Case Information
*1 CLERK'S OFFICE U . S. DIST. COURT AT ROANOKE, VA FILED JtlN 1 l 2218 IN T H E U N ITED STATE S D ISTRICT C OU RT FO R TH E W E STE RN D ISTRICT O F W RGIN IA JULIA Q DUDLEM LERK BY: ROAN O U D IW SIO N LIN D A REN E CO DY ,
Appellant Civil Action N o. 7:19-M C-4 V.
CH RISTOPH ER M ICALE, By: M ichael F. Utbansld Chapter 13 Ttustee, Chief U nited States District Judge
Appellee
M EM O M N D U M O PIN IO N
O n Februaty 13, 2019, appellant Linda Rene Cody, proceeding p . , tq .K , flled a nodce of appeal in the U nited States Banknzptcy Court for the W estern D istdct of Vitginia. In re Cod No. 19-70043 (Bankt. W .D. Va. filedlan. 11, 2019). ECF No. 31. She also Sled a moéon for leave to appeal, wllich w as docketed as a miscellançous case itl this distdct court. Cod v. V cale, No. 7:19-MC-4 (W .D. Va., flled Feb. 14, 2019), ECF Nô. 1. On Febrtzary 22, 2019, Cody ftled a m oéon for appoin% ent of counsel in this case because she is proceecling gcq . K and is seventr five percent deaf. ECF N o. 3. For the reasons discussed below, Cody's m otion for leave to appeal the dismissal of her banktuptcy cause of action is D EN IED becàuse she does not need leave from this court to appeal, and her m oéon for appointm ent of counsel is D E N IE D .
BACKG RO U N D On January 11, 2019, Cody flled a Chapter 13 voluntary petition. ECF No. 1 in In re Lp--yd , No. 19-70043. On January 14, 2019, the bankmlptcy court entered a deficiency order, f y
nodng that the pedtion was flled without several necessary form s and stadng that the if the deficiencies were not cured within fourteen days that her case was subject to disnaissal. On January 25, 2019, Cody ftled several documents in response to the deficiency order.
On January 28, 2019, the City of Roanoke, Virginia rfthe Citf') fllpd a modon to disrniss Cody's Chapter 13 banktnlptcy pedtion for cause pursuant to 11 U.S.C. j707 and to declare the petidon void g .. h initâo. ln the altetnaéve, the City asked the court to rettoacdvely approve the sale by the City of real estate owned by Cody pursuant to Secdon 58.2-3965 ql > ., Code of Virginia (1950) as amended. An evidentiary headng was held in the matter on February 4, 2019.
O n February 5, 2019 the bankmlptcy court entered an order disnnissing the petition. The colzrt noted that the peddon was Cody's fourth attem pt to prevent the sale of a patcel of real property she owns. The City had condem ned the propel'ty as unsafe and unfit foz hum an habitation in N ovem ber 2015. Cody testz ed that she had condnued to live thete until at least Japuary 2016. Records showed that she had not paid real estate taxes on the property since 2013 and owed at least $8,158.77 in taxes to the City. :
The City twice attem pted to sell the property for delinquent taxes, once in Septem ber 2017 and once in M ay 2018. Both tim es Cody flled Chapter 13 banluuptcy pedtions and stopped the sales. Both peddons were dismissed for failure to flle requited documentaéon and ita the disnlissal of July 17, 2018 the banknlptcy court barred Cody from ftling another bankn'ptcy pedtion for 180 days, or until January 13, 2019. ECF N o. 27 at 2 in In re Cod , N o. 19-70043.
In Septem ber 2018, the City sold the property and soughy confirm adon of the sale in Roanoke City Circuit Court. Prior to the Circuit Court's decision, Cody appealed the July 17, 2018 order dism issing her banktnxptcy case and this court disnlissed the pedtion. In re Cod , No. 7:18-CV-471 (W.D. Va. Nov. 19, 2018). By the Hme the Roanoke City Circuit Cotut confirm , ed the sale of the property on N ovem ber 28, 2018, the buyer no longer wished to ptoceed. with the sale. The City then obtained a dectee from the Roanoke City Citcuit Coutt setdng aside the sale and authorizing the City to resell the property.
The City scheduled another sale of the pzoperty for January 15, 2019. Although 180 days had not passed since Cody's ptevious petitionwas disrnissed, she ftled the current Chapter 13 petition on January 11, 2019. The City went ahead with the sale of the property and then sought to clisnniss Cody's bankruptcy petidon as void gh inido or alternaévely, asked for an order authorizing the City's sale of the propezty.
The banktuptcy court disnnissed Cody's pedtion after m aldng a num ber of hndings. First, the court found that Cody's failure to sadsfy the requirements of 11 U.S.C. j 109 rendered her ineligible to be a debtor. She had not obtained the requisite counseling in the 180-day period pzior to the filing of the pedtion ita accordance with 11 U.S.C. j 109$)(1), but had waited until after flling the petition to do so. The cotlrt found it was com pelled under J-q re W atson, 332 B.R. 740, 747 (Banltr. E.D. Va. 2005), and ln re Louredo, No. 05-15846-55M (Banlct. E.D . Va. N ov. 16, 2005), to disnniss the case. The court f'urther deternlined that Cody had not shown cause for flling her peédon prior to the expiradon of the 180-day period, which also zeqlAit'ed dism issal.
ln addidon, .the court found that Cody's repeated bankruptcy filings wete a continued effort to thwart the City's atlem pt to exercise its rights in connecdon wif.h the unpaid real estate taxes on her property. Her serial fllings, combined with ier condnued disregard of the duées and obligadons im posed upon hez by the United States Bankmlptcy Code and the court's prior order of dismissal, indicated that the petidon was fzed in bad faith and was an abuse of the provisions of the Bankmlptcy Code. Finally, based on Cody's residence at a shelter and her stated sources of incom e, the bankmlptcy court had no reasonable belief that Cody would be able to obtain conftrm ation of a viable Chapter 13 plan. ECF N o. 27 in In re Cod , N o. 19- 70043.
D ISCU SSION Cody seeks leave from this cotut to flle an appeal of the bankmlptcy dism issal. As a general rtzle, United States district courts have jurisdicdon to hear appeals from banktnlptcy courts of final judgements, orders, and decrees entered in cases and proceedings. 28 U.S.C. j 158(a)(1). Peétioners are reqplired to seek leave of couzt prior to appealing some interlocutory orders and decrees. 28 U.S.C. j 158(a)(3). A final order fffends lidgation and leaves nothing for the' court to do but execute the judgment.''' Thomas v. Gri sb , 556 B.R. 714, 718 0 . Md. 2016) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). An interlocutory ozdez ffdecides some intewening matter that requires other acdon to enable the cotzrt to adjudicate the cause on the merits.'' Id. rcitine In re Rood, 426 B.R. 538, 546 (D. M d. 2010)). Disnnissal N ' - ? $
of a bankruptcy case is a final order because it Tfdoom s the possibility of a dischatge and the other benefits available to a debtor under Chapter 13.77 Bullard v. Blue H ills Bank, 135 S.Ct. 1686, 1692-1693 (2015).
In tlzis case, the order dism issing the banlrtnlptcy case w as ûnal, rather than interlocutory, because it disnlissed Cody's peddon entirely. Thus, Cody does not need to obtnin leave to appeal the dismissal and her request for leave to appeal the dism issal is D E N IE D .
Cody also seeks appointm ent of counjel to represent her in this bankmlptcy appeal. H owever, no provision of the Banktnzptcy Code either requir y es or allow s the appointm ent of counsel for a debtor appealing an adverse ruling. ln re Eilerston, N o. 3:96-600-178C, 211 B.R. 526, 531 (D.S.C. 1997) (citing Graham v. Lennin ton, 74 B.R. 967 (S.D. lnd. 1987)). See also ln re Villanueva, No. RW T 09cv1443, 2009 WL 3379934 (Bankr. D. Md. 2009) (noe g that a banlm pptcy proceeding is a civil mattet and thete is no right to appointment of counsel in a civil matter).
In Eilerston, the collrf noted that under 28 U.S.C. j 1915(d), a cotut has discredon to appoint counsel for an indigent party in a civil acéon, but it should be allowed only in excepdonal cases. However, it is not clear that j 1915(d) applies to banknlptcy proceedings. See United States v. lotas, 409 U.S. 434, 441 (declining to find that 28 U.S.C. j 1915(a) applies to banktnaptcy proceedings, but not cliscussing j 1915(d)). Even if j 1915(d) applies to banknlptcy proceedings, Cody has paid the flling fee and has not alleged indkency. In addidon, although she asserts that she is seventy-hve percent deaf, she has not stated any facts to indicate that her heqting loss prevents her from represendng herself. Finally, a zeview of her case does not reveal any unusual circumstances that wotzld jusdfy the appoin% ent of counsel. A ccordingly, Cody's request for appointm ent of counsel is D E N IE D .
CON CLU SION Based on the foregoing, Cody's m odons foz leave to file an appeal and for appointnent of counsel, ECF N os. 1 and 3, are D EN IE D . The Cletk is directed to docket this case as a banktnaptcy appeal and enter a briefng order.
Entered:
o6 / ( o ( z-c, t t? ' ' . z- z. o . , . . . . ($( + . . . > ' . . . . j , ' ' . . ; . . . j , , . , . Mictmel F; Urb z a' ,nslçi-. . .' .' : ' ' Chief United ftates Districtludge
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