Had they only hired an experienced bankruptcy attorney……….maybe they could have saved their home.

So here’s the text of an opinion (it’s a short one) issued by the Bankruptcy Appellate Panel for the 8th Circuit (and later affirmed by the 8th Circuit Court of Appeals) on a Minnesota case. I have omitted the footnotes for the sake of brevity.

Debtors filed their own bankruptcy case and botched it so badly that the court barred them from filing again for 180 days. Frankly, they misapplied the law and even without me looking over the underlying bankruptcy court record I can see that they filed the chapter 13 in bad faith. Had they consulted an experienced bankruptcy attorney about the merits of the arguments they used they would have known right away that filing their chapter 13 case and appealing the order of dismissal and the bar on their filing again (not once but twice) was simply a waste of everyone’s time and money. Apparently they represented themselves on the appeals as well. Which explains the gross procedural errors the court cited.  As the old saying goes “anyone who represents themselves has a fool for a client”. Now, they may have known from the get-go that none of their arguments or legal positions had merit which is I’m guessing why they were barred from filing again for 6 months as most likely the bankruptcy judge found that they were acting in bad faith. It probably bought them some time. Even so….they didn’t get the result they wanted.

Over the past 25 years I’ve seen things like this from time to time. It never works. I feel for the people who are desperate and will do pretty much anything to hold on to their home. However, if they had hired an experienced attorney they most likely could have found a way for them to work something out with the bank. Pursuing this route was just an exercise in futility and they ended up losing their property anyway.

United States Bankruptcy Appellate Panel

For the Eighth Circuit

___________________________

No. 14-6013

___________________________

In re: Stephen Wayne Carlson, I; Victoria Leah Carlson, also known as Vikki Carlson

Debtors

——————————

Stephen Wayne Carlson, I

Debtor – Appellant

v.

U.S. Bank, N.A.

Creditor – Appellee

___________________________

No. 14-6024

___________________________

Party Gallery Tower Condominium Association

Interested party – Appellee

____________

Appeal from United States Bankruptcy Court

for the District of Minnesota – St. Paul

____________

Submitted: October 7, 2014

Filed: October 17, 2014

____________

Before FEDERMAN, Chief Judge, SALADINO and SHODEEN, Bankruptcy

Judges.

______________

FEDERMAN, Chief Judge

Debtors Stephen Wayne Carlson and Victoria Leah Carlson appeal from the

Bankruptcy Court’s Order denying their Motion for Violation of Automatic Stay, Violation of Homestead Exemption, Violation of Discharge and Creditor Misconduct. They also appeal from the Order dismissing their case and imposing a 180-day bar for refiling.

For the reasons that follow, we AFFIRM.

The Debtors filed a pro se Chapter 13 bankruptcy case on January 17, 2014.

One of the reasons they filed the case was to stop a pending foreclosure of their residential unit at the Gallery Tower Condominiums. The foreclosing lender, U.S. Bank National Association filed a Motion to Dismiss and Bar from Filing Bankruptcy for One Year, or Alternatively, Motion for Relief from Stay. The Debtors filed a Motion for Violation of Automatic Stay, Violation of Homestead Exemption, Violation of Discharge and Creditor Misconduct (the “Debtor’s Violation Motion”).

Following a hearing held April 17, 2014, the Court entered a one-page Order on April 18, 2014, denying the Debtors’ Violation Motion “for the reasons set forth by the Court on the record” at the hearing. The Debtors timely appealed from that ruling. On May 13, 2014, following a hearing, the Court entered a one-page Order denying confirmation of the Debtor’s proposed Chapter 13 Plan, again “for the reasons set forth by the Court on the record.” The Debtors timely appealed that Order, but that appeal was dismissed as interlocutory. Finally, on June 18, 2014, following another hearing, the Court entered an Order of Dismissal with Refiling Bar in which the Court denied the Debtors’ motion to stay pending appeal, granted
U.S. Bank’s motion to dismiss (which had been joined on the record by the
Chapter 13 Trustee), and dismissed the case with a bar from refiling another bankruptcy case for 180 days. As before, this Order was a one-page order “[b]ased upon the file and proceedings, including the reasons, findings, conclusions and decision set forth by the court on the record in open court” at the June 17, 2014 hearing. The Debtors timely appealed this Order as well, and the appeals have been consolidated.

The Bankruptcy Court’s denial of the Debtors’ motion based on violation of
the discharge injunction, its granting relief from the automatic stay, and its
dismissal of a Chapter 13 case with limitations on refiling, are all reviewed under an abuse of discretion standard. “An abuse of discretion will be found if the court’s judgment was based on clearly erroneous factual findings or erroneous legal conclusions.”

As stated, all three Orders being appealed were one-page Orders referring to findings and conclusions made on the record at the relative hearings. However, the Debtors have not provided us with transcripts of the hearings, as required by Federal Rules of Bankruptcy Procedure 8006 and 8009(b). Even if we were able to ascertain from the Debtors’ briefs on appeal what factual errors, if any, they assert the Court committed, we are unable to review the Bankruptcy Court’s Orders because the Debtors have failed to provide an adequate record of the Court’s decisions. Since we do not know the factual basis for the dismissal and bar to refiling, we cannot hold that such factual basis was clearly erroneous.

Further, to the extent we can consider the Debtors’ legal arguments without having been provided with their factual basis, none of those legal arguments has merit. It appears that many of the Debtors’ arguments are premised on the notion that the liens against their residence did not survive their previous Chapter 7 discharges. That simply is not correct: liens do survive discharge unless expressly avoided. Other arguments seem to be based on Debtors’ assertion that their homestead exemption somehow trumps or wipes out the liens. Again, that is not correct. Still other arguments by the Debtors seem to be based on the assertion
that the mere postponing of a foreclosure sale violates the automatic stay. That is also incorrect. Any other bases for reversal argued by the Debtors are similarly lacking in merit.

ACCORDINGLY, the Orders of the Bankruptcy Court are AFFIRMED.

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