FILED
U.S. Bankruptcy Appellate Panel
of the Tenth Circuit
NOT FOR PUBLICATION *
June 7, 2019
UNITED STATES BANKRUPTCY APPELLATE PANEL
Blaine F. Bates
OF THE TENTH CIRCUIT Clerk
_________________________________
IN RE SHERWIN V. KOYLE, BAP No. UT-18-101
Debtor.
__________________________________
SHERWIN V. KOYLE, Bankr. No. 18-25827
Chapter 13
Appellant,
v.
OPINION
LON A. JENKINS, Chapter 13 Trustee and
WELLS FARGO BANK, N.A.,
Appellees.
_________________________________
Appeal from the United States Bankruptcy Court
for the District of Utah
_________________________________
Submitted on the briefs. ∗∗
_________________________________
Before ROMERO, JACOBVITZ, and MCNAMARA, 1 Bankruptcy Judges.
*
This unpublished opinion may be cited for its persuasive value, but is not
precedential, except under the doctrines of law of the case, claim preclusion, and issue
preclusion. 10th Cir. BAP L.R. 8026-6.
∗∗
The parties did not request oral argument, and after examining the briefs and
appellate record, the Court has determined unanimously that oral argument would not
materially assist in the determination of this appeal. See Fed. R. Bankr. P. 8019(b). The
case is therefore ordered submitted without oral argument.
1
Thomas B. McNamara, Bankruptcy Judge, United States Bankruptcy Court for the
District of Colorado, sitting by designation.
_________________________________
MCNAMARA, Bankruptcy Judge.
_________________________________
Debtor-Appellant Sherwin V. Koyle (the “Debtor-Appellant”) filed for protection
under Chapter 13 of the Bankruptcy Code. Thereafter, the Chapter 13 Trustee moved to
dismiss the bankruptcy case for lack of good faith. 2 The Debtor-Appellant opposed
dismissal. 3 After notice to the parties, the bankruptcy court conducted a hearing on the
dismissal issue; however, the Debtor-Appellant failed to show up and participate. 4
Exactly what happened at the hearing is a bit of an appellate mystery since the Debtor-
Appellant did not include a transcript of the hearing in the record on appeal. However,
shortly after the hearing (on November 27, 2018), the bankruptcy court entered an order
dismissing the bankruptcy case. 5 Relying on 11 U.S.C. § 109(g), the bankruptcy court
also imposed “a bar to refiling any petition for 180-days beginning November 8, 2018
[the date of the hearing].” 6 The Debtor-Appellant appealed. He did not contest dismissal
of his bankruptcy case. Instead, he took issue only with the 180-day bar imposed on
refiling another bankruptcy case. 7 He did not request a stay of such injunction.
2
Appellant’s App. at 11.
3
Appellant’s App. at 21.
4
Appellant’s App. at 2; Appellant’s Br. 6.
5
Appellant’s App. at 1.
6
Appellant’s App. at 2.
7
Appellant’s Br. 3 (“Appellant requests that the Court reverse the Order Granting
Motion to Dismiss with Prejudice issued on November 27, 2018 . . . pursuant to 11
U.S.C. § 109(g) regarding a bar to refiling any petition for 180 days beginning November
8, 2018, and ending May 7, 2019. Appellant requests that the bar only be lifted.”).
2
Both the Debtor-Appellant and the Appellees, Lon Jenkins, Chapter 13 Trustee,
and Wells Fargo Bank, N.A., agree that the 180-day prohibition against the Debtor-
Appellant refiling for bankruptcy protection expired on May 7, 2019. Today is June 7,
2019. Because the bankruptcy court’s injunction expired a month ago, that is the end of
the appeal. There is nothing for us to do. Binding appellate precedent dictates that the
bankruptcy court’s injunction “is not reviewable inasmuch as 180 days have passed.” 8
So, the Debtor-Appellant can try bankruptcy again — provided that all other
requirements are met — any time he wishes. 9 Accordingly, the appeal is dismissed as
moot.
8
Frieouf v. United States (In re Frieouf), 938 F.2d 1099, 1104 (10th Cir. 1991)
(citing Travelers Ins. Co. v. Don-Lin Farms, 90 B.R. 48 (W.D.N.Y. 1988)). See also
Carey v. Askenase (In re Carey), 221 B.R. 571, 572 (1st Cir. BAP 1998) (“[S]ince any
injunction against refiling has expired, there is presently no reviewable controversy.”
(citing In re Frieouf, 938 F.2d 1099)); Miller v. Deutsche Bank Nat’l Tr. Co. (In re
Miller), No. 14-cv-03112-MSK, 2015 WL 13216407, at *4 (D. Colo. Aug. 7, 2015)
(same).
9
11 U.S.C. § 362(c)(3) may limit the duration of the automatic stay for a debtor’s
successive bankruptcy filing within a one year period.
3