Taal v. St. Mary's Bank et al

2014 | Cited 0 times | D. New Hampshire | January 10, 2014


Baboucar B. Taal v. Civil No. 13-cv-194-PB

Opinion No. 2014 DNH 003 St. Mary s Bank, et al.

MEMORANDUM AND ORDER Baboucar Taal seeks appellate review of the bankruptcy dismissal of his Chapter 13 bankruptcy petition. St.

Stanzel dismissal order.

I. BACKGROUND In 2009 and Discover independently sued Taal in New Hampshire district courts. St. Mary of $6,196.62 and Discover received a judgment of $10,454.71. Taal unsuccessfully appealed both judgments to the New Hampshire Supreme Court. Although both judgments are final, remains involved in state court litigation concerning the propriety of its disposal of collateral Taal surrendered to satisfy the loan.

Taal has been held in contempt by state courts for failing to comply with prior orders to pay the judgments. Rather than making required payments, Taal filed a Chapter 13 bankruptcy petition.

Taal actively participated in his Chapter 13 proceedings, filing countless motions on his own behalf. however, was not necessarily aimed at a prompt resolution of his proceedings. From the beginning, Taal had difficulties complying with bankruptcy court rules. On September 24, 2012, the bankruptcy court issued a contingent notice of dismissal that was subsequently waived after Taal paid a delinquent filing fee. Taal then failed to disclose his tax records to St. upon its request, as required by the bankruptcy code. See 11 U.S.C. § 521(e)(1). In late September and early October, St. d order of to turn over these documents. On October 4, 2012, after a hearing, the court directed Taal to provide the documents to St. , noting that failure to comply with its order could result in dismissal of his case. The next day, the court granted a motion to continue the confirmation hearing until November 16, presumably after Taal

was to have given . Over the next month, Taal continued to file motions to, among other things, avoid a lien and initiate an adversary proceeding

On November 16, 2012, the court held the hearing to discuss Plan. St. had objected to confirmation on the grounds that the plan failed to meet required statutory parameters. That day, the court issued the following order:

Trustee to submit a proposed order forthwith regarding payments. Confirmation is denied. On or before January 18, 2013 the debtor(s) must file with the Court an amended plan, serve a copy of the amended plan and a notice of confirmation hearing as required by Federal Rules of Bankruptcy Procedure 2002(b) and 3015(d) and LBR 3015-(b), and file a certificate of service with the Court, failing which the case may be dismissed. If an amended plan is timely filed and served, a confirmation hearing will be held on March 8, 2013 at 9:00 a.m. Doc. No. 3-13. Taal subsequently filed, among other things, a motion for contempt on November 27, 2012, a motion for sanctions on December 17, 2012, and a further motion for sanctions on December 26, 2012, alleging that St. to file a required corporate disclosure document. On December 28, 2012, Taal filed a required bankruptcy form detailing his

current income. On January 2, 2013, he filed an objection to the of documents that was subsequently denied, and a further motion for sanctions. The next day, Taal filed several subpoena requests. On January 7, he filed amendments to the required current income forms, and on January 14 he filed objections to the the subpoena requests. On January 17, 2013, denying his request for document production. Taal did not, however, file an amended confirmation plan by January 18, as November 16 order. On January 25, 2013, the court dismissed case, quoting its November 16 order directing Taal to file an amended confirmation plan

ed to file an amended plan and certificate of service with the Court in compliance with the Order. Accordingly, the case is hereby dismissed Doc. No. 5-1 (emphasis omitted). Four days later, Taal submitted a motion to amend the dismissal order, claiming that he never received notice of the

November 16, 2012 order, and requesting leave until February 25, 2013 to submit an amended confirmation plan. On February 5, 2013, the court responded that a Certificate of Notice indicated that a copy of the November 16 order had been address and that Taal had received other documents mailed to the same address throughout the proceedings. The court also noted that, at the November 16 hearing, it had orally directed Taal to file his amended plan by January 18, 2013 or risk dismissal, and had explained that it would issue an order that day summarizing . On February 12, 2013, Taal filed another motion to amend, arguing that the court unfairly dismissed his case based on a

time again. Taal filed a similar motion on March 12 that the court denied two days later, noting [t]he D arguments . . . do not evince any exceptional circumstance only that the Debtor feels the Court homed in on a minor procedural flaw and unfairly dismissed the bankruptcy case Doc. No. 5-8. On April 24, 2013, Taal filed a notice of appeal with this court.

II. STANDARD OF REVIEW This court has jurisdiction to hear appeals from final judgments, orders, and decrees issued in bankruptcy court pursuant to 28 U.S.C. § 158(a)(1). When reviewing a decision by a bankruptcy court, the district court reviews legal conclusions de novo and upholds findings of fact unless they are clearly erroneous. Fed. R. Bankr. P. 8013; Palmacci v. Umpierrez, 121 F.3d 781, 785 (1st. Cir. 1997); Askenaizer v. Moate, 406 B.R. 444, 447 (D.N.H. 2009). In discretionary matters, a bankruptcy or deserving of significant weight, relies upon an improper factor Howard v. Lexington Invs., Inc., 284 F.3d 320, 323 (1st Cir. 2002) (internal quotation marks omitted).

III. ANALYSIS To the extent that they are intelligible arguments center upon the alleged procedural unfairness and abuse of discretion in dismissing his petition. Among other things, Taal argues that: (1) the court abused . . . judicial and legal obligation[s] when it

dismissed his case on procedural grounds; (2) he was denied due process because he s November 16 order; and (3) his income schedules, Doc. No. 4-2, are the equivalent of a confirmation plan and thus fulfill the requirements of the November 16 order.

I must consider whether the bankruptcy court abused its

file a Chapter 13 plan. dismissal for failure to file a confirmation plan is discretionary, and if [s] supporting dismissal are In re Burgos, 476 B.R. 107, 111 (S.D.N.Y. 2012) (citing In re Dudley, 273 B.R. 197, 199 (8th Cir. BAP 2002)); see also Howard, 284 F.3d at 323 (holding that it is bankruptcy court to set and enforce a deadline for a debtor to file tax returns). A y order, can sua sponte, tak[e] any action or mak[e] any determination necessary or appropriate to enforce or implement court orders or rules, or 11 U.S.C. § 105(a). The bankruptcy code also grants the court the power to dismiss a

Chapter 13 case for cause, which includes Id. § 1307(c)(3). The Ninth Circuit Bankruptcy Appellate Panel characterizes § 1307(c)(3) as restriction on a chapter 13 debtor who, unlike a chapter 11 In re Ellsworth, 455 B.R. 904, 916 (9th Cir. BAP 2011) (citing 8 Collier on Bankruptcy ¶ 1321.01 (Alan N. Resnick & Henry J. Sommer, eds., 16th ed. 2011)). A party may seek modification or clarification of an order, but a litigant flouts a specific order at its peril. Id. The First Circuit has noted that Chapter 13 allows a debtor many benefits over other bankruptcy proceedings [t]o obtain these benefits, Chapter 13 debtors are required to act swiftly. They must file a plan within 15 days of the petition, and must commence payments under the plan within 30 days. Failure to act in a timely manner is Howard, 284 F.3d at 321 n.1 (citations omitted).

Here, the bankruptcy court appropriately set and enforced a deadline for timely filing an amended plan. Although Taal was active in litigation, he was lax in responding to creditors and to

explicit instructions both in a court order and during the hearing preceding the order that a failure to timely file a ot his first such warning. Taal did not file the plan, and the bankruptcy court properly exercised its discretion under 11 U.S.C. § 1307(c)(3) to dismiss the case.

1 Taal clearly had notice of the order and the potential consequences of violating it, whether by certified mail or by attending the November 16 hearing. His income and expenditure forms are also manifestly not a confirmation plan or the equivalent thereof. Pursuant to 11 U.S.C. § 1322, a plan shall provide for, among other things, the submission of future earnings to the supervision and control of the trustee. 1 To the extent that it is intelligible, Taal also appears to allege an equal protection violation based upon the bankruptcy dismissing his case for a similarly minor fault. This argument, among other flaws, as alleged inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). An [a] plaintiff may not prevail simply by asserting an inequity and tacking on the self-serving conclusion that the defendant was Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir. 1992)(quotations omitted).

expenditure forms were required federal bankruptcy filings that contain some information that might overlap with a potential plan, but lack any information on plan payments. Further, Local Bankruptcy Rules specify a form that must be used by Chapter 13 petitioners. LBR 3015-1. Taal used this form in submitting his initial plan. Doc. No. 2-10. The November 16, 2012 order noted amended plan must also conform to Local Rule 3015. Considering the local rules regarding plan submissions, his assertion that the income and expenditure forms constitute a plan, or substantial compliance with a plan, amounts to nothing more than a flimsy, post hoc rationalization for his failure to abide by court rules.

In addition to his central argument, Taal alleges various bankruptcy court failures and creditor malfeasance. As discussed above, this case centers upon the propriety of the aim for failing to timely file an amended Chapter 13 plan. I need not address the merits of because each of his complaints has no bearing on the ultimate disposition of the case.

Finally, Taal claims cases disposition of the merits [sic] Taal overstates a fundamental policy of the law a policy necessarily balanced by the courts need to prevent undue delays. See Motors Corp., 437 F.2d 196, 199 (1st Cir. 1999). Courts must

inimical to the orderly administration of justice and, in and of itself, can constitute ext Young v. Gordon, 330 F.3d 76, 81 (1st Cir. 2003). Here, the court properly exercised this discretionary balancing petition without prejudice.

IV. CONCLUSION For the foregoing pter 13 petition.


/s/Paul Barbadoro

Paul Barbadoro United States District Judge

cc: Counsel of Record

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