UNITED STATES BANKRUPTCY APPELLATE PANEL

FOR THE FIRST CIRCUIT

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BAP NO. MB 99-083

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IN RE: PETER A. FUCCIONE,

Debtor.

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PETER A. FUCCIONE,

Appellant,

v.

DOREEN A. SOLOMON, CHAPTER 13 TRUSTEE,

UNITED STATES TRUSTEE, and DANIEL S. BLECK, ESQ.,

Appellees.

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Appeal from the United States Bankruptcy Court

for the District of Massachusetts

(Hon. Carol J. Kenner, U.S. Bankruptcy Judge)

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Before

GOODMAN, HAINES AND CARLO, U.S. Bankruptcy Judges

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Leonard A. Frisoli and Frisoli & Associates, on brief for Appellant.

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February 24, 2000

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Per Curiam.
1 Because Fuccione filed a motion to vacate and/or alter

the dismissal order, the dismissal did not become final until

August 30, 1999. Since 180 days have not yet passed, the appeal

is not moot. Carey v. Askenase (In re Carey), 221 B.R. 571, 572

(B.A.P. 1st Cir. 1998).

2 John Cote dba Genoa Realty Trust (“Cote”) filed Case

No. 99-15018; Peter Fuccione dba Genoa Realty Trust (“Fuccione”)

filed Case No. 99-15019; and Steven M. Hurley dba Genoa Realty

Trust (“Hurley”) filed Case No. 99-15045.

2

The Debtor, John R. Fuccione, appeals from the July 26, 1999

bankruptcy court order that dismissed his case pursuant to 11

U.S.C. §109(g) and from the August 30, 1999 order that denied the

debtor’s motion to vacate the dismissal.1 For the reasons set

forth below, the July 26, 1999 order is vacated and the matter is

remanded for an evidentiary hearing on the issue of whether

Fuccione willfully failed to comply with orders of the bankruptcy

court, or otherwise engaged in conduct violative of 11 U.S.C.

§109(g) such that he should be precluded from refiling another

petition for 180 days.

I. Background.

The Debtor alleges that he, John Cote, and Steven Hurley are

trustees and beneficiaries of the Genoa Realty Trust. Each filed

separate bankruptcy cases.2 The cases of Cote and Fuccione were

assigned to Judge Kenner. Hurley’s case was assigned to Judge

Feeney. Fuccione filed his Chapter 13 petition on June 14, 1999,

but did not file his Chapter 13 plan, Schedules and Statement of

Financial Affairs. See Order Dismissing Case, July 26, 1999. 

The bankruptcy court ordered Fuccione to file these documents by

June 29, 1999. Prior to the expiration of the deadline, Fuccione
3 Specifically, the endorsement states “Allowed in part. 

The time is extended to 7/16/99. No further extensions.” July

1, 1999 endorsement. (App. at 4). 

4 The July 16, 1999 motion was the first one filed, and

had a caption that contained the names and case numbers of the

three cases that were the subject of the motion for joint

administration. Ironically, even though this pleading does not

appear to have been docketed in Fuccione’s case because it

utilized this multiple case caption, the bankruptcy court

utilized the same multiple case caption when it denied Fuccione’s

motion to vacate the dismissal. (App. at 2). 

3

filed a motion to extend the time for filing these documents. 

Judge Kenner endorsed the motion on July 1, 1999, extending the

time for filing to July 16, 1999.3 Prior to the expiration of

the extended deadline, Fuccione filed a pleading titled “Motion

for Joint Administration Pursuant to Rule 1015 and Additional

Time to File Plan.” This pleading was filed with a caption

containing all three case numbers, (App. at 5), but apparently

was not entered on the docket in the two cases assigned to Judge

Kenner.4 On July 22, 1999, the motion was filed again, with a

separate caption for the Fuccione case. The July 22, 1999 refiled motion was denied without hearing by an endorsed order

entered by Judge Kenner on July 26, 1999. (App. at 7). 

At the same time the Fuccione motion for joint

administration was being considered without hearing by Judge

Kenner, Judge Feeney had scheduled the Hurley motion for joint

administration for hearing on July 26, 1999, at 2:15 p.m. (App.

at 8). Prior to the Hurley hearing, on July 26, 1999, Judge

Kenner denied the Fuccione motion for joint administration and

motion to extend time without notice to any of the parties or
5 The bankruptcy court did not specifically reference

section 109(g)(1), but the court’s conclusion that the debtor

failed to comply with court orders implicates only section 11

U.S.C. § 109(g)(1). 

4

opportunity for hearing. By separate order on the same date,

Judge Kenner dismissed Fuccione’s case pursuant to 11 U.S.C.

§109(g) concluding that Fuccione had “failed to comply with the

Court order to file the Chapter 13 plan.” See Order Dismissing

Case, July 26, 1999. (App. at 1). 

II. The Appeal.

The bankruptcy court dismissed Fuccione’s case pursuant to

11 U.S.C. 109(g), which provides, in relevant part:

Notwithstanding any other provision of

this section, no individual or family farmer

may be a debtor under this title who has been

a debtor in a case pending under this title at

any time in the preceding 180 days if-

(1) the case was dismissed by the court

for willful failure of the debtor to

abide by orders of the court, or to

appear before the court in proper

prosecution of the case; ...

11 U.S.C. §109(g)(1).5

Fuccione argues that there was no evidence that he willfully

failed to abide by orders of the bankruptcy court. The complete

text of the bankruptcy court order, including all findings of

fact and conclusions of law, is as follows:

Debtor filed a chapter 13 petition on

June 14, 1999, but failed to file his chapter

13 Plan and Schedules and Statement of

Affairs. The Court then ordered the Debtor to

file those documents by June 29, 1999. By

motion filed June 25, 1999, the Debtor sought

an extension of time to comply with the order;
5

the Court endorsed the motion on July 1, 1999

as follows: “Allowed in part - the time is

extended to July 16, 1999 at 4 PM. No further

extensions.” 

The Debtor filed the Schedules and

Statement on July 16, 1999, but no Chapter 13

Plan. To date, the Debtor has failed to file

his Chapter 13 Plan.

On July 22, almost a week after his

chapter 13 Plan was due, the Debtor filed a

motion for additional time to file his plan,

saying he needed more time to ‘sort out

Debtors (sic) financial affairs.’ Atlantic

Bank and Trust Company, a large secured

creditor, opposed that motion. The Court

denied that motion because the Debtor failed

to demonstrate any basis for a further

extension of time.

Based on Debtor’s failure to comply with

the Court order to file the Chapter 13 Plan,

this case is hereby DISMISSED pursuant to

section 109(g).

Order Dismissing Case, July 26, 1999.

 “Willful” is not defined in the statute, but, at a

minimum, that determination should not be made without notice to

the debtor and an opportunity for hearing. Once the bankruptcy

court concluded that the Debtor appeared to have failed to abide

by the court’s prior orders, Fuccione was entitled to an

opportunity to present evidence to justify the alleged failures.

There was no notice to Fuccione that dismissal with

prejudice pursuant to 11 U.S.C. §109(g)(1) might be a sanction

for his failure to file a plan by the previously extended

deadline. It appears that the bankruptcy court relied on the

Debtor’s failure to have filed a plan by the extended deadline of

July 16, 1999. However, the Debtor’s motion to vacate the

dismissal suggests that the Debtor’s July 16, 1999 Motion for
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Joint Administration Pursuant to Rule 1015 and Additional Time to

File Plan, (App. at 5), extended the deadline, at least until the

Debtor had notice of the denial of that motion. The endorsement

denying this motion was entered July 26, 1999, the same day the

bankruptcy court dismissed the Debtor’s case for failure to file

the plan.

If we assume that the denial of the motion to extend the

deadline triggered the deadline for Fuccione to file his Chapter

13 plan, we cannot imagine how Fuccione could have reasonably

known of the denial of the extension prior to the dismissal of

his case. If Fuccione didn’t know of the denial of the

extension, he did not know that he had an immediate obligation to

file his plan. Because the Debtor did not have notice and an

opportunity to be heard, there is no record from which this panel

could affirm the bankruptcy court’s conclusion that the Debtor’s

conduct was a willful violation of a court order.

III. Conclusion.

We VACATE only that portion of the July 26, 1999 order that

dismissed Fuccione’s case pursuant to 11 U.S.C.§109(g) and REMAND

the matter to the bankruptcy court for further proceedings

consistent with this decision.