1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FILED

JUL 15 2016

SUSAN M. SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT

NOT FOR PUBLICATION

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. CC-15-1344-FKiKu

)

LYDIA ONG SANDERS, ) Bk. No. 8:15-bk-14615-TA

)

Debtor. )

_____________________________ )

)

LYDIA ONG SANDERS, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

UNITED STATES TRUSTEE,** )

)

Appellee. )

______________________________)

Argued and Submitted on June 23, 2016

at Pasadena, California***

Filed – July 15, 2016

Appeal from the United States Bankruptcy Court

for the Central District of California

Honorable Theodor C. Albert, Bankruptcy Judge, Presiding

 

Appearances: Richard Lawrence Antognini argued for Appellant

Lydia Ong Sanders.

 

* This disposition is not appropriate for publication. 

Although it may be cited for whatever persuasive value it may

have, see Fed. R. App. P. 32.1, it has no precedential value, see

9th Cir. BAP Rule 8024-1.

** The United States Trustee did not file an answering brief

or otherwise participate in this appeal.

*** Oral argument in this matter was consolidated with the

appeal in Sanders v. Cohen (In re Sanders), BAP No. CC-15-1284-

FKiKu.
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Before: FARIS, KIRSCHER, and KURTZ, Bankruptcy Judges.

INTRODUCTION

Appellant/chapter 111 debtor Lydia Ong Sanders appeals the

bankruptcy court’s summary dismissal of her bankruptcy case at

the time she filed the petition. The court did so without notice

or an opportunity for a hearing, based solely on the fact that

she and her husband had recently filed numerous bankruptcy

petitions. We find that the bankruptcy court deprived

Mrs. Sanders of due process. Accordingly, we VACATE the

dismissal order and REMAND this case to the bankruptcy court.

FACTUAL BACKGROUND2

Mrs. Sanders and her husband, Marshall Samuel Sanders, have

initiated a combined total of nine bankruptcy petitions since

2010. Mrs. Sanders has filed four petitions in the Central

District of California, including the petition from which this

appeal arises.3

Prior to the instant appeal, Mrs. Sanders most recently

filed a chapter 11 bankruptcy petition on October 29, 2014. That

case was dismissed on November 19, 2014 for failure to file her

1 Unless specified otherwise, all chapter and section

references are to the Bankruptcy Code, 11 U.S.C. §§ 101-1532.

2 We have exercised our discretion to review the bankruptcy

court’s docket, as appropriate. See Woods & Erickson, LLP v.

Leonard (In re AVI, Inc.), 389 B.R. 721, 725 n.2 (9th Cir. BAP

2008).

3 Mrs. Sanders filed a chapter 7 case in June 2010 and

received a discharge in September 2010; she filed a chapter 13

case in December 2013, which was dismissed in March 2014 with a

180-day bar on refiling; and she filed a chapter 11 case in

October 2014, which was dismissed in November 2014.

2
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

schedules, statements, or a plan. The court did not impose any

bar against refiling a bankruptcy petition. 

On September 22, 2015, Mrs. Sanders again attempted to file

a chapter 11 petition. Mrs. Sanders’ filings included an

Application for Individuals to Pay the Filing Fee in

Installments. Her husband filed the documents in the clerk’s

office and waited to receive conformed copies. 

The clerk returned to Mr. Sanders the Order Approving

Payment of Filing Fee in Installments with a handwritten note by

the bankruptcy judge stating, “denied - dismiss w. 180-day bar. 

This debtor and husband have filed 9 cases in only about 4

years.”

The court entered the order and notice of dismissal on the

same day. Mrs. Sanders timely appealed.

JURISDICTION

The bankruptcy court had jurisdiction pursuant to 28 U.S.C.

§§ 1334 and 157(b)(1). We have jurisdiction under 28 U.S.C.

§ 158.

ISSUE

Whether the bankruptcy court violated due process by

dismissing Mrs. Sanders’ petition without notice or a hearing.4

STANDARD OF REVIEW

“Whether an appellant’s due process rights were violated is

a question of law we review de novo.” DeLuca v. Seare

4 Although Mrs. Sanders’ statement of issues on appeal

refers to violations of the Federal Rules of Bankruptcy Procedure

and the local rules, the argument in her opening brief focuses

solely on the alleged denial of due process. As such, we only

address the due process issues raised therein.

3
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

(In re Seare), 515 B.R. 599, 615 (9th Cir. BAP 2014) (citing

Miller v. Cardinale (In re DeVille), 280 B.R. 483, 492 (9th Cir.

BAP 2002), aff’d, 361 F.3d 539 (9th Cir. 2004)); see also HSBC

Bank USA, Nat’l Ass’n v. Blendheim (In re Blendheim), 803 F.3d

477, 497 (9th Cir. 2015) (“Whether adequate notice has been given

for the purposes of due process is a mixed question of law and

fact that we review de novo.”). “De novo review requires that we

consider a matter anew, as if no decision had been made

previously.” Francis v. Wallace (In re Francis), 505 B.R. 914,

917 (9th Cir. BAP 2014) (citations omitted).

DISCUSSION

A. Due process generally requires notice and an opportunity to

be heard.

The sole issue on appeal concerns whether the bankruptcy

court violated Mrs. Sanders’ due process rights by dismissing her

petition without notice or an opportunity to be heard.

Generally speaking, a court must give sufficient notice of

its intention to dismiss a case and the opportunity for

interested parties to be heard. See Tennant v. Rojas

(In re Tennant), 318 B.R. 860, 870 (9th Cir. BAP 2004) (“the

concept of procedural due process requires a notice and an

opportunity to be heard” (citing Muessel v. Pappalardo

(In re Muessel), 292 B.R. 712, 717 (1st Cir. BAP 2003))). 

According to the United States Supreme Court: 

An elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the

pendency of the action and to afford them an

opportunity to present their objections. The notice

must be of such nature as reasonably to convey the

4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

required information, . . . and it must afford a

reasonable time for those interested to make their

appearance[.] 

Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)

(internal citations omitted).

Section 1112(b) provides that, “after notice and a hearing,”

a court may dismiss a chapter 11 case “for cause.” 

Section 102(1) defines the phrase “after notice and a hearing”: 

(1) “after notice and a hearing”, or a similar phrase -

(A) means after such notice as is appropriate in

the particular circumstances, and such opportunity

for a hearing as is appropriate in the particular

circumstances; but

(B) authorizes an act without an actual hearing if

such notice is given properly and if -

(i) such a hearing is not requested timely by

a party in interest; or

(ii) there is insufficient time for a hearing

to be commenced before such act must be done,

and the court authorizes such act[.]

“[T]he concept of notice and a hearing is flexible and

depends on what is appropriate in the particular circumstance.” 

In re Tennant, 318 B.R. at 870 (citing Great Pac. Money Markets,

Inc. v. Krueger (In re Krueger), 88 B.R. 238, 241 (9th Cir. BAP

1988)). A procedure may be “perfectly appropriate” if it

“notifies the debtor of the deficiencies of his petition and

dismisses the case sua sponte without further notice and a

hearing when the debtor fails to file the required forms within a

deadline.” Id. at 870-71 (citing Minkes v. LaBarge

(In re Minkes), 237 B.R. 476, 478–79 (8th Cir. BAP 1999)). 

However, we have acknowledged that the “flexible” notice and

hearing requirement does not allow a bankruptcy court to

5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

steamroll over a party’s due process rights. Id. at 871 (citing

Dinova v. Harris (In re Dinova), 212 B.R. 437, 443-44 (2d Cir.

BAP 1997)).

B. The court violated due process by failing to afford

Mrs. Sanders adequate notice and the right to be heard prior

to dismissing her bankruptcy petition.

In the present case, the bankruptcy court dismissed

Mrs. Sanders’ petition at the clerk’s office filing window. It

did not give her any notice prior to dismissing her petition, nor

did it allow her an opportunity to present arguments to the court

or rectify any deficiencies. This was an error. 

Section 102(d) requires only such notice and opportunity for

hearing as is “appropriate in the particular circumstances.” But

it was not “appropriate” to dismiss Mrs. Sanders’ case (by way of

a handwritten note on an unrelated form) without giving

Mrs. Sanders any semblance of prior notice or any opportunity for

a hearing. 

This was not a harmless error. See Rosson v. Fitzgerald

(In re Rosson), 545 F.3d 764, 776-77 (9th Cir. 2008) (“Because

there is no reason to think that, given appropriate notice and a

hearing, Rosson would have said anything that could have made a

difference, Rosson was not prejudiced by any procedural

deficiency.”). Mrs. Sanders could have pointed out that the only

reason the court gave for dismissing her case is invalid: no rule

or statute allows for summary dismissal solely because a debtor

and her spouse have filed a particular number of bankruptcy cases

in a given time period. But the bankruptcy court did not give

her a chance to say this or anything else.

We acknowledge that the dismissal of Mrs. Sanders’

6
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

chapter 11 case may have been inevitable. The Sanders family’s

record of filings and dismissals does not bode well. Further, it

is nearly impossible for an unrepresented debtor to navigate the

complexities of a chapter 11 case. Nevertheless, a court may not

“cut to the chase” in a manner that deprives a party of due

process.

Accordingly, the bankruptcy court erred when it dismissed

Mrs. Sanders’ petition without giving her notice of its intent to

dismiss the case and affording her an opportunity to be heard on

that issue.5

CONCLUSION

For the reasons set forth above, we VACATE the bankruptcy

court’s dismissal of Mrs. Sanders’ bankruptcy petition and REMAND

the case to the bankruptcy court.

5 Arguably, the present appeal may be moot, since the

180-day bar on filing has since expired, and Mrs. Sanders may

file a new petition. But the improper dismissal of this case

might still prejudice Mrs. Sanders because she and her husband

would have filed ten bankruptcy cases in six years. In other

words, if we allow the court’s order to stand, Mrs. Sanders may

never be able to get past the filing window.

7