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1 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 8013-1.

UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE NINTH CIRCUIT

In re: ) BAP No. EC-10-1511-DMkPa

)

JIMMIE EARL STEPHEN, ) Bk. No. 10-50583

)

Debtor. )

______________________________)

)

JIMMIE EARL STEPHEN, )

)

Appellant, )

)

v. ) MEMORANDUM1

)

ALAN S. FUKUSHIMA, Trustee; )

UNITED STATES TRUSTEE, )

)

Appellees. )

______________________________)

Submitted Without Oral Argument

on March 22, 2012

Filed - April 2, 2012

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding 

Appearances: Appellant Jimmie Earl Stephen, pro se, on brief;

neither appellee filed a brief. 

Before: DUNN, MARKELL and PAPPAS, Bankruptcy Judges.

FILED

APR 02 2012

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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2 Unless otherwise indicated, all chapter and section

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

all “Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001-9037.

3

 Mr. Stephen’s notice of appeal sought review of that

order in addition to the Dismissal Order, but his appeal of the

(continued...)

-2-

The debtor, Jimmie Earl Stephen (“Mr. Stephen”), appeals the

bankruptcy court’s order dismissing his chapter 72 bankruptcy

case for failing to file certain documents identified in the

bankruptcy court’s deficiency order. We AFFIRM.

Factual Background

The relevant facts in this appeal are limited and

straightforward. Mr. Stephen filed a chapter 7 bankruptcy

petition on November 19, 2010. Apparently, at the time of his

bankruptcy filing, Mr. Stephen was incarcerated. On the same

date, the bankruptcy court entered a deficiency order

(“Deficiency Order”), noting that Mr. Stephen’s bankruptcy filing

was incomplete and requiring that the following documents be

filed by the designated deadlines, as follows:

Document Deadline Date

Verification and Master Address List 11/29/10

Schedule A – Real Property 12/3/10

Schedule C – Exempt Property 12/3/10

Schedule D – Secured Creditors 12/3/10

Schedule H – Codebtors 12/3/10

On November 19, 2010, Mr. Stephen also filed an application

for waiver of the bankruptcy filing fee. His application was

denied by order of the bankruptcy court entered on November 23,

2010.3
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3(...continued)

denial of his fee waiver application was untimely. Accordingly,

we do not consider the denial of Mr. Stephen’s application for

waiver of the filing fee in this appeal.

-3-

Mr. Stephen did not file the required Verification and

Master Address List by the November 29, 2010 deadline. There is

no evidence in the record that Mr. Stephen ever tendered either

the Verification and Master Address List or any of the missing

schedules to the bankruptcy court for filing at any time.

On November 30, 2010, the bankruptcy court entered an order

(“Dismissal Order”), dismissing Mr. Stephen’s bankruptcy case for

failure to file missing documents. Mr. Stephen argues that he

did not receive a copy of the Deficiency Order until November 30,

2010, the date that the Dismissal Order was entered.

Mr. Stephen did not file a motion to vacate the Dismissal

Order. Likewise, he did not file a motion for relief from the

Dismissal Order based on mistake or excusable neglect. There is

no evidence in the record that Mr. Stephen filed a subsequent

petition to initiate a new bankruptcy case. However, he did file

a timely notice of appeal of the Dismissal Order.

Jurisdiction

The bankruptcy court had jurisdiction under 28 U.S.C.

§§ 1334 and 157(b)(1) and (b)(2)(A). We have jurisdiction under

28 U.S.C. § 158.

Issue

Did the bankruptcy court err in dismissing Mr. Stephen’s

bankruptcy case? In particular, were Mr. Stephen’s due process

rights violated by the bankruptcy court’s entry of the Dismissal
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Order sua sponte?

Standards of Review

We review issues of statutory construction de novo. B-Real,

LLC v. Chaussee (In re Chaussee), 399 B.R. 225, 229 (9th Cir. BAP

2008).

Orders dismissing bankruptcy cases generally are reviewed

for an abuse of discretion. Leavitt v. Soto (In re Leavitt),

171 F.3d 1219, 1223 (9th Cir. 1999); Guastella v. Hampton

(In re Guastella), 341 B.R. 908, 915 (9th Cir. BAP 2006). 

However, we review questions regarding due process de novo. 

Molski v. Gleich, 318 F.3d 937, 951 (9th Cir. 2003); In re

Brooks-Hamilton, 400 B.R. 238, 245 (9th Cir. BAP 2009).

De novo review requires that we consider a matter anew, as

if it had not been heard previously. United States v. Silverman,

861 F.2d 571, 576 (9th Cir. 1988). 

We apply a two-part test to determine whether the bankruptcy

court abused its discretion. United States v. Hinkson, 585 F.3d

1247, 1261-62 (9th Cir. 2009) (en banc). First, we consider de

novo whether the bankruptcy court applied the correct legal

standard to the relief requested. Id. Then, we review the

bankruptcy court’s fact findings for clear error. Id. at 1262 &

n.20. We must affirm the bankruptcy court’s fact findings unless

we conclude that they are “(1) ‘illogical,’ (2) ‘implausible,’ or

(3) without ‘support in inferences that may be drawn from the

facts in the record.’” Id. at 1262.

We may affirm on any ground supported by the record. Shanks

v. Dressel, 540 F.3d 1082, 1086 (9th Cir. 2008).
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-5-

Discussion

Although Mr. Stephen asserts many grievances in the papers

he has filed with this Panel, the only question that is properly

before us for review in this appeal is whether the bankruptcy

court erred in the circumstances of this case in dismissing

Mr. Stephen’s bankruptcy case for failing to meet the deadline

for filing required documents set forth in the Deficiency Order.

Specifically, Mr. Stephen’s bankruptcy case was dismissed

because he did not file a Verification and Master Address List by

the deadline set in the Deficiency Order. Rule 1007(a) provides

that, “In a voluntary case, the debtor shall file with the

petition a list containing the name and address of each entity

included or to be included on Schedules D, E, F, G, and H as

prescribed by the Official Forms.” (Emphasis added.) In other 

words, the Rule, consistent with the Bankruptcy Code, requires

that a debtor seeking relief in bankruptcy must file a list

including the names and addresses of his creditors with his

bankruptcy petition. See § 521(a)(1)(A). There is no mystery

behind that requirement. In the absence of such a list, there is

no way for the bankruptcy court to provide notice to the debtor’s

creditors that a bankruptcy case has been initiated by the

debtor. See 9 Collier on Bankruptcy ¶ 1007.02[1] (Alan N.

Resnick and Henry J. Sommer, eds., 16th ed. 2011) (“These lists

enable the clerk to mail the various notices required . . . .”). 

“In many districts, local rules require the debtor to file a

‘mailing matrix’ of creditors’ names and addresses formatted in a

specified way that enables the clerk to produce mailing labels.” 

Id. In the bankruptcy court for the Eastern District of
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-6-

California, Local Rule 1007-1(b) (“Local Rule 1007-1(b)”) 

requires as follows:

Master Address List. With every petition for relief

under the Bankruptcy Code presented for filing, there

shall be submitted concurrently a Master Address List

which includes the name, address, and zip code of all

of the debtor’s known creditors. To accommodate modern

technology, the Master Address List shall be prepared

in strict compliance with instructions of the Clerk in

a format approved by the Court. 

Since Mr. Stephen did not file his Master Address List with

his petition, the Deficiency Order gave him a grace period of ten

days thereafter, by November 29, 2010, to provide the missing

Master Address List. When he did not file the Master Address

List by the deadline, his bankruptcy case was dismissed. Based

on the record before us, Mr. Stephen never tendered a Master

Address List to the bankruptcy court for filing. He never filed

a motion to vacate the Dismissal Order, and he never requested

relief from the Dismissal Order based on a claim of mistake or

excusable neglect. 

His sole relevant argument on appeal is that he did not

receive a copy of the Deficiency Order, setting the November 29,

2010 deadline for submission of his Verification and Master

Address List, until November 30, 2010, the date that his case was

dismissed, and consequently, his due process rights under the

Constitution were violated. He has produced no evidence in

support of his argument. 

Section 707(a)(3) provides that:

The court may dismiss a case under [chapter 7] only

after notice and a hearing and only for cause,

including –

. . .

(3) failure of the debtor in a voluntary case to file,
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-7-

within fifteen days or such additional time as the

court may allow after the filing of the petition

commencing such case, the information required by

paragraph 1 of section 521(a), but only on a motion by

the United States Trustee.

By its terms, § 707(a)(3) appears to require “notice and a

hearing” prior to dismissal based on a motion filed by the United

States Trustee. However, this Panel has held in considering the

comparable limiting restrictions of § 1307(c)(9) with respect to

dismissing chapter 13 cases, that those restrictions must be

considered in light of the provisions of § 105(a). See Tennant

v. Rojas (In re Tennant), 318 B.R. 860, 869 (9th Cir. BAP 2004).

Section 105(a) provides that:

The court may issue any order, process, or judgment

that is necessary or appropriate to carry out the

provisions of this title. No provision of this title

providing for the raising of an issue by a party in

interest shall be construed to preclude the court from,

sua sponte, taking any action or making any

determination necessary or appropriate to enforce or

implement court orders or rules, or to prevent an abuse

of process. (Emphasis added.)

In In re Tennant, this Panel affirmed the bankruptcy court’s

decision denying the debtor’s motion to vacate an order

dismissing his chapter 13 case based on his failure to file a

Statement of Financial Affairs within fifteen days following the

filing of his bankruptcy petition, consistent with the

requirements of Rule 1007(c). Id. at 869, 871. The United

States Trustee had not moved to dismiss the debtor’s case, but

this Panel concluded that such a motion was not required

procedurally in light of the revised provisions of § 105(a):

The language of Section 105(a) is unambiguous. The

statute was revised in 1986 to overrule prior decisions

prohibiting a court from acting sua sponte when the

statute authorized only a party in interest to act. [In

re Greene], 127 B.R. at 808; Swift v. Bellucci (In re
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Bellucci), 119 B.R. 763, 779 (Bankr. E.D. Cal. 1990). 

This compels the conclusion that the requirement “only

on request of the United States trustee” in Section

1307(c)(9) does not preclude the court from acting sua

sponte. The section is intended to restrict any other

party in interest, but not the court.

Id. at 869-70. (Emphasis in original.)

The Deficiency Order notified Mr. Stephen that the

bankruptcy court “without further notice, may dismiss this case”

if Mr. Stephen did not file the required documents by the

specified deadlines or file either a motion for extension of time

or a notice of hearing on the bankruptcy court’s notice of intent

to dismiss. Mr. Stephen argues that he was denied due process

when the bankruptcy court dismissed his case the same day that he

received the Deficiency Order. The debtor in In re Tennant

raised a similar due process argument. 

We recognize, as the Panel recognized in In re Tennant, that

procedural due process requires notice and an opportunity to be

heard. Id. at 870, citing Muessel v. Pappalardo (In re Muessel),

292 B.R. 712, 717 (1st Cir. BAP 2003). In the Bankruptcy Code,

the terms “after notice and a hearing” are defined in § 102(1):

(1) “after notice and a hearing” . . .

(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 . . . .

Accordingly, notice and a hearing in bankruptcy are flexible

concepts, depending on what is appropriate in given
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circumstances. 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)). “[I]f a case involves only very narrow

procedural aspects, a court can dismiss a [bankruptcy] case

without further notice and a hearing if the debtor was provided

‘with notice of the requirements to be met.’” In re Tennant,

318 B.R. at 870 (citing In re Meints, 222 B.R. 870, 872 (D. Neb.

1998)).

The debtor in In re Tennant did not file his Statement of

Financial Affairs by the required deadline, fundamentally a

procedural matter. In re Tennant, 318 B.R. at 871.

Debtor was notified that another failure to file the

missing documents would lead to a dismissal without a

further notice and that he must file a motion to

receive an extension of time. The initial error was

Debtor’s incomplete filing, . . . Here Debtor was

offered an opportunity to request an extension of time

if necessary. The Statement of Financial Affairs was

already required simultaneously with the filing of the

petition or within 15 days. See 11 U.S.C. § 521(1) and

Rule 1007(c). No more warnings were needed and

Debtor’s due process rights were not violated.

Id. 

In this case, Mr. Stephen’s Master Address List was required

to be filed with his bankruptcy petition. He did not meet that

requirement. The Deficiency Order gave him ten additional days

to file the Master Address List. He did not meet that deadline. 

He argues that he did not receive the Deficiency Order before the

date that his case was dismissed. However, here he runs up

against the presumption of the “mailbox rule.”

The record reflects that the Deficiency order was mailed to

Mr. Stephen by first class mail to the address he specified in

his bankruptcy petition on November 24, 2010. “Mailing a timely
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notice by first class mail to a party’s last known address is

sufficient to satisfy due process.” La Sierra Fin. Servs., Inc.

v. Mozsgai (In re La Sierra Fin. Servs., Inc.), 290 B.R. 718, 733

(9th Cir. BAP 2002) (citing DeVore v. Marshack (In re DeVore),

223 B.R. 193, 196 (9th Cir. BAP 1998)). Mr. Stephen’s due

process argument “implicates the mailbox rule, a long-established

principle which presumes that, upon a showing of predicate facts

that a communication was sent, the communication reached its

destination in regular time.” Payan v. Aramark Mgmt. Servs. Ltd.

P’ship, 495 F.3d 1119, 1124 n.4 (9th Cir. 2007) (citing Rosenthal

v. Walker, 111 U.S. 185 (1884)). Mr. Stephen has presented no

evidence in support of his argument to overcome the mailbox rule

presumption.

However, even assuming that Mr. Stephen could present some

evidence to support his argument that he did not receive the

Deficiency Order in time to respond before his bankruptcy case

was dismissed, he never took any action to remedy the situation

with the bankruptcy court. He never tendered a Master Address

List that would have allowed the bankruptcy court to notify his

creditors that he had filed. Once his case was dismissed, he did

not request any relief from the bankruptcy court to vacate the

Dismissal Order in light of his alleged late receipt of the

Deficiency Order. His application for waiver of the filing fee

had been denied, but he had not paid any portion of the

bankruptcy filing fee at the time that his case was dismissed. 

Accordingly, he was not out of pocket for the filing fee or any

other fee or cost as far as we can tell. Nothing prevented

Mr. Stephen from filing a new bankruptcy petition with the
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required supporting documents, but we have nothing in the record

indicating that he has initiated a new bankruptcy filing. His

only subsequent action was to appeal the Dismissal Order.

Based on our consideration of the limited record in this

appeal and applicable law, we conclude that the Dismissal Order

was entered consistent with applicable provisions of the

Bankruptcy Code and Rules and did not violate Mr. Stephen’s

procedural due process rights. The bankruptcy court did not err

in dismissing Mr. Stephen’s chapter 7 case.

Conclusion

For the foregoing reasons, we AFFIRM.