Judge Nancy Gertner: ORDER entered; MEMORANDUM AND ORDER RE: Appeal from the Decision of the United States Bankruptcy Court for the District of Massachusetts.(Filo, Jennifer)
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Page 1 UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
In re:
DAHN T. NGUYEN,
Debtor,
)
)
)
)
)
)
)
)
)
)
)
)
DAHN T. NGUYEN,
Appellant,
v.
JOSEPH BRAUNSTEIN
as Chapter 7 Trustee,
Appellee.
GERTNER, D.J.:
C.A. No. 04-12107-NG
MEMORANDUM AND ORDER RE:
APPEAL FROM THE DECISION OF THE
UNITED STATES BANKRUPTCY COURT FOR THE
DISTRICT OF MASSACHUSETTS
October 6, 2005
I. INTRODUCTION
The Appellant/Debtor, Dahn T. Nguyen, seeks a
reversal of the decision of the Bankruptcy Court for the District
of Massachusetts denying her right to convert a bankruptcy case
from Chapter 7 to Chapter 13.
Appellant/Debtor advances three
arguments in support of her appeal.
She argues first that the
language of the U.S. Bankruptcy Code provides for an absolute
right to a one-time conversion from Chapter 7 to Chapter 13;
second, that even if that right is not absolute, her actions do
not amount to the “extreme circumstances constituting bad faith”
required to deny her motion; and third, that an evidentiary
hearing was required for the Bankruptcy Court to deny the motion
to convert.
For the reasons stated below, I find no error by thePage 2 Bankruptcy Court and hereby AFFIRM its judgment.
II.
BACKGROUND
Appellant/Debtor first filed for Chapter 13 bankruptcy on
February 8, 2002.
That proceeding was dismissed on June 10,
2002, before Appellant/Debtor submitted a Chapter 13 plan.
Appellant/Debtor then sold her Brookline property on August
8, 2002.
Between August 8, 2002 and August 20, 2002, she
disbursed $260,000 in proceeds from the sale of the residence to
fifteen individuals to whom she owed money.
On April 8, 2003, Appellant/Debtor filed a voluntary
petition for relief pursuant to Chapter 7 of the U.S. Bankruptcy
Code.
A trustee, the Appellee, Joseph Braunstein, was appointed
to administer the bankruptcy.
On April 29, 2004 the Trustee
conducted an investigation which required a number of documents
from the Appellant/Debtor.
Twelve days after this
investigation, Appellant/Debtor filed a verified motion to
convert from Chapter 7 to Chapter 13, presumably to shield the
fifteen transfers. The Trustee opposed this motion and on June
16, 2004, the Bankruptcy Court denied Appellant/Debtor’s motion
to convert on the ground of bad faith.
The Bankruptcy Court did
not hold an evidentiary hearing.
III. LEGAL ANALYSIS
A.
Standard of Review
This Court has jurisdiction to hear an appeal from a final
order of a bankruptcy court.
See 28 U.S.C. § 158(a).
PursuantPage 3 to Federal Rule of Bankruptcy Procedure 8013, this 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.
The bankruptcy court’s findings of fact
may not be set aside unless clearly erroneous.
law, however, are reviewed de novo.
1299, 1301 (1st Cir. 1992).
Id.
Findings of
In re LaRoche, 969 F.2d
Because the Bankruptcy Court here
made no findings of fact in connection with the
Appellant/Debtor’s motion to convert, its judgment is reviewed de
novo.
B.
Appellant/Debtor Fails To Show That the Right to
Conversion From Chapter 7 To Chapter 13 Is Absolute In
The First Circuit.
Appellant/Debtor first argues that, while in the First
Circuit the right to conversion is not absolute, the majority of
courts throughout the country have recognized an absolute right
to a one-time conversion.
She asks this Court to ignore
controlling First Circuit jurisprudence and adopt an
interpretation of the Bankruptcy Code that allows an absolute
right to a one-time conversion.
This Court declines to do so.
Section 706 of the Bankruptcy Code provides that a
Appellant/Debtor may convert from a Chapter 7 to a Chapter 13
bankruptcy at any time.1
1
Legislative history explains that an
11 U.S.C. § 706.
The Appellant/Debtor may convert a case under this chapter, [Chapter
7], to a case under chapter 11, 12, or 13 of this title at any time,
if the case has not been converted under section 1112, 1208, or 1307Page 4 absolute right to a one-time conversion would encourage
conversion from a liquidation to a repayment plan.
However, the
First Circuit has held that the right to a one-time conversion
may be denied in extreme circumstances constituting bad faith.
Marrama v. Citizens Bank of Massachusetts, 313 B.R. 525, 530-31
(B.A.P. 1st Cir. 2004) (“[T]his Panel has previously held that a
debtor’s one-time right to convert a Chapter 7 case to a Chapter
is not absolute, but may be denied in extreme circumstances
constituting bad faith.”); see also Cabral v. Shamban, 285 B.R.
563, 575 (B.A.P. 1st Cir. 2002)(finding bad faith where debtor
provided misleading testimony, submitted a schedule showing
substantial differences between the liabilities and assets, and
concealed a probable future personal injury settlement); Kuntz v.
Shambam, 233 B.R. 580, 583 (B.A.P. 1st Cir. 1999) (explaining
that a debtor’s one-time right to convert from Chapter 7 to
Chapter 11, 12 or 13 may be denied only in extreme cases
constituting bad faith).
There is therefore no absolute right to a one-time
conversion from Chapter 7 to Chapter 13 in the First Circuit.
C.
Appellant/Debtor’s Actions Constituted Bad Faith And
Thus The Bankruptcy Court Was Permitted To Deny
Conversion.
Appellant/Debtor argues second that, in the First Circuit,
conversion may be denied only in “extreme circumstances”
of this title. Any waiver of the right to convert a case under this
subsection is unenforceable.Page 5 constituting bad faith, which are not present in this case.
Under Marrama, a debtor has no right to convert “in extreme
circumstances constituting bad faith.”
313 B.R. at 530.
The
First Circuit has explained this rule as a way to ensure that
“those who seek shelter of the bankruptcy code do not play fast
and loose with their assets or with the reality of their
affairs.” Id. at 532 (citing Boroff v. Tully, 818 F.2d 106, 110
(1st Cir. 1987)).
In determining bad faith, the Marrama court
looked at the totality of the circumstances. 313 B.R. at 531.
The court examined the actions of the debtor in concealing the
transfer of a residence and the timing of his filing for a motion
to convert (directly after the trustee’s investigation).
Id.
The court ultimately determined that the debtor’s false and
misleading statements and the omission of critical information
from bankruptcy schedules warranted a finding of bad faith.
Id.
at 533.
In another case, In re Porter, the Bankruptcy Court for the
District of Massachusetts found bad faith where the debtor
falsely answered “None” with regard to property transferred
within one year of filing for bankruptcy. 276 B.R. 32, 36-37
(Bkrtcy. D.Mass. 2002).
The circumstances here are analogous to those in Marrama and
Porter.
In the present case, Appellant/Debtor sold her home for
$725,000 ten months prior to the Chapter 7 petition.
She then
disbursed $260,000 from the sale to fifteen individuals.Page 6 However, she did not disclose the sale or disbursement to the
Bankruptcy Court as required by the Bankruptcy Code.
When asked
to list all property transferred within one year preceding the
petition, she responded “None.”
Once the Chapter 7 trustee began his investigation,
presumably to avoid a challenge to the discharge of the fifteen
previously undisclosed debts, Debtor/Appellant moved to convert
to Chapter 13.
In further evidence of bad faith, the
Appellant/Debtor created promissory notes for the fifteen
individuals only after the Trustee requested them, claiming her
son transcribed them from earlier handwritten notes which had
been discarded.
Appellant/Debtor counters any suggestion of bad faith by
alleging incompetent representation by her prior attorney.
She
also claims that she intended to file under Chapter 13 all along.
Appellant/Debtor cites In re Mascolo to bolster her claim of
incompetent representation of counsel.
1974). 505 F.2d 274 (1st Cir.
The court in Mascolo found that a debtor acting on bad
advice of counsel could rebut an inference of fraud.
“We agree
that an explanation by a bankrupt that he had acted upon advice
of counsel who in turn was fully aware of all the relevant facts
generally rebuts an inference of fraud.”
Id. at 277 (citing In
re Topper, 229 F.2d 691, 693 (3d Cir. 1956) (holding that
reliance on advice of counsel “may be an excuse for an inaccurate
or false oath” in a bankruptcy case); Jones v. Gertz, 121 F.2dPage 7 However, the Mascolo court also
required that the debtor raise an attorney incompetence defense
prior to reaching the First Circuit.
“But we cannot find that
Mascolo or his attorney ever offered such an explanation in
proceeding before the referee.”
505 F.2d at 277.
In the present case, Appellant/Debtor argues attorney
incompetence but offers no evidence, as required by Mascolo, that
she previously made this argument to the Trustee or the
Bankruptcy Court.
Thus, Appellant/Debtor’s attempt to argue incompetent
representation falls short.
Her actions would constitute “bad
faith” under Marrama, and the Bankruptcy Court was justified in
denying her motion to convert.
D.
Appellant/Debtor Fails To Show That An Evidentiary
Hearing Was Required For The Bankruptcy Court To Deny
Her Motion To Convert.
Appellant/Debtor also argues that an evidentiary hearing was
required in order for the Bankruptcy Court to deny her motion to
convert.
However, she never requested an evidentiary hearing
before the Bankruptcy Court.
Moreover, under Cabral, an
evidentiary hearing is not mandated in such cases. 285 B.R. 563.
Section 1307(c) of the Bankruptcy Code provides for “notice
and a hearing” on motions for conversion to a Chapter 13Page 8 However, the First Circuit in Cabral cites
authority in several circuits holding that evidentiary hearings
are not always required when a Bankruptcy Court dismisses or
converts a case.
Id. at 576.
The Cabral court relied on a
Second Circuit case in which the court found it was within the
Bankruptcy Court’s discretion to decide a bad faith issue and
dismiss a case without a formal evidentiary hearing.
Id. at 577
(citing C-TC 9th Ave. P’ship v. Norton Co., 113 F.3d 1304, 1312
(2d Cir. 1997)).
The First Circuit adopted the Second Circuit’s
2
11 U.S.C. §1307(c).
Except as provided in subsection (e) of this section, on request of a party
in interest or the United States trustee and after notice and a hearing, the
court may convert a case under this chapter to a case under chapter 7 of this
title, or may dismiss a case under this chapter, whichever is in the best
interests of creditors and the estate, for cause, including-(1) unreasonable delay by the Appellant/Debtor that is prejudicial to
creditors;
(2) nonpayment of any fees and charges required under chapter 123 of title 28;
(3) failure to file a plan timely under section 1321 of this title;
(4) failure to commence making timely payments under section 1326 of this
title;
(5) denial of confirmation of a plan under section 1325 of this title and
denial of a request made for additional time for filing another plan or a
modification of a plan;
(6) material default by the Appellant/Debtor with respect to a term of a
confirmed plan;
(7) revocation of the order of confirmation under section 1330 of this title,
and denial of confirmation of a modified plan under section 1329 of this
title;
(8) termination of a confirmed plan by reason of the occurrence of a condition
specified in the plan other than completion of payments under the plan;
(9) only on request of the United States
Appellant/Debtor to file, within fifteen
court may allow, after the filing of the
information required by paragraph (1) of
trustee, failure of the
days, or such additional time as the
petition commencing such case, the
section 521; or
(10) only on request of the United States trustee, failure to timely file the
information required by paragraph (2) of section 521.Page 9 rule, and has refused to interpret Section 1307(c)’s reference to
“notice and a hearing” as requiring a hearing in all
circumstances.
Cabral, 285 B.R. at 577; see also Prebor v.
Collins, 143 F.3d 1, 5-6 (1st Cir. 1998) (holding that “a
hearing- much less an evidentiary hearing- is not required in
every instance”).
The denial of an evidentiary hearing is especially
justified, as here, when Appellant/Debtor failed to request such
a hearing. Cabral, 285 B.R. at 577 (citing Blaise v. Wolinsky, 219 B.R. 946, 949 (B.A.P. 2d Cir. 1997) (“Indeed, at no time did
[the debtor] even request an evidentiary hearing. He cannot,
therefore, now be heard to complain about the lack of an
evidentiary hearing.”)).
Appellant/Debtor’s argument for an
evidentiary hearing therefore also fails.3
IV. CONCLUSION
For the foregoing reasons, the judgment of the Bankruptcy
Court denying Appellant/Debtor’s motion to convert is hereby
AFFIRMED.
SO ORDERED.
Dated: October 6, 2005
3
s/ NANCY GERTNER U.S.D.J.
Appellant/Debtor contends that she needed an evidentiary
hearing to introduce evidence of the incompetence of prior
counsel. However, she offers no evidence that she asked for a
hearing or was denied the opportunity to introduce the evidence
at any time other than on appeal.
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Case 1:04-cv-12107-NG
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
In re:
DAHN T. NGUYEN,
Debtor,
)
)
)
)
)
)
)
)
)
)
)
)
DAHN T. NGUYEN,
Appellant,
v.
JOSEPH BRAUNSTEIN
as Chapter 7 Trustee,
Appellee.
GERTNER, D.J.:
C.A. No. 04-12107-NG
MEMORANDUM AND ORDER RE:
APPEAL FROM THE DECISION OF THE
UNITED STATES BANKRUPTCY COURT FOR THE
DISTRICT OF MASSACHUSETTS
October 6, 2005
I. INTRODUCTION
The Appellant/Debtor, Dahn T. Nguyen, seeks a
reversal of the decision of the Bankruptcy Court for the District
of Massachusetts denying her right to convert a bankruptcy case
from Chapter 7 to Chapter 13.
Appellant/Debtor advances three
arguments in support of her appeal.
She argues first that the
language of the U.S. Bankruptcy Code provides for an absolute
right to a one-time conversion from Chapter 7 to Chapter 13;
second, that even if that right is not absolute, her actions do
not amount to the “extreme circumstances constituting bad faith”
required to deny her motion; and third, that an evidentiary
hearing was required for the Bankruptcy Court to deny the motion
to convert.
For the reasons stated below, I find no error by the
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Bankruptcy Court and hereby AFFIRM its judgment.
II.
BACKGROUND
Appellant/Debtor first filed for Chapter 13 bankruptcy on
February 8, 2002.
That proceeding was dismissed on June 10,
2002, before Appellant/Debtor submitted a Chapter 13 plan.
Appellant/Debtor then sold her Brookline property on August
8, 2002.
Between August 8, 2002 and August 20, 2002, she
disbursed $260,000 in proceeds from the sale of the residence to
fifteen individuals to whom she owed money.
On April 8, 2003, Appellant/Debtor filed a voluntary
petition for relief pursuant to Chapter 7 of the U.S. Bankruptcy
Code.
A trustee, the Appellee, Joseph Braunstein, was appointed
to administer the bankruptcy.
On April 29, 2004 the Trustee
conducted an investigation which required a number of documents
from the Appellant/Debtor.
Twelve days after this
investigation, Appellant/Debtor filed a verified motion to
convert from Chapter 7 to Chapter 13, presumably to shield the
fifteen transfers. The Trustee opposed this motion and on June
16, 2004, the Bankruptcy Court denied Appellant/Debtor’s motion
to convert on the ground of bad faith.
The Bankruptcy Court did
not hold an evidentiary hearing.
III. LEGAL ANALYSIS
A.
Standard of Review
This Court has jurisdiction to hear an appeal from a final
order of a bankruptcy court.
See 28 U.S.C. § 158(a).
Pursuant
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Case 1:04-cv-12107-NG
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Filed 10/06/2005
Page 3 of 9
to Federal Rule of Bankruptcy Procedure 8013, this 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.
The bankruptcy court’s findings of fact
may not be set aside unless clearly erroneous.
law, however, are reviewed de novo.
1299, 1301 (1st Cir. 1992).
Id.
Findings of
In re LaRoche, 969 F.2d
Because the Bankruptcy Court here
made no findings of fact in connection with the
Appellant/Debtor’s motion to convert, its judgment is reviewed de
novo.
B.
Appellant/Debtor Fails To Show That the Right to
Conversion From Chapter 7 To Chapter 13 Is Absolute In
The First Circuit.
Appellant/Debtor first argues that, while in the First
Circuit the right to conversion is not absolute, the majority of
courts throughout the country have recognized an absolute right
to a one-time conversion.
She asks this Court to ignore
controlling First Circuit jurisprudence and adopt an
interpretation of the Bankruptcy Code that allows an absolute
right to a one-time conversion.
This Court declines to do so.
Section 706 of the Bankruptcy Code provides that a
Appellant/Debtor may convert from a Chapter 7 to a Chapter 13
bankruptcy at any time.1
1
Legislative history explains that an
11 U.S.C. § 706.
The Appellant/Debtor may convert a case under this chapter, [Chapter
7], to a case under chapter 11, 12, or 13 of this title at any time,
if the case has not been converted under section 1112, 1208, or 1307
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Filed 10/06/2005
Page 4 of 9
absolute right to a one-time conversion would encourage
conversion from a liquidation to a repayment plan.
However, the
First Circuit has held that the right to a one-time conversion
may be denied in extreme circumstances constituting bad faith.
Marrama v. Citizens Bank of Massachusetts, 313 B.R. 525, 530-31
(B.A.P. 1st Cir. 2004) (“[T]his Panel has previously held that a
debtor’s one-time right to convert a Chapter 7 case to a Chapter
13 is not absolute, but may be denied in extreme circumstances
constituting bad faith.”); see also Cabral v. Shamban, 285 B.R.
563, 575 (B.A.P. 1st Cir. 2002)(finding bad faith where debtor
provided misleading testimony, submitted a schedule showing
substantial differences between the liabilities and assets, and
concealed a probable future personal injury settlement); Kuntz v.
Shambam, 233 B.R. 580, 583 (B.A.P. 1st Cir. 1999) (explaining
that a debtor’s one-time right to convert from Chapter 7 to
Chapter 11, 12 or 13 may be denied only in extreme cases
constituting bad faith).
There is therefore no absolute right to a one-time
conversion from Chapter 7 to Chapter 13 in the First Circuit.
C.
Appellant/Debtor’s Actions Constituted Bad Faith And
Thus The Bankruptcy Court Was Permitted To Deny
Conversion.
Appellant/Debtor argues second that, in the First Circuit,
conversion may be denied only in “extreme circumstances”
of this title. Any waiver of the right to convert a case under this
subsection is unenforceable.
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constituting bad faith, which are not present in this case.
Under Marrama, a debtor has no right to convert “in extreme
circumstances constituting bad faith.”
313 B.R. at 530.
The
First Circuit has explained this rule as a way to ensure that
“those who seek shelter of the bankruptcy code do not play fast
and loose with their assets or with the reality of their
affairs.” Id. at 532 (citing Boroff v. Tully, 818 F.2d 106, 110
(1st Cir. 1987)).
In determining bad faith, the Marrama court
looked at the totality of the circumstances. 313 B.R. at 531.
The court examined the actions of the debtor in concealing the
transfer of a residence and the timing of his filing for a motion
to convert (directly after the trustee’s investigation).
Id.
The court ultimately determined that the debtor’s false and
misleading statements and the omission of critical information
from bankruptcy schedules warranted a finding of bad faith.
Id.
at 533.
In another case, In re Porter, the Bankruptcy Court for the
District of Massachusetts found bad faith where the debtor
falsely answered “None” with regard to property transferred
within one year of filing for bankruptcy.
276 B.R. 32, 36-37
(Bkrtcy. D.Mass. 2002).
The circumstances here are analogous to those in Marrama and
Porter.
In the present case, Appellant/Debtor sold her home for
$725,000 ten months prior to the Chapter 7 petition.
She then
disbursed $260,000 from the sale to fifteen individuals.
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However, she did not disclose the sale or disbursement to the
Bankruptcy Court as required by the Bankruptcy Code.
When asked
to list all property transferred within one year preceding the
petition, she responded “None.”
Once the Chapter 7 trustee began his investigation,
presumably to avoid a challenge to the discharge of the fifteen
previously undisclosed debts, Debtor/Appellant moved to convert
to Chapter 13.
In further evidence of bad faith, the
Appellant/Debtor created promissory notes for the fifteen
individuals only after the Trustee requested them, claiming her
son transcribed them from earlier handwritten notes which had
been discarded.
Appellant/Debtor counters any suggestion of bad faith by
alleging incompetent representation by her prior attorney.
She
also claims that she intended to file under Chapter 13 all along.
Appellant/Debtor cites In re Mascolo to bolster her claim of
incompetent representation of counsel.
1974).
505 F.2d 274 (1st Cir.
The court in Mascolo found that a debtor acting on bad
advice of counsel could rebut an inference of fraud.
“We agree
that an explanation by a bankrupt that he had acted upon advice
of counsel who in turn was fully aware of all the relevant facts
generally rebuts an inference of fraud.”
Id. at 277 (citing In
re Topper, 229 F.2d 691, 693 (3d Cir. 1956) (holding that
reliance on advice of counsel “may be an excuse for an inaccurate
or false oath” in a bankruptcy case); Jones v. Gertz, 121 F.2d
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Case 1:04-cv-12107-NG
Document 6
782 (10th Cir. 1941) (same)).
Filed 10/06/2005
Page 7 of 9
However, the Mascolo court also
required that the debtor raise an attorney incompetence defense
prior to reaching the First Circuit.
“But we cannot find that
Mascolo or his attorney ever offered such an explanation in
proceeding before the referee.”
505 F.2d at 277.
In the present case, Appellant/Debtor argues attorney
incompetence but offers no evidence, as required by Mascolo, that
she previously made this argument to the Trustee or the
Bankruptcy Court.
Thus, Appellant/Debtor’s attempt to argue incompetent
representation falls short.
Her actions would constitute “bad
faith” under Marrama, and the Bankruptcy Court was justified in
denying her motion to convert.
D.
Appellant/Debtor Fails To Show That An Evidentiary
Hearing Was Required For The Bankruptcy Court To Deny
Her Motion To Convert.
Appellant/Debtor also argues that an evidentiary hearing was
required in order for the Bankruptcy Court to deny her motion to
convert.
However, she never requested an evidentiary hearing
before the Bankruptcy Court.
Moreover, under Cabral, an
evidentiary hearing is not mandated in such cases.
285 B.R. 563.
Section 1307(c) of the Bankruptcy Code provides for “notice
and a hearing” on motions for conversion to a Chapter 13
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Case 1:04-cv-12107-NG
bankruptcy.2
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However, the First Circuit in Cabral cites
authority in several circuits holding that evidentiary hearings
are not always required when a Bankruptcy Court dismisses or
converts a case.
Id. at 576.
The Cabral court relied on a
Second Circuit case in which the court found it was within the
Bankruptcy Court’s discretion to decide a bad faith issue and
dismiss a case without a formal evidentiary hearing.
Id. at 577
(citing C-TC 9th Ave. P’ship v. Norton Co., 113 F.3d 1304, 1312
(2d Cir. 1997)).
The First Circuit adopted the Second Circuit’s
2
11 U.S.C. §1307(c).
Except as provided in subsection (e) of this section, on request of a party
in interest or the United States trustee and after notice and a hearing, the
court may convert a case under this chapter to a case under chapter 7 of this
title, or may dismiss a case under this chapter, whichever is in the best
interests of creditors and the estate, for cause, including-(1) unreasonable delay by the Appellant/Debtor that is prejudicial to
creditors;
(2) nonpayment of any fees and charges required under chapter 123 of title 28;
(3) failure to file a plan timely under section 1321 of this title;
(4) failure to commence making timely payments under section 1326 of this
title;
(5) denial of confirmation of a plan under section 1325 of this title and
denial of a request made for additional time for filing another plan or a
modification of a plan;
(6) material default by the Appellant/Debtor with respect to a term of a
confirmed plan;
(7) revocation of the order of confirmation under section 1330 of this title,
and denial of confirmation of a modified plan under section 1329 of this
title;
(8) termination of a confirmed plan by reason of the occurrence of a condition
specified in the plan other than completion of payments under the plan;
(9) only on request of the United States
Appellant/Debtor to file, within fifteen
court may allow, after the filing of the
information required by paragraph (1) of
trustee, failure of the
days, or such additional time as the
petition commencing such case, the
section 521; or
(10) only on request of the United States trustee, failure to timely file the
information required by paragraph (2) of section 521.
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rule, and has refused to interpret Section 1307(c)’s reference to
“notice and a hearing” as requiring a hearing in all
circumstances.
Cabral, 285 B.R. at 577; see also Prebor v.
Collins, 143 F.3d 1, 5-6 (1st Cir. 1998) (holding that “a
hearing- much less an evidentiary hearing- is not required in
every instance”).
The denial of an evidentiary hearing is especially
justified, as here, when Appellant/Debtor failed to request such
a hearing. Cabral, 285 B.R. at 577 (citing Blaise v. Wolinsky,
219 B.R. 946, 949 (B.A.P. 2d Cir. 1997) (“Indeed, at no time did
[the debtor] even request an evidentiary hearing. He cannot,
therefore, now be heard to complain about the lack of an
evidentiary hearing.”)).
Appellant/Debtor’s argument for an
evidentiary hearing therefore also fails.3
IV. CONCLUSION
For the foregoing reasons, the judgment of the Bankruptcy
Court denying Appellant/Debtor’s motion to convert is hereby
AFFIRMED.
SO ORDERED.
Dated: October 6, 2005
3
s/ NANCY GERTNER U.S.D.J.
Appellant/Debtor contends that she needed an evidentiary
hearing to introduce evidence of the incompetence of prior
counsel. However, she offers no evidence that she asked for a
hearing or was denied the opportunity to introduce the evidence
at any time other than on appeal.
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