Filed: Apr. 16, 2020
Latest Update: Apr. 16, 2020
Summary: United States Bankruptcy Appellate Panel For the Eighth Circuit _ No. 19-6042 _ In re: Theresa Marshall Debtor - Theresa Marshall Debtor - Appellant v. Mark T. McCarty Trustee - Appellee _ Appeal from United States Bankruptcy Court for the Eastern District of Arkansas - Little Rock _ Submitted: March 13, 2020 Filed: April 16, 2020 _ Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges. _ Dow, Bankruptcy Judge In her Chapter 13 bankruptcy case, Theresa Marshall (“Debtor”) filed an Obje
Summary: United States Bankruptcy Appellate Panel For the Eighth Circuit _ No. 19-6042 _ In re: Theresa Marshall Debtor - Theresa Marshall Debtor - Appellant v. Mark T. McCarty Trustee - Appellee _ Appeal from United States Bankruptcy Court for the Eastern District of Arkansas - Little Rock _ Submitted: March 13, 2020 Filed: April 16, 2020 _ Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges. _ Dow, Bankruptcy Judge In her Chapter 13 bankruptcy case, Theresa Marshall (“Debtor”) filed an Objec..
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United States Bankruptcy Appellate Panel
For the Eighth Circuit
___________________________
No. 19-6042
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In re: Theresa Marshall
Debtor
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Theresa Marshall
Debtor - Appellant
v.
Mark T. McCarty
Trustee - Appellee
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Appeal from United States Bankruptcy Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: March 13, 2020
Filed: April 16, 2020
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Before SALADINO, Chief Judge, NAIL and DOW, Bankruptcy Judges.
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Dow, Bankruptcy Judge
In her Chapter 13 bankruptcy case, Theresa Marshall (“Debtor”) filed an
Objection to Trustee’s Final Report (“Objection”). The Bankruptcy Court held a
hearing on December 4, 2019, at which it overruled Debtor’s Objection because
Debtor failed to appear. Debtor appeals. For the reasons that follow, we find we
lack jurisdiction and dismiss the appeal without addressing the merits.
BACKGROUND
Debtor filed a petition under Chapter 13 of the Bankruptcy Code on May 3,
2018. On September 4, 2019, the case was dismissed.
The Chapter 13 Trustee, Mark T. McCarty (the “Trustee”), issued a Chapter
13 Standing Trustee’s Final Report and Account (“Final Report”) on October 28,
2019. The Trustee’s Final Report included summaries of Receipts, Expenses of
Administration, Scheduled Creditors, Summary of Disbursements to Creditors and
Total Disbursements.
Debtor filed her Objection to Trustee’s Final Report with the bankruptcy court
and a hearing date was set for December 4, 2019. Debtor failed to appear at that
hearing and the bankruptcy court overruled Debtor’s Objection for failure to
prosecute. The Order overruling Debtor’s Objection to the Trustee’s Final Report
was entered on December 4, 2019, and Debtor filed this appeal on December 9,
2019.
DISCUSSION
Debtor’s Notice of Appeal filed in this matter states that she is appealing the
Final Report filed on October 28, 2019 and the December 4, 2019 Order overruling
her objection to the Trustee’s Final Report. The October 28, 2019 Final Report is
not a final order and thus, this Court has no jurisdiction over such an appeal. The
Court has already ruled to that effect in its dismissal order entered on April 8, 2019
in Debtor’s appeal in Case No. 19-6024, and for those same reasons, the appeal of
the October 28, 2019 Final Report will be dismissed. Debtor’s appeal of the
bankruptcy court’s Order entered on December 4, 2019, that overruled her objection
to the Trustee’s Final Report based on her failure to appear, remains for this Court’s
review.
In Debtor’s Brief filed in this appeal, she raises issues of whether she violated
the terms of a strict compliance order and should have been dismissed from a 2016
bankruptcy case and whether she failed to complete credit counseling and should
have been dismissed from this 2018 bankruptcy case. However, Debtor did not raise
these issues in her objection on appeal at the bankruptcy court level, nor did she raise
them in her Notice of Appeal. “[I]ssues raised for the first time on appeal are
ordinarily not considered by an appellate court as a basis for reversal.” In re
Hansmeier,
558 B.R. 299, 301 (B.A.P. 8th Cir. 2016) (citing Wendover Fin. Servs.
v. Hervey (In re Hervey),
252 B.R. 763, 767 (8th Cir. BAP 2000)). An exception
may be made in “exceptional cases where the obvious result would be a plain
miscarriage of justice or inconsistent with substantial justice.” Kelley v. Crunk,
713
F.2d 426, 427 (8th Cir.1983) (per curiam) (emphasis added). We do not believe this
to be such an exceptional case.
Debtor also raises allegations regarding the Trustee’s Report that the
exempted value of property was listed as $18,225; that creditor ECMC’s claim was
not heard nor litigated in the 2018 case; that ECMC’s claim should be barred by res
judicata; that certain amounts were listed for ECMC in the Final Report; that ECMC
was not a creditor and that any transfer of Debtor’s student loans was illegal. As to
the exempt value and the amounts listed for ECMC in the Final Report, Debtor has
not provided any indication as to how such information contained in the Report was
incorrect nor why it is relevant. As to the issue regarding ECMC’s claim not being
heard or litigated or barred by res judicata, Debtor has not explained why such a
hearing was necessary. Debtor also provides no information or detail as to her
allegation that a transfer of her student loans was illegal
This Court has an independent duty to examine our jurisdiction. Belew v.
Rucker (In re Belew),
608 B.R. 206, 208 (8th Cir. B.A.P. 2019). If the appellant does
not have standing, we do not have jurisdiction.
Id.
To have standing to appeal an order, an appellant must
demonstrate he or she is a person aggrieved by the order.
Under the “person aggrieved” doctrine, only appellants
who are directly and adversely affected pecuniarily by an
order have standing to appeal that order. Put another way,
only appellants who have a financial stake in an order have
standing to appeal that order.
Id.
“‘Person aggrieved’ is, of course, a term of art: almost by definition, all
appellants may claim in some way to be ‘aggrieved,’ else they would not bother to
prosecute their appeals.” Travelers Ins. Co. v. H.K. Porter Co.,
45 F.3d 737, 741 (3d
Cir.1995). “The doctrine limits standing to persons with a financial stake in the
bankruptcy court's order, meaning they were directly and adversely affected
pecuniarily by the order.” In re Peoples,
764 F.3d 817, 820 (8th Cir. 2014). An
appellant is a party aggrieved “if the bankruptcy court order diminishes the person's
property, increases the person's burdens, or impairs the person's rights.” Opportunity
Fin., LLC v. Kelley,
822 F.3d 451, 458 (8th Cir. 2016) (citing In re Marlar,
267 F.3d
749, 753 n. 1 (8th Cir. 2001)).
In this case, Debtor questioned the accuracy of some of the information in
Trustee’s Final Report such as creditor information and the amounts listed as exempt
property and for ECMC. However, Debtor did not challenge in her Objection, nor
on appeal, the amount the Trustee reported had been returned to her following
dismissal of her case. Debtor has failed to demonstrate how the bankruptcy court’s
Order overruling her Objection may have diminished her property, increased her
burdens or impaired her rights as to make her an aggrieved party with standing. Nor
has she demonstrated that the bankruptcy court’s Order directly and adversely
affected her pecuniarily.
CONCLUSION
Debtor has not shown she is a person aggrieved by the bankruptcy court’s
Order overruling her objection to the Trustee’s Final Report and thus, does not have
standing to appeal the bankruptcy court’s Order. Consequently, we lack jurisdiction
and the appeal is DISMISSED.
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