United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
February 13, 2019, appellant Linda Rene Cody, proceeding
pro se, filed a notice of appeal in the United
States Bankruptcy Court for the Western District of Virginia.
In re Cody, No. 19-70043 (Bankr. W.D. Va. filed Jan.
11, 2019). ECF No. 31. She also filed a motion for leave to
appeal, which was docketed as a miscellaneous case in this
district court. Cody v. Micale, No. 7:19-MC-4 (W.D.
Va., filed Feb. 14, 2019), ECF No. 1. On February 22, 2019,
Cody filed a motion for appointment of counsel in this case
because she is proceeding pro se and is seventy-five
percent deaf. ECF No. 3. For the reasons discussed below,
Cody's motion for leave to appeal the dismissal of her
bankruptcy cause of action is DENIED because
she does not need leave from this court to appeal, and her
motion for appointment of counsel is DENIED.
January 11, 2019, Cody filed a Chapter 13 voluntary petition.
ECF No. 1 in In re Cody, No. 19-70043. On January
14, 2019, the bankruptcy court entered a deficiency order,
noting that the petition was filed without several necessary
forms and stating that the if the deficiencies were not cured
within fourteen days that her case was subject to dismissal.
On January 25, 2019, Cody filed several documents in response
to the deficiency order.
January 28, 2019, the City of Roanoke, Virginia ("the
City") filed a motion to dismiss Cody's Chapter 13
bankruptcy petition for cause pursuant to 11 U.S.C. §707
and to declare the petition void ab initio. In the
alternative, the City asked the court to retroactively
approve the sale by the City of real estate owned by Cody
pursuant to Section 58.2-3965 et seq., Code of
Virginia (1950) as amended. An evidentiary hearing was held
in the matter on February 4, 2019.
February 5, 2019 the bankruptcy court entered an order
dismissing the petition. The court noted that the petition
was Cody's fourth attempt to prevent the sale of a parcel
of real property she owns. The City had condemned the
property as unsafe and unfit for human habitation in November
2015. Cody testified that she had continued to live there
until at least January 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.
City twice attempted to sell the property for delinquent
taxes, once in September 2017 and once in May 2018. Both
times Cody filed Chapter 13 bankruptcy petitions and stopped
the sales. Both petitions were dismissed for failure to file
required documentation and in the dismissal of July 17, 2018
the bankruptcy court barred Cody from filing another
bankruptcy petition for 180 days, or until January 13, 2019.
ECF No. 27 at 2 in In re Cody. No. 19-70043.
September 2018, the City sold the property and sought
confirmation of the sale in Roanoke City Circuit Court. Prior
to the Circuit Court's decision, Cody appealed the July
17, 2018 order dismissing her bankruptcy case and this court
dismissed the petition. In re Cody, No. 7:18-CV-471
(W.D. Va. Nov. 19, 2018). By the time the Roanoke City
Circuit Court confirmed the sale of the property on November
28, 2018, the buyer no longer wished to proceed with the
sale. The City then obtained a decree from the Roanoke City
Circuit Court setting aside the sale and authorizing the City
to resell the property.
City scheduled another sale of the property for January 15,
2019. Although 180 days had not passed since Cody's
previous petition was dismissed, she filed the current
Chapter 13 petition on January 11, 2019. The City went ahead
with the sale of the property and then sought to dismiss
Cody's bankruptcy petition as void ab initio or
alternatively, asked for an order authorizing the City's
sale of the property.
bankruptcy court dismissed Cody's petition after making a
number of findings. First, the court found that Cody's
failure to satisfy the requirements of 11 U.S.C. § 109
rendered her ineligible to be a debtor. She had not obtained
the requisite counseling in the 180-day period prior to the
filing of the petition in accordance with 11 U.S.C. §
109(h)(1), but had waited until after filing the petition to
do so. The court found it was compelled under In re
Watson, 332 B.R. 740, 747 (Bankr. E.D. Va. 2005), and
In re Louredo, No. 05-15846-SSM (Bankr. E.D. Va.
Nov. 16, 2005), to dismiss the case. The court further
determined that Cody had not shown cause for filing her
petition prior to the expiration of the 180-day period, which
also required dismissal.
addition, the court found that Cody's repeated bankruptcy
filings were a continued effort to thwart the City's
attempt to exercise its rights in connection with the unpaid
real estate taxes on her property. Her serial filings,
combined with her continued disregard of the duties and
obligations imposed upon her by the United States Bankruptcy
Code and the court's prior order of dismissal, indicated
that the petition was filed in bad faith and was an abuse of
the provisions of the Bankruptcy Code. Finally, based on
Cody's residence at a shelter and her stated sources of
income, the bankruptcy court had no reasonable belief that
Cody would be able to obtain confirmation of a viable Chapter
13 plan. ECF No. 27 in In re Cody, No. 19-70043.
seeks leave from this court to file an appeal of the
bankruptcy dismissal. As a general rule, United States
district courts have jurisdiction to hear appeals from
bankruptcy courts of final judgements, orders, and decrees
entered in cases and proceedings. 28 U.S.C. § 158(a)(1).
Petitioners are required to seek leave of court prior to
appealing some interlocutory orders and decrees. 28 U.S.C.
§ 158(a)(3). A final order '"ends litigation
and leaves nothing for the court to do but execute the
judgment."' Thomas v. Grigsby, 556 B.R.
714, 718 (D. Md. 2016) (quoting Catlin v. United
States,324 U.S. 229, 233 (1945)). An interlocutory
order "decides some intervening matter that requires
other action to enable the court to adjudicate the cause on
the merits." Id. (citing In re Rood,426 B.R. 538, 546 (D. Md. 2010)). Dismissal of a bankruptcy