William Rivett, II v. Kyle Carlson

Summarized by Jaden Banks , Nyemaster Goode, P.C.
7 months 1 week ago

Case Type:

Consumer

Case Status:

Affirmed

Citation:

24-6012 (8th Circuit, Jul 28,2025) Published

Tag(s):

Ruling:

The United States Bankruptcy Appellate Panel for the Eighth Circuit affirmed the United States Bankrutpcy Court for the District of South Dakota's dismissal of a pro se Chapter 13 petition following the debtor's failure to timely file a credit counseling certificate and failure to pay filing fee installments.

Procedural context:

On August 16, 2024, William Louis Rivett, II (the "Debtor") filed a voluntary petition for bankruptcy relief under Chapter 13 of the Bankruptcy Code. On October 15, 2024, the Bankruptcy Court dismissed the Debtor's case for the failure to pay installments of the filing fee and also for the failure to file a credit counseling certificate. The Debtor filed a notice of appeal on October 22, 2024, alleging his failure to pay the installments of the filing fee was due to an unintentional mailing delay, but otherwise the Debtor failed to address the failure to file a credit counseling certificate. On appeal the Bankruptcy Appellate Panel ordered the Debtor to submit a brief for review, but the Debtor merely redated and filed his notice of appeal as his appellate brief. The Bankruptcy Appellate Panel affirmed and held that the Debtor's failure to comply with appellate briefing requirements warranted dismissal of his appeal and regardless of his briefing errors, his failure to filed a credit counseling certificate rendered him ineligible for bankruptcy relief.

Facts:

The Debtor filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code on August 16, 2024. The Bankruptcy Court granted the Debtor's request to pay the filing fee in installments and permitted the debtor to make four payments of $78.25 on a biweekly basis starting on September 13 and ending on October 25. The Debtor's petition represented that he had received credit counseling from an approved agency within 180 days before filing his petition but the Debtor neglected to file a certificate of credit counseling as required by Federal Rule of Bankruptcy Procedure 1007(c)(3) within 14 days of the Petition Date. The Bankruptcy Court issued a deficiency notice and order directing the Debtor to file a certificate of credit counseling on or before October 11, 2024 and advised the Debtor that the failure to comply could result in dismissal. The Bankruptcy Court then dismissed the Debtor's case on October 15, 2024, for the Debtors failure to pay two of the three installment payments as they came due and also for the Debtor's failure to submit a credit counseling certificate. On October 22, 2024, the Debtor filed a notice of appeal challenging dismissal of his case for his failure to pay installments of the filing fee and he asserted that the absence of payment was the result of a mailing delay, but he otherwise failed to address the failure to file a credit counseling certificate. During the briefing stage of the appeal, the Bankruptcy Appellate Panel entered an order compelling the Debtor to submit a brief, but rather than submit a brief, the Debtor redated and filed his "notice of appeal" as his appellant brief. The Bankruptcy Appellate Panel affirmed the Bankruptcy Court order dismissing the Debtor's case. The Bankruptcy Appellate Panel noted that the Debtor's refiled notice of appeal failed to meet the requirements of Federal Rule of Bankruptcy Procedure 8014 and failed to preserve any arguments for appeal and alone warranted dismissal of the appeal. The Bankruptcy Appellate Panel also affirmed the Bankruptcy Court dismissal on the basis that the Debtor's failure to file a credit counseling certificate reflected that the Debtor was ineligible to be a debtor in a bankruptcy case by operation of 11 U.S.C. § 109(g) and so dismissal of his case was appropriate.

Judge(s):

Surratt-States, Constantine, and Jones

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