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*

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-12-1393-MkDJu

)

JIMMIE STEPHEN C56483, ) Bk. No. 12-27800

)

Debtor. )

______________________________)

)

JIMMIE STEPHEN C56483, )

)

Appellant, )

)

v. ) MEMORANDUM*

)

THOMAS E. MAY; U.S. TRUSTEE, )

)

Appellees. )

______________________________)

Submitted Without Oral Argument 

on March 22, 2013

Filed – April 9, 2013

Appeal from the United States Bankruptcy Court

for the Eastern District of California

Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding 

Appearances: Appellant Jimmie Stephen C56483, pro se, on brief;

no brief filed or other appearance made by either

appellee. 

Before: MARKELL, DUNN and JURY, Bankruptcy Judges.

FILED

APR 09 2013

SUSAN M SPRAUL, CLERK

U.S. BKCY. APP. PANEL

OF THE NINTH CIRCUIT
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**We have exercised our discretion to independently review

several electronically filed documents in Stephen’s underlying

bankruptcy case in order to develop a fuller understanding of the

record. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,

Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase

Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th

Cir. BAP 2003).

1C56483 appears to refer to Stephen’s identification number

from the California Department of Corrections. He is, and was at

the time of his bankruptcy filing, incarcerated.

2Unless specified otherwise, all chapter and Section

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

“Rule” references are to the Federal Rules of Bankruptcy

Procedure, Rules 1001–9037.

3This case followed dismissal of Stephen’s previous

chapter 7 bankruptcy on November 19, 2010, also for failure to

timely file required documents. He appealed that prior dismissal

to our Panel, and we affirmed. We take judicial notice of the

records in Stephen’s prior bankruptcy and appeal. United States

v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).

4

The Official Form Schedule B is three pages long, and

requests information about 35 categories of personal property. 

Stephen filed only the first page of Schedule B, which identifies

the first 11 categories. The remaining two pages, which refer to

(continued...)

2

INTRODUCTION**

Appellant Jimmie Stephen C564831 (“Stephen”) appeals the

dismissal of his case under Section 521(i)(1)2 for failure to

file the information required by Section 521(a)(1). We AFFIRM.

FACTS

Stephen filed a chapter 7 bankruptcy petition on April 23,

2012.3 With his petition, Stephen ostensibly filed a Schedule B

identifying his personal property. The Schedule B was

incomplete, however, because it only contained entries 1 through

11, leaving the remaining entries from 12 to 35 missing.4
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4(...continued)

the remaining 24 categories of personal property, were omitted.

3

On his Master Address List of creditors, Stephen identified

four entities as follows: 

1. “I.R.S.”-# 55-1001-0093..p.o. box

21126..PHILADELPHIA,PA..19114

2. “U.S.D.COURT”“EASTERN”..501 “I” ST # 4-200 SACRAMENTO

CALIF..95814..

(ANY AND ALL CREDITORS AND NEW LOANS,SANCTIONS ECT [sic])

A. CV-09-1516-MCE

B. CV-10-1678-KJM

C. CV-10-3469-KJM

D. CV-12-0630-GGH

3. “U.S.D.COURT”“NORTHERN”..235 PINE ST 19TH FL. SAN

FRANCISCO CALIF.94104

A. CV-10-0349-SI

B. CV-10-0496-SI

4. “U.S.D.COURT”“SOUTHERN”..800 FRONT ST SAN DIEGO

CALIF..92101

A. CV-06-1054-LAB

B. CV-06-0171-L

Apparently, the notations beginning with “CV” represent

civil cases that Stephen was or is a party to.

Stephen’s Schedule E, relating to his priority unsecured

creditors, listed the same four entities and corresponding

addresses from the Master Address List.

On Stephen’s list of nonpriority unsecured creditors,
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4

Schedule F, the sole entry for a creditor’s name and mailing

address states “ALL CREDITORS.”

Stephen filed a Motion/Application for Waiver of the

Chapter 7 Filing Fee or Other Fee (“IFP Motion”) on April 23,

2012. On June 20, 2012, he filed what he styled an “opposition”

to the hearing set on the IFP Motion, requesting to either appear

telephonically, or have counsel appointed to appear for him. The

bankruptcy court denied the IFP Motion on July 2, 2012.

On May 21, 2012, Stephen filed a Motion/Application to Waive

Presence at 341 Meeting of Creditors Based on Exceptional

Circumstances (“341 Waiver Motion”). The United States Trustee

opposed the 341 Waiver Motion, but agreed to allow Stephen to

appear telephonically from prison for his meeting of creditors. 

In correspondence attached to the opposition, Stephen was

notified that he was responsible for making arrangements for his

appearance with Trustee Thomas E. May (“May”) and the prison

through certain described procedures.

On June 8, 2012, May filed a Motion to Dismiss for Failure

to Appear at Section 341 Meeting of Creditors and Motion to

Extend the Deadlines for Filing Objections to Discharge and

Motions to Dismiss (“Motion to Dismiss”). Stephen opposed the

Motion to Dismiss on June 28, 2012, alleging that May engaged in

misconduct by refusing to ask for Stephen when he called the

prison during the meeting of creditors.

On June 11, 2012, Stephen filed a Motion for Appointment of

Counsel for Federal Civil Rights Proceeding (“Motion for

Counsel”). He brought the Motion for Counsel based on 28 U.S.C.

§ 1915, arguing that an attorney should be appointed for him to
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5

The bankruptcy court resolved the Motion to Dismiss without

oral argument.

6

This dismissal should not have come as a surprise. 

Stephen’s prior chapter 7 bankruptcy was dismissed because he

failed to file a list of creditors, among other documents.

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protect his due process rights during the bankruptcy. The

bankruptcy court denied the Motion for Counsel on June 19, 2012.

On July 11, 2012, the bankruptcy court denied the Motion to

Dismiss as moot because it found Stephen’s bankruptcy case had

already been automatically dismissed pursuant to Section 521(i).5

The court noted two reasons for the dismissal. First, Stephen

had omitted the information in entries 12 through 35 in his

Schedule B. Therefore, he did not file all of the information

required by Section 521(a)(1) within 45 days of his petition

date. Second, he failed to properly identify his creditors and

their addresses in his Schedules E or F, or in his Master Address

List. Accordingly, Stephen again did not comply with the

requirements of Section 521(a)(1) because there was no filed list

of creditors or schedule of liabilities.6

The bankruptcy court’s order, entered on July 13, 2012,

states that the Motion to Dismiss was denied as moot, and

confirmed that Stephen’s bankruptcy had been automatically

dismissed on June 8, 2012, the 46th day after he filed for

bankruptcy.

JURISDICTION

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

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

28 U.S.C. § 158.
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7

Section 521(a)(1)(B) requires a debtor to file several

documents in addition to a schedule of assets and liabilities,

however, those documents are not relevant to review of the

bankruptcy court’s dismissal order in this case.

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ISSUE

Did the bankruptcy court commit reversible error when it

dismissed Stephen’s bankruptcy case pursuant to Section 521(i)(1)

for failure to file the information required under

Section 521(a)(1)?

STANDARDS OF REVIEW

We review the bankruptcy court’s order dismissing Stephen’s

case based on Section 521(i) de novo. Wirum v. Warren

(In re Warren), 568 F.3d 1113, 1116 (9th Cir. 2009).

DISCUSSION

I. The Bankruptcy Court Did Not Commit Reversible Error in

Dismissing Stephen’s Case

A. Section 521(a)(1) and (i)(1)

Pursuant to Section 521(a)(1), a debtor must file a list of

creditors, and, unless otherwise ordered, a schedule of assets

and liabilities.7 Section 521(a)(1)(A) and (B)(i). “[I]f an

individual debtor in a voluntary case under chapter 7 or 13 fails

to file all of the information required under subsection (a)(1)

within 45 days after the date of the filing of the petition, the

case shall be automatically dismissed effective on the 46th day

after the date of the filing of the petition.” Section 521(i)(1).

Relief from automatic dismissal under Section 521(i)(1) can

only be obtained if: (1) the court grants a debtor’s request for

an extension; (2) the court grants a trustee’s motion requesting

an exception based on the debtor’s good faith and the best
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8Stephen did not point to any basis for waiver of Section

521(a)(1)’s filing requirements.

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interest of creditors; or (3) the court uses its discretion to

waive the filing requirements because it determines the

information is unnecessary or because dismissal will reward abuse

by the debtor. Section 521(i)(3), (4); Warren, 568 F.3d 1113,

1118-19.

Here, the provisions of Section 521(a)(1) and (i)(1) applied

to Stephen’s case because he was an individual debtor in a

voluntary chapter 7 case. 

He has made no convincing showing, however, that he was

entitled to relief from automatic dismissal based on any

exception. As to the first basis for relief from automatic

dismissal, Stephen never sought an extension of time to file the

information required under Section 521(a)(1). As to the second

grounds for relief, May did not file a motion requesting a good

faith exception. As to the third basis for relief, the

bankruptcy court did not exercise its discretion to waive the

filing requirements.8

 Therefore, Stephen’s failure to file a

list of creditors, schedule of assets and schedule of liabilities

within 45 days of his petition, as explained below, properly

resulted in the automatic dismissal of his case.

Stephen’s purported Schedule B, which should have identified

all of his personal property assets, omitted entries 12 through

35. This left the filing so facially deficient as to not

substantially comply with Section 521(a)(1)(B)(i)’s requirement
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9

Debtors must prepare their schedules of assets and

liabilities in compliance with the Official Forms. 

Rule 1007(b)(1)(A).

10Stephen did not properly list the IRS’ address. 

Bankr. E.D. Cal. R. 2002-1(b).

11A creditor is an “entity that has a claim against the

debtor that arose at the time of or before the order for relief

concerning the debtor.” Section 101(10)(A).

8

of a schedule of assets.9 Accordingly, Stephen’s failure to file

a Schedule B, or to correct the one he did file, within 45 days

of his bankruptcy filing warranted automatic dismissal under

Section 521(i)(1).

Similarly, Stephen’s purported Master Address List, and

Schedules E and F, did not properly identify the names and

addresses of his creditors, other than the IRS.10 Instead, those

documents refer to litigation pending in particular courts. The

courts themselves, however, are not creditors, as they are not

the parties who have claims against Stephen.11 Apparently, the

opposing parties in the referenced cases are entities that have

prepetition claims against Stephen, but his filings leave no clue

as to any of their names or addresses. In addition, Stephen’s

generic reference to “ALL CREDITORS” in his Schedule F and Master

Address List did not properly describe those who have claims

against him or his property. Again, this is an example of a

failure to substantially comply with Section 521(a)(1).

Stephen “ha[d] a duty to prepare [his] schedules carefully,

completely, and accurately[,]” but instead he left the bankruptcy

court without the necessary information to notify his creditors

of his bankruptcy. Cusano v. Klein, 264 F.3d 936, 946 (9th Cir.
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2001) (citations and quotations omitted). His failure to file a

proper list of creditors and schedule of assets and liabilities

within 45 days of his petition date merited dismissal of his

case.

Stephen argues that his Master Address List had all of his

creditors and that any errors in his petition were corrected or

correctable. Therefore, he argues it was a violation of his due

process rights to automatically dismiss his case. His argument

is not persuasive.

Contrary to Stephen’s position that his Master Address List

was proper, as discussed above, his method of describing his

creditors was inadequate. In addition, although the errors in

his Master Address List, and Schedules B, E and F could have been

corrected, they never were. 

Stephen has not pointed to any authority supporting the

proposition that a notice of filing deficiencies or any other

notice must be sent to a debtor prior to automatic dismissal

under Section 521(i)(1), nor is this Panel aware of any such

requirement. Indeed, the contrast between Section 521(i)(1)’s

language, with its automatic effect of dismissal, and the

language of Section 707(a), which requires notice and a hearing

prior to dismissal, belies the notion that Congress believed that

a debtor must independently receive some prior notice of filing

deficiencies under Section 521(i). Compare 11 U.S.C. 521(a)(1)

(“notwithstanding section 707(a),” failure to file the required

Section 521(a)(1) information will result in automatic dismissal)

with Section 707(a)(“[t]he court may dismiss a case under this

chapter only after notice and a hearing and only for cause
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12The docket report for Stephen’s underlying bankruptcy case

has a notation at BK Dkt. No. 1 that states, “[a]ll Schedules and

Statements filed.” Stephen, however, did not indicate in his

opening brief or any other filings that he relied on that

notation for any purpose, or that he was even aware it existed.

The Panel declines to find that the notation has any bearing on

this appeal.

13Some courts have suggested that automatic dismissal under

Section 521(i)(1) without notice to the debtor and trustee, or an

opportunity for a hearing, gives rise to “due process concerns.”

In re Dienberg, 348 B.R. 482, 483 n.1 (Bankr. N.D. Ind. 2006);

In re Spencer, 388 B.R. 418, 425 n.7 (Bankr. D.C. 2008). 

Similarly, a recent article discusses alleged due process

violations caused by automatic dismissal. Gregory Germain,

A Constitutional Challenge to the Automatic-Dismissal Rules,

32 Am. Bankr. Inst. J. 22 (March 2013).

These authorities do not raise any issues on the facts of

this case. To the extent a few courts have raised due process

concerns in dicta without analysis, they are not persuasive.

Moreover, the arguments made in Professor Germain’s article do

not influence this Panel’s conclusion that any violation of

Stephen’s due process rights (of which we think there were none)

would lead to reversal. That result would only follow if Stephen

could identify some prejudice that he suffered as a result of the

(continued...)

10

. . . .”).

Moreover, when read together, the provisions of

Section 521(a)(1) and (i)(1) identify the information that

debtors are required to file as well as the consequences for not

timely doing so. The Panel finds this to be sufficient notice

for due process purposes. Stephen’s due process argument is thus

without merit.12 In re Parker, 351 B.R. 790, 801 (Bankr. N.D.

Ga. 2006)(automatic dismissal under Section 521(i)(1) “would not

require notice and a hearing. Rather, it is a determination that

the court can make with no notice to any party in interest and no

hearing of any nature.”).13
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13(...continued)

dismissal. Van Zandt v. Mbunda (In re Mbunda), 484 B.R. 344, 359

(B.A.P. 9th Cir. 2012) (“An appellant, however, must show

prejudice to support a due process claim.”) (citing Rosson v.

Fitzgerald (In re Rosson), 545 F.3d 764, 776 (9th Cir. 2008)). 

And Stephen has neither identified nor argued for the existence

of any prejudice flowing from the dismissal of his case.

11

Based on the foregoing, the bankruptcy court properly

dismissed Stephen’s case.

B. Stephen’s Remaining Arguments

The other issues Stephen raised in his appeal relate to the

bankruptcy court’s denial of the IFP Motion and Motion for

Counsel, and May’s alleged misconduct during the meeting of

creditors. None of those arguments change the outcome of this

appeal. 

There are two reasons to dismiss Stephen’s IFP Motion

challenge. First, the denial of the IFP Motion was irrelevant to

the disposition of Stephen’s bankruptcy case because the court

dismissed his case for failure to timely file the required

information, not for failure to pay filing fees. Second, the

order denying the IFP Motion indicates that the motion was denied

for the reasons stated on the record. We do not have a

transcript of that hearing and thus we ordered Stephen to provide

the necessary transcripts for review by January 23, 2013. No

transcripts were ever filed. Therefore, the Panel assumes that

Stephen did not believe there is anything in the transcripts that

would help his position on appeal, and summary affirmance of the

bankruptcy court’s denial of the IFP Motion is appropriate. 

Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81 (9th Cir.

BAP 1994); see Explanatory Note to 9th Cir. BAP R. 8006-1;
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14This Panel warned Stephen that failure to provide the

required transcripts could cause his appeal to be dismissed or

result in summary affirmance of the bankruptcy court’s decision

in its Order re Transcript.

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Ehrenberg v. Cal. State Univ., Fullerton Found. (In re Beachport

Entm’t), 396 F.3d 1083, 1087 (9th Cir. 2005); Morrissey v.

Stuteville (In re Morrissey), 349 F.3d 1187, 1190-91 (9th Cir.

2003).14

Regarding the bankruptcy court’s denial of the Motion for

Counsel, “a civil litigant, including an incarcerated prisoner,

is presumed to have no constitutional entitlement to

court-ordered counsel unless his case carries the risk of

affecting his physical liberty.” Hernandez v. Whiting, 881 F.2d

768, 770-71 (9th Cir 1989) (citing Lassiter v. Dept. of Social

Servs., 452 U.S. 18, 25–27 (1985)); see Davis v. Central Bank

(In re Davis), 23 B.R. 773, 776 (9th Cir. BAP 1982). Stephen’s

physical liberty was not implicated in any way by his bankruptcy

case. Stephen’s argument as to mandatory appointment of counsel

is without merit.

Stephen’s sole remaining argument addresses May’s alleged

misconduct during the meeting of creditors. Even assuming

Stephen’s allegation is true, his lack of appearance at the

meeting of creditors had no bearing on the dismissal of his case.

The bankruptcy court denied the Motion to Dismiss based on

Stephen’s failure to appear at the meeting as moot, thus, never

reaching the substantive issue. Accordingly, May’s alleged

interference with Stephen’s appearance is irrelevant to the

issues related to this appeal.
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CONCLUSION

For all of the reasons set forth above, we AFFIRM the

bankruptcy court’s order dismissing Stephen’s case.