Carswell v. Rojas, et al. (In re Carswell)
- Summarized by Joel Newell , Jennings, Strouss & Salmon, PLC
- 7 years 3 months ago
- Ninth Circuit Bankruptcy Appellate Panel Case No. CC-15-1100-KuKiTa (December 11, 2015)
- In the Memorandum opinion by the Ninth Circuit Bankruptcy Appellate Panel ("BAP") deemed no appropriate for publication, the BAP affirmed the bankruptcy court's order dismissing the Chapter 13 bankruptcy. The Debtor's admissions set forth in her amended chapter 13 plan and in her brief in support of the appeal established that the Debtor was ineligible to be a chapter 13 debtor. The BAP remanded the issues related to the Debtor's appeal of the closure of the adversary against U.S. Bank, N.A. Regardless of whether U.S. Bank, N.A.'s claim is deemed secured or unsecured, the Debtor's obligations exceeded the amount allowed to qualify as a chapter 13 debtor.
- Procedural context:
- Margaret Carswell ("Debtor") appealed the bankruptcy court's order dismissing her chapter 13 bankruptcy case. The Debtor asserted that the dismissal violated her due process rights as a disabled person. The Debtor also appealed the closure of her adversary case against U.S. Bank, N.A.
- The Debtor initially filed a voluntary petition under chapter 13; however, the Debtor did not file any of the required schedules or statement of financial affairs. The Debtor did file schedules and statement of financial affairs; however, did not list any information related to her real property or unsecured creditors. Moreover, the Debtor identified that her only source of income was $600.00 per month from "voluntary debt repayment". The Debtor's monthly expenses totaled not less than $776.00. The Debtor's initial chapter 13 plan proposed to pay $0.00 or "TBD" to unsecured creditors. U.S. Bank, N.A. ("Bank") as successor to Bank of America, N.A. filed an objection to the chapter 13 plan asserting it was the holder in due course of a promissory note and deed of trust securing a $2.5 million lien against real property. Two days prior to the hearing on confirmation of the Debtor's chapter 13 plan, the Debtor filed a motion to continue the hearing or appear telephonically due to her medical conditions. Shortly before the hearing, the bankruptcy court denied the request to continue. The Debtor did not appear at the confirmation hearing, and at the hearing the chapter 13 trustee presented the objections to confirming the chapter 13 plan. The bankruptcy court dismissed the chapter 13 case.
- Honorable KURTZ, KIRSCHER and TAYLOR, Bankruptcy Judges.
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