IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-51047

Summary Calendar

In the Matter of: BILLIE ODELL STONE,

 Debtor

-------------------------------------

BILLIE ODELL STONE, 

 Appellant

v.

MARY K. VIEGELAHN, 

 Appellee

Appeal from the United States District Court 

for the Western District of Texas

USDC No. 5:18-CV-1068

Before KING, GRAVES, and WILLETT, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 17, 2020

Lyle W. Cayce

Clerk

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Debtor-Appellant Billie Odell Stone, appearing pro se, filed a petition for 

bankruptcy under Chapter 13 of the United States Bankruptcy Code. The 

bankruptcy court dismissed Stone’s third successive Chapter 13 bankruptcy 

petition. On appeal, the district court affirmed the bankruptcy court’s decision. 

Stone urges us to find that his third Chapter 13 petition was merely a “refiling” improperly dismissed sua sponte, and he seeks reversal of the 

bankruptcy court’s order denying his Motion for Imposition of Stay and 

Emergency Motion to Vacate Foreclosure.

Review of cases originating in bankruptcy requires that “we perform the 

same function as did the district court: Fact findings of the bankruptcy court 

are reviewed under a clearly erroneous standard and issues of law are reviewed 

de novo.” Nationwide Mut. Ins. Co. v. Berryman Prods. (In re Berryman), 159 

F.3d 941, 943 (5th Cir. 1998). “Whether a petition was filed in good faith is a 

question of fact that we review for clear error. When a finding of fact is 

premised on an improper legal standard, or a proper one improperly applied, 

however, that finding is reviewed de novo.” In re Stanley, 224 F. App’x 343, 346 

(5th Cir. 2007) (internal citations and quotations omitted). 

Since its enactment in 1978, the Bankruptcy Code has included 11 

U.S.C. § 362 which effects an automatic stay of all creditor collection effort 

immediately upon the filing of a bankruptcy petition. “Section 362(c)(4)(B) 

provides that the Court may impose the stay if (1) the debtor requests the 

Court to do so, (2) the request is made within 30 days after the petition was 

filed, (3) notice is given to parties in interest and a hearing is held, and (4) the 

movant proves that the filing of the current case is in good faith as to the 

parties to be stayed.” In re Ortiz, 355 B.R. 587, 590 (Bankr. S.D. Tex. 2006). 

“Section 362(c)(4)(D) provides that there is a statutory presumption that the 

latest case was not filed in good faith under certain circumstances. If the 

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statutory presumption applies, then a debtor must prove good faith by clear 

and convincing evidence.” Id. 

On April 19, 2018, Appellant filed his first Chapter 13 bankruptcy 

petition, which was dismissed on May 10, 2018 for failure to file a plan and 

schedule of assets and liabilities pursuant to the rules. On June 29, 2018, 

Appellant filed his second Chapter 13 bankruptcy petition, which after notice 

and hearing on a motion filed by the creditor was dismissed without prejudice 

on August 3, 2018. On August 31, 2018, Appellant filed his third Chapter 13 

bankruptcy petition and disclosed his interest in three parcels of real property

in San Antonio, Texas. On September 7, 2018, Stone filed a motion for 

imposition of stay maintaining that a foreclosure of his real property took place 

three days prior by Randolph Brooks Federal Credit Union. Stone contended 

that the foreclosure was in violation of an automatic stay which he claimed 

took effect upon filing the instant petition.

On September 24, 2018, the bankruptcy court scheduled the hearing on 

Stone’s Motion for Imposition of Stay and Motion to Vacate Foreclosure. Stone 

conceded that the current case was his third case and that he filed a total of 

three cases within the past one year period. The bankruptcy court concluded 

that when the foreclosure sale was conducted on September 4, there was no 

violation of the stay because Stone was a petitioner in two bankruptcy cases 

within the year prior to filing this case and therefore section 362(C)(4)(A)(i) 

applies to deny automatic imposition of the § 362 stay.

The bankruptcy court properly granted the motion to dismiss, based on 

bad faith of the filing, as clearly demonstrated by the record. See 11 U.S.C. § 

1112(b); see In re Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir. 

1986) (noting that the good faith requirement “prevents abuse of the 

bankruptcy process by debtors whose overriding motive is to delay creditors 

without benefiting them in any way” and “protects the jurisdictional integrity 

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of the bankruptcy courts”). Moreover, Stone’s bad faith conduct is also “just 

cause” for dismissal as it is “tantamount to a ruling that the individual does 

not qualify as a debtor under chapter 13.” See Marrama v. Citizens Bank of 

Massachusetts, 549 U.S. 365, 373 (2007) (noting that the bankruptcy laws were 

enacted to protect members of the class of “‘honest but unfortunate debtor[s]’”); 

see also 11 U.S.C. § 1325(a)(3) (a plan must be “proposed in good faith and not 

by any means forbidden by law” to be confirmed) and 11 U.S.C. § 105 

(authorizing bankruptcy courts to “issue any order, process, or judgment that 

is necessary or appropriate to carry out the provisions of this title”). 

Stone also seeks review of the bankruptcy court’s order denying the 

emergency motion to set aside foreclosure sale and the order denying the 

imposition of stay. However, as the district court properly noted, “[Stone] did 

not appeal the orders within 14 days of the ruling. Fed. R. Bankr. P. 8002. 

Thus, the [district court] lacks jurisdiction to hear an appeal from those 

orders.” See 28 U.S.C. § 158(a)(1). Accordingly, we similarly lack jurisdiction 

to review these claims. See In re Berman, 737 F.3d 997 (5th Cir. 2013) (“When 

the district court lacks jurisdiction over an appeal from a bankruptcy court, 

this Court lacks jurisdiction as well.” (internal citation omitted)). 

Finally, Stone filed a Motion for Extension of Time to File Petition for 

Rehearing/En Banc Review pursuant to the Texas Rules of Appellate 

Procedure. The district court liberally construed this motion as one for an 

extension of time to file a notice of appeal. A motion filed pursuant to Fed. R. 

Civ. P. 59 “calls into question the correctness of a judgment.” Templet v. 

HydroChem, Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas 

Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002). However, a motion under Fed. R. 

Civ. P. 59 “is not the proper vehicle for rehashing evidence, legal theories, or 

arguments that could have been offered or raised before the entry of the 

judgment.” Id. at 479; see also Waltman v. Int’l Paper Co., 875 F.2d 468, 473 

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(5th Cir.1989) (noting that Rule 59(e) “serve[s] the narrow purpose of allowing 

a party to correct manifest errors of law or fact or to present newly discovered 

evidence”). We find no error in the district court’s denial of reconsideration. 

For these reasons, we DISMISS this appeal for lack of jurisdiction over 

the orders denying Stone’s emergency motion to set aside foreclosure sale and 

the order denying the imposition of stay and AFFIRM the district court’s 

decision.

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