st Cir. BAP Oct. 18, 2012) (citation omitted).
The bankruptcy court indicated at the April 16, 2014 hearing that two grounds for its decision were the Debtor's failure to make any Plan payments and her failure to attend the § 341 meeting of creditors.
Section 1307, which governs the conversion or dismissal of a chapter 13 case, specifically addresses the failure to make plan payments. That statute provides, in pertinent part:
To continue reading
Request your trial