Alvin Leroy Baldwin v. Credit Based Asset ( 2006 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
_____________
06-6027EM
_________________
In re: Alvin Leroy Baldwin, *
*
Debtor *
*
Alvin Leroy Baldwin, * Appeal from the United States
* Bankruptcy Court for the
Debtor - Appellant, * Eastern District of Missouri
*
v. *
*
Credit Based Asset Servicing *
and Securitization, *
*
Creditor - Appellee. *
______________________
Submitted: December 7, 2006
Filed: December 13, 2006
______________________
KRESSEL, Chief Judge, FEDERMAN and VENTERS, Bankruptcy Judges
FEDERMAN, Bankruptcy Judge
Debtor Alvin Leroy Baldwin appeals from the Bankruptcy Court’s1 March 28,
2006 Order denying his motion, which we deem to be a Rule 60(b)(4)2 motion for
relief from the Court’s March 9, 2006 Order dismissing his case. For the reasons that
follow, the Order is affirmed.
FACTUAL BACKGROUND
Debtor Alvin Leroy Baldwin has filed eight Chapter 13 bankruptcy cases since
1996, all of which were dismissed prior to confirmation of a plan. Four of the cases
were filed after he entered into a home loan with the predecessor of Credit Based
Asset Servicing and Securitization (CBASS) in May 2002. Specifically, on January
6, 2003, the Debtor filed what was his fifth Chapter 13 case. That case was dismissed
two months later, on March 10, 2003, on the trustee’s motion for failure to commence
plan payments. He filed his sixth Chapter 13 case eleven days later on March 21,
2003. CBASS filed a Proof of Claim in that case showing a prepetition arrearage of
$8,255.24. That case was dismissed two months later, on May 21, 2003, on a
creditor’s motion to dismiss. No payments had been made under that plan. After that
sixth case was dismissed, CBASS scheduled a foreclosure sale for March 24, 2005.
That same day, the Debtor filed his seventh Chapter 13 case. CBASS filed a Proof of
Claim in that case showing prepetition arrearage of $12,618.52. The seventh case was
dismissed two months later on May 19, 2005, for the Debtor’s failure to appear at the
§ 341 meeting. No payments had been made under that plan. After that seventh case
was dismissed, CBASS set another foreclosure sale for July 14, 2005. That sale was
canceled because the Debtor and CBASS entered into a workout agreement which
provided for increased payments to bring the account current. The Debtor defaulted
1
The Honorable Barry S. Schermer, United States Bankruptcy Judge for the
Eastern District of Missouri.
2
Fed. R. Civ. P. 60(b), made applicable to bankruptcy proceedings pursuant
to Fed. R. Bankr. P. 9024.
2
under the terms of the workout agreement and CBASS scheduled another foreclosure
sale for March 2, 2006. The Debtor, pro se, filed the instant Chapter 13 petition, his
eighth case, on February 23, 2006.
Upon being notified of the current bankruptcy filing, CBASS postponed the
March 2 foreclosure sale to March 9, 2006 at 11:00 a.m., which is the maximum
length of time a scheduled foreclosure sale can be continued under Missouri law,
without the consent of the mortgagor.3 On March 3, 2006, CBASS filed a Motion to
Expedite Hearing and Motion to Dismiss, or in the Alternative, for Relief from the
Automatic Stay. CBASS also requested that the Court bar the Debtor from filing
another case for 180 days. The Bankruptcy Court set the hearing on CBASS’s Motion
for 9:00 a.m. on March 9, 2006, which was the day scheduled for the postponed
foreclosure sale. On the morning of March 9, when the Bankruptcy Court called the
matter at 9:00, the Debtor was not present, so the Court passed the matter to the end
of the morning’s docket to give the Debtor more time in which to appear. The Court
reconvened the matter at approximately 10:38 a.m. Again, the Debtor was not
present.
The Debtor did not appear at the hearing because, he says, he did not receive
notice of it due to his being out of town on business as an over-the-road truck driver.
He did find out about the hearing, however, after the Motion and Notice were
delivered by the postal service and opened by his live-in companion at approximately
10:45 a.m. that morning, which was not enough time for him to appear or otherwise
respond prior to the hearing.
In any event, at the hearing, CBASS alleged that the bankruptcy case should be
dismissed, or relief from the stay granted, because this was the Debtor’s eighth
bankruptcy filing and the third time CBASS had stayed or canceled a pending
3
Mo. Rev. Stat. Ann. § 443.355.2.
3
foreclosure sale on this property. The Bankruptcy Court granted the motion to
expedite, dismissed the case, and barred the Debtor from refiling for 180 days, finding
that this case was filed solely to hinder, delay and frustrate creditors, and thus not filed
in good faith. The Court denied as moot the motion for relief from the stay. CBASS
proceeded with its foreclosure sale at approximately 11:00 a.m. and sold the property
to a third party, Cody Properties, as the highest bidder at the sale.
That same day, at 12:34 p.m., the Debtor filed a pleading in the Bankruptcy
Court, entitled “Debtor’s Motion Agstin [sic] Motion for Expedited Hearing,” in
which he objected to the expedited hearing and requested that “the motion to release
for sale be rescinded and that I be allowed to contest this motion in a timely manner.”
He stated in that Motion that he had not been at his home in months, and that his
driving logs would verify he had been on the road between Pennsylvania and
California since March 3. Hence, he did not receive notice of the hearing in time to
be there. He stated he was still in California, even at the time of the hearing that day,
so he asked that the request for expedited hearing be denied. On March 15, the Court
denied this motion as moot because the hearing had already taken place. On March
23, 2006, the Debtor filed a motion requesting that his bankruptcy case be reinstated
and the foreclosure sale be set aside as void, again asserting he did not receive notice
due to his being on the road since the first part of February. On March 28, 2006, the
Bankruptcy Court denied that motion as being untimely since it was filed more than
ten days after the Order dismissing the case was entered. The Debtor filed his Notice
of Appeal on April 3, 2006. The Debtor requested a stay pending appeal, but the
Court denied that request.
CBASS filed a motion to dismiss the appeal, asserting it was moot because the
Debtor failed to obtain a stay pending appeal and the foreclosure sale had already
occurred. We denied CBASS’s motion but cautioned that, due to the procedural
posture of the case, any appeal from the Court’s Order dismissing the case as being
filed in bad faith was untimely, so the appeal was limited to the issue of whether the
4
Court erred in denying the Debtor relief from the dismissal Order on the ground it was
void for due process violations.
DISCUSSION
We review the bankruptcy court’s legal conclusions de novo and its factual
findings for clear error.4
At the outset, we note that the Bankruptcy Court’s March 28 Order denied the
Debtor’s March 23 Motion because it was filed more than ten days after the dismissal
Order was entered. However, because we deemed the March 23 Motion to be a Rule
60(b) motion to vacate the dismissal Order, it was timely. Nevertheless, we are not
bound by the grounds articulated by the bankruptcy court for denying the Debtor’s
motion, and we may affirm the judgment on any other grounds supported by the
record.5 Because we conclude that the Debtor received sufficient notice under the
particular circumstances, the Bankruptcy Court did not err in refusing to set aside the
dismissal Order.
Section 1307(c) provides, in relevant part, that “on request of a party in interest
. . . and after notice and a hearing,” the court may convert or dismiss a Chapter 13 case
4
First Nat’l Bank of Olathe v. Pontow (In re Pontow), 111 F.3d 604, 609
(8th Cir. 1997); Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th Cir.
1997); Fed. R. Bankr. P. 8013.
5
Matter of Royale Airlines, Inc., 98 F.3d 852, 856 (5th Cir. 1996) (citing
Forsyth v. Barr, 19 F.3d 1527, 1534 n. 12 (5th Cir.), cert. denied, 513 U.S. 871,
115 S. Ct. 195, 130 L. Ed. 2d 127 (1994)); Arthur Pew Const. Co. v. Lipscomb, 965
F.2d 1559 (11th Cir. 1992).
5
for cause.6 Such cause includes filing a bankruptcy petition in bad faith, including
unfairly manipulating the bankruptcy code through multiple filings.7 As stated above,
the issue here is not whether the Bankruptcy Court erred in dismissing the case due
to bad faith, because any appeal from that Order was untimely; rather, the sole issue
is whether the Bankruptcy Court erred in failing to set aside the Order dismissing the
Debtor’s case due to insufficiency of the notice of CBASS’s Motion and the hearing.
The phrase “after notice and a hearing” means “after such notice as is
appropriate in the particular circumstances, and such opportunity for a hearing as is
appropriate in the particular circumstances.”8 The phrase authorizes an act without
an actual hearing if such notice is given properly and “there is insufficient time for a
hearing to be commenced before such act must be done, and the court authorizes such
act.”9
Rule 1017 provides that Rule 9014 governs a proceeding to dismiss a case
under § 1307(c).10 Motions for relief from the stay are also contested matters to which
Rule 9014 is applicable.11 Under Rule 9014:
(a) Motion. In a contested matter in a case under the Code not otherwise
governed by these rules, relief shall be requested by motion, and
reasonable notice and opportunity for hearing shall be afforded the party
6
11 U.S.C. § 1307(c).
7
See In re Molitor, 76 F.3d 218, 220 (8th Cir. 1996).
8
11 U.S.C. § 102(1)(A).
9
11 U.S.C. § 102(1)(B).
10
Fed. R. Bankr. P. 1017(f)(1).
11
Fed. R. Bankr. P. 4001(a).
6
against whom relief is sought. No response is required under this rule
unless the court orders an answer to a motion.
(b) Service. The motion shall be served in the manner provided for
service of a summons and complaint by Rule 7004. Any paper served
after the motion shall be served in the manner provided by Rule 5(b)
F.R.Civ.P.12
Rule 7004(b) authorizes service by first class mail prepaid postage “[u]pon the debtor,
after a petition has been filed . . . by mailing a copy of the summons and complaint to
the debtor at the address shown in the petition or statement of affairs or to such other
address as the debtor may designate in a filed writing and, if the debtor is represented
by an attorney, to the attorney at the attorney’s post-office address.”13
CBASS filed the Motion on Friday, March 3, 2006. Hearing was set for March
9. When asked about service at that hearing, CBASS’s counsel stated that the Motion
and Notice were mailed on March 3 and that she had obtained personal service on the
Debtor on March 7. The Debtor does not dispute that CBASS’s attorney mailed the
Motion and Notice on March 3, and that it was mailed to his correct address as
reflected on his petition. He does dispute the assertion that CBASS obtained personal
service on him, reiterating that he is an over-the-road truck driver who had not been
home since the first part of February and did not return until sometime after the date
of the foreclosure sale on March 9. Because CBASS did not submit an affidavit of
personal service, we will presume for these purposes that it did not obtain personal
service on the Debtor.
Thus, the question is whether the mailed Notice and Motion, which were mailed
via first-class mail on Friday, March 3, was reasonable and appropriate notice of the
12
Fed. R. Bankr. P. 9014(a) and (b).
13
Fed. R. Bankr. P. 7004(b)(9).
7
hearing on Thursday, March 9, under the particular circumstances. The parties each
point to Rule 9006’s computation of time formulas,14 but that rule deals only with
situations where a response or act is computed from the date of service. It has no
applicability here because the issue is not whether the Debtor had a certain number of
days in which to act or respond to CBASS’s Motion, but whether the notice of the
Motion and hearing was reasonable under the particular circumstances.
With regard to expedited hearings, the Local Rules for the Bankruptcy Court
in the Eastern District of Missouri provide:
Service of Notice of Hearing. Movant must serve the notice of hearing
upon the same parties served with the motion (L.B.R. 9013-1 A.) When
a motion is heard on an expedited or emergency basis (L.B.R. 9013-2),
the motion and notice of hearing must be served as expeditiously as
possible (e.g. by personal service or electronic means) upon opposing
counsel or upon the opposing party if not represented by counsel, and
any other necessary parties.15
The Debtor asserts that the regular first-class mail notice, mailed six days prior to the
hearing, and on a Friday, is insufficient to meet this requirement. Under other
circumstances, we might agree. However, in this case, the Debtor filed his bankruptcy
case when he knew a foreclosure sale was pending, and while he was away from the
only address known for him for a period of several weeks. This was the Debtor’s
eighth bankruptcy filing, and not his first case filed for the purpose of staying a
foreclosure sale. Because the Debtor chose to file his case pro se such that CBASS
could not contact an attorney, and he filed the case during a weeks-long period of time
when he was absent from the State of Missouri, there was no reasonable way for
14
Fed. R. Bankr. P. 9006(a) and (f).
15
L.B.R. 9060-1 C (emphasis added).
8
CBASS to have provided him with notice in any form. Accordingly, we conclude that
the mailed notice six days prior to the hearing was sufficient under the circumstances.
The Debtor relies on In re Krueger, which said that although the concept of
“notice and a hearing” is a flexible one, it was inappropriate under the circumstances
of that case for the debtors to be uninformed of the hearing at which their bankruptcy
case was dismissed.16 Further, although the statutes require only that the moving party
provide a debtor with adequate notice of the hearing, and not personal service, the
panel in Krueger pointed out that notice is not only a statutory requirement, but a
constitutional requirement as well.17 “An elementary and fundamental requirement
of due process in any proceeding which is to be accorded finality is notice reasonably
calculated, under all of the circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their objections.”18 Hence,
because the debtors in that case had not received notice of the hearing, the BAP
reversed the order dismissing the case and declared the foreclosure sale void.
We agree with the general notice and due process principles outlined in
Krueger. However, the facts in that case are distinguishable from the facts here. In
Krueger, despite being specifically directed by the court to do so, the foreclosing
creditor did not even attempt to provide the debtors with notice of the continued
hearing following which the case was dismissed. Nor did it notify the debtors that it
had rescheduled its foreclosure sale. The court expressly found that the creditor in
that case had acted in bad faith. The same is not true here. CBASS attempted to serve
the Debtor personally and through the mail.
16
88 B.R. 238, 241 (B.A.P. 9th Cir. 1988).
17
Id.
18
Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)).
9
Moreover, this is the Debtor’s eighth bankruptcy filing, the fourth since he
entered into the loan with CBASS’s predecessor. It is also the third time CBASS has
stayed or canceled a foreclosure sale. He filed this case pro se such that an attorney
could not be contacted by CBASS, and he filed it while he was out of town and would
not return until after the foreclosure sale. We recognize that the automatic stay is a
valuable benefit provided by the Code, and that many debtors legitimately invoke it
to prevent foreclosure. However, “a debtor does not have a constitutional or
fundamental right to a discharge in bankruptcy.”19 The automatic stay should not be
viewed as a right, but more as a privilege, which may be denied to petitioners who
abuse it.20 Hence, a person cannot file a pro se case on the eve of a foreclosure and
then absent himself so that he cannot be notified of a motion for relief from stay,
particularly when it is not the first foreclosure stayed.21 If circumstances mandate that
a debtor file a bankruptcy case under such conditions, then the debtor has a duty to
actively keep himself apprised of the events in his case by checking the court’s docket
or contacting the creditor’s counsel.
In this case, CBASS attempted both personal service and first-class mail
notification of its Motion six days prior to the hearing. The Debtor also concedes he
had notice of the foreclosure sale. Under the particular circumstances of this case, we
19
In re Golden State Capital Corp., 317 B.R. 144, 149 (Bankr. E.D. Cal.
2004) (citing Grogan v. Garner, 498 U.S. 279, 287, 111 S. Ct. 654, 659, 112
L. Ed. 2d 755 (1991)).
20
Id. (citing In re Tolbert, 258 B.R. 387, 390 (Bankr. W.D. Mo. 2001)).
21
See In re Martwick, 60 F.3d 482 (8th Cir. 1995) (holding that the
bankruptcy court did not abuse its discretion in denying the debtors’ motion for
continuance of the expedited hearing on a foreclosing creditor’s motion for relief
from stay and to dismiss due to debtors’ counsel being out of town; counsel’s
election to file the case and then leave the state on the eve of the foreclosure sale,
knowing that the creditor would likely seek to lift the stay, did not warrant a
continuance of the expedited hearing).
10
conclude this was sufficient notice and opportunity for hearing under the requirements
of the Bankruptcy Code, the Rules and Local Rules, and that the Debtor’s
constitutional due process rights were adequately protected.
Accordingly, the Bankruptcy Court’s Order denying the Debtor’s March 23
Motion to vacate is AFFIRMED.
11