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In re Rivera

February 19, 2013

REUBEN HADDOCK RIVERA, A/K/A REUBEN HADDOCK III RIVERA, DEBTOR.
REUBEN HADDOCK RIVERA, APPELLANT,
v.
ASUME AND ALEJANDRO OLIVERAS RIVERA, CHAPTER 13 TRUSTEE, APPELLEES.



Appeal from the United States Bankruptcy Court for the District of Puerto Rico (Hon. Enrique S. Lamoutte, U.S. Bankruptcy Judge) Bankruptcy Case No. 12-00341-ESL

The opinion of the court was delivered by: Kornreich, U.S. Bankruptcy Appellate Panel Judge.

FOR PUBLICATION

Before Hillman, Boroff, and Kornreich, United States Bankruptcy Appellate Panel Judges.

The debtor, Reuben Haddock Rivera, appeals the bankruptcy court's order denying his request for relief from the order dismissing his chapter 13 case and prohibiting him from filing another case for 18 months. We AFFIRM.

BACKGROUND

In January 2012, the debtor filed a petition for chapter 13 relief with schedules and a plan in the United States Bankruptcy Court for the District of Puerto Rico. This was his third attempt at such relief. His first petition, filed in 2009, was dismissed after confirmation because of his failure to make child support payments. His second petition, filed in 2010, was dismissed on similar grounds. Administracion para el Sustento de Menores (known as "ASUME"), the agency responsible for enforcing child support obligations in Puerto Rico, was active in the two prior cases. ASUME filed a proof of claim in the current case for outstanding child support in the amount of $46,155.00, asserting this debt to be a domestic support obligation ("DSO") as defined in § 101(14A).*fn1

The trustee held open the first meeting of creditors to allow the debtor to file tardy state and federal tax returns and supply the trustee with copies of those returns by a fixed deadline. The trustee also asked the debtor to furnish amended schedules and other information including evidence of his post-petition child support payments by the same deadline. The debtor failed to comply with all of these requests and the trustee moved to dismiss the case. ASUME objected to confirmation of his plan because of the debtor's failure to make post-petition child support payments.

Following the confirmation hearing, the bankruptcy court entered the following order: "Upon debtor's failure to appear at this hearing, failure to file tax returns as required by section 1308, failure to make any post petition DSO payments, and debtor being a repeat filer, the case is hereby dismissed with a bar to refiling for a period of eighteen (18) months." The debtor did not appeal. Instead, after the appeal period lapsed, he asked the bankruptcy court to reconsider under Rule 60(b)(1) and (6).

Emphasizing the excusable neglect aspect of Rule 60(b)(1), the debtor averred: he was prejudiced by the dismissal order; the delays attributable to his conduct were minor; he lacked awareness of a duty to supply the trustee with copies of his tax returns; he was current with his DSO payments; he was surprised by ASUME's objection to confirmation; and he had acted in good faith. He also asserted: his co-parent had lost custody of their minor child; he had given copies of his tax returns to the trustee; his attendance at the confirmation hearing was not mandatory; and he had filed only two prior bankruptcy petitions, not four.

ASUME opposed the debtor's request for relief, emphasizing: his poor payment history; the bad faith implications of his prior bankruptcy filings; and the insignificance of his co-parent's actual custody of the minor child. With respect to excusable neglect, ASUME stated: it had been prejudiced by the debtor's conduct; the delays had a negative impact on ASUME and the integrity of the bankruptcy system; the misconduct of the debtor was within his control; and the debtor had shown an overall lack of good faith.

The bankruptcy court entered the following order without a hearing:

The motion filed by Debtor requesting reconsideration of dismissal (docket # 23) is hereby denied. The dismissal order is final and debtor has not shown excusable neglect. Moreover, the court agrees with the opposition by ASUME (dkt. #25).

This appeal followed.

The debtor specified only the order denying Rule 60(b) relief in his notice of appeal; however, from his statement of issues and arguments we infer that he is attacking that order and the underlying order dismissing his chapter 13 ...


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