Sekendur, Oral v. Ab, Anoto ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 15, 2005*
Decided July 18, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
No. 04-4156
IN RE: ORAL SEKENDUR, Appeal from the United States District
Debtor-Appellant. Court for the Northern District of
Illinois, Eastern Division
No. 04 C 5029
James B. Moran,
Judge.
ORDER
After Oral Sekendur filed a successive petition for bankruptcy under Chapter
13, the bankruptcy court dismissed his case and barred him from filing another
within 180 days. He appealed to the district court, but the district court dismissed
after concluding that Sekendur falsified his application to proceed in forma
pauperis (IFP). Sekendur then appealed to this court, and we affirm.
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 04-4156 Page 2
Sekendur filed for bankruptcy under Chapter 13 in January 2004. But the
bankruptcy court granted a judgment creditor’s motion to dismiss under 11 U.S.C.
§ 1307(c) because Sekendur had not filed a plan conforming to law; the court added
that Sekendur’s failure to disclose assets on his bankruptcy schedules also
suggested bad faith. Then in May 2004 Sekendur filed another petition under
Chapter 13. Once again the bankruptcy court dismissed, this time under § 1307(c)
and 11 U.S.C. § 109(g)(1), and imposed a 180-day bar on future petitions. The court
explained that Sekendur not only filed the successive petition without any change of
circumstance, but also failed to disclose on his schedules his wife’s assets and his
interests in various patents. The court further observed that Sekendur did not
submit a workable plan, and in any event did not have any income to fund a plan.
In July 2004 Sekendur appealed both dismissals to the district court and
submitted an IFP application. His appeal of the earlier Chapter 13 case was
dismissed because the notice of appeal was late, and that dismissal is not
challenged here. The district court dismissed Sekendur’s second appeal under 28
U.S.C. § 1915(e)(2)(A), reasoning that Sekendur’s allegations of poverty were
untrue. The form IFP affidavit inquires whether the applicant or “anyone else
living at the same address” owns any real estate, “stocks, bonds, securities or other
financial instruments,” or has “more than $200 in cash or checking or savings
accounts.” Sekendur completed and submitted this affidavit without disclosing any
of his wife’s property or assets, though he now admits that he lives with her in her
expensive house in a well-to-do Chicago neighborhood and that she is an heiress
with substantial assets. Additionally, he now admits that he failed to report over
$50,000 in dental equipment when asked to report all “personal property with a
current market value of more than $1000.” The propriety of the district court’s
dismissal is currently before us. Cf. Telesphere Communications, Inc. v. 900
Unlimited, Inc., 177 F.3d 612, 616–17 (7th Cir. 1999) (reviewing district court’s
dismissal of bankruptcy appeal for abuse of discretion); In re Scheri, 51 F.3d 71, 74
(7th Cir. 1995) (same); In re Bulic, 997 F.2d 299, 302–03 & n.3 (7th Cir. 1993)
(same).
On appeal, Sekendur offers a number of dubious explanations for filing
incomplete asset schedules in the bankruptcy court, but he does not challenge the
basis for the district court’s dismissal—his deliberate falsification of his IFP
affidavit. Here, both parties assume that bankruptcy litigants may seek to proceed
under the IFP statute when appealing a bankruptcy court decision to the district
court, although we have not decided whether that is so. Indeed, under the old
Bankruptcy Act, the Supreme Court held that fees required to accompany the filing
of a bankruptcy petition could not be waived under § 1915(a). United States v.
Kras, 409 U.S. 434 (1973). And when Congress enacted the Bankruptcy Reform Act
of 1978, it codified this holding in 28 U.S.C. § 1930(a), which expressly excepts fees
for commencing a bankruptcy case from § 1915(a). Congress, though, did not
No. 04-4156 Page 3
exempt other fees prescribed by the Judicial Conference, see id. § 1930(b), and thus
some courts hold that § 1930 limits Kras to fees commencing the bankruptcy by
filing a petition, not fees on appeal. See In re Heghmann, 324 B.R. 415, 418–20
(B.A.P. 1st Cir. 2005) (citing authorities). Others disagree. E.g., In re Perroton, 958
F.2d 889, 895–96 (9th Cir. 1992). We need not take sides today, especially since
Congress has amended § 1930 with the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005, Pub. L. 109-8, 119 Stat. 109, 216, which comes
into effect later this year and whose ramifications have yet to be decided. All that
matters here is that Sekendur relied on § 1915 for his own benefit and makes no
argument that the district court should not have allowed him to do so. Sekendur
invoked the IFP statute in an effort to circumvent the district court filing fee, and
under § 1915(e)(2)(A) a court must dismiss a case upon finding that the allegations
of poverty in an IFP application are untrue. Mathis v. New York Life Ins. Co., 133
F.3d 546, 547 (7th Cir. 1998) (per curiam). Moreover, a court faced with a false
affidavit of poverty may dismiss with prejudice in its discretion. See Thomas v.
Gen. Motors Acceptance Corp., 288 F.3d 305, 306, 308 (7th Cir. 2002). Because
Sekendur devotes his arguments to irrelevant contentions about why he made
“mistakes” on his bankruptcy schedules—never explaining how he could have
honestly repeated those mistakes in his later IFP application after two dismissals
for the same behavior—he provides us with no reason to disagree with the district
court that his omissions were deliberately false or that dismissal was the proper
response. The judgment of the district court is therefore AFFIRMED.