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Coomes v. Structured Asset Securities

United States District Court, W.D. Virginia, Harrisonburg Division

June 27, 2017



          Michael F. Urbanski United States District Judge.

         This 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.


         Coomes 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 24.[1] Id.

         The 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 Coomes must

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 not met.

         Underlying Case, ECF No. 33, at 2 (the "May 9 Order"). Coomes, by counsel, agreed to this order.

         On May 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.

         Coomes, 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, [2] and 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 2.

         By the 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.

         Shortly 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 dismiss.

         Coomes submitted her amended plan on July 15.[3] 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.


         The 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. Va. 2010).

         In her 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.

         The 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)).[4] Accordingly, the court will consider Coomes' arguments to the extent they pertain to the lifting of the stay and the dismissal of her case.

         III. 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 ...

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