Jenkins v. Select Portfolio Servicing, Inc. (In re Jenkins)
Jenkins v. Select Portfolio Servicing, Inc. (In re Jenkins)
Opinion of the Court
By October 2016, when she filed a bankruptcy petition under Chapter 11, Lindsay Jenkins had been in default on two mortgages for years. The Bankruptcy Code provides that, upon filing a petition, all proceedings to collect from the debtor are automatically stayed.
Background
Jenkins owns one property in Illinois, which is not at issue in this appeal, and two in New York. Both of the New York properties are at issue; one is a rental property that provides Jenkins with her sole source of income. Jenkins, with assistance from counsel, filed a petition for bankruptcy under Chapter 11 on October *44927, 2016. The filing of a bankruptcy petition automatically stays any action to recover from the debtor.
Elizon and SPS moved to modify the automatic stay. The bankruptcy court granted both motions. Jenkins filed a notice of appeal on December 28, 2016, which became Case No.
The U.S. Trustee moved to dismiss Jenkins's bankruptcy petition on December 28, 2016, arguing that she had failed to provide the monthly updates required by the Bankruptcy Code and that there was no likely means by which Jenkins could rehabilitate. The bankruptcy court granted this motion on February 2, 2017. Jenkins filed a notice of appeal on February 10, 2017, which became Case No.
Discussion
Jenkins has appealed two of the bankruptcy court's orders and has raised numerous other issues. The first two issues in this appeal are whether the bankruptcy court abused its discretion by granting the SPS and Elizon motions for relief from the automatic stay or dismissing Jenkins's bankruptcy petition. The final issue is whether any of Jenkins's other allegations against the judge, Trustee, and opposing party have merit.
In this Opinion, the Court cites to four parts of the record, all filed as part of Case No.
I. Orders granting SPS and Elizon's motions to modify the automatic stay
The bankruptcy judge granted SPS and Elizon's motions to modify the automatic stay under Section 362(d)(2). Ex. 24-9 at 12-13 (Order Modifying Stay; Order of Correction Pursuant to Fed. R. Civ. P. 60 ). This Court reviews a bankruptcy court's determination of whether there is cause to modify the automatic stay for abuse of discretion. Matter of Williams ,
After a bankruptcy petition is filed, the debtor is entitled to an automatic stay of any proceedings in which creditors seek to recover from the debtor.
The bankruptcy court did not abuse its discretion by modifying the automatic stay for SPS after finding that Jenkins lacked adequate protection. SPS sought to proceed on foreclosure proceedings against Jenkins. Ex. 24-8 at 49-53 (Motion to Modify the Automatic Stay and Required Attachment). Jenkins had been in default for 81 months and owed in excess of $200,000. Id. at 53. With a self-reported net monthly income of $520, it would have taken Jenkins over 30 years to catch up on the deficiency if every bit of that money went toward this particular loan.
Although Elizon moved to modify the stay on a different basis, Ex. 24-6 at 74-76 (Motion for Relief from Automatic Stay), the Court also holds that the bankruptcy court did not abuse its discretion by modifying the stay for Elizon. Jenkins could not show that she would adequately protect Elizon's interest in the property, given the period it would require for her to cure the deficiency. "We may affirm the bankruptcy court's decision on an alternative ground, but that ground must have been adequately presented in the bankruptcy court." Capital Factors, Inc. v. Kmart Corp. ,
II. Order dismissing Jenkins's case
The bankruptcy judge granted the Trustee's motion to dismiss Jenkins's case under 11 U.S.C. 1112(b). Ex. 24-29 at 1 (Order Dismissing Chapter 11 Case and Shortening Notice). The Court reviews the bankruptcy court's dismissal of a debtor's petition for abuse of discretion. In re Hall ,
The bankruptcy court did not abuse its discretion by dismissing Jenkins's petition, as Jenkins had failed to file any of the monthly operating reports and had not shown a reasonable likelihood of rehabilitating her estate.
First, Jenkins failed to timely file the monthly operating reports required in Chapter 11 cases. A bankruptcy court may dismiss a case for the "unexcused failure to satisfy timely any filing or reporting requirement."
There is also a separate basis to affirm the dismissal of Jenkins's petition. It was abundantly clear that there was no reasonable likelihood of rehabilitation of Jenkins's estate. A bankruptcy court may *451dismiss a petition in which the estate is experiencing "continuing loss" and there is no "reasonable likelihood of rehabilitation."
The Court affirms the dismissal of Jenkins's case.
III. Other arguments
Finally, the Court reviews the kaleidoscopic accusations of bias, error, and bad faith Jenkins has made against the bankruptcy judge, court staff, and other parties. None of these allegations have any merit.
First, Jenkins contends that the judge and court employees "disappeared" her filings. Initial Br. at 18. To the contrary, the record suggests it was not a conspiracy of judicial officers that kept her submissions from being filed, but Jenkins's noncompliance with filing rules. For instance, Jenkins states that in her submissions to the bankruptcy court, she would include a copy of her filings for the U.S. Trustee.
"[P]ro se litigants are not entitled to a general dispensation from the rules of procedure or court imposed deadlines." Jones v. Phipps ,
Next, Jenkins claims the bankruptcy judge deprived her of counsel by "[a]ttacking the competence of [her] lawyer" and "imposing unpublished conditions on the attorney." Initial Br. at 20. But Jenkins's attorney, Ted Smith, was not removed by the bankruptcy court-he affirmatively moved to withdraw as counsel, *452Ex. 9-2 at 5 (Dkt. No. 48), and the bankruptcy judge granted his motion. Id. at 6 (Dkt. No. 59). At the hearing on Smith's motion, a representative for Smith stated that he was withdrawing in part because of filings on Jenkins's behalf that were made without Smith's knowledge. App. at 43 (Transcript of Jan. 12, 2017 Proceedings). Jenkins is not entitled to relief on this point.
Next, Jenkins argues she was prejudiced by the bankruptcy judge's "bizarre state of mind." Initial Br. at 21. As evidence, Jenkins offers (1) the judge's discussion of filings being slipped under her door, (2) an alleged misstatement that Jenkins had not paid filing fees, and (3) an alleged assertion that Jenkins had not requested to appear via telephone at the hearing on the Trustee's motion to dismiss. Id. at 21-24. Upon review, none of these allegations reflects a "total denial of due process," id. at 24, but rather a judge working in good faith to accommodate a difficult litigant.
First, the judge very well might have been receiving filings under her door, given the already-documented errors in Jenkins's filings. Second, contrary to Jenkins's assertion, the record suggests that Jenkins did not properly pay her filing fees, at least for some period of the proceedings. See Supp. App. at 52 ("Notice of Deficiency"). Third, Jenkins accuses the judge of acting as though she had not requested to appear at the hearing for her motion to dismiss via telephone. The record, however, shows that the clerk of court called Jenkins before the hearing-and Jenkins never answered. App. at 48 (Transcript of January 12, 2017 Proceedings). Jenkins is "entitled to an opportunity to be heard, not to a particular type of hearing." In re Bartle ,
Next, Jenkins challenges SPS and Elizon's standing, though she does not pin down what exactly what she contends they lacked standing to do. Initial Br. at 24. Jenkins also contends that the bankruptcy judge's unwillingness to consider her "RESPA demand" or to review her briefing on standing was prejudicial. Jenkins's arguments here miss the mark: in determining whether to modify the automatic stay, the question is only "whether there is a colorable claim of a lien on property of the estate." Matter of Vitreous Steel Prods. Co. ,
Finally, Jenkins contends, in a two-paragraph argument devoid of legal authority, that the statute creating the office of the U.S. Trustee is unconstitutional. Reply to U.S. Trustee Br. at 2. "[P]erfunctory and undeveloped arguments, and arguments that are unsupported by pertinent authority, are waived (even where those arguments raise constitutional issues)." United States v. Berkowitz ,
*453Conclusion
The Court directs the Clerk to enter judgment in each of these cases affirming the decision of the bankruptcy court.
This case was originally assigned to another judge and was transferred to the undersigned judge's docket on October 16, 2017.
The abusive tone that Jenkins employs toward the other parties in her filings in this appeal is nothing new. See Jenkins v. Eaton , No.
Reference
- Full Case Name
- IN RE: Lindsay JENKINS, Debtor-Appellant. Lindsay Jenkins v. Select Portfolio Servicing, Inc. as Agent for U.S. Bank, N.A.
- Cited By
- 1 case
- Status
- Published