Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CFCU Federal Credit Union v. Frisbie

September 18, 2009

CFCU FEDERAL CREDIT UNION, APPELLANT,
v.
TAMELA S. FRISBIE, APPELLEE.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION and ORDER

INTRODUCTION

Siragusa, J. Appellant, CFCU Federal Credit Union ("CFCU"), appeals from an Order of the Honorable John C. Ninfo II, U.S. Bankruptcy Judge, entered on September 19, 2006, that denied CFCU's motion to dismiss Appellee's, Tamela S. Frisbie ("Frisbie"), Chapter 7 bankruptcy case pursuant to § 521(i)(1). 11 U.S.C. § 521(i)(1) (2005). As more fully discussed below, CFCU never filed an appellate brief. Accordingly, Judge Ninfo's Order is affirmed.

BACKGROUND

On March 14, 2006, Frisbie filed for Chapter 7 bankruptcy, but on May 1, 2006, CFCU's lawyer wrote Frisbie a letter observing that she had not filled in parts of Schedules I and J. On May 31, 2006, CFCU's lawyer filed a motion to dismiss. On July 21, 2006, a hearing was held on the issue of whether Frisbie's bankruptcy case should in fact be dismissed. Frisbie filed amended versions of Schedules I and J on June 20, 2006. In Schedule I Frisbie responded to the question of whether she had reasonably anticipated an increase or decrease in income in the year following the filing of her petition that, "[i]n November 2005, I quit a much better paying job, where it was too stressful. My income is about 1/2 of what it was." To Schedule J she responded, "[n]one" to the question of whether she reasonably anticipated an increase or decrease in expenses in the year following her filing for bankruptcy.

Section 521(a)(1)(B)(vi) requires a debtor to disclose any reasonably foreseeable increase in income or expenses for the twelve-month period proceeding discharge.*fn1 Judge Ninfo found that, since Frisbie had no reasonably anticipated increases in either her income or expenses, her leaving blank Question 17 of Schedule I and Question 19 of Schedule J was an accurate representation and complied with § 521(a)(1)(B)(vi).

Judge Ninfo issued an Order denying CFCU's motion to dismiss on September 19, 2006. On November 13, 2006, he issued an Order denying CFCU's motion for certification of direct appeal to the Second Circuit. CFCU filed a notice of appeal from the bankruptcy court on November 29, 2006.

STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 158, "the district courts of the United States... have jurisdiction to hear appeals from final judgments, orders and decrees" of a bankruptcy court. 28 U.S.C. § 158(a)(1) (2005). "On an appeal the district court may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings...." Fed. R. Bankr. P. 8013. "Findings of fact... shall not be set aside unless clearly erroneous...." Id.

Under this standard, the district court is not authorized to engage in independent fact finding and reviews the bankruptcy court's findings only for clear error. The findings of fact can only be set aside by the district court when, after reviewing the evidence, the court is left with the firm and definite conviction that a mistake has been committed.

Bagel Bros. Maple, Inc. v. Ohio Farmers, Inc., 279 B.R. 55, 61 (Bankr. W.D.N.Y. 2002) (citations and internal quotations omitted). However, when a district court is reviewing conclusions of law, a de novo standard is used. Id.; see also, In re Enron North Am. Corp., 312 B.R. 27, 28 (Bankr. S.D.N.Y. 2004).

ANALYSIS

In its pertinent part, Federal Rule of Bankruptcy 8009 states:

(a) Briefs. Unless the district court or the bankruptcy appellate panel by local rule or by order excuses the filing of briefs ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.