Filed: Jul. 28, 2021
Latest Update: Jul. 28, 2021
United States Bankruptcy Appellate Panel
For the Eighth Circuit
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No. 21-6002
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In re: Anthony Ray Lincoln
Debtor
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Anthony Ray Lincoln
Debtor - Appellant
v.
James L. Snyder
Acting U.S. Trustee - Appellee
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Appeal from United States Bankruptcy Court
for the Southern District of Iowa - Council Bluffs
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Submitted: July 21, 2021
Filed: July 28, 2021
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Before SALADINO, DOW and RIDGWAY, Bankruptcy Judges.
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SALADINO, Bankruptcy Judge
The Appellant, Anthony Ray Lincoln, timely appeals the bankruptcy court’s 1
order denying his motion for relief from a previous order denying his request for a
waiver of the Bankruptcy Code’s credit counseling requirement.
We have jurisdiction over this appeal from the final order of the bankruptcy
court. See 28 U.S.C. §158(b). For the reasons that follow, we dismiss the appeal as
moot.
BACKGROUND & DISCUSSION
Mr. Lincoln initiated his bankruptcy case without the assistance of an attorney
by filing his voluntary Chapter 7 bankruptcy petition, schedules, and Statement of
Financial Affairs on December 23, 2020. He also filed an application to waive the
filing fee, which was granted, and a motion to waive the credit-counseling
requirement of 11 U.S.C. § 109(h).
The motion to waive credit counseling explained that Mr. Lincoln 2 is an
indigent prisoner with no income and no assets and is unable to attend any credit
counseling sessions. He further asserted that because he is in prison, “no credit
counselor is ‘reasonably able to provide adequate services’” under 11 U.S.C.
§ 109(h)(2)(A). Finally, he explained that as a prisoner, he is unable to participate in
credit counseling services, despite efforts to do so, “due to ‘incapacity’ and has
‘describe[d] exigent circumstances that merit a waiver’” under 11 U.S.C.
§ 109(h)(3).
1
Hon. Anita L. Shodeen, United States Bankruptcy Judge for the Southern
District of Iowa.
2
The motion is captioned in Mr. Lincoln’s name and was signed by him, but
the body of the motion refers to another individual. The court will attribute this to
the debtor’s use of an old form without carefully proofreading it.
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The United States Trustee (hereafter, “UST”) objected to this motion on the
basis that the Bankruptcy Code requires debtors to certify that they have received
credit counseling within 180 days prior to filing the bankruptcy petition. 11 U.S.C.
§ 109(h)(1). If exigent circumstances exist which prevent a debtor from obtaining
such counseling before filing the petition, the court may grant a temporary
exemption from the requirement, for no more than 45 days. 11 U.S.C. § 109(h)(3).
The UST pointed out that the only way for a debtor to avoid the credit counseling
requirement is to demonstrate mental incapacity, physical disability, or active
military duty in a combat zone, 11 U.S.C. § 109(h)(4), and Mr. Lincoln had not
presented any evidence of incapacity, disability, or active military service.
The bankruptcy court denied the waiver motion on January 8, 2021, finding
that the debtor had provided “no evidence or support for his allegation that
incarceration would make him unable to comply with the requirement of 11 U.S.C.
§ 109(h)(1) to obtain credit counseling[,]” nor did the debtor “include a certification
that satisfies the court that any exigent circumstances exist which would merit a
waiver of the counseling requirements” under 11 U.S.C. § 109(h)(3).
Mr. Lincoln then filed a motion to reconsider 3 the denial, pointing out that
another judge on the court had waived credit counseling in two cases for prisoners
in the same facility as Mr. Lincoln. He further asserted that the Covid-19 pandemic
and his status as a prisoner prevented access to credit counseling, and that he had
established his indigency, which he argued should be an exigent circumstance
excusing his compliance with the counseling requirement.
The bankruptcy court denied the motion on February 5, 2021, explaining that
under the law of the Eighth Circuit, incarceration does not warrant a waiver of the
requirement to receive credit counseling. Bourgeois v. Bank of America (In re
Bourgeois), 488 B.R. 622, 627 (B.A.P. 8th Cir. 2013) (stating that debtor’s argument
3
This was docketed and treated as a motion for relief from the order denying
the waiver request.
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that his incarceration warranted a waiver of the credit counseling requirement was
without merit). The court further noted that one reason for the initial denial of the
waiver motion was the lack of evidence concerning Mr. Lincoln’s attempts to obtain
credit counseling via telephone or internet. The court also explained that indigency
is not a valid statutory exception to the credit counseling requirement, noting that
free or low-cost credit counseling services are available.
The bankruptcy court also explained in detail that the remedy sought by Mr.
Lincoln is not available to him, because even if his situation were to constitute
exigent circumstances, it would merely warrant an additional period of time in which
to complete credit counseling. The only way to obtain the relief he seeks – permanent
waiver of the credit counseling requirement – would be for him to prove he has a
mental incapacity or a physical disability, or is on active military service. Mr.
Lincoln did not allege any of those factors.
The UST promptly requested the bankruptcy court to deem the case
automatically dismissed on the 46th day after it was filed, pursuant to 11 U.S.C.
§ 521(i)(1) for failure to file the documents required under 11 U.S.C. § 521(a)(1),
and the court granted that request on February 9, 2021.
Mr. Lincoln then filed a notice of appeal “for the decision of February 5th,
2021 dismissing the Bankruptcy petition and all other adverse order[s] therefrom.”
As noted above, the order entered on February 5th did not dismiss the case, it only
explained in more detail why Mr. Lincoln was not entitled to a waiver of the credit
counseling requirement. The text order dismissing the case was entered on February
9th. Mr. Lincoln filed his notice of appeal on February 18th, so the dismissal order
could have been properly listed and included in the appeal.
However, even if we read the notice of appeal broadly to include the dismissal
order, the debtor’s appellate brief focuses only on his inability to complete even a
free credit counseling course because the prison will not make arrangements for him
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to take the course telephonically.4 The brief does not mention or make any arguments
about the dismissal of the case. Appellate procedure requires all arguments that will
be made on appeal to be referenced in the party’s brief. If they are not, the party is
not permitted to rely on them in the appeal. See Jenkins v. Winter, 540 F.3d 742, 751
(8th Cir. 2008) (“Claims not raised in an opening brief are deemed waived.”).
As it stands, this appeal concerns only the order denying relief from the denial
of the credit counseling waiver request. Because the bankruptcy case was
subsequently dismissed, a reversal of the waiver denial order would be of no benefit
to the debtor; with no case on file, there is no need for a credit counseling certificate.
In other words, this appeal is moot, and we lack jurisdiction to grant the relief the
debtor seeks. “Once a bankruptcy case is dismissed, issues on appeal relating to the
dismissed bankruptcy case are rendered moot.” Spencer v. Labarge (In re Spencer),
301 B.R. 730, 733 (B.A.P. 8th Cir. 2003).
Federal courts are courts of limited jurisdiction and can only hear
actual cases or controversies as defined under Article III of the
Constitution. Hickman v. State of Missouri, 144 F.3d 1141, 1143 (8th
Cir. 1998). When a case no longer presents an actual, ongoing case or
controversy, the case is moot and the federal court no longer has
jurisdiction to hear it. Id. “When circumstances change while an appeal
is pending that make it impossible for the court to grant ‘any effectual
relief whatsoever’ to a prevailing party, the appeal must be dismissed
as moot.” Williams v. Citifinancial Mortgage Co. (In re Williams), 256
B.R. 885, 8[95] (8th Cir. BAP 2001).
Marshall v. Deutsche Bank Nat’l Tr. Co. (In re Marshall),
595 B.R. 269, 271 (B.A.P.
8th Cir. 2019) (quoting Tigue v. Sosne (In re Tigue),
363 B.R. 67, 70 (B.A.P. 8th
Cir. 2007)).
Accordingly, this appeal is hereby dismissed as moot.
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4
This is information that would have been helpful to the bankruptcy court
while the waiver request was pending.
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