United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
appellant Thomas Lee Anderson appeals a final decision by the
United States Bankruptcy Court for the Western District of
Wisconsin dismissing his case for a violation of a previous
court order and Anderson's failure to prosecute his case.
Dkt. 1; B. Dkt. 73, at 16:7-14. Anderson also has filed an
emergency motion for injunctive relief asking that the court
stop the sheriff's sale of his house that was scheduled
for December 6, 2016. Dkt. 16.
reasons explained below, the bankruptcy court did not err
when it dismissed Anderson's case, and there are no
grounds for stopping the sheriff's sale. Accordingly, the
court will affirm the bankruptcy court's decision and
deny Anderson's motion for injunctive relief.
bankruptcy case has its roots in a state-court foreclosure
action. On January 23, 2012, Bank of America, N.A. filed a
foreclosure action in the Circuit Court for Eau Claire County
against Anderson and his wife, Barbara Anderson. Bank of
Am. NA v. Barbara E. Anderson, No. 12-cv-54 (Eau Claire
Cty. Cir. Court). The circuit court entered a judgment of
foreclosure on June 22, 2012. Id.,
aff'd 2014 WI.App. 97, 356 Wis.2d 830, 855
N.W.2d 720 (per curiam). During the four years since that
judgment, Anderson has been fighting the foreclosure action
at all levels of the Wisconsin state court system and in the
federal district and bankruptcy courts. See, e.g.,
id.; Anderson v. Cramer, No. 16-cv-43 (W.D.
Wis. filed Jan. 19, 2016); Anderson v. Nabke, No.
15-cv-835 (W.D. Wis. filed Dec. 30, 2015); Anderson v.
United States, No. 15-cv-812 (W.D. Wis. filed Dec. 18,
2015); In re Anderson, No. 15-13157 (Bankr. W.D.
Wis. filed Aug. 31, 2015).
19, 2015, Bank of America assigned its right, title, and
interest in the 2012 judgment to appellee Bayview Loan
Servicing, LLC. Dkt. 16-2. Although Bayview scheduled a
sheriff's sale for the property on September 1, 2015,
Anderson filed a Chapter 13 bankruptcy petition on August 31,
2015, which resulted in a stay of the sale. In re
Anderson, No. 15-13157, Dkt. 1. However, on November 17,
2015, the bankruptcy court found that Anderson failed to file
required documents and dismissed his petition for “want
of prosecution or because no Plan has been confirmed.”
Id., Dkt. 28.
scheduled another sheriff's sale for February 2, 2016,
but Anderson filed a second Chapter 13 bankruptcy petition
before the sale could take place. In re Anderson,
No. 16-10290 (Bankr. W.D. Wis. filed Feb. 2, 2016). Bayview
moved to dismiss the petition under 11 U.S.C. §
109(g)(1), which bars debtors from refiling for bankruptcy
within 180 days of the dismissal of a previous petition for
failure “to abide by orders of the court, or to appear
before the court in proper prosecution of the case.” B.
Dkt. 24. The Trustee also moved to dismiss the case for
failure to prosecute, arguing that Anderson had failed to
comply with court orders and file required the bankruptcy
plan. B. Dkt. 38. The bankruptcy court dismissed
Anderson's case on April 7, 2016, B. Dkt. 54, and that
decision is the subject of Anderson's current appeal.
Bayview subsequently rescheduled the sheriff's sale for
December 6, 2016. Dkt. 16-1.
a bankruptcy appeal, issues of law are reviewed de novo;
factual findings may be set aside only if they are clearly
erroneous.” In re Kelly, 392 B.R. 750, 754
(W.D. Wis. 2007) (citing Fed.R.Bankr.P. 8013). “A
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” In re Smith, 582
F.3d 767, 777 (7th Cir. 2009) (quoting United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
contends that the bankruptcy court erred in dismissing his
case because (1) the bankruptcy court failed to make any
findings of fact or conclusions of law in its order; (2)
Bayview did not have “standing” to file a motion
to dismiss in his case; (3) the bankruptcy court relied on
speculative and hearsay evidence that Bayview was a creditor
because Bayview had not yet filed a proof of claim with the
court; (4) the bankruptcy judge improperly gave legal advice
at the hearing when it told Bayview to file the assignment of
judgment; and (5) the Trustee did not have legitimate grounds
on which to file its motion to dismiss.
does not explain his first contention in any detail, arguing
only that even though the bankruptcy court stated in its
April 7, 2016 order that it based its decision on “the
Court's findings and conclusions as entered on the
record, ” Dkt. 1-1, it did not state its findings
anywhere in the record. However, a review of the transcript
of the motion hearing held by the bankruptcy court shows that
Anderson is mistaken; the judge entered her findings on the
record at the hearing. See B. Dkt. 73, at 15-16, 18.
second, third, and fourth contentions relate to Bayview's
interest in this case and whether the bankruptcy court could
base its decision on Bayview's motion to dismiss.
Anderson does not challenge Bayview's contention and the
bankruptcy court's holding that his petition violated the
180-day bar on successive petitions in 11 U.S.C. §
109(g)(1), which is supported by the record. Instead, he
argues that Bayview did not have standing to file a motion to
dismiss in his bankruptcy case because it did not file a
proof of claim or prove that it had been assigned a valid
judgment following the state court foreclosure action.
Bayview points out, a party in interest, including a
creditor, “may raise and may appear and be heard on any
issue in a case.” 11 U.S.C. § 109(b). A creditor
is “any entity that has a claim against the debtor that
arose at the time of or before the order for relief
concerning the debtor.” 11 U.S.C. § 101(10)(A).
The term “entity” includes any “person,
” and corporations like Bayview are considered persons
under the bankruptcy code. 11 U.S.C. §§ 101(15),
(41). Because the bankruptcy court found and the record
confirms that Bank of America assigned its foreclosure
judgment on Anderson's property to Bayview in 2015,
Bayview is a creditor with standing to appear in
Anderson's bankruptcy case.
takes issue with the fact that Bayview did not file a proof
of claim with the bankruptcy court before filing its motion.
But nothing in the bankruptcy code requires this.
Bayview's claim arose before Anderson filed his second
petition for bankruptcy, which is all that is required under
§ 101(10)(A). See also 11 U.S.C. § (5)(A)
(“Claim” means “right to payment, whether
or not such right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured, or
unsecured.”). Further, at the hearing on the motion to
dismiss, Bayview explained that it could not yet file the
assignment of judgment in state court because Anderson had
twice filed for bankruptcy. B. Dkt. 73, at 7-8. The
bankruptcy judge then ordered Bayview to file the assignment
in her court. Id. at 17. Although Anderson