United States District Court, W.D. Virginia, Harrisonburg Division
ELIZABETH H. COOMES, Appellant,
STRUCTURED ASSET SECURITIES, et al., Appellees.
Michael F. Urbanski United States District Judge.
matter is before the court on pro se appellant
Elizabeth H. Coomes' appeal of the dismissal of her
Chapter 13 bankruptcy petition, over which the court has
jurisdiction pursuant to 28 U.S.C. § 158(a). ECF No. 1;
see In re Coomes. No. 16-50200 (Bankr. W.D. Va. Aug.
3, 2016) (order dismissing case) (Connelly, J.). Coomes
argues that the conduct of the bankruptcy court was deficient
in a litany of respects and violated her rights under the Due
Process Clause of the United States Constitution, the
Bankruptcy Code, and the Americans with Disabilities Act. The
parties filed briefs and a hearing was held on Coomes'
appeal on June 1, 2017. For the reasons contained herein,
Coomes' bankruptcy appeal is DISMISSED.
filed for Chapter 13 bankruptcy on March 3, 2016. ECF No. 1-3
(bankruptcy court docket sheet). Ordinarily, upon the filing
of her petition, Coomes would be entitled to an automatic
stay under 11 U.S.C. 362(a). However, 11 U.S.C. §
362(c)(4)(A) provides that, if "2 or more single or
joint cases of the debtor were pending within the previous
year but were dismissed, " the automatic stay does not
go into effect, and, in such a circumstance, "on request
of a party in interest, the court shall promptiy enter an
order confirming that no stay is in effect." Coomes had
filed for bankruptcy twice within the previous year, and,
thus, on March 23, 2016, creditor Structured Asset Securities
("SAS") filed a motion to confirm that no stay was
in effect. In re Coomes, No. 16-50200, ECF No. 16
(hereinafter, "Underlying Case"). Shortly
thereafter, Coomes asked the court to impose a stay despite
her previous petitions. Underlying Case, ECF No. 23. A
hearing on these motions was held on May 4, 2016.
See Underlying Case, ECF No. 32. Coomes'
creditors, meanwhile, including Structured Asset Securities,
initially met with Coomes on April 26, after which trustee
Herbert Beskin (hereinafter, "the Trustee") filed a
Report and Notice to Dismiss. Underlying Case, ECF No. 29.
That notice provided that "[t]he hearing on [plan]
confirmation and Show Cause on Dismissal/Motion to Reconvert
is to be held on June 1, 2016." Id. at 1. The
notice also provided for a subsequent creditor meeting on May
bankruptcy court imposed a stay of Coomes' creditors'
collection efforts on May 9, 2016; however, the stay came
with conditions. Coomes was required to continue paying
monthly mortgage payments; the order also provided that
timely pay her plan payments and shall be current in plan
payments by June 1, 2016 and she shall achieve a confirmed
Chapter 13 Plan by July 6, 2016. Otherwise, the Stay shall be
lifted by Order of the Court upon the Trustee's
certification on non-payment and/or other above conditions
Case, ECF No. 33, at 2 (the "May 9 Order"). Coomes,
by counsel, agreed to this order.
26, 2016, Coomes' attorney filed a motion to withdraw.
Underlying Case, ECF No. 38. He complained that Coomes failed
to provide him with adequate information, agreed to the
bankruptcy plan he submitted and later claimed that she did
not, and generally refused to make bankruptcy payments.
Id. The bankruptcy court granted the motion.
Underlying Case, ECF No 45.
now proceeding pro se, was present at the bankruptcy
court's June 1, 2016 hearing. Despite the requirements of
the May 9 Order, Coomes was not current in plan payments on
June 1. Moreover, SAS filed a notice of default alleging that
Coomes failed to make timely mortgage payments,
asking that the court lift the stay. Underlying Case, ECF No.
42. Nonetheless, the bankruptcy court declined to lift the
stay, giving Coomes another chance at compliance with the
terms of the May 9 Order, and continuing the hearing until
July 6, 2016. Underlying Case, ECF No. 43. Under the terms of
the continuance, Coomes was required to submit a $1, 000 plan
payment to the Trustee by June 2; she eventually made that
payment, though not by the deadline. Furthermore, Coomes was
required to provide operating statements and bank statements,
and was informed that "[f]ailure to do so results in
dismissal on the continued hearing date or automatic
dismissal without further notice or hearing twenty (20) days
after the trustee's certification unless the debtor files
a timely response to the certification." Id. at
July 6 hearing, Coomes was further behind on plan payments,
and still had not submitted a confirmable plan. Accordingly,
the bankruptcy court lifted the automatic stay, declaring
that the "Order entered on 5/9/2016 will be
enforced." Underlying Case, . ECF No. 49. However, the
bankruptcy court did not dismiss the case; instead,
"[t]he hearing on the confirmation of [Coomes']
proposed Chapter 13 plan and any objections thereto and the
trustee's motion to dismiss" was again continued,
this time to August 3, 2016. Underlying Case, ECF No. 50, at
1. Coomes was given until July 15 to file a modified plan;
"[u]pon failure to do so, or to request an extension of
time, " the bankruptcy court warned, "this case
shall be dismissed without further notice or hearing."
Id. at 1-2. Coomes was also required to make
additional plan payments before the August 3 hearing.
Id. at 2. These payments were never made.
thereafter, Coomes filed a motion asking the court to
reconsider its decision to lift the stay and enforce the May
9 Order. Underlying Case, ECF No. 51. The bankruptcy court
issued a notice setting this motion for August 3. Underlying
Case, ECF No. 54. The notice did not reference the fact that
August 3 was already the date on which the court would
consider plan confirmation and the Trustee's motion to
submitted her amended plan on July 15. The plan provided
for payments of $1, 068 monthly for sixty months, beginning
October 3, 2016. Underlying Case, ECF No. 58, at 2. Thus,
Coomes' plan avoided the bankruptcy court's existing
payment requirements. The court set her amended plan for
hearing on September 7, 2016. Underlying Case, ECF No. 60.
That hearing never took place. On August 3, 2016, the
bankruptcy court dismissed Coomes' case, finding that she
failed to make required plan payments, and that her amended
plan was not feasible or confirmable. As a result, the
bankruptcy court found that "this is not a case in which
the requirements of 1325 will be achieved as the Code
requires." Id. at 6 (quoting Transcript from
August 3, 2016, page 22, lines 1-2). Coomes noticed her
appeal on August 17.
court's jurisdiction over this bankruptcy appeal is
limited by the terms of 28 U.S.C. § 158(a)(1) to
consideration of "final judgments, orders, and decrees,
" with the bankruptcy court otherwise retaining
jurisdiction under 28 U.S.C. § 157(b)(2)(B). In
reviewing the decisions of the bankruptcy court, a district
court must accept the bankruptcy court's findings of fact
unless they are clearly erroneous; the bankruptcy court's
legal conclusions are reviewed de novo. See In
re Deutchman, 192 F.3d 457, 459 (4th Cir. 1999).
'"Where there are mixed questions of law and fact,
the [c]ourt will apply the clearly erroneous standard to the
factual portion of the inquiry and de novo review to
the legal conclusions derived from those facts." In
re Circuit City Stores. Inc.. 439 B.R. 652, 657 (E.D.
notice of appeal, Coomes purports to appeal the bankruptcy
court's "July 6, 2016 [r]uling, July 8, 2016 order
and August 3, 2016 [r]uling and August 3, 2016 order."
ECF No. 1-1, at 1. As the Trustee points out, there is no
order entered by the bankruptcy court on July 6, 2016. ECF
No. 19, at 1. Coomes clarified in her reply brief that she
intends to appeal "the Bankruptcy Court's July 6,
2016 Ruling lifting the automatic stay." ECF No. 37, at
1. The July 8, 2016 order, meanwhile, merely continued a
pending hearing until August 3, 2016, at which point the
bankruptcy court dismissed Coomes' case.
Trustee and SAS argue that the only appealable order in this
case is the bankruptcy court's August 3, 2016 order of
dismissal without prejudice. ECF No. 19, at 2; ECF No. 20, at
6. The court agrees that the bankruptcy court's July 8
order is not appealable, as it merely continued a hearing,
and thus does not constitute a final judgment, order, or
decree. See 28 U.S.C. § 158(a)(1). However,
this court will consider the July 6 ruling lifting the stay
and enforcing the May 9 order on appeal. See Harris
v. Williams, No. 4:15-cv-77-H, No. 2016 WL 552347, at *
(E.D. N.C. Feb. 10, 2016) (holding, on appeal from a Chapter
13 bankruptcy proceeding, that "[a]n order granting a
creditor relief from automatic stay in a bankruptcy
proceeding is considered a 'final order' and
therefore appealable as of right" (collecting
cases)). Accordingly, the court will consider
Coomes' arguments to the extent they pertain to the
lifting of the stay and the dismissal of her case.
Coomes groups her argument on appeal into six main
categories. First, she argues that "[t]he Bankruptcy
Court failed to consider the threshold issue of whether
Structured Asset Securities ha[d] standing" to move for
relief from the automatic stay. ECF No. 17, at 4. Second,
Coomes argues that SAS failed to present sufficient evidence
of default to the bankruptcy court, and that the bankruptcy
court erred by "allowing [SAS] to lift the stay in the
absence of certification of default, " and denying
Coomes "the opportunity to examine the only witness for
[SAS] (their [sic] attorney)." Id. at 14.
Third, Coomes claims that the bankruptcy court violated her
due process rights by, inter alia, failing to give
her sufficient notice that the August 3, 2016 hearing
concerned the Trustee's motion to dismiss. Id.
at 20. Fourth, Coomes argues that the bankruptcy court failed
to properly consider her "unforeseen and extraordinary
change in circumstances"-a medical crisis which resulted
in major surgery and large medical expenses. Id. at
21. Fifth, Coomes claims that the bankruptcy court lifted the
automatic stay and dismissed her petition because she failed
to obtain substitute counsel. She asks the court to find that
this was legal error and abuse of discretion. Id. at
22. Finally, Coomes argues that the bankruptcy court violated
her rights under the Americans with Disabilities Act
("ADA") by ...