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In re Onyeabor

United States Court of Appeals, Tenth Circuit

October 9, 2013


(BAP No. 11-117-UT) (BAP)

Before BRISCOE, Chief Judge, ANDERSON, Circuit Judge, and BRORBY, Senior Circuit Judge.


Stephen H. Anderson Circuit Judge.

Miriam Onyeabor, appearing pro se, appeals from a decision of the Bankruptcy Appellate Panel (BAP) affirming the bankruptcy court's orders converting her Chapter 13 case to a Chapter 7 case and denying reconsideration of the conversion order. We have jurisdiction under 28 U.S.C. § 158(d)(1), and we affirm.


Ms. Onyeabor filed a voluntary Chapter 13 petition on April 5, 2011, and a Chapter 13 plan on April 21, 2011. The plan proposed sixty monthly payments of $445 to the Chapter 13 Trustee and an unspecified monthly payment directly to several creditors (who are not parties to this appeal) holding mortgages against Ms. Onyeabor's commercial and residential properties.

The appellees, Centennial Pointe Property Owners Association (the POA) and LEBR Associates, LLC (LEBR), jointly filed a proof of claim asserting secured claims in the amount of $385, 097.07 (POC #7). That sum included $124, 351.23 attributable to two Utah state-court judgments against Ms. Onyeabor for unpaid POA assessments, interest, and attorney's fees (the Judgment Lien).[1] That amount was secured by liens against commercial properties Ms. Onyeabor owned in the Centennial Pointe development and against her residence. The balance of POC #7 was for unpaid POA assessments post-dating the period covered by the Judgment Lien and for insurance, utilities, maintenance, repair, and collection costs accrued since July 30, 2010. This balance was secured by liens against Ms. Onyeabor's Centennial Pointe properties.

The POA and LEBR also filed a joint objection to confirmation of Ms. Onyeabor's plan, asserting that it was filed in bad faith because it (1) failed to accurately disclose all her assets and liabilities, (2) failed to provide for payment of their secured claim, and (3) was otherwise infeasible because Ms. Onyeabor could not make payments under the plan. Other parties also filed objections to confirmation, including the Chapter 13 Trustee and the Salt Lake County (SLC) Treasurer. The Trustee complained about missing information, procedural violations, and improper deductions. The SLC Treasurer objected on the ground that the plan failed to provide for payment of a secured claim for pre-petition property taxes in the amount of $12, 875.24.

Ms. Onyeabor filed an objection to POC #7. She contested whether the claim was secured and nondischargeable, whether the POA and LEBR had standing to file it, and whether there was sufficient substantiation of the amount in excess of the Judgment Lien.

On August 12, 2011, the POA and LEBR jointly filed a motion to dismiss the Chapter 13 case or to convert it to a Chapter 7 case under 11 U.S.C. § 1307(c), arguing that Ms. Onyeabor did not file her petition or plan in good faith.

On October 6, 2011, the bankruptcy court held a hearing on the motion to dismiss or convert and on Ms. Onyeabor's objection to POC #7. Although Ms. Onyeabor was initially represented by counsel at the hearing, she discharged her attorney during the hearing and represented herself. The court rendered an oral decision that the case should be converted to Chapter 7 because Ms. Onyeabor had filed her plan in bad faith. Specifically, the court found that the plan made no provision for repayment of the POA's Judgment Lien, the SLC Treasurer's claim for unpaid pre-petition property taxes, or another creditor's claim for $23, 558.76 in pre-petition property taxes it had paid on Ms. Onyeabor's behalf. The court further found that Ms. Onyeabor's income was insufficient to support her plan or even the Judgment Lien.

The court also noted that although Ms. Onyeabor's case had been pending for six months, she had not addressed the Trustee's objections or made any effort to amend the plan. Further, the court found that her bankruptcy filing was motivated by a desire to avoid paying the POA and LEBR. The court observed that there had been a long, contentious relationship between Ms. Onyeabor and the POA/LEBR that involved state-court litigation and continued with Ms. Onyeabor's steadfast insistence, up to and including the hearing on the motion to convert, that she had no legal obligation to pay ongoing POA assessments despite a contrary state-court judgment. Thus, the bankruptcy court concluded that Ms. Onyeabor failed to articulate any potentially feasible plan and granted the motion to convert. The court also determined that Ms. Onyeabor's objection to POC #7 was moot in light of the conversion.

When Ms. Onyeabor, still pro se, sought reconsideration of the conversion order, the bankruptcy court held another hearing and denied the motion to reconsider. The court rejected Ms. Onyeabor's argument that the POA was not properly represented in the bankruptcy proceedings, stating that the POA was a legal entity and represented by counsel. The court also pointed out that even if LEBR was not entitled to advance claims in the bankruptcy proceeding, the POA was a judgment creditor entitled to do so with respect to at least a minimum of $94, 000 of the Judgment Lien, which Ms. Onyeabor agreed was secured. The court further stated that it was not the proper place to litigate Ms. Onyeabor's contention that LEBR's principals, the "Railes, " had "hijacked" the POA by directing and controlling its actions in the bankruptcy court despite the fact that LEBR had sold all of its Centennial Pointe property prior to the filing of her petition.

In a lengthy and detailed decision, the BAP affirmed the bankruptcy court's conversion order and its denial of Ms. Onyeabor's motion to reconsider the ...

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