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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12722
Non-Argument Calendar
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D.C. Docket Nos. 0:17-cv-60290-WPD; 16-bkc-24201-RBR
In re: MARTHA E. ECHEVERRY,
Debtor.
________________________________________________________________
MARTHA E. ECHEVERRY,
Plaintiff-Appellant,
versus
ROBIN R. WEINER,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 23, 2018)
Before MARCUS, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Martha Echeverry, a Chapter 13 debtor proceeding pro se, appeals the
district court’s order affirming the bankruptcy court’s dismissal of her bankruptcy
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case. The district court, relying on the facts as asserted in the Trustee’s district
court brief, found that: (1) at a meeting of creditors in the bankruptcy case, the
Trustee provided Echeverry with a list of deficiencies in her proposed Chapter 13
Plan and other filings and informed her that the deficiencies needed to be corrected
before a confirmation hearing that was to be held a month later; and (2) Echeverry
did not appear at that confirmation hearing, and did not correct any of the problems
in the Trustee’s list of deficiencies. The district court concluded that, based on
these findings, the bankruptcy court did not abuse its discretion in dismissing the
case. On appeal, Echeverry argues that the bankruptcy court erred in dismissing
the case: (1) without first holding a hearing; and (2) because “according to the
docket,” the Trustee did not file a notice of deficiency or any objections to
confirmation of her proposed Chapter 13 Plan. After careful review, we affirm.
As the second court of review of a bankruptcy court’s judgment, we
independently examine the factual and legal determinations of the bankruptcy
court and employ the same standards of review as the district court. In re Int’l
Admin. Servs., Inc., 408 F.3d 689, 698 (11th Cir. 2005) (quotation omitted).
Specifically, we review the bankruptcy court’s factual findings for clear error and
the legal conclusions of both the bankruptcy court and the district court de novo.
Id. We review the dismissal of a bankruptcy case “for cause” for abuse of
discretion. In re Piazza, 719 F.3d 1253, 1271 (11th Cir. 2013) (reviewing
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dismissal of Chapter 7 case “for cause” under statute that contains similar
operative language to the “for cause” dismissal provision in Chapter 13). The
abuse of discretion standard allows for a “range of choice” by the lower court, so
long as that choice does not constitute a clear error of judgment. In re Rasbury, 24
F.3d 159, 168 (11th Cir. 1994).
Although we liberally construe briefs filed by pro se litigants, issues not
briefed on appeal by a pro se litigant are deemed abandoned. Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008); see also Albra v. Advan, Inc., 490 F.3d 826,
829 (11th Cir. 2007) (holding that pro se litigants are required to conform to
procedural rules). We’ve also held that a party fails to adequately “brief” an issue
when she does not “plainly and prominently” raise it in her brief. Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). In other words, an
appellant abandons a claim when she either makes only passing references to it or
raises it in a perfunctory manner without supporting arguments or authority. Id.
When appealing a bankruptcy-court order to the district court, the appellant
must designate the items to be included in the record on appeal, including
transcripts of oral rulings and any transcript ordered. Fed. R. Bankr. P.
8009(a)(1)(A), (4). To challenge a finding or conclusion as unsupported by, or
contrary to the evidence, the appellant must designate the transcript of any relevant
testimony or exhibits as a part of the record on appeal. Id., 8009(b)(5). Similarly,
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the Federal Rules of Appellate Procedure specify that if an appellant intends to
urge on appeal that a finding or conclusion is unsupported by the evidence, the
appellant must include in the record a transcript of all evidence relevant to that
finding or conclusion. Fed. R. App. 10(b)(2). A pro se litigant’s pleadings are
construed liberally, but pro se litigants must nonetheless conform to procedural
rules, including the requirement that an appellant provide relevant transcripts for
the record on appeal. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002)
(discussing the requirements of Fed. R. App. P. 10(b)(2), which has the same
requirements as Fed. R. Bankr. P. 8009(b)(5)). We’ve explained that an appellant
has the burden “to ensure the record on appeal is complete, and where a failure to
discharge that burden prevents us from reviewing the district court’s decision we
ordinarily will affirm the judgment.” Selman v. Cobb Cty. Sch. Dist., 449 F.3d
1320, 1333 (11th Cir. 2006); see also Pensacola Motor Sales Inc. v. E. Shore
Toyota, LLC, 684 F.3d 1211, 1224 (11th Cir. 2012). In Selman, we referred to this
as the “absence-equals-affirmance rule.” 449 F.3d at 1333.
The Bankruptcy Code provides that, upon request by a party in interest and
after notice and a hearing, a Chapter 13 case may be dismissed “for cause,”
including failure to commence making timely plan payments; denial of
confirmation of a Chapter 13 plan; and material default by the debtor of a
confirmed plan. 11 U.S.C. § 1307(c). The Code further provides that if a debtor
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was required by applicable law to file a tax return, she must “file with appropriate
tax authorities all tax returns for all taxable periods ending during the 4-year period
ending on the date of the filing of the petition.” Id. § 1308(a). It requires the
debtor to commence making Chapter 13 plan payments not later than 30 days after
the date of the filing of the plan in the amount proposed in the plan. Id. §
1326(a)(1)(A). The Code instructs the bankruptcy court to confirm a plan if, inter
alia, it complies with the terms of Chapter 13, and if the debtor will be able to
make all payments under the plan and comply with the plan. Id. § 1325(a)(1), (6).
Finally, the Federal Rules of Bankruptcy Procedure provide that the
“business of the” meeting of creditors “shall include the examination of the debtor
under oath . . . .” Fed R. Bankr. P. 2003(b)(1). Any examination under oath at that
meeting “shall be recorded verbatim,” and upon request of any entity, “the United
States trustee shall certify and provide a copy or transcript of such recording at the
entity’s expense.” Id., 2003(c).
Here, Echeverry argues that the bankruptcy court erred in dismissing the
case: (1) without first holding a hearing; and (2) because “according to the docket,”
the Trustee did not file a notice of deficiency or any objections to confirmation of
her proposed Chapter 13 Plan. However, Echeverry did not include in the record a
transcript of the evidence relevant to the issues she challenges. For starters,
Echeverry failed to order transcripts or otherwise provide a record of the
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proceedings that occurred at the confirmation hearing, and the bankruptcy court’s
order denying confirmation and dismissing the case does not set forth the
reasoning for its decision. Without this transcript, we are left to guess as to the
court’s reasoning and as to what transpired at that hearing in terms of the problems
with the proposed Chapter 13 Plan and the Trustee’s asserted deficiencies. Nor
can we determine whether the bankruptcy court found that Echeverry received the
Trustee’s list of deficiencies, and whether she failed to correct them. A record was
also ostensibly created, according to the Federal Rule of Bankruptcy Procedure
2003(b)(1), (c), at the meeting of creditors she admits she attended, yet, again, she
failed to obtain a transcript of that proceeding as well. Echeverry does not
expressly deny that the Trustee provided her with the list of deficiencies at that
meeting, nor that the deficiencies were indeed present in her case. Because she
failed to order transcripts or otherwise provide a record of the proceedings that
occurred at the meeting of creditors, or at the confirmation hearing, and records
from those hearings are not otherwise available to us, we are unable to conduct a
full and meaningful review of the case, and affirm under the absence-equals-
affirmance rule. Pensacola Motor Sales Inc., 684 F.3d at 1224.
In any event, Echeverry has also arguably abandoned any challenge to the
district court’s findings. Although she asserted in her original brief to the district
court that the “Trustee did not send any notice” of the deficiencies, she never
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replied to the Trustee’s brief nor challenged the Trustee’s assertion that the notice
was provided to her at the hearing, and she never moved the district court to
reconsider after it found in its order that she received the list of deficiencies. She
now claims on appeal that the Trustee’s list or “notice” of deficiencies, “according
to the Docket,” was never filed or “was not properly filed.” She does not,
however, deny receiving the list at the meeting of creditors, which she admits she
attended. She has thus abandoned any challenge to the district court’s finding that
she received the list of deficiencies, which informed her that she needed to correct
them prior to the confirmation hearing. Timson, 518 F.3d at 874. Because she
never replied to the Trustee’s brief nor challenged the Trustee’s other claims, and
never moved the district court to reconsider anything, Echeverry likewise has
abandoned her challenges to the lack of notice and a hearing, and to the claims that
she was behind in making Plan payments, failed to appear at the January 19, 2017
confirmation hearing, failed to file tax returns, filed a certificate showing that she
completed credit counseling after she filed her Chapter 13 petition, had calculation
errors in her plan. 11 U.S.C. §§ 1308(a), 1325(a)(1), (6), 1326(a)(1)(A).
For these reasons, we are compelled to conclude that the bankruptcy court
did not abuse its discretion in dismissing the case. Notably, nothing in the record
suggests that dismissal of the case with these deficiencies as “cause” was outside
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the range of reasonable choices. In re Rasbury, 24 F.3d at 168. Accordingly, we
affirm. 1
AFFIRMED.
1
What’s more, the Bankruptcy Code provides that “an individual may not be a debtor
under this title unless” she has, during the 180-day period ending on the date the petition was
filed, received from an approved provider a briefing that outlines the opportunities for available
credit counseling and assistance. 11 U.S.C. § 109(h)(1) (referencing 11 U.S.C. § 111(a)’s
criteria for approved providers). Although we’ve not addressed, in a published opinion, the
consequences of failing to fulfill this requirement, the Sixth Circuit Bankruptcy Appellate Panel
has persuasively held that a putative debtor who fails to complete this requirement prior to filing
a petition is not a debtor, and that the case is subject to dismissal. In re Ramey, 558 B.R. 160,
163-64 (6th Cir. B.A.P. 2016) (persuasive authority). The only exceptions to this requirement
apply (1) where the debtor, due to incapacity, disability, or active military duty, is unable to
complete the requirement, or (2) where the debtor describes exigent circumstances that merit a
waiver of the requirement, and states that she requested credit counseling services but was
unable to obtain them within seven days of the request. 11 U.S.C. § 109(h)(3), (4).
Here, Echeverry’s certificate showed that she completed her credit counseling after she
filed her petition, and the bankruptcy clerk’s notice of deficiency, entered the same day that
Echeverry filed her petition, clearly indicated that failure to file a certification showing
compliance with this requirement could result in dismissal of the bankruptcy case. It is also
worth noting that this was Echeverry’s sixth Chapter 13 filing in as many years, and that each of
her previous five filings were also dismissed prior to confirmation. Thus, although the district
court did not base its dismissal on this ground, the record supports the conclusion that Echeverry
failed to comply with the Bankruptcy Code’s plain language requirement that a debtor complete
the counseling prior to the filing of the case. See Wright v. City of St. Petersburg, Fla., 833 F.3d
1291, 1294 (11th Cir. 2016) (holding that we will affirm for any reason supported by the record,
regardless of whether it was relied upon below); see also In re Ramey, 558 B.R. at 163-64 (6th
Cir. B.A.P. 2016).
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Martha E. Echeverry v. Robin R. Weiner
Combined Opinion