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In Re: Sidney R. Miller

March 15, 2011

IN RE: SIDNEY R. MILLER, APPELLANT/ DEBTOR.


The opinion of the court was delivered by: James F. Holderman, Chief Judge:

MEMORANDUM OPINION AND ORDER

Pending before the court is debtor/appellant Sidney Miller's ("Miller") appeal under 28 U.S.C. § 158(a) from the bankruptcy court's May 11, 2010 order in case number 10 B 11741, Judge A. Benjamin Goldgar presiding, granting the Trustee's motion to dismiss for failure to file documents pursuant to 11 U.S.C. §§ 521, 1307, 349(a) and Federal Rule of Bankruptcy Procedure 3015. For the reasons set forth below, the bankruptcy court's May 11, 2010 order is affirmed.

BACKGROUND

On March 18, 2010, Miller filed his Chapter 13 bankruptcy petition in the United States Bankruptcy Court for the Northern District of Illinois. (Case No. 10 B 11741 (Dkt. No. 1).) Michael E. Fryzel, Esq., attempting to recover unpaid attorney's fees, was listed as the sole creditor on the petition. (See Case No. 10 C 4432 (Dkt. No. 12 ("Miller's App. Br.") at 2).) Miller's Chapter 13 schedules and plan were due by April 1, 2010, pursuant to Federal Rule of Bankruptcy Procedure 1007. (Case No. 10 B 11741 (Dkt. No. 1).)In accordance with 11 U.S.C. § 341(a), a creditors meeting was scheduled for April 15, 2010. (Id. (Dkt. No. 2).)

On March 30, 2010, Miller filed a motion to extend his deadline to file the Chapter 13 schedules and plan, asserting that he could not file these documents until he met with his accountant. (Id. (Dkt. No. 10).) On April 6, 2010, the bankruptcy court granted Miller's motion and extended the deadline to file the necessary documents to April 22, 2010. (Id. (Dkt. No. 11).) Recognizing that the § 341(a) creditors meeting remained set for April 15, 2010, the bankruptcy court counseled Miller to attend the meeting and to request a new meeting date from the Trustee if Miller's materials were still not on file at that time. (Case No. 10 C 4432 (Dkt. No. 9 ("4/6/2010 Hr'g. Tr.") at 3:12-4:17).)

The § 341(a) creditors meeting was held, albeit briefly, on April 15, 2010. (See Miller's App. Br. 4.) Miller failed to file the required documents before the meeting, and the Trustee, Marilyn O. Marshall, filed a motion to dismiss on April 16, 2010 for failure to file the required documents under 11 U.S.C. § 521(a)(1). (Id.; see also Case No. 10 B 11741 (Dkt. No. 12).) On April 20, 2010, the Trustee filed a second motion to dismiss based on Miller's alleged lack of cooperation at the April 15 creditors meeting, asserting that Miller "refused to disclose his true address and falsely testified that he 'was not prepared' to answer the question as to where he lives and resides, what he owns and who he owes." (Case No. 10 B 11741 (Dkt. No. 13) ¶ 10.)

On April 22, 2010, Miller filed a second motion to extend the deadline to file his Chapter 13 schedules and plan. (Id. (Dkt. No. 15).) Miller subsequently filed a third motion to extend the deadline on May 3, 2010. (Id. (Dkt. No. 16).) In his May 3, 2010 motion to extend the deadline, Miller argued that he could not prepare his schedules without certain missing federal income tax returns related to currency exchanges that Miller owned. (Id. ¶ 1.) Because the currency exchanges had entered into receivership in 2003, Miller alleged that his ability to recover his missing tax returns was beyond his control. (Id. ¶¶ 2, 5-8.) Miller explained that he came to this understanding after meeting with various IRS agents on April 26, 2010. (Id. ¶ 6.) In addition to the extension of time, Miller asked the bankruptcy court to establish an adversary proceeding "to allow recovery of Exchanges' tax returns from the Illinois Division of Financial Institutions ("IDF") or Receiver Barry Shack." (Id. ¶ 9.) All four motions-the Trustee's two motions to dismiss and Miller's two motions for an extension of the filing deadline-were scheduled for a hearing before the bankruptcy court on May 11, 2010. (Id. (Dkt. No. 17).)

At the May 11, 2010 hearing, the bankruptcy court's questioning initially focused on the April 15 creditors meeting. (Case No. 10 C 4432 (Dkt. No. 9) ("5/11/2010 Hr'g Tr.") at 2-4.) Anthony Olivadoti, on behalf of the Trustee, stated that Miller refused to answer questions about the address listed on his petition and was unprepared to answer any questions about his property. (Id. at 3:13-20.) Miller claimed he "was not prepared" to answer the address question at the April 15 creditors meeting because "[t]he petition is nonspecific as to which address is being requested" and he was "a little concerned about [counsel for the creditor's] disclosure to nonparties not at the [April 15 creditors meeting]" because of previous burglary incidents at Miller's offices. (Id. at 4:2-22.) Miller also contended that the Trustee terminated the meeting after the initial residency question. (Id. at 6:7-25.)

Noting that Miller's Chapter 13 schedules and plan "still [hadn't] been filed" and concluding that Miller was not "pursuing this [bankruptcy case] in the proper spirit," the bankruptcy court (1) granted the Trustee's motion to dismiss for failure to file the requisite documents, and (2) dismissed as moot Miller's motions for time extensions as well as the Trustee's motion to dismiss for lack of cooperation at the April 15 creditors meeting. (Id. at 7:1- 6; Case No. 10 B 11741 (Dkt. Nos. 18--21).) The bankruptcy court rejected Miller's explanation for his failure to file the documents, stating "I don't see what relevance [the 2003 receivership of the currency exchanges] [has] to do with this case." (5/11/2010 Hr'g Tr. at 5:7-17.) Miller filed his notice of appeal on June 29, 2010 after being granted an extension of time to do so. (Case No. 10 B 11741 (Dkt. No. 27).)

LEGAL STANDARD

A district court reviewing a bankruptcy court's ruling on appeal examines findings of fact for clear error and legal conclusions de novo. Tidwell v. Smith, 582 F.3d 767, 777 (7th Cir. 2009). Under a clear error review, this court must not reverse unless it is "left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). A decision left to the discretion of the bankruptcy court is reviewed under an abuse of discretion standard. Wiese v. Cmty. Bank of Cent. Wis., 552 F.3d 584, 588 (7th Cir. 2009). "Generally speaking, a court abuses its discretion when its decision is premised on an incorrect legal principle or a clearly erroneous factual finding, or when the record contains no evidence on which the court rationally could have relied." FCC v. Airadigm Communs., Inc., 616 F.3d 642, 652 (7th Cir. 2010).

ANALYSIS

1. Mootness

The initial issue before this court is whether Miller's appeal is moot. If an appeal is moot, this court generally cannot address the issues before it. "A case is moot when it no longer presents a live case or controversy." Belda v. Marshall, 416 F.3d 618, 620 (7th Cir. 2005). A party must have standing for each form of relief sought during every stage of litigation. Parvati Corp. v. City of Oak Forest, No. 09-1107, 2010 WL 5185835, at *3 (7th Cir. Dec. 23, 2010). In other words, "[t]he requisite interest that must exist at the commencement of the litigation ...


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