USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-2116
JOSE RAUL PEREZ,
Appellant,
v.
FAJARDO FEDERAL SAVINGS BANK, ET AL.,
Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Campbell, Senior Circuit Judge,
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Boudin, Circuit Judge.
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Jose Raul Perez on brief pro se.
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Viviana Rodriguez Ortiz and Garcia & Fernandez on brief for
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appellees.
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June 13, 1997
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Per Curiam. Debtor-appellant Jose Raul Perez
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appeals pro se from a decision of the district court
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affirming the dismissal of his third Chapter 13 bankruptcy
case and a related adversary proceeding. We affirm.
Under 11 U.S.C. 109(g)(1), no individual may be a
"debtor" if he or she has been a debtor in the preceding 180
days and the previous case was dismissed for "willful failure
. . . to abide by orders of the court, or to appear before
the court in proper prosecution of the case." Perez's second
bankruptcy case was dismissed based upon his failure to file
a plan or schedules, failure to appear at the 341
creditors' meeting, and failure to make payments. The third
bankruptcy petition was filed within 180 days of the
dismissal of the second. Relying on these facts, creditor
Fajardo Federal Savings Bank argued before the bankruptcy
court that Perez was ineligible for bankruptcy relief under
109(g)(1). The bankruptcy judge agreed, finding a willful
failure to abide by orders of the court and to prosecute.
Perez argues that it was error to dismiss his third
case pursuant to 109(g)(1) because the bankruptcy court, in
its order dismissing the second case, did not specifically
find a "willful" failure. He also contends that he was not
put on notice that willfulness would be an issue. Finally,
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he argues that the evidence does not support a finding of
willfulness.
Contrary to Perez's suggestion, no specific finding
of "willfulness" was necessary in the order dismissing the
second petition. A finding of willfulness may be made at the
time of a dismissal. However, it can also be made in a
subsequent case when the bankruptcy court is called up to
determine if the earlier dismissal renders the debtor
ineligible under 109(g) to proceed in the subsequent case.
See Montgomery v. Ryan (In re Montgomery), 37 F.3d 413, 415
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(8th Cir. 1994); In re Robinson, 198 B.R. 1017, 1023 n.8
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(Bankr. N.D. Ga. 1996).
We think that Fajardo Federal's citation to
109(g) put Perez on notice that willfulness would be an
issue. Moreover, Perez's opposition to the motion to
dismiss--in which he argued that "the previous case was not
dismissed for willful failure"--makes it plain that he was
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aware it was a key issue.
Finally, based on the record before him, the
bankruptcy judge did not clearly err in finding willfulness.
There was a pattern of failure to abide by court orders, as
well as of failure to prosecute.1 Moreover, Perez did not
1
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1Perez's first bankruptcy case was dismissed after he
1
failed to file a plan and failed to show up at the 341
creditors' meeting. The second case was dismissed based upon
Perez's failure to file a plan or schedules, failure to
appear at the 341 creditors' meeting, and failure to make
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introduce any evidence on the point. Under the
circumstances, an inference of willfulness was justified.
See, e.g., In re Herrera, 194 B.R. 178, 189 (Bankr. N.D. Ill.
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1996) (inferring willful conduct based on a pattern of
repeated failures).
Since the dismissal of the third bankruptcy case
was proper under 109(g)(1), we need not consider the
alternative bases given for dismissal. Perez has waived, for
failure to raise the issue in his brief, any argument that
the dismissal of the adversary proceeding was in error.
Finally, since it is not material to any decision before us,
we need not consider whether the bankruptcy judge erred in
making certain findings in connection with a motion to stay
pending appeal.
Affirmed.2
2
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payments. In his third case, Perez filed his plan late and
failed to file a statement of affairs or schedules.
2The motion of appellee Juan R. Zalduondo-Viera to join
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the brief of Fajardo Federal Savings Bank is granted.
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