United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
an appeal of an order by the United States Bankruptcy Court
for the Western District of Virginia pursuant to 28 U.S.C.
§ 158(a)(1) and Rule 8001(a) of the Federal Rules of
Bankruptcy Procedure. On February 5, 2019, die bankruptcy
court dismissed appellant Linda Rene Cody's
("Cody") fourdi bankruptcy petition in four years
due to her failure to complete the pre-petition credit
counseling required by the Bankruptcy Code, her violation of
the court's prior order barring her from filing another
petition within 180 days, and die filing of her fourth
petition in bad faith. For the reasons that follow, this
court AFFIRMS die bankruptcy court's
February 5, 2019 dismissal of Cody's bankruptcy petition
because she fails to show that the bankruptcy court abused
has filed four voluntary Chapter 13 petitions in the United
States Bankruptcy Court for the Western District of Virginia
since November 2016 in an attempt to prevent the sale of a
parcel of real property ("Property"). ECF No. 1-2,
at 1. All four petitions have been dismissed, with the fourth
and most recent dismissal resulting in this appeal. ECF No. 6
at 5. Each of Cody's first three petitions was filed one
day before appellee the City of Roanoke ("the
City") was set to sell the property and each was
dismissed for her failure to submit the required
documentation. Id. at 6. On July 17, 2018, the court
dismissed her third petition and also ordered her not to file
another petition for a period of 180 days, which expired on
January 14, 2019. Id. at 7.
violated this order by filing her fourth bankruptcy petition
on January 11, 2019, which was three days before the
court's 180-day bar expired and four days before another
scheduled sale of the Property. Id. Additionally,
Cody failed to file the required documentation or take the
required credit counseling courses before filing her
petition. ECF No. 7 at 9. Despite Cody's fourth petition,
the City sold the Property at public auction on January 15,
2019 as planned. Id. The bankruptcy court ordered
Cody to show cause why her fourth petition should not be
dismissed, and oral arguments were heard on February 4, 2019.
Id. at 10. The court issued an order dismissing the
case the next day, concluding the following:
[T]he Debtor's repeat bankruptcy filings [were] a
continued effort to thwart the City of Roanoke from
exercising its rights in connection with unpaid real estate
taxes on the Debtor's condemned and unoccupied Property.
The serial filings combined with her disregard of the duties
and obligations imposed upon her by the United States
Bankruptcy Court and this Court's prior dismissal Order,
indicate that her case was filed in bad faith, and is an
abuse of the provisions of the Bankruptcy Code.
ECF No. 1-2 at 5.
filed a Motion for Leave to Appeal on February 14, 2019,
which this court treated as a Notice of Appeal. ECF No. 7 at
4. Therefore, Cody's appeal is timely pursuant to Rule
8002 of the Federal Rules of Bankruptcy Procedure because it
was filed within fourteen days of the bankruptcy court's
order. Id. However, Cody's appeal did not
request a stay, nor was one ordered by any court.
Id. at 11. As such, the Roanoke City Circuit Court
entered a decree on March 26, 2019, confirming the January
15, 2019 sale and tide was conveyed to the purchaser three
days later. Id. The Special Commissioner's
report of receipts and proposed disbursements subsequendy was
confirmed by the circuit court in an order entered on July
10, 2019. Id. Notably, the report shows that after
satisfaction of the taxes, costs, and expenses of the sale,
Cody is entitled to die surplus proceeds totaling $30, 469.99
as the former owner of the Property. Id., at 12. However, the
Special Commissioner has deferred any disbursements until
this appeal is resolved. Id.
not entirely clear from Cody's brief which issues she is
appealing. ECF No. 4. However, based on the briefs filed by
appellee-trustee Christopher Micale ("Micale") and
the City, the court considers the sole issue to be whether
the bankruptcy court erred in dismissing Cody's fourth
bankruptcy petition filed on January 11, 2019. ECF Nos. 6 at
4 and 7 at 5.
brief, Cody argues that she filed her petition two days
before the 180-day court-ordered bar expired because she was
concerned that anticipated inclement weather would prevent
her from doing so before the public auction on January 15,
2019. ECF No. 4 at 2. At the February 4, 2019 hearing, Cody
also asserted that she was concerned the bankruptcy court
would be closed on the Rev. Dr. Martin Luther King, Jr.
holiday. ECF No. 7 at 10. In addition, she cites the onset of
numerous health issues as the reason for her untimely delay
in taking the required consumer credt counseling course. ECF
No. 4 at 1-2.
and the City largely make the same arguments in their
respective briefs. First, they argue that Cody is not a
debtor under 11 U.S.C. § 109(h) because she failed to
take die required credit counseling course. ECF Nos. 6 at
8-11 and 7 at 14-15. Second, they argue that Cody was barred
by the bankruptcy court from filing another Chapter 13
petition prior to January 14, 2019. ECF Nos. 6 at 11-13 and 7
at 16. Third, they argue that Cody's serial filing of
Chapter 13 petitions on the eve of the City's planned
public auctions constitutes bad faith, with the City adding
that Cody did not have sufficient wages to fund a Chapter 13
plan even if the case had been allowed to proceed. ECF Nos. 6
at 13-16 and 7 at 16-18. These arguments mirror the reasons
given by the bankruptcy court for its dismissal of the
petition. ECF No. 1-2 at 4-5.
the City alone argues that Cody's appeal is
constitutionally and equitably moot because no stay was
requested after the February 5, 2019 dismissal and because
the Property in question has been sold and title conveyed.
ECF No. 7 at 18-21. Because the court finds that the
bankruptcy court ...