Case: 17-12855 Date Filed: 12/07/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12855
Non-Argument Calendar
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D.C. Docket Nos. 1:16-cv-25119-KMW; 16-bkc-16898-RAM
In Re: MIRIAM SOLER,
Debtor.
__________________________________________________________________
MIRIAM SOLER,
Plaintiff - Appellant,
versus
CAPITAL ONE AUTO FINANCE,
a Division of Capital One, N.A.,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(December 7, 2018)
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Before JILL PRYOR, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Miriam Soler, proceeding pro se, challenges the district court’s dismissal of
her appeal from the bankruptcy court’s order closing her Chapter 7 bankruptcy
proceedings. Liberally construing Soler’s contentions, she asserts that the district
court erred in dismissing her appeal because the bankruptcy court violated her due
process rights (1) by closing her Chapter 7 bankruptcy case before she could file
proofs of claim on behalf of her creditors, (2) by converting her motion for
reconsideration into a motion to reopen even though her case had not yet been
closed, and (3) by dismissing her claim challenging the validity of a mortgage on
her residence. After careful review, we affirm. 1
First, in a voluntary Chapter 7 case, a proof of claim is timely if it is filed no
later than 70 days after the order for relief under that Chapter. Fed. R. Bankr. P.
3002(c). The commencement of a voluntary case under Chapter 7 constitutes the
order for relief. 11 U.S.C. § 301. If a creditor does not timely file a proof of
claim, the debtor or trustee may file one on the creditor’s behalf within 30 days
after the expiration of the applicable time for filing claims. Fed. R. Bankr. P. 3004.
1
In the bankruptcy context, we sit “as a ‘second court of review’ and thus examine[]
independently the factual and legal determinations of the bankruptcy court,” employing the same
standards of review as the district court. In re Optical Techs., Inc., 425 F.3d 1294, 1299–300
(11th Cir. 2005) (quotation omitted). We review the bankruptcy court’s factual findings for clear
error and the bankruptcy court’s and district court’s legal conclusions de novo. Id. at 1300.
2
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Here, Soler filed her voluntary petition on May 12, 2016. Accordingly, the
time for a creditor to file a proof of claim expired 70 days later, on July 21, 2016,
and Soler’s time to file a proof of claim on behalf of a creditor expired 30 days
after that, on August 20, 2016. See Fed. R. Bankr. P. 3002(c), 3004. Because no
proofs of claim had been filed by that date, the bankruptcy court discharged Soler
on September 13, 2016. Soler did not file any proofs of claim until September 26,
2016―13 days after her time to do so had expired. Accordingly, Soler has failed
to show that the bankruptcy court erred by closing her case when it did.
Second, Soler’s assertion that the bankruptcy court erroneously required her
to file her motion for reconsideration as a motion to reopen even though her case
had not yet been closed is belied by the record, as the bankruptcy court had closed
her case before she filed the motion. Moreover, and in any event, as a practical
matter the bankruptcy court’s decision had no negative effect on Soler because the
court accepted her pleading without requiring a filing fee and addressed all of the
arguments that she raised in support of her motion.
Lastly, the district court appropriately dismissed Soler’s claim challenging
the legality of Chase’s mortgage on her residence because it was not properly
raised before the bankruptcy court or in Soler’s district court brief, and could not
have been litigated in her bankruptcy proceeding, in any event. See Johnson v.
3
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Home State Bank, 501 U.S. 78, 83 (1991); In re Espino, 806 F.2d 1001, 1002 (11th
Cir. 1986).
AFFIRMED.
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