UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

In re: MIRIAM ONYEABOR, Debtor.

-------------------- ---------- MIRIAM ONYEABOR, Appellant,

v. CENTENNIAL POINTE OWNERS ASSOCIATION; LEBR ASSOCIATES, LLC, Appellees. No. 13-4037 (BAP No. 11-117-UT) (BAP)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.

* After examining the briefs and appellate record, this pane l has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 9, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - Miriam Onyeabor, appearing pro se, a ppeals from a decision of the Bankruptcy Appellate Panel (BAP) affirming the ba nkruptcy court’s orde rs converting her Chapter 13 case to a Chapter 7 case and denying reconsideratio n of the conversion order. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm. I. BACKGROUND Ms. Onyeabor filed a voluntary Chapte r 13 petition on April 5, 2011, and a Chapter 13 plan on April 21, 2011. The pl an proposed sixty monthly payments of $445 to the Chapter 13 Trustee and an un specified monthly pa yment directly to several creditors (who are not parties to this appeal) holding mortgages against Ms. Onyeabor’s commercial an d residential pr operties. The appellees, Centennial Pointe Prope rty Owners Association (the POA) and LEBR Associates, LLC (LEBR), jointly file d a proof of claim asserting secured claims in the amount of $385,097.07 (P OC #7). That sum included $124,351.23 attributable to two Utah state-court judgm ents against Ms. Onyeabor for unpaid POA assessments, interest, and attorn ey’s fees (the Judgment Lien). 1 That amount was secured by liens against commercial pr operties Ms. Onyeabor owned in the Centennial Pointe development and agains t her residence. The balance of POC #7 was for unpaid POA assessments post-da ting the period covered by the Judgment

1 The judgment in the first action, affirmed on app eal, was entered on January 28, 2008, in favor of only the P OA and awarded $95,213.70 plus interest, which totaled $21,221.42. The judgment in the second action, $7,916.11 in attorney’s fees for pursuing a wrongful -lien action against Ms. Onyeabor, was entered in favor of the POA an d LEBR on September 13, 2010.- 3 - Lien and for insurance, uti lities, maintenance, repair, and collection costs accrued since July 30, 2010. This balance was secured by liens agai nst Ms. Onyeabor’s Centennial Pointe properties. The POA and LEBR also filed a joint objection to confirmation of Ms. Onyeabor’s plan, asserting that it was filed in bad faith beca use it (1) failed to accurately disclose all her a ssets and liabilities, (2) faile d to provide for payment of their secured claim, and (3) was otherwis e infeasible because Ms. Onyeabor could not make payments under the plan. Ot her parties also f iled objections to confirmation, including the Chapter 13 Trus tee and the Salt Lake County (SLC) Treasurer. The Trustee compla ined about missing informati on, procedural violations, and improper deductions. The SLC Treasurer objected on the ground that the plan failed to provide for paymen t of a secured claim for pre- petition property taxes in the amount of $12,875.24. Ms. Onyeabor filed an objection to POC #7. She contested whether the claim was secured and nondischargeable, whether the POA and LEBR had standing to file it, and whether there was sufficient subs tantiation of the amount in excess of the Judgment Lien. On August 12, 2011, the POA and LEBR jo intly filed a motion to dismiss the Chapter 13 case or to convert it to a Chapter 7 case under 11 U.S.C. § 1307(c), arguing that Ms. Onyeabor did not file her petition or plan in good faith.- 4 - On October 6, 2011, the bankruptcy cour t held a hearing on the motion to dismiss or convert and on Ms. Onyeabor’s objection to POC #7. Although Ms. Onyeabor was initially represented by co unsel at the hearing, she discharged her attorney during the hearing and represente d herself. The cour t rendered an oral decision that the case shoul d be converted to Chapter 7 because Ms. Onyeabor had filed her plan in bad faith . Specifically, the court f ound that the plan made no provision for repayment of the POA’s Judgme nt Lien, the SLC Tr easurer’s claim for unpaid pre-petition property taxes, or another creditor’ s claim for $23,558.76 in pre-petition property taxes it had paid on Ms. Onyeabor’s behalf. The court further found that Ms. Onyeabor’s income was insu fficient to support her plan or even the Judgment Lien. The court also noted that although Ms. Onyeabor’s case had been pending for six months, she had not addressed the Trus tee’s objections or made any effort to amend the plan. Further, the court found that her bankruptcy filing was motivated by a desire to avoid paying the POA and LEBR. The court obs erved that there had been a long, contentious relationship between Ms. Onyeabor and the POA/LEBR that involved state-court litiga tion and continued with Ms. Onyeabor’s steadfast insistence, up to and including the hearing on the motion to convert, that she had no legal obligation to pay ongoing POA asse ssments despite a contrary state-court judgment. Thus, the bankruptcy court c oncluded that Ms. Onyeabor failed to articulate any potentially fe asible plan and granted the motion to convert. The court- 5 - also determined that Ms. O nyeabor’s objection to POC #7 was moot in light of the conversion. When Ms. Onyeabor, still pro se, sought reconsideration of the conversion order, the bankruptcy court held another hear ing and denied the mo tion to reconsider. The court rejected Ms. Onyeabor’s ar gument that the POA was not properly represented in the bankruptcy proceedings, stating that the POA was a legal entity and represented by counsel. The court also pointed out that even if LEBR was not entitled to advance claims in the bankruptcy proceedi ng, the POA was a judgment creditor entitled to do so with respect to at leas t a minimum of $94,000 of the Judgment Lien, which Ms. Onyeabor agreed was secured. The court further stated that it was not the proper place to litigat e Ms. Onyeabor’s contention that LEBR’s principals, the “Railes,” ha d “hijacked” the POA by di recting and controlling its actions in the bankruptcy court despite th e fact that LEBR ha d sold all of its Centennial Pointe property prior to the filing of her petition. In a lengthy and detailed decision, the BAP affirmed the bankruptcy court’s conversion order and its denial of Ms. Onyeabor’s motion to reconsider the conversion order. Th is appeal followed. 2

2 Counsel for POA and LEBR have filed a notice of non-participation, stating that neither entity had authori zed them to enter an appearan ce in this appeal, and that neither entity intended on retaining new couns el or filing a respons e brief. Counsel did, however, suggest that th is appeal was moot becaus e the Chapter 7 Trustee has sold Ms. Onyeabor’s Centennial Pointe pr operties, and therefor e the court could not grant an effective remedy to the extent Ms. Onyeab or seeks reconversion to (continued)- 6 - II. DISCUSSSION “In an appeal in a bankruptcy case, we independently review the bankruptcy court’s decision, applying the sa me standard as the BAP or district court. We thus review the bankruptcy court’s legal determ inations de novo and its factual findings for clear error.” Miller v. Bill & Carolyn Ltd. P’Ship (In re Baldwin) , 593 F.3d 1155, 1159 (10th Cir. 2010) (citati ons omitted). “Whether a Chapter 13 plan has been proposed in good faith is a que stion of fact subject to th e clearly erroneous standard of review.” Robinson v. Tenantry (In re Robinson) , 987 F.2d 665, 668 (10th Cir. 1993). We afford Ms. Onyeabor’s pro se fi lings a liberal construction, but we do not act as her advocate. See Yang v. Archuleta , 525 F.3d 925, 927 n. 1 (10th Cir. 2008). Ms. Onyeabor’s numerous appellate issu es, although difficult to follow, focus on the effect of the state- court litigation; whether LEBR had standing in the bankruptcy case; whether LE BR hijacked the POA; whet her her objection to POC #7 was separable from the bankruptcy court’s feasibility analysis ; and whether the

Chapter 13 for the purpose of regaining owne rship and control of those properties. We question the propriety of counsel advancing le gal arguments in a case in which they are not participating. Nonetheless, we have reviewed the matter, including Ms. Onyeabor’s response to the mootness ar gument, and we are confident that this appeal is not moot. Even if Ms. Ony eabor could not regain ownership of the now-sold properties, her bankr uptcy case involves other properties whose disposition could be affected by a r econversion to Chapter 13.- 7 - bankruptcy court violated her due process ri ghts. We group and address those issues that are presented in a sufficie ntly coherent manner as follows. 3 First, Ms. Onyeabor conte nds that the POA’s rejecti on of her settlement offers while her appeal was pending in the fi rst state-court case mooted the POA’s state-court judgment under Utah R. Civ. P. 68 and Fed. R. Civ. P. 68. In essence, this argument asks us to disregard a final state-court judgment, wh ich we may not do.
See 28 U.S.C. § 1738 (requiring that “judicial proceedings . . . [of any State] shall have the same full faith and cr edit in every court w ithin the United Stat es . . . as they have by law or usage in the courts of such St ate”). In any event, the Utah rule, which is the rule applicable to he r state-court offers, requires a settlement offer to be made in the state court ten days before trial. Utah R. Civ. P. 68(c)(3). Ms. Onyeabor states that the first of her offers was not made until May 5, 2008, whil e her appeal of the judgment was pending, so her re liance on Rule 68 is misplaced.

3 Ms. Onyeabor filed a motion to submit an opening appellate brief in excess of thirty pages. This court denied the moti on, informing her that her brief could exceed thirty pages provided it did not exceed 14,0 00 words. Her Amende d Opening Brief is thirty-eight pages and contai ns a certification that it cons ists of 13,984 words, but eight pages of her statement of facts, which count toward the word limit, are set out in an addendum, which does not count toward the word limit if it contains statutes, rules, or regulations. See Fed. R. App. P. 32(a)(7)(B)(iii). It appears to us that the placement of eight pages of facts in the adde ndum is an attempt to skirt this court’s order and the word limit set out in Fe d. R. App. P. 32 (a)(7)(B). Although Ms. Onyeabor is pro se, she is required, like any other litigant, to comply with procedural rules, see Yang , 525 F.3d at 927 n.1, and court orders. We warn her that future attempts to ev ade procedural rules and court or ders may result in appropriate sanctions, including the striking of briefs or portions of briefs.- 8 - Second, Ms. Onyeabor’s arguments a bout LEBR’s standing in the bankruptcy case—including that any preclus ive effect of the state-c ourt judgments does not apply to LEBR and that the bankruptcy “case” was not ripe for review, Aplt. Br. at 19-23, 29-32—focus on irrelevant i ssues. The bankruptcy court’ s conversion order rested on Ms. Onyeabor’s lack of good faith with respect to the POA’ s Judgment Lien, the validity of which she acknowle dged at the October 6 hearing and confirmed at the reconsideration hearing; th e claims for unpaid pre-pet ition property taxes; and the lack of any response to the Chapter 13 Tr ustee’s objections. The bad-faith finding was not dependent on any matter solely related to LEBR or any preclusive effect of the state-court judgments. Third, Ms. Onyeabor contends that LE BR was not authorized to file in the bankruptcy proceeding on the POA’s behalf. But the evidentiary support for that contention is an email purporte dly sent to Ms. Onyeabor on July 25, 2012, by another Centennial Pointe Property owner (who had at some point become the POA’s president) in which the owner says “I was not involved in your dispute with the Railes and I have little knowledge a bout it.” Aplt. BAP App. at 726. 4 There are multiple problems with reliance on this email: it post-da tes the conversion order and therefore was not before the bankruptcy cour t when the court conv erted the case; it is

4 The appendix Ms. Onyeabor filed with the BAP is not part of the record on appeal filed with this court. Nonetheless, we have ta ken judicial notice of it. See Guttman v. Khalsa , 669 F.3d 1101, 1127 n.5 (10th Cir. 2012) (s tating that we may take judicial notice of district court fili ngs not included in the record on appeal).- 9 - not authenticated or sworn; it is inadmissible hearsay; and it says nothing meaningful about LEBR’s alleged hijacking of the POA. Further, in support of their objection to Ms. Onyeabor’s motion for reconsideration, counsel for the POA and LEBR filed an affidavit discussing the hist ory of counsel’s representa tion of the POA since 2005, and the POA, as a creditor, unquestionably had standing to appear in the bankruptcy court to protect its porti on of the Judgment Lien. See 11 U.S.C. § 501(a) (“A creditor . . . may file a proof of claim.”). We ther efore find no merit in the contention that the joint filings by the POA and LEBR were without the POA’s authorization. Fourth, Ms. Onyeabor argues that her objection to POC #7, which the bankruptcy court deemed moot by the conv ersion to Chapter 7, was not separable from the feasibility of her plan. She points out that she included the Judgment Lien in a schedule of unsecured non-priority cl aims and argues that she could not make the plan more definite until th e court ruled on her objections , including whether claims were secured or unsecured and whether LEBR had standing to pursue any of its claims for continued POA a ssessments and other post-Judgm ent-Lien amounts. But her objection was, as the bankruptcy court implicitly found, immaterial to the grounds for its conversion or der. Although she included the Judgment Lien in the schedule of unsecured non-priority creditors , the plan itself did not provide for paying it, and the bankruptcy court determined that there was no feasible way that the plan could propose to pay it or the pre-petition property taxes. Further, as the bankruptcy court pointed out, Ms. Onyeab or did not respond to the Chapter 13- 10 - Trustee’s objections or, in th e many months since objections were filed, attempt to amend her plan. Her objection to POC #7 had nothing to do with those additional bases for the bad-faith finding. Accordingl y, we conclude that the objections were not material to the grounds for conversion and that the bankruptcy court correctly ruled that the conversion mooted them. Finally, Ms. Onyeabor claims the bankrupt cy court denied her due process in several ways. She first argues that duri ng the October 6 hearing on the motion to dismiss or convert, the court deprived her of due process when it told her attorney, Lou Harris, that the court would not i ndulge in conferences between him and Ms. Onyeabor. She claims that after the court’s stat ement, she “h ad” to fire Mr. Harris so she “could ge t a word in” because Mr. Harris had only taken over the case ten days before the hearing after her pr ior attorney had beco me seriously ill and was unable to continue representation. Aplt. Br. at 36. We see no due process violation. “[D]ue process re quires notice and a meaningful opportunity to be heard.” Standard Indus., Inc. v. Aquila , Inc. (In re C.W. Mining Co.) , 625 F.3d 1240, 1244 (10th Cir. 2010). At the hear ing, the bankruptcy court simply stated that it would not tolerate continued attorney -client consultations. It did not require or force Ms. Onyeabor to take over her case pro se. Accordingly, we see no due process violation in the court’s admonishment. Ms. Onyeabor also claims that the ba nkruptcy court violated her due process rights when it rejected her request, made at the October 6 hearing, that the court give- 11 - her until November 8, 2011, to revise her plan again. In de nying her request, the court noted that November 8 was the date fo r the confirmation hearing, “not a date to begin proposing plans.” Aplt. BAP App. at 393. We se e no due process violation. Ms. Onyeabor further argues that th e bankruptcy court violated her due process rights by not instructi ng her to file adversary pro ceedings. By this we take her to mean that, at a hearing on her object ions to POC #7 scheduled for August 10, 2011, but continued to October 6, the bank ruptcy court should have advised her that some of her objections needed to be file d in an adversary proceeding. We see no error. Ms. Onyeabor was still represented by counsel on August 10. Courts do not act as advocates fo r pro se parties, Yang , 525 F.3d at 927 n.1, let alone those represented by counsel. It th erefore follows that due pro cess does not require courts to provide legal advice to the parties or thei r attorneys. See McKaskle v. Wiggins , 465 U.S. 168, 183-84 (1984) (s tating that there is no “cons titutional right to receive personal instruction from the trial judge on courtroom procedure” and that “the Constitution [does not] require judge s to take over chores for a pro se defendant that would normally be attended to by traine d counsel as a matter of course”). III. CONCLUSION The Bankruptcy Appellate Pa nel’s judgment is affirmed. Entered for the Court
Stephen H. Anderson Circuit Judge