In re: Theodorico Erum, Jr.
HI-17-1144-BTaL
9th Cir. BAPNov 29, 2017Background
- Debtor Theodorico Erum, Jr., an elderly man with health problems, filed multiple prior skeletal bankruptcy petitions (2009, 2013) and a chapter 13 petition on March 16, 2017 to stay pending foreclosure proceedings on his Kapaa property.
- As in prior filings, Erum failed to file required case-opening documents and did not obtain prepetition credit counseling before the March 16 petition. He sought to pay the filing fee in installments; the court denied installment relief and ordered full payment by March 30.
- The clerk issued an Order to File Documents and Notice of Intent to Dismiss, requiring the missing documents by March 30 and warning dismissal could include a 180-day refiling bar under § 109(g)(1). Erum failed to file by that date.
- The court dismissed the case on March 31 for failure to file documents and to pay the fee, and the dismissal order (sent April 5) included a 180-day bar. Erum then paid the fee and moved for reconsideration and an extension to April 19; the court vacated dismissal, reinstated the case, and ordered compliance by April 19, warning the case "will be dismissed without a hearing."
- Erum again failed to file the required documents by April 19; the court sua sponte dismissed the case on May 1 for failure to comply and imposed a 180-day refiling bar. Erum appealed the dismissal; the appellate panel affirmed dismissal and found the refiling-bar issue moot because the bar had expired by the time of decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the bankruptcy court abused its discretion by dismissing Erum's chapter 13 case for failure to file required documents | Erum contended the court erred by dismissing without a hearing in violation of Rule 1017(c) | Court (and appellees) argued dismissal sua sponte under § 105(a) was proper after Erum was given notice and an extended deadline | Affirmed. Court did not abuse its discretion; dismissal sua sponte under § 105(a) was proper where debtor was notified and failed to comply |
| Whether dismissal without a hearing violated due process or Rule 1017(c) | Erum argued Rule 1017(c) required a hearing before dismissal | Panel relied on precedent that Rule 1017(c) does not limit sua sponte dismissals under § 105(a) where debtor had prior notice of deficiencies | Held no due process violation; dismissal without hearing permissible given prior notice and warning of dismissal |
| Whether imposition of a 180-day refiling bar was supported by record (willfulness finding) | Erum argued the refiling bar was unjustified | Panel acknowledged a willfulness finding is generally required to impose § 109(g) bar | Panel concluded the refiling-bar issue is moot (bar expired) and therefore refused to reach the merits |
| Whether the court abused its discretion in refusing further extensions after repeated noncompliance | Erum argued his health justified more leniency | Court emphasized repeated failures and prior warnings; local rule permits dismissal without further notice | Held court did not abuse discretion in declining further extensions and dismissing the case |
Key Cases Cited
- Ellsworth v. Lifescape Med. Assoc., P.C., 455 B.R. 904 (9th Cir. BAP) (standard of review for dismissal of chapter 13 case)
- Tennant v. Rojas (In re Tennant), 318 B.R. 860 (9th Cir. BAP) (sua sponte dismissal under § 105(a) not restricted by Rule 1017(c))
- Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227 (9th Cir. BAP) (appellate review may consider court docket when record is incomplete)
- Fernandez v. GE Capital Mortg. Servs., Inc. (In re Fernandez), 227 B.R. 174 (9th Cir. BAP) (mootness doctrine in bankruptcy appeals)
- TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820 (9th Cir.) (abuse of discretion standard explained)
- I.R.S. v. Pattullo (In re Pattullo), 271 F.3d 898 (9th Cir.) (lack of jurisdiction over moot appeals)