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Duggan v. Tanglewood Villa Owners Association, Inc.

United States District Court, E.D. Texas

May 10, 2019

LYNNE DUGGAN, Appellant,
v.
TANGLEWOOD VILLA OWNERS ASSOCIATION, INC., Appellee.

          MEMORANDUM AND ORDER

          MARCIA A. CRONE UNITED STATES DISTRICT JUDGE.

         Pending before the court is Appellant Lynne Duggan's (“Duggan”) Amended Notice of Appeal (#10), wherein Duggan appeals the following bankruptcy court orders: (1) order denying Duggan leave to proceed in forma pauperis, (2) order denying Duggan's motion to vacate dismissal with prejudice or amend dismissal to be without prejudice, and (3) order denying Duggan's motion for extension of time to file her notice of appeal. Having considered the submissions of the parties, the record, and the applicable law, the court is of the opinion that the bankruptcy court's orders should be affirmed.

         I. Background

         This appeal stems from a long history of litigation between Duggan and Appellee Tanglewood Villa Owners Association, Inc. (“Tanglewood”). On June 2, 2017, apparently in an effort to avoid a pending foreclosure, Duggan filed a Voluntary Petition for Bankruptcy Protection under Chapter 13 of the United States Bankruptcy Code. On July 11, 2017, Duggan filed her Proposed Chapter 13 plan. On August 23, 2017, Tanglewood filed its objection to the proposed plan. On November 21, 2017, after a hearing, the bankruptcy court denied confirmation of the proposed plan. On December 12, 2017, Duggan filed her Amended Proposed Chapter 13 plan. On March 11, 2018, Tanglewood filed its objection to the amended plan.

         The bankruptcy court held a hearing on June 18, 2018, where it denied confirmation and dismissed Duggan's bankruptcy proceeding with prejudice for 120 days. On June 27, 2018, the bankruptcy court entered a written order memorializing the oral order. On July 11, 2018, Duggan filed a Motion to Vacate Dismissal with Prejudice or Amend Dismissal to be Without Prejudice and a Motion for Extension of Time to File Notice of Appeal. The bankruptcy court denied both motions on July 25, 2018. On August 7, 2018, Duggan filed her Notice of Appeal and Statement of Inability to Afford Payment of Court Costs or an Appeal Bond. The bankruptcy court treated the later filing as a motion to proceed in forma pauperis and denied it on September 4, 2018. On September 18, 2018, Duggan filed an Amended Notice of Appeal, wherein she added the bankruptcy court's September 4, 2018, order to the orders she is appealing.

         On March 29, 2019, Duggan filed a second bankruptcy petition in Case Number 19-40828 in the United States Bankruptcy Court for the Eastern District of Texas.

         II. Standard of Review

         In reviewing a decision of the bankruptcy court, the court must accept the bankruptcy court's findings of fact unless clearly erroneous and examine the bankruptcy court's conclusions of law de novo. See In re Monge, 826 F.3d 250, 254 (5th Cir. 2016); In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d 285, 293-94 (5th Cir. 2013); In re Halo Wireless, Inc., 684 F.3d 581, 586 (5th Cir. 2012); Drive Fin. Servs., L.P. v. Jordan, 521 F.3d 343, 346 (5th Cir. 2008). Mixed questions of law and fact are reviewed de novo. In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d at 294; Tech. Lending Partners, LLC v. San Patricio Cty. Cmty. Action Agency (In re San Patricio Cty. Cmty. Action Agency), 575 F.3d 553, 557 (5th Cir. 2009). A finding of fact is clearly erroneous when although there is evidence to support it, the reviewing court is “left with a firm and definite conviction that a mistake has been made.” Saenz v. Gomez, 899 F.3d 384, 395 (5th Cir. 2018) (quoting Otto Candies, L.L.C. v. Nippon Kaiji Kyokai Corp., 346 F.3d 530, 533 (5th Cir. 2003)); see In re Renaissance Hosp. Grand Prairie Inc., 713 F.3d at 293-94 (citing Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985)); Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258-59 (5th Cir. 2006).

         III. Leave to Proceed In Forma Pauperis

         On August 31, 2018, Duggan filed a “Motion for Extension of Time to File Designation of Record and Issues on Appeal After Receiving Order Striking Motion Without Prejudice from Lower Court” (#4) with this court wherein, among the various forms of relief sought, Duggan requested a hard copy of her “Court Record” and copies of transcripts from three proceedings before the bankruptcy court free of all costs. At the time, the court was unaware a similar request was pending before the bankruptcy court. On September 13, 2018, this court issued a Memorandum and Order (#9), wherein it denied Duggan's request to proceed in forma pauperis. The order was, in effect, a de novo review of the bankruptcy court's September 4, 2018, order denying the same. Accordingly, for the reasons set forth in this court's September 13, 2018, Memorandum and Order (#9), the bankruptcy court's denial of Duggan's request to proceed in forma pauperis is AFFIRMED.

         IV. Dismissal

         The decision whether to dismiss a petition in bankruptcy lies within the discretion of the bankruptcy judge. In re Mallory, 476 Fed.Appx. 766, 767 (5th Cir. 2012); In re Young, 416 Fed.Appx. 392, 394 (5th Cir. 2011) (“Our review of a bankruptcy court's dismissal under 11 U.S.C. § 1307 is for an abuse of discretion.”); In re Atlas Supply Corp., 857 F.2d 1061, 1063 (5th Cir. 1988). Here, the bankruptcy court dismissed Duggan's bankruptcy action with prejudice pursuant to 11 U.S.C. § 1307. Section 1307(c) provides:

on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best ...

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