[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-13771

Non-Argument Calendar

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D.C. Docket Nos. 8:19-cv-01472-WFJ; 8:17-bkc-08959-RCT

In re:

 SARAH KATHERINE SUSSMAN,

 Debtor.

________________________________________________________________

SARAH KATHERINE SUSSMAN, 

 Plaintiff - Appellant,

versus

ESTATE OF JOHN J. GAFFNEY, 

 Defendant - Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(July 7, 2020)

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Before MARTIN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM: 

Sarah Katherine Sussman, a debtor proceeding pro se, filed for bankruptcy 

to obtain a stay of eviction from property formerly owned by her grandfather, John 

J. Gaffney, on Clark Avenue in Tampa, Florida (“the Property”). The bankruptcy 

court granted the Estate of John J. Gaffney (“the Estate”) relief from the automatic 

stay, holding that the Property was not part of Debtor’s bankruptcy estate because 

a state court declared the deed conveying the Property to Debtor void before 

Debtor filed her bankruptcy petition. The bankruptcy court also sanctioned Debtor 

for intentionally destroying a laptop containing electronically stored information 

relevant to determining whether Debtor complied with the statutory requirement to 

take a credit counseling course, applying a rebuttable presumption that Debtor did 

not take the required course on that laptop. The bankruptcy court deemed Debtor’s 

testimony countering that presumption not credible and dismissed the remainder of 

Debtor’s bankruptcy case for failure to comply with the course requirement. The 

district court affirmed the bankruptcy court on appeal. After careful review, we 

too, affirm the bankruptcy court. 

I. BACKGROUND

This appeal of the bankruptcy court’s decision is one of many battles 

between Debtor and Phillip A. Baumann, the Administrator Ad Litem of the 

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Estate, over claims to the Property. Before John J. Gaffney, the original owner of 

the Property, passed away in December 2011, the property was conveyed to 

Debtor’s mother, Teresa M. Gaffney, subject to a life estate retained by Mr. 

Gaffney. After Mr. Gaffney passed, Teresa Gaffney conveyed the Property to 

Debtor as trustee of The Sussman Family Trust Living Trust. 

A. The State Court Action Divesting Debtor of the Property

Operating under a state probate court order, the Estate Administrator 

commenced a state court action to recover the Property from Debtor by voiding the 

deeds that purported to convey title to Teresa Gaffney and Debtor as trustee. The 

state court entered defaults against Teresa Gaffney and Debtor following an order 

that struck their answer and affirmative defenses as a sanction for their refusal to 

cooperate in discovery and to abide by directives of the court. The state court 

entered Final Judgment Upon Default on October 16, 2017, ordering that title to 

the Property be vested in and held by the Administrator of the Estate. The state 

court also directed the state court clerk to issue a writ of possession commanding 

the sheriff’s office to place the Administrator in possession of the property. 

B. Debtor’s Bankruptcy Petition

After service of the writ of possession, Debtor filed this bankruptcy case on 

October 24, 2017, triggering an automatic stay precluding creditors from collecting 

debts from Debtor. In-house counsel for the sheriff’s office determined that the 

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automatic stay did not apply to the Property because it was not part of the 

bankruptcy estate by virtue of the state court order. Accordingly, the sheriff’s 

office executed the writ of possession on October 25, 2017. A flurry of motions in 

the bankruptcy case followed.

Debtor filed an emergency motion to enforce the automatic stay and 

requested damages, fees, and costs, arguing that execution of the writ of possession 

dispossessed her of her homestead and violated the automatic stay. The Estate 

filed an emergency motion for relief from the stay, a motion to dismiss for 

Debtor’s failure to comply with the requirement of 11 U.S.C. § 109(h)(1) and for 

fraud on the court, and objections to Debtor’s claim of exemptions. Following a 

trial on these contested matters, the bankruptcy court issued the order now on 

appeal.

The bankruptcy court denied Debtor’s motion to enforce the automatic stay. 

It determined that the Property was not property of the bankruptcy estate subject to 

the automatic stay because Debtor’s claim to the Property arose from a deed that 

was declared void by the state court before her bankruptcy petition was filed. The 

bankruptcy court further found that even if Debtor had homestead status under Art. 

X § 4 of the Florida Constitution before entry of the state court judgment, that 

status did not provide additional rights or interests in the Property that might be 

protectable by the automatic stay. The bankruptcy court declined to consider 

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Debtor’s attacks on the state court judgment because early in the case, and with the 

parties’ agreement, it had modified the automatic stay to allow Debtor’s appeal of 

the judgment to proceed to conclusion in state court. The bankruptcy court further 

determined that Debtor had been provided ample opportunity to retrieve her 

personal property and that there had been no willful violation of the stay that 

would support a claim for damages. 

At the same time, the bankruptcy court granted the Administrator’s motion 

for relief from the stay. It concluded that the sole purpose of Debtor’s bankruptcy 

petition “was an attempt to relitigate issues that were or should have been litigated 

in state court.” It further noted that both the state trial court and appellate court 

had denied Debtor’s request for a stay of the judgment pending appeal. 

The bankruptcy court also granted the Administrator’s motion to dismiss 

Debtor’s case for her failure to complete prepetition credit counseling as required 

by 11 U.S.C. § 109(h)(1). Although Debtor filed a certificate of completion of a 

credit counseling course, the course provider’s records indicated that the IP address 

from which the course was taken placed the connected computer in Tampa, 

Florida, at a time when Debtor was clocked in at work in Washington, D.C. 

Before trial, the court held a three-day evidentiary hearing relative to Debtor’s 

failure to preserve electronically stored information stored on the laptop computer 

on which Debtor claims to have taken the credit counseling course. The court 

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ultimately concluded that Debtor, after being directed to preserve the laptop, 

destroyed it with the intent to deprive the Administrator of access to the 

information contained on the laptop. As a sanction for her misconduct, the court 

ordered that it would presume that Debtor did not take the credit counseling course 

on that laptop computer. 

After trial, the bankruptcy court found that Debtor did not rebut that 

presumption because the only evidence that she took the course before filing a 

bankruptcy petition was her own testimony, which the court deemed not credible. 

Accordingly, the bankruptcy court dismissed Debtor’s case for failure to comply 

with 11 U.S.C. § 109(h)(1). 

On appeal, the district court affirmed the bankruptcy court’s holding that the 

Property was not part of the bankruptcy estate, and therefore not subject to the 

automatic stay, noting that the Florida Second District Court of Appeal had since 

affirmed the state court judgment rendering the matter as to property title final and 

not subject to further review. The district court also affirmed the sanction for 

spoliation of electronic evidence stored on Debtor’s laptop computer, especially in 

view of the “very few potential remedies or benefits available to [Debtor] via 

continuing in bankruptcy.” 

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II. DISCUSSION

We discern from Debtor’s scattershot appeal, two issues sufficiently 

developed for appellate review.1

 First, Debtor asserts that the bankruptcy court 

erred in relying on the state court judgment to lift the automatic stay and deny her 

homestead claim. Second, Debtor maintains that the bankruptcy court erred in 

finding she intentionally destroyed relevant evidence and imposing an evidentiary 

sanction that precipitated dismissal of her case.

“As the second court to review the bankruptcy court’s judgment, we 

examine the bankruptcy court’s order independently of the district court.” 

Westgate Vacation Villas, Ltd. v. Tabas (In re Int’l Pharmacy & Disc. II, Inc.), 443 

F.3d 767, 770 (11th Cir. 2005). “Specifically, we review determinations of law 

made by either the district or bankruptcy court de novo, while reviewing the 

bankruptcy court’s findings of fact for clear error.” Id. “[F]indings of fact are not 

1

 Debtor waived arguments not raised below or raised in a cursory fashion without citation to 

authority in her opening brief. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 

1998) (“[I]ssues not raised below are normally deemed waived.”); Sapuppo v. Allstate Floridian 

Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n appellant abandons a claim when he either 

makes only passing references to it or raises it in a perfunctory manner without supporting 

arguments and authority.”). For instance, Debtor asserts the bankruptcy court abused its 

discretion by failing to grant Debtor’s Motion to Disqualify. But Debtor did not state in her 

Amended Notice of Appeal that she was appealing any order denying a motion to disqualify. 

We typically lack jurisdiction to consider an appeal of an order not specifically mentioned in the 

appellant’s Notice of Appeal. Seminole Tribe of Fla. v. Stranburg, 799 F.3d 1324, 1343 (11th 

Cir. 2015). Even if we have jurisdiction to consider the issue, Debtor’s cursory allegations of 

bias, unsupported by record cites and case authority, are insufficient to preserve the issue for 

appeal. In any event, after reviewing the record, we harbor no doubt regarding the bankruptcy 

judge’s impartiality. 

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clearly erroneous unless, in light of all the evidence, we are left with the definite 

and firm conviction that a mistake has been made.” Id. “Neither the district court 

nor this Court is authorized to make independent factual findings; that is the 

function of the bankruptcy court.” In re Sublett, 895 F.2d 1381, 1384 (11th Cir. 

1990). 

A. The Bankruptcy Court Did Not Err in Relying on the State Court 

Judgment Divesting Debtor of the Property

We agree with both lower courts in this action that the automatic stay did not 

apply to the Property because the state court divested Debtor of any interest in the 

Property before Debtor filed her bankruptcy petition. Once an individual files a 

bankruptcy petition, all proceedings against the bankrupt estate are stayed during 

the pendency of the bankruptcy proceedings. 11 U.S.C. § 362; Carver v. Carver, 

954 F.2d 1573, 1576 (11th Cir. 1992). With limited exceptions not applicable 

here, the bankrupt estate includes “all legal or equitable interests of the debtor in 

property as of the commencement of the case.” 11 U.S.C. § 541(a) (emphasis 

added). While the issue of whether a debtor’s interest constitutes property of the 

estate is a federal question, “the nature and existence of the [debtor’s] right to 

property is determined by looking at state law.” In re Kalter, 292 F.3d 1350, 1353 

(11th Cir. 2002), quoting Southtrust Bank of Ala. v. Thomas (In re Thomas), 883 

F.2d 991, 995 (11th Cir.1989). 

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Here, it is undisputed that, as of the commencement of Debtor’s bankruptcy 

case, the state court had voided the deeds transferring the Property to Debtor and 

awarded the Property to the Estate of John Gaffney. Accordingly, the Property 

was not part of Debtor’s bankruptcy estate at the commencement of her case and, 

consequently, was not subject to the automatic stay.

Although the Florida Second District Court of Appeal affirmed the state 

court judgment2 before Debtor filed her opening brief, Debtor contends the 

bankruptcy court should have declared the state court judgment void for a variety 

of reasons, including that it violated her homestead rights under the Florida 

Constitution, the Administrator lacked standing, improper ex parte 

communications between the state court and the Administrator, and alleged “sexual 

harassment” by the state court. Those arguments could and should have been 

raised in the state court proceedings and appeal. The bankruptcy court exercised 

appropriate discretion in deferring to the ongoing state court matter, especially 

when the parties agreed to modify the automatic stay to allow Debtor’s appeal of 

the judgment to proceed to conclusion in state court. See Carver, 954 F.2d at 1580 

(finding bankruptcy court should have abstained under 28 U.S.C. § 1334(c)(1)3

2

 Gaffney v. Baumann, 272 So. 3d 1264 (Fla. Dist. Ct. App. 2019), case dismissed, No. SC19-

893, 2019 WL 2307362 (Fla. May 31, 2019), and review dismissed, No. SC19-899, 2019 WL 

2315040 (Fla. May 31, 2019). 

3

 28 U.S.C. § 1334(c)(1) provides: “Nothing in this section prevents a district court in the 

interest of justice, or in the interest of comity with State courts or respect for State law, from 

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from ruling on state family law involving domestic obligations). In any event, 

Debtor cites no trial evidence supporting her various contentions regarding the 

propriety of the state court judgment. For these reasons, we affirm the bankruptcy 

court’s denial of Debtor’s emergency motion to enforce the automatic stay.

B. The Bankruptcy Court Did Not Clearly Err in Finding that 

Debtor Intentionally Destroyed Relevant Evidence

An individual may not be a debtor in bankruptcy court unless that individual

has received credit counseling from a nonprofit budget and credit counseling 

agency. 11 U.S.C. § 109(h)(1). Although Debtor produced a certificate of course 

completion, the parties disputed whether Debtor actually took the credit counseling 

course, as opposed to her mother, the salient facts being that Debtor’s mother 

hastily filed the bankruptcy petition and records indicated the course was taken on 

a computer in Tampa, Florida, when Debtor was working in Washington, D.C. 

Debtor does not dispute the Estate was denied access to the laptop she allegedly 

used to take an online credit counseling course. After a three-day hearing on 

Debtor’s motion for spoliation sanctions, the bankruptcy court found that “in 

failing to preserve the laptop in question [Debtor] acted with the intent to deprive 

the Estate of its use in the litigation between the parties” and, as a sanction, 

abstaining from hearing a particular proceeding arising under title 11 or arising in or related to a 

case under title 11.”

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presumed that “[Debtor] did not take the required prepetition credit counseling 

course on the laptop computer that now is destroyed.” 

Although Debtor admits the laptop was destroyed, she maintains that the 

record does not support a sanction for spoliation because the Administrator failed 

to show she destroyed her laptop hard drive in bad faith with intent to obfuscate 

evidence. Without citation to record evidence, Debtor argues that only she could 

have accessed the course and that she did so by linking through a VPN that 

identified the computer location as Tampa, Fl, even though she was in Washington, 

D.C.

As an initial matter, our review of the bankruptcy court’s decision is 

hampered by Debtor’s failure to designate and provide the full evidentiary hearing 

transcript, much less specifically cite the portions of that record supporting her 

factual assertions. That alone provides grounds for affirmance. Fed. R. Bankr. P. 

8009(b)(1); Fed. R. App. P. 6(b)(2)(B); Loren v. Sasser, 309 F.3d 1296, 1304 (11th 

Cir. 2002) (“[P]ro se appellants, like appellants represented by counsel, must 

provide trial transcripts in the appellate record to enable this court to review 

challenges to sufficiency of the evidence.”). 

As to the merits, Debtor cites documents allegedly supporting her assertion 

that she alone took the credit counseling course. Some of that evidence does not 

appear to have been presented to the bankruptcy court and is not properly 

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considered on appeal. In any event, the potential existence of countervailing 

evidence supporting Debtor’s position has no bearing on the relevance of the 

information contained on Debtor’s laptop or Debtor’s culpability in destroying the 

laptop. Debtor’s actions deprived the Estate of the single best source of evidence 

to prove Debtor’s noncompliance with 11 U.S.C. § 109(h)(1). 

Further, the record before us does not render the bankruptcy court’s 

determination that Debtor acted in bad faith clearly erroneous. The record reflects 

that Debtor was informed on multiple occasions of the need to preserve the 

electronic information on the laptop and that Debtor failed to take reasonable steps 

to preserve the information. Moreover, as the bankruptcy court found, Debtor’s 

story regarding the laptop, “change[d] as necessary and convenient to suit her 

needs.” Debtor waffled between claiming (1) she took the exam on her Mom’s 

laptop which later “died,” (2) she ripped out the computer’s hard drive and tossed 

it in the trash shortly after taking the course, and (3) that it was stolen. The 

bankruptcy court further deemed Debtor’s testimony and demeanor regarding the 

fate of the laptop “not at all credible.” Debtor fails to address these findings, and 

we see nothing in the record even suggesting that the bankruptcy court clearly 

erred in finding that Debtor intentionally destroyed the laptop to deprive the 

Administrator of evidence. 

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Under the circumstances, the bankruptcy court acted well within its 

discretion when it imposed, as a reasonable and measured sanction for Debtor’s 

misconduct, a rebuttable presumption that Debtor did not take the credit counseling 

course on that laptop computer. See Flury v. Daimler Chrysler Corp., 427 F.3d 

939, 943 (11th Cir. 2005) (spoliation sanctions reviewed for abuse of discretion). 

That Debtor’s failure to rebut that presumption ultimately led to dismissal of her 

case does not render the bankruptcy court’s decision to impose that sanction an 

abuse of discretion. See Flury, 427 F.3d at 943 (Plaintiff’s spoliation of critical 

evidence that deprives opposing party of an opportunity to put on a complete 

defense warrants dismissal sanction). 

III. CONCLUSION

For the reasons explained above, we AFFIRM the decision of the district 

court.

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