- Case Type:
- Case Status:
- 19-50318 (5th Circuit, Dec 17,2019) Not Published
- The district court properly dismissed the plaintiff-appellant's appeal of the bankruptcy court's dismissal of the plaintiff's dischargeability complaint due to the plaintiff-appellant's failure to meet the deadlines set by Fed. R. Bankr. P. 8018(a)(4).
- Procedural context:
- The plaintiff appealed the bankruptcy court's dismissal of the plaintiff's dischargeability complaint after the plaintiff failed to meet numerous deadlines. The appeal to the district court was dismissed because the plaintiff-appellant failed to timely file an appellate brief. The plaintiff-appellant appealed the district court's dismissal of its appeal.
- Appellee Helson Pacheco ("Pacheco") and his ex-wife obtained a mortgage loan from appellant Permula to purchase a house. The house Pacheco and his ex-wife purchased with the loan funds was later lost to to recover unpaid real property taxes. Pacheco eventually filed Chapter 7 bankruptcy. Permula objected to the dischargeability of this debt. In the course of this bankruptcy proceeding, Permula struggled to retain counsel. Permula filed a motion seeking leave to amend its complaint in order to include Pacheco's ex-wife's debt, under the guise of judicial economy, as additional grounds to challenge the dischargeability of Pacheco's debt. In the motion, Permula conceded that the motion was filed after the discovery deadline set in the modified scheduling order. The parties subsequently asked the bankruptcy court to modify the scheduling order a second time, which the bankruptcy court granted. The bankruptcy court denied Permula's motion to amend the complaint. Pacheco then filed his proposed pre-trial order a couple of months later on August 8, 2018. On that same day, Permula's second attorney filed a motion to withdraw as Permula's counsel. On that same day, the bankruptcy court issued an order requiring Permula to do the following by August 31, 2018: (1) retain a licensed attorney to represent Permula in the adversary proceeding who had to file a notice of appearance in the proceeding; (2) file a proposed pre-trial order with the court through said licensed attorney; and (3) file proposed findings of fact and conclusions of law with the court, through said licensed attorney. The court provided notice to Permula that the adversary proceeding would be dismissed for Permula's failure to comply with any of those requirements. August 31, 2018 came and went with no pre-trial order filed by Permula. On September 4, 2018, the bankruptcy court dismissed the adversary proceeding for want of prosecution. After failed attempts to initiate a new proceeding in the bankruptcy court, Permula's third attorney filed a timely notice of appeal in the district court on October 2, 2018. After a late filing of the "Designation of Contents of the Record and Statement," the district court clerk docketed the appeal on November 30, 2018. Pacheco's attorney filed a motion to dismiss the appeal on January 25, 2019 because there was no appellate briefing for Permula filed on record.
- STEWART, HIGGINSON, and COSTA
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