United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (SUMMARILY AFFIRMING THE
E. Hudson, Senior United States District Judge.
bankruptcy matter is before the Court on an appeal filed by
Brenda Gillis (pro se "Appellant")
pursuant to 28 U.S.C. § 158(a). Appellant, who is a
debtor in a Chapter 13 bankruptcy case, appeals the
Bankruptcy Court's October 17, 2018 Order (the
"Order") that overruled her objection to
Appellee's Proof of Claim 2. (See ECF No. 14-1.)
In that Order, the Bankruptcy Court concluded that
"[a]fter the taking of evidence and upon hearing
argument from both parties, for reasons stated on the record;
it is ORDERED that the [Appellant's]
Objection to Claim 2 is OVERRULED and further ordered that
Claim 2-1 is hereby deemed an allowed secured claim in the
amounts claimed therein." (Id.) On appeal,
Appellant challenges the Bankruptcy Court's factual
conclusions. Appellant contends that she was not at the
closing for the property in question, and as a result,
counsel for Appellee allegedly presented a fraudulent
Promissory Note and Deed of Trust during the Bankruptcy
Court's hearing on October 16, 2018. (App. Br. 6-8, ECF
Appellant and Appellee have designated portions of the record
that they believe to be pertinent to this appeal, pursuant to
Fed.R.Bankr.P. 8009. (See ECF No. 14.) In addition,
Appellant has filed multiple extraneous Motions, including
two Motions to Vacate Judgment under Fed.R.Civ.P. 60, a
Motion to Strike under Fed.R.Civ.P. 12, and a Motion to Take
Judicial Notice. (See ECF Nos. 28, 10, 29, and
26.) Appellee filed a Motion to Dismiss the Appeal.
(See ECF No. 16.) No. hearing is necessary to
resolve these Motions or the appeal, see Local Rule
7(J), and the Court also acknowledges that pro se
complaints are afforded a liberal construction. Laber v.
Harvey, 438 F.3d 404, 413 n.3 (4th Cir. 2006).
considering an appeal from the bankruptcy court, the district
court must accept the bankruptcy court's findings of fact
unless those findings are clearly erroneous. In re
Johnson, 960 F.2d 396, 399 (4th Cir. 1992). Put
differently, decisions of fact that are "made in the
exercise of a bankruptcy court's discretion will not be
set aside unless there is plain error or an abuse of
discretion." In re Suthers, 173 B.R. 570, 572
(W.D. Va. 1994) (quoting In re Lawless, 79 B.R. 850,
852 (W.D. Mo. 1987)). Conclusions of law, however, are
reviewed de novo by a district court. See In re
Plumlee, 236 B.R. 606, 609 (E.D. Va.1999) (citing In
re Johnson, 960 F.2d at 399).
Bankr. P. 8009(a)(1)(A) instructs that "[t]he appellant
must file with the bankruptcy clerk and serve on the appellee
a designation of the items to be included in the record on
appeal and a statement of the issues to be presented."
Furthermore, within 14 days of the appeal of right becoming
effective, the appellant must order those hearing transcripts
that she "considers necessary for the appeal" or
"file with the bankruptcy clerk a certificate stating
that the appellant is not ordering a transcript."
Id. at (b)(1). Moreover, "[i]f the appellant
intends to argue on appeal that a finding or conclusion is
unsupported by the evidence or is contrary to the evidence,
the appellant must include in the record a transcript of all
relevant testimony and copies of all relevant exhibits."
Id. at (b)(5).
reason for this requirement is simple: the appellant must
give the district court the necessary information to evaluate
the bankruptcy court's evidentiary findings. If the
appellant fails to provide this critical information, then
the district court is justified in summarily affirming the
holding of the bankruptcy court. See Sheppard v.
Love, No. 6:16-CV-169, 2016 WL 7324100, at *3 (W.D. Tex.
Dec. 15, 2016) ("Without a transcript, the Court cannot
review the findings and conclusions of the bankruptcy court.
And without such review the Court is left with no choice but
to affirm the ruling of the bankruptcy court."); In
re Cupit, 541 B.R. 739, 745 (D. Colo. 2015) ("If
the record on appeal fails to include copies of the documents
necessary to decide an issue on appeal, this Court is unable
to rule on that issue and may summarily affirm the bankruptcy
court.") (internal quotation marks omitted); In re
Burris, 2:14-BK-10801-WB, 2015 WL 5922036, at *3 n.4
(B.A.P. 9th Cir. Oct. 9, 2015) (stating that where the
bankruptcy court's "findings of fact and conclusions
of law [were] made on the record," a transcript is
"necessary" for the reviewing panel to evaluate the
holding of the lower court).
Appellant's designation of the record, she has provided
this Court with more than 300 pages of material, most of
which is comprised of duplicative documents that Appellant
drafted without the assistance of counsel. (See ECF
Nos. 14-3-14-6.) However, conspicuously absent from
Appellant's record designation is a transcript of the
Bankruptcy Court's October 16, 2018 hearing. In fact,
Appellant expressly stated in bold font that she would not be
providing a transcript. (See ECF No. 25 at 23
("Appellant Brenda Coleman Gillis elected
not to order a transcript.").)
it is impossible to evaluate the Bankruptcy Court's
factual findings-which were explicitly stated on the
record-without the benefit of a transcript. Furthermore,
this Court views the Bankruptcy Court's factual findings
with a great deal of deference, as it must, and overturn
those findings only where there is clear error on the record.
Therefore, because appellant has not filed a transcript in
this case the Court cannot find that the Bankruptcy Court
committed clear error, and, as a result, the Bankruptcy Court
will be summarily affirmed.
appropriate order will accompany this Memorandum Opinion.
 Given the Court's disposition in
this matter, it need not address these ...