Case: 11-20192 Document: 00511823037 Page: 1 Date Filed: 04/16/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 16, 2012
No. 11-20192 Lyle W. Cayce
Summary Calendar Clerk
In the Matter of: JOEL DONALD MALLORY, JR., doing business as Mallory
& Associates, also known as Donald Mallory,
Debtor
------------------------------
JOEL DONALD MALLORY, JR.,
Appellant
v.
WILLIAM E. HEITKAMP,
Appellee
Appeals from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-1592
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
A debtor appeals from the district court’s affirmance of the bankruptcy
court’s dismissal of his Chapter 13 bankruptcy case. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-20192 Document: 00511823037 Page: 2 Date Filed: 04/16/2012
No. 11-20192
On January 17, 2007, Joel Donald Mallory, Jr., filed a Chapter 13 Petition
in the United States Bankruptcy Court for the Southern District of Texas. Three
years later, William Heitkamp, the bankruptcy trustee, filed a motion to dismiss
on the basis that Mallory failed to make payments under 11 U.S.C. § 1326, did
not implement an ACH authorization pursuant to local rules, failed to provide
for payment of secured and priority claims, failed to provide the proper
information to allow the trustee to comply with 11 U.S.C. § 1302(d), and caused
an unreasonable delay prejudicial to the creditors of the estate.
At an April 20, 2010 hearing on the trustee’s motion to dismiss, the
bankruptcy court concluded that the multiple missed payments under the plan
were not disputed and granted the trustee’s motion to dismiss on that basis. The
bankruptcy court dismissed the case with prejudice. Mallory filed a motion for
reconsideration, which the bankruptcy court denied.
Mallory appealed to the district court, which affirmed the bankruptcy
court’s dismissal. The district court concluded that under the Bankruptcy Code
the bankruptcy court was within its discretion to dismiss Mallory’s petition on
the basis of a failure to make payments under the plan. The district court also
ruled on a number of other issues Mallory presented in his appeal to that court.
On appeal to this court, Mallory presents eight issues. He contends
generally that the bankruptcy court erred under a totality of circumstances
approach under multiple provisions of the Bankruptcy Code and in equity.
Mallory also contends that there were issues with various proofs of claim the
bankruptcy court failed to address prior to dismissing his petition. Because we
conclude that the bankruptcy court did not abuse its discretion in dismissing his
case, we do not reach the additional issues Mallory presents.
Mallory also argues that there are outstanding jurisdictional issues. He
argues that payments he made were distributed by the trustee to parties who
lacked standing. The issue about standing that Mallory raises does not impact
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No. 11-20192
his standing, which is all that matters for our review of the bankruptcy court’s
dismissal of his case. See, e.g., Brown v. Offshore Specialty Fabricators, Inc., 663
F.3d 759, 769-70 (5th Cir. 2011). Whether there would have been jurisdictional
issues with the potential confirmation of a plan is not before us.
Our review of a bankruptcy court’s dismissal under 11 U.S.C. § 1307 is for
an abuse of discretion. See Jacobsen v. Moser (In re Jacobsen), 609 F.3d 647, 652
(5th Cir. 2010). Section 1326(a)(1) of Title 11 of the United States Code provides
that “[u]nless the court orders otherwise, the debtor shall commence making
payments not later than 30 days after the date of the filing of the plan or the
order for relief, whichever is earlier . . . .” The bankruptcy court may dismiss a
case for cause when a debtor fails to make timely payments under Section 1326.
11 U.S.C. § 1307(c)(4).
Mallory does not dispute that he failed to make multiple payments
pursuant to Section 1326. Also, he does not argue that the dismissal was not “in
the best interests of creditors and the estate.” See 11 U.S.C. § 1307(c). Instead,
he argues that under equity and the totality of the circumstances his case should
not have been dismissed. Mallory argues that the plan included increased
payments in the third year and when the payments increased to the new level
he was no longer able to make them. In support of his argument, Mallory
highlights his good faith attempts to reorganize over three years, tendering over
$60,000 to the trustee, his inability to pay the increased payments, issues with
standing of various claimants, and the failure of the trustee to execute his
statutory duties. None of these arguments change Mallory’s failure to make
payments under the plan. The bankruptcy court acted within its discretion
under Section 1307 in dismissing his case on that basis alone.
AFFIRMED.
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