Wildhaber, Sr. v. Burchard (in re Wildhaber, Sr.)
- Summarized by Joel Newell , Spencer Fane, LLP
- 8 years 4 months ago
- Citation:
- Ninth Circuit Bankruptcy Appellate Panel Case No. NC-14-1352-PaJuKl (July 28, 2015)
- Tag(s):
-
- Ruling:
- In the unpublished decisions, the Ninth Circuit Bankruptcy Appellate Panel ("BAP") affirmed the bankruptcy court's order dismissing the Chapter 13 case for failure to timely file a Chapter 13 plan. The bankruptcy court provided proper notice of the order regarding potential automatic dismissal. Based on the Debtor knowledge of the same and lack of evidence supporting any excusable neglect; the Chapter 13 case was properly dismissed pursuant to Fed.R.Bankr.P. Rule 3015(b).
- Procedural context:
- Chapter 13 Debtor appealed the Northern District of California bankruptcy court's order dismissing his Chapter 13 case for failure to file a Chapter 13 plan timely.
- Facts:
- The Debtor filed a Chapter 13 to prevent the foreclosure of his residence by the Homeowners Association ("HOA"). On the petition date the bankruptcy court entered and served an order to the debtor advising of the potential automatic dismissal if the required documents, including the Chapter 13 plan, were not filed within 14 days of the petition date. The Debtor ultimately filed the proposed Chapter 13 plan 28 days post-petition. The Debtor timely appealed the automatic dismissal of his Chapter 13 case, and in the statement of issues asserted that he sent the necessary documents over night on June 24th; however, admitted that he did not file the Chapter 13 plan. The documents sent via over night mail were sent to the incorrect address, and Debtor asserted he could not present a Chapter 13 plan without the Court first determining issues related to the HOA's claim. The Debtor previously asked the BAP to remand the matter to the bankruptcy court so the bankruptcy court could consider a motion for reconsideration; and, the BAP allowed the limited remand request. The bankruptcy court entered a memorandum order regarding the Debtor's motion detailing that the basis for dismissal was not because the schedules and related documents were a day late; rather, it was because the Debtor did not file the Chapter 13 plan until 28 days post-petition. The HOA contested the Debtor's motion and the bankruptcy court entered an order denying the debtor's motion. The Debtor did not file an Amended Notice of Appeal; however, he filed a Status Report with the BAP. The BAP treated it as an Amended Notice of Appeal and summarily affirmed the bankruptcy court's denial of the Debtor's motion to essentially reconsider its order dismissing the Chapter 13 case.
- Judge(s):
- Honorable PAPPAS, JURY, and KLEIN (sitting by designation), Bankruptcy Judges.
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