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 appeals the
Bankruptcy Court's January 29, 2019 Order that granted
in rem relief from the automatic stay and codebtor
stay. In that Order, the Bankruptcy Court concluded that
"[g]iven the Debtor's extensive filing history,
including multiple bankruptcies filed to stop scheduled
foreclosure sales, the Court finds that the Debtor and the
Codebtor have acted in bad faith and have engaged in 'a
scheme to delay, hinder, or defraud creditors' that
involved multiple bankruptcy filings ... Therefore, it is
hereby ORDERED that the automatic stay of 11
U.S.C. §362(a) is hereby modified as to all parties to
permit the Movant and its successors and assigns to enforce
the lien of its Deed of Trust" (ECF No. 8-1 at 2.)
Appellant has designated portions of the record she believes
to be pertinent to this appeal, pursuant to Fed.R.Bankr.P.
8009. (See ECF No. 8.) The matter has been fully
briefed, 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).
STANDARD OF REVIEW
appeal, a district court must accept a bankruptcy court's
findings of fact unless those findings are clearly erroneous.
In re Highland Constr. Mgmt. Servs., LP, 569 B.R.
673, 680 (E.D. Va. 2017) (quoting Riley v. Robey, 25
Fed. App'x. 149, 152 (4th Cir. 2002)). Conclusions of law
are reviewed de novo by a district court. See
Providence Hall Assocs. Ltd P'ship v. Wells Fargo Bank,
N.A., 816 F.3d 273, 276 (4th Cir. 2016).
correctly points out that Appellant failed to order a
transcript of the January 16, 2019 hearing. Pursuant to
Fed.R.Bankr.P. 8009(a)(1)(A), "[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, an appellant must order the hearing transcripts
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). However, an appellant has an
additional option if a transcript is unavailable.
If a transcript of a hearing or trial is unavailable, the
appellant may prepare a statement of the evidence or
proceedings from the best available means, including the
appellant's recollection. The statement must be filed
within the time prescribed by subdivision (a)(1) and served
on the appellee, who may serve objections or proposed
amendments within 14 days after being served. The statement
and any objections or proposed amendments must then be
submitted to the bankruptcy court for settlement and
approval. As settled and approved, the statement must be
included by the bankruptcy clerk in the record on appeal.
Id. at (c).
the transcript or statement of the evidence, this Court does
not have the necessary information to evaluate the Bankruptcy
Court's factual findings. Accordingly, this 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."),
aff'd, 686 Fed.Appx. 289 (5th Cir. 2017)
("Sheppard's failure to provide the district court
or this court with a transcript of the bankruptcy court's
oral ruling prevents him from demonstrating any factual
error."); 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
Appellant's designation of the record, she provides this
Court with more than 600 pages of material; however, the
transcript from the January 16, 2019 hearing is not among
them. (See ECF Nos. 8-4-8-8.) Appellant does include
a copy of an email exchange between herself and a
representative from eScribers regarding the availability of
the transcript. In that email, there appears to be a
transcript from January 16, 2019; the representative provided
Appellant with the same case number, 18-33270, and told her
the transcript was available. However, the recording appears
to be from 9:53 a.m. to 10:03 a.m., while Apellant claims the
evidentiary hearing took place at 11:00 a.m. It is unclear if
the transcript was unavailable. Even if the transcript is
unavailable, Appellant has the option to provide a statement
of the evidence, and she fails to do so. Further, Appellant
expressly stated she would not be providing a transcript.
(See ECF No. 8-2 at 2 "there was no transcript
available ... this is to CERTIFY THAT Brenda Coleman Gillis
will not be using any transcripts for:...
Court is unable to evaluate the Bankruptcy Court's
factual findings without the transcript or a statement of the
evidence. Because Appellant has not filed a transcript, the
Court cannot find that the Bankruptcy Court committed clear
error. Therefore, the Bankruptcy Court will be summarily
appropriate Order will accompany ...