## UNITED STATES BANKRUPTCY APPELLATE PANEL FOR THE FIRST CIRCUIT

BAP No. NH 99-012

_______________________ IN RE: JOSEPH S. HAAS, JR.,

Debtor.

_______________________ JOSEPH S. HAAS, JR., Appellant,
v. LARRY SUMSKI, TRU STEE, Appellee.

_______________________ Appeal from the United States Bankruptcy Court for the District of New Hampshire (Hon. Mark W. Vaughn, U.S. Bankruptcy Judge)

_______________________

Before Queenan, Kenner and Feeney, U.S. Bankruptcy Judges

_______________________ Joseph S. Haas, Jr., on brief for the appellant. Lawrence P. Sumski, on brief for the appellee.

_______________________ October 21, 1999

_______________________1 As will be discussed infra , the Debtor, in his “Appeal” indicates

that the Debtor is appealing the order of the bankruptcy court datedJanuary 20, 1999 dismissing his Chapter 13 case. However, it is unclear what other orders the Debtor is appealing although it is clear that the Debtor is aggrieved by the events of his Chapter 13 case. 2 Per Curiam.
I. INTRODUCTION The matter bef ore the Bankruptcy Appellate Panel is the “Appeal” filed by Joseph Sanders Haas, Jr., a Chapter 13 Debtor (“Haas” or the “Debtor”), on January 29, 1999 from one or more orders of the United States Bankruptcy Court for the District of New Hampshire. 1 After reviewing the record on appeal and applicable law, for the reasons discussed below, the Panel affirms the bankruptcy court’s order dismissing the case and dismisses all other appeals as untimely and for lack of jurisdiction. II. FACTUAL AND PROCEDURAL BACKGROUND The Debtor filed his Chapter 13 Petition on May 13, 1998. Throughout the pendency of his case the Debtor appeared pro se. Prior to 1979, Haas was the owner of real estate in Ashland, New Hampshire (the “Property”). In 1979, Haas transferred the Propertyto a corporation known as Cathedral of the Beechwoods, Inc., a corporation in which Haas had an interest. On December 8, 1993, Haas’s interest in the corporation was sold by sheriff’s sale. Brian Shedd (“Shedd”) purchased the Debtor’s interest at the sale. Litigation followed in New Hampshire Superior Court for3

Crafton County. On March 10, 1997 the st ate cour t issued a judgment quieting title to the Property and d ecl ared that Shedd held title to the property. In his Schedules of Assets, Schedule A, the Debtor listed an ownership interest in the Property. In response to questions 6 and 10 of the Statement of Financial Affairs, the Debtor referenced the state court litigation with Shedd in the New Ha mpshire Superior Court as well as the New Hampshire Supreme Court. The Debtor filed a Chapter 13 Plan on May 27, 1998. He filed
an adversary complaint against She dd on May 29, 1998. In his complaint, the Debtor sought to avoid the transfer of the Property to Shedd as a fraudulent conveyance and sought turnover of the Prop erty to his estate. Thereafter, Shedd filed a motion for relief from stay through which he sought to evict the Debtor from the Property. The Debtor filed an objection to the motion. The bankruptcycourt allowed the motion o n Sept ember 8, 1998, and orderedthat the Debtor remove his personal property from the Propertyby Septembe r 22 , 1998. The Debtor filed a motion for reconsideration of the order granting Shedd’s motion for relief from stay, which the bankruptcy court denied. The bankruptcy court held a hearing on November 8, 1998, at which it considered the issue of whether the Debtor hadstanding to pursue the fraudulent conveyance action against Shedd. At the hearing the Chapter 13 trustee indicated that he hadno interest in2 The pertinent text of the loc al r ule is set forth infra at page

8.
4 pursu ing the action as it was of no value to the estate. Th e trustee represented that he would abandon the cause of action if
necess ary. The Debtor consented to the trustee’s proposal of abandonment. Thereafter, the Chapter 13 trustee filed a “Motion to Approve Abandonment” which the bankruptcy court granted by endorsement order dated November 19, 1998. Thereafter, the Debtor filedan “Objection to Motion to Approve Aba ndo nment” which the bankruptcycourt treated as a motion for reconsideration. The court dismissed the motion for reconsideration and again approved the abandonment in a separate order dated December 30, 1998. The Chapter 13 trustee file d a motion to dismiss the case or convert it to Chapter 7 on Novemb er 12, 1998. In the motion, the trustee alleged that: 1) the Debtor was delinquent in his plan payments; 2) the success of the Debtor’s plan was dependent upon the outcome of lit igation that had inconsequential value; and 3) the Debtor failed to disclose assets in his bankruptcy case, making it impossible to determine the liquidation value of his estate. On November 12, 1998, the bankruptcy court issued a notice of hearing
on the motion to dismiss or convert and scheduled a he arin g for January15, 1999. The Debtor did not fi le an objection to the motion to dismiss or convert in accordance with LBR 7012(b)(2) and (c). 2 Both the Chapter 13 trustee in his brief and the Debtor in5

his “Ap peal” ac knowledged that, due to a snowstorm, the court was closedon January 15, 1999. On January 20, 1999 , the bank ruptcy court held a hearing on the motion to dismiss or convert and entered
an order dismissing the case. The “Order of the Court - Proceeding Memo” of the hearing held on January 20, 1999 indicates the Attorney Lawrence Sumski appeared for the Chap ter 13 trustee and that AttorneyGeraldine Karonis appeared for the United State s Trus tee telephonical ly . The Proceeding Memo does not reflect that the Debtor attended the hearing. On that date, the court also entered an order denying confirmation of the Debtor’s Plan. The Debtor includes in his Appendix a copy of a pleading dated January11, 1999 entitled “Amended Plan.” The Amended Plan does not appear on the bankruptcy court’s docket. In the Amended Plan, the Deb tor requests “a halt to this [sic] dismissal of Chapt er 13 o r conversion to Chapter 7 since a new tr ustee wi ll [pursue the adversarycomplaint against Shed d] .” The Debtor also includes in his Appendix a purported pleading dated December 3, 1 998 entitled “Moti on for M onitor Hearing,” which like his “Appeal” is far from clear. It appears to be addressedto Geraldine Karonis, Assistant UnitedStates Trustee. In t he Motio n, which is difficult to understand, the Debtor requests information about the United States Trustee, Attorne y Karo nis, Attorney Sumski, certain events in his case, and further expresses his dissatisfaction with the allowance of the motion to approve abandonment. The bankruptcy court docket3 There is no letter dated March 13, 1998 in the record on appeal.
6 doe s not re flect that this pleading was ever filed with the bankruptcy court. On January 29, 1999, the Debtor filed a plead ing enti tled “Appeal.” It is far from clear which orders the Debtor is appealing because the pleading is difficult to understand. The only fact that is clear is that t he Debtor expressly appealed the orders of the bankruptcycourt “dismissing the case and plan.” In the pleading, the Debtor s tated that he had not yet received “any reply” to the Am endedPlan or Motion for Monitor Hearing. It is imposs ible t o ascertain what relief he requests of the Panel with respect to those motions. The Debtor may be seeking to appeal the orders denying the motions to r econside r and dismiss Shedd’s motion for relief from stay, which orders were entered on September 14, 1998 and September 16, 1998. In the “Appeal,” the Debtor also referenced his claim of homesteadon the Propertyand a cover letter to the Bankruptcy Court Clerk dated March 13, 1998. 3 It is unclear what action he requests the Panel to take with respect to either of the documents, which are not orders of the bankruptcy court. The Debtor further states that he has been denied due process, apparen tly because he was not successful in his complaint against Shedd, whereas another litigant in a case the Debtor believes is similar to his was successful before the late Judge Yacos. It is not clear what relief the Debtor7

requests of the Panel.

III. JURISDICTION The Bankruptcy Appellate Panel has jurisdiction to hear appeals fromfinal judgments orders and decrees issued by bankruptcy courts in th e same manner as civil appeals taken from district courts to the courts of appeals and within the time limitations impo sed b y Rule 8002 of the Federal Rules of Bankruptcy Procedure. 28 U.S.C. § 158(a)(1); Fed. R. Bankr. P. 8001. Rule 8002 state s the a “notice of appeal shall be filed within 10 days of the date of the entry of the judgment, order or decree appealed from.” Fed. R. Bankr. P. 8002. The dismissal of a Debtor’s Chap ter 13 case is a final judgment. See In re Molinary , Slip. Op. No. 98-090 at 7 ( B.A.P. 1 st Cir. July 8, 1999).

IV. DISCUSSION An appella nt ha s the burden of showing that the bankruptcy
co urt’s or der is in error, and must point to the appropriate sections of the record, including the transcript of the relevant hearings, to support a claim of error. In re Grey , 902 F. 2d 1429 (10 th Cir. 1990). A party who fails to o bject to a motion in the bankruptcycourt waives any argument on appeal that the bankruptcy court erred in granting the motion. See In re Papatones , 143 F. 3d 23 (1 st Cir. 1998); In re Image Worldwide, Ltd. , 139 F. 3d 574 (7 th8

Cir. 1998); Matter of Novack , 39 F.2d1274 (5 th Cir. 1981). Issues not ra ised or resolved in the bankruptcy court will not be consideredon appeal. See Taylor v. Freeland & Kronz , 503 U.S. 638 (1992); Jeffrey v. Desmond , 70 F. 2d 183 (1 st Cir. 1995). The allowance of a motion to dismiss will be reversed only if the appellant establishes that the bankruptc y cour t committed a cle ar abuse of discretion. In re Molinary , supra , at 9 (cit ation s omi tted). “An abuse of discretion occurs when a relevant facto r deserving of significant weight is overlooked, or when an improper factor is accorded significant weight, or when the court considers the appropriate mix of factors, but commits a pal pable er ror of judgment in calibrating the d ecisional scales.” United States v. Roberts , 978 F.2d 17, 21 (1 st Cir. 1992). In his brief, the Debtor presents his appeal as a “fraudulent transfer,” complaining of the bankruptcycourt’s “refusal to provide ‘equal’ rights,” a nd re questing that the Panel: 1) order the bankruptcycourt to find that the Pr operty i s property of the estate; and 2) order the trustee to hire an independent appraiser. For the reasons set forth belo w, we hold that the Debtor presents
no valid reasons for reversing any of t he bankruptcy court’s decisions in this case or for the Panel to order the relief he requests. Rule 7102(b)(2) of th e Local Rules of the United States Bank ruptcyCourt for the District of New Hampshire provides: “A n9

answer or response to every motion shall be filed with the Court.” In addition, Local Rule 7102(c ) provides: “Except as otherwise requi redby law or order of the Court, every objection, ex cep t
o bjections to summary judgment motions, shall be filed within te n (10) days from the date the motion is filed .... T he Court shall deemwaived anyobjection not filed in accordance with this rule.” The Debtor failed to file an objection to or rebut the allegations of t he trustee’s motion to dismiss or convert. Accordingly, pursuant to Local Rule 7102(c), the Debtor waived any objection or the opportunity to be heard in opposition to the motion to dismiss or convert in the bankruptcy court. We conclude that the bankruptcycourt did not abuse its discretion in allowing the motion to dismiss where the Debtor did not rebut the trustee’s allegations, anddid not file an opposition as required by the local rule. In light of the Debtor’s failure to oppose the motion in the bankruptcy court as required by the local rules, the Debtor cannot now be heard to complain of the allowance of the motion where he failedto file a written opposition as required by the local rule. The Debtor has failedto pres ent any ground or reason for reversal of the bankruptcy court’s decision dismissing his c as e. He has not a rgued t hat there was no cause for dismissal or
co nversion , and has not provided a transcript of the relevant hearing on the motion to dismiss. He has not satisfiedhis burden of proving error in th e order of dismissal. Instead, he merely10

complains, in a confusing fashion, that he has been precluded from pursuing his claim against S hedd in his Chapter 13 case. This is not a ground for reversing the bankruptcy court’s order dismissing the case. Moreover, the Debtor’s assertion is inconsistent with the recordof proceedings in the case in light of the abandonment of any claim against Shedd to the Debtor. The Debtor also appeals from the order denying confirmation of his plan, which the bankruptcycourt entered on the same day as the dismissal order. The bankruptcycourt properly denied confirmation of the Debtor’s Plan because his plan became moot upon the dismissal of the case. The Debtor also complains of error in the bankruptcy cou rt ’s denial of his motion to reconsider the order granting Shedd’s motion for relief from stay, entered on September 14, 1998, andthe denial of his motion to dismiss Shed d’s moti on for relief from stay, enteredon September 16, 1998. Rule 8002(a) provides that a “notice of appeal shall be filedwithin 10 days of the date of the entry of the judgment, order or decree appeale d from.” Fed. R. Bankr. P. 8002(a). The filing of a not ice of appeal within these time limitations is jurisdictiona l. Browder v. Director, Dep. Of Corrections of Illinois , 434 U.S. 257, 264 (1978). The Debtor’s “Appeal” of these orders was filed on January 29, 1999 beyond the ten-da y tim e limit. Thus, the Panel lacks jurisdiction to review these orders of the b an kruptcy court.11

Accordingly, the Debtor’s appeal of the orders entered on September 14 and 16, 1998 is dismissed. Finally, in his notice of appeal the Debtor makes reference to
a cover letter sent to the C le rk of the bankruptcy court and his claimof homestead in the Property. It is unclear what grievance the Debtor is pursuing with respect to these matters. Apparently, the Debtor is aggrieved that the letter and his claim of homestead didnot effectuate the ret ur n of the Property to him. The jurisdiction of the BankruptcyAppellate Panel is to decide appeals fromfinal orders. 28 U.S.C. § 158(a)(1). There were no orders of the bankruptcy court, final or otherwise, relating to the Debtor’s claimof homestead or his letter to the bankruptcycourt Clerk. The court took no action on either the letter or the claim of homestead. Accordingly, this Court has no jurisdiction over any appeal relating to the homestead or letter to the Clerk. Accordingly, th e bankruptcy court’s order entered on January 20, 1 999 is AFFIRMED. The remainder of the Debtor’s appea ls ar e DISMISSED.