United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
J. BOYLE UNITED STATES DISTRICT JUDGE
the Court is Appellant Justin Dale Burgess's Emergency
Request for Injunction (Doc. 3). The Court
DENIES his request.
case, Mr. Justin Dale Burgess appeals a bankruptcy court
order dismissing his Chapter 13 case with prejudice to
refiling another case for five years. Doc. 1-1, Notice of
Appeal, 4-5 (bankruptcy court order). Burgess filed his
Chapter 13 petition on July 5, 2019. Doc. 5, Appellee's
Resp., 1. The Chapter 13 Trustee Thomas Powers filed a motion
to dismiss Burgess's case on August 22, 2019.
Id. The bankruptcy court held a hearing on this
motion on October 29, 2019. Id. Burgess did not
appear at the hearing. Id. Instead, on the day that
the bankruptcy court called docket on the motion to dismiss,
Burgess filed a motion to convert his Chapter 13 case to a
Chapter 11 case. See Doc. 6, Creditor's Resp.,
¶ 6. The bankruptcy court proceeded with the hearing.
court dismissed the case with prejudice to refiling a case
under any chapter of Title 11 of the United States Code for
five years from the entry of the order. Doc. 1-1, Notice of
doing, the bankruptcy court made the following findings of
(1) the Debtor's real property was foreclosed on in 2016;
(2) the Debtor filed nine (9) bankruptcy cases since 2003;
(3) the Debtor has not made a mortgage payment to a secured
lender since 2008; (4) the Debtor did not appear at the
pre-hearing conference and final hearing of the Trustee's
motion to dismiss; (5) the Debtor has made only 1 payment
under his Chapter 13 Plan to the Trustee; (6) the Debtor has
not filed a Chapter 13 Plan that complies with the procedures
of the Northern District of Texas; and (7) the Debtor filed a
Notice of Conversion to Chapter 11 after the Court called its
Id. at 4-5. The court concluded, based on these
findings, that Burgess's bankruptcy case was filed in bad
faith. Id. at 5. The court also ordered that all
debts due and owing creditors as of the date of the order
were not discharged or affected in any manner by the order.
November 14, 2019, the bankruptcy clerk transmitted to this
Court Burgess's notice of appeal of the bankruptcy
court's dismissal order. Doc. 1, Notice of Appeal, 1.
Subsequently, on December 9, 2019, Burgess filed an emergency
“Request for Injunction” (Doc. 3). In this
motion, Burgess argues that his case was improperly dismissed
because the motion to convert his case to a Chapter 11 took
effect immediately upon its filing. Doc. 3, Request for Inj.,
4-8. Thus, Burgess asserts, the bankruptcy court should not
have dismissed his Chapter 11 case on the motion to dismiss
his Chapter 13 case, which he argues “no longer
existed.”Id. at 7-8. Burgess claims that he
will be irreparably injured by this error because: (1) his
vehicle that he has pledged as collateral on an unspecified
loan will be sold on December 10, 2019; (2) a county court
set a hearing for December 9, 2019, on an appeal bond related
to a property at issue in his bankruptcy case; and (3)
creditors are “harassing” him with letters and
calls. Id. at 5. For relief, Burgess asks the Court
to temporarily reinstate his Chapter 11 case, as well as the
associated automatic stay, until either hearing on his
Chapter 11 petition or resolution of this appeal.
responses to Burgess's motion have been filed.
Appellee/Trustee Thomas Powers filed the first. Doc. 5,
Appellee's Resp. In opposition to the request, Powers
first argues that Burgess has not followed the appropriate
procedures to request injunctive relief-specifically, Powers
asserts that Burgess should have filed a complaint pursuant
to Federal Rule of Bankruptcy Procedure 7001. Id. at
1. Powers argues that Burgess's request is better
construed as a motion to stay the underlying bankruptcy court
order pending appeal. Id. at 2. Powers proceeds to
note that such motions are governed by Federal Rule of
Bankruptcy 8007, but that Burgess's filing fails to meet
the Rule's requirements. Id. Specifically,
Powers points out that because Burgess did not first request
a stay from the bankruptcy court, Burgess must show this
Court why such a request would have been impracticable.
Id. at 2 (citing Fed.R.Bankr.P. 8007(b)(2)(A)).
Further, Powers argues that Burgess has not supported his
motion with affidavits, sworn statements, or relevant
portions of the record. Id. (citing Fed.R.Bankr.P.
8007(3)(B)-(C)). Finally, Powers asserts that Burgess did not
provide all parties with reasonable notice of the request.
Id. (citing Fed.R.Bankr.P. 8007(4)).
second response comes from a creditor in the underlying
bankruptcy proceeding. Doc. 6, Creditor's Resp. The
creditor, Alta Residential Solutions,  purchased a
property formerly owned by Burgess at a foreclosure sale in
September 2016. Id. at 2. After the sale, Alta
alleges that Burgess started a “protracted”
litigation process to avoid eviction, which ultimately lead
to the underlying bankruptcy proceeding here. Id.
During that proceeding, Alta moved for relief from the
automatic stay to proceed with Burgess's eviction, and
the court granted its motion on August 19, 2019.
Burgess started an adversary case against Alta in the
bankruptcy proceeding. Id. Alta alleges that in this
proceeding Burgess was merely rehashing claims that had
previously been litigated in different forums. Id.
at 2-3. Ultimately, Burgess's adversary complaint was
dismissed for lack of jurisdiction at the hearing on
Power's motion to dismiss. Id. at 3. Before the
hearing, Alta filed an unopposed response to the motion to
dismiss, arguing that Burgess was not acting in good faith.
Id. Alta argued that Burgess was using “the
State and Federal Court system to delay the turnover of
Alta's property.” Id. Alta further
asserted that Burgess had been enjoying the benefit of the
property as a tenant in sufferance since the foreclosure sale
in September 2016, while Alta was paying taxes and insurance
premiums on the property to protect its security interest.
respect to Burgess's Chapter 11 conversion argument, Alta
responds that the rules provide for conversion only after
notice and hearing on such a motion. Id. at 4
(citing 11 U.S.C. § 1307(d)). Further, Alta argues that
the conversion is in the court's discretion. Id.
(“[T]he court may convert a case under this chapter to
a case under chapter 11 or 12 of this title.” (quoting
11 U.S.C. § 1307(d))). Thus, Alta concludes that Burgess
is incorrect that his case automatically converted to a
Chapter 11 case when he filed his motion, and that there was
no need for notice and hearing on Burgess's motion
because the bankruptcy court had already dismissed the