United States District Court, M.D. Tennessee, Nashville Division
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
Edward George Faria, proceeding pro se, appeals the
October 5, 2017 Order Denying Confirmation and Dismissing
Case, entered by the United States Bankruptcy Court for the
Middle District of Tennessee (the “Bankruptcy
Court”) in the Chapter 13 case, In re Edward George
Faria, No. 3:17-bk-04384. The appeal has been fully
briefed by both parties. For the reasons set forth below, the
order of dismissal will be affirmed and this case dismissed.
Background and Procedural History
filed a voluntary petition under Chapter 13. (Bankr. No.
On Schedule A/B, Appellant listed an ownership interest in
real property located at 5145 West Oak Highland Drive,
Antioch, TN 37013 (the “Property”). (Bankr. No. 9
at 3.) Appellant valued the Property at $264, 000.
(Id.) He also disclosed that he has a potential
lawsuit against Rubin Lublin TN, PLLC valued at $278, 514.51
for violation of the Fair Debt Collection Practices Act
(“FDCPA”). (Id. at 10.) Amended Schedule
E/F lists Select Portfolio Services, Inc. (“SPS”)
as having a nonpriority unsecured claim for $191, 755 based
on a deed of trust. (Bankr. Doc. No. 36 at 2.) Schedule I
reflects that Appellant has gross monthly income of $384.62
from his employment with Raiser, LLC, and anticipated rental
income of $1, 500 per month. (Bankr. Doc. No. 9 at 23-23.)
Schedule J reflects that Appellant has monthly expenses
totaling $1, 323 for a monthly net income of $561.62. (Bankr.
Doc. No. 9 at 24-26.)
filed an amended Chapter 13 plan on September 19, 2017,
proposing a monthly plan payment of $1, 000 and a 36-month
plan term. (Bankr. Doc. No. 48 at 2.)
amended plan did not provide for any payment to secured
creditors. The plan classified SPS separately as a classified
nonpriority unsecured creditor and provided for SPS to be
paid $0.00 for its failure to file a proof of claim.
(Id. at 7.) SPS objected to confirmation of the plan
because it did not provide adequate protection to SPS
relative to the Property, in violation of 11 U.S.C. §
362. Specifically, the plan did not list the mortgage
serviced by SPS pertaining to the Property and failed to
address the arrears owed on the mortgage or determine a
disbursement agent for ongoing payments. (Id.)
SPS's objection stated that it would file a Proof of
Claim listing arrearages of approximately $104, 065.87 as of
July 1, 2017 and showing ongoing monthly mortgage payments
due in the amount of $1, 331.29. (Bankr. Doc. No. 17 at
Chapter 13 Trustee also objected to confirmation of the
proposed plan on the basis that it is not feasible and
violates 11 U.S.C. § 1325(b). The Trustee requested
dismissal of the case in the event the Bankruptcy Court did
not confirm the plan. (Bankr. Doc. No. 40.)
hearing on confirmation of the plan, SPS's objection, and
the Trustee's objection and request for dismissal was
conducted on September 27, 2017. At the hearing, the
Bankruptcy Court made findings from the bench including that
the Appellant had failed to make any plan payments and that
the proposed plan failed to deal with the mortgage arrearage
or for ongoing mortgage payments and therefore was not
feasible. (Bankr. Doc. No. 101 at 23.) The Bankruptcy Court
further found that “in the absence of any proposal
being made by the debtor that would indicate that there's
some amendment that could be made that would fix this problem
on a timely basis, ” dismissal was appropriate.
(Id.) The written order denying confirmation and
dismissing the case was entered on October 4, 2017. (Bankr.
Doc. No. 57.)
filed a Motion to Reconsider the order of dismissal on
October 13, 2017. (Bankr. Doc. No. 62.) A hearing on the
Motion to Reconsider was held November 22, 2017. The
Bankruptcy Court denied the motion because Appellant failed
to offer “new evidence, argument or circumstance to
support reconsideration of the Order” dismissing his
case. In addition, it reaffirmed that the proposed plan did
not properly address the secured debt on the Appellant's
residence and that Appellant was in default of plan payments.
(Bankr. Doc. No. 102 at 1-2.) The Bankruptcy Court also
concluded that Appellant's “failure to provide for
the secured debt on his residence in his plan, despite the
instruction from the secured lender, the Trustee, and [the
Bankruptcy] Court, ” failure to maintain plan payments,
requests to extend payment obligations without explanation,
and refusal to inform the Bankruptcy Court of his last
mortgage payments all constituted evidence of Appellant's
bad faith. (Id. at 1.)
filed a Notice of Appeal on October 17, 2017 seeking review
of the order of dismissal.
Standard of Review of Bankruptcy Court Order
district courts of the United States shall have jurisdiction
to hear appeals . . . from final judgments, orders, and
decrees . . . of bankruptcy judges entered in cases and
proceedings referred to the bankruptcy judges under section
157 of this title.” 28 U.S.C. § 158(a). An order
denying confirmation with prejudice and dismissing the case
is an immediately appealable final order. See Bullard v.
Blue Hills Bank, 135 S.Ct. 1686, 1692-93 (2015)
(distinguishing between dismissal with and without leave to
appeal, the district court reviews the bankruptcy court's
findings of fact for clear error and its conclusions of law
de novo. MNBA America Bank, N.A. v. Meoli (In re
Wells), 561 F.3d 633, 634 (6th Cir. 2009); In re
Rembert, 141 F.3d 277, 280 (6th Cir. 1998); see also
Cluxton v. Fifth Third Bank (In re Cluxton), 327 B.R.
612, 613 (B.A.P. 6th Cir. 2005) (“The determination
whether a plan provision violates the Bankruptcy Code is a
legal conclusion reviewed de novo.”).