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In re Hawkins

United States District Court, Third Circuit

December 20, 2013

In re: LINDA A. HAWKINS AND GREGORY HAWKINS, Chapter 13, Debtors.
v.
MICHAEL B. JOSEPH, United States Trustee, Appellee. ELVA D. ALLEN, Appellant, Civ. No. 13-526-SLR.

Elva D. Allen, Millsboro, Delaware; Pro Se Appellant.

Michael B. Joseph, Esquire, Ferry, Joseph & Pearce, P.A., Wilmington, Delaware; Counsel for Appellee.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Appellant Elva D. Allen filed this bankruptcy appeal on March 1, 2013. She appears pro se and has paid the filing fee. The appeal is taken from In re Hawkins, Bankr. No. 05-13987-BLS (Bankr. D. Del. Feb. 28, 2013) ("Bankr. No. 05-1397-BLS"). ( Id. at D.I. 83, 84) For the reasons discussed below: (1) the motion to strike (D.I. 14) will be denied as moot; and (2) the appeal will be dismissed for lack of standing.

II. PROCEDURAL AND FACTUAL BACKGROUND

On October 14, 2005, debtors Linda A. Hawkins ("Linda") and Gregory L. Hawkins ("Gregory") ("together debtors") filed a Chapter 13 joint voluntary petition in this District's bankruptcy court. (Bankr. No. 05-13987-BLS at D.I. 1) Appellee Michael B. Joseph is the standing Chapter 13 trustee ("trustee" or "appellee"). Debtors' plan was confirmed by the bankruptcy court on April 17, 2006. ( Id. at D.I. 34) The bankruptcy case was closed on November 2, 2010.

On January 8, 2013, Elva D. Allen ("appellant" or "Allen") filed a motion to reopen the bankruptcy proceeding, on behalf of herself and Dr. James Robert Conaway ("Dr. Conaway"), Ernest E. Conway ("Ernest"), and Mabel H. Conaway ("Mabel") (collectively, "the Conaways") as creditors. The motion was opposed by appellee, debtors, and attorneys Jeffrey M. Weiner ("Weiner") and D. Stephen Parsons ("Parsons"). ( Id. at D.I. 72, 75-78; D.I. 93 at 4) Only Allen signed the motion to reopen. ( Id. at D.I. 72)

A 1.92 acre parcel of property originally owned by Robert Conaway, see Conaway v. Griffin, 970 A.2d 256 (Del. 2009) (table), was the focus of the motion to reopen, appellant asserting that it should not have been included in the bankruptcy estate. The property and its sale or transfer were the subject of proceedings in the Court of Chancery of the State of Delaware. See id.; Conaway v. Hawkins, 2011 WL 3444567 (Del. Ch. July 29, 2011); Conaway v. Hawkins, 2010 WL 403313 (Del. Ch. Feb. 4, 2010). Appellant moved to reopen the bankruptcy proceeding on the grounds that she and the Conaways were intentionally omitted from the bankruptcy schedules, and the debt was nondischargeable based upon fraud or false pretenses. (Bankr. No. 05-13987-BLS at D.I. 72)

During the pendency of the bankruptcy proceeding, Joseph received a call from appellant on April 28, 2006, in connection with the bankruptcy proceeding, followed by appellant's letter dated April 29, 2006. (D.I. 11, ex. A) Appellant indicated that Linda owned an interest in the real property at issue, that the property was sold, that Linda received a portion of the sale proceeds on December 16, 2005, and that Linda's interest in the property was not disclosed in the debtors' joint petition or any subsequent filings. ( Id. ) Thereafter, Joseph sought, and received, approval from the bankruptcy court to conduct a Rule 2004 examination of debtors to investigate the allegations made by appellant. (Bankr. No. 05-1397-BLS, D.I. 42, 44) On August 2, 2006, Joseph examined debtors, demanded and reviewed pertinent documents, and reported his findings to the Office of the United States Trustee. ( Id. at D.I. 93 at 32)

Joseph determined that Linda had transferred her interest in the property at issue and had received net proceeds in the amount of $44, 043.07. On October 27, 2006, Joseph filed a motion to dismiss the bankruptcy case, opposed by debtors. ( Id. at D.I. 53, 54) The parties agreed to a stipulation to resolve the motion to dismiss. The stipulation tolled the limitations period for the time to object to discharge, for any purpose, until Joseph filed his final report; debtors continued to carry out their confirmed plan which contemplated that allowed claims would receive a 100% dividend. ( Id. at D.I. 56, 57) Debtors performed their obligations under their plan and were granted a discharge on October 25, 2010. ( Id. at 68) Appellee filed his final report on October 29, 2010, a final decree was entered on November 1, 2010, and the bankruptcy case was closed on November 2, 2010. ( Id. at D.I. 70, 71)

A hearing was held on the motion to reopen on February 26, 2013. ( Id. at D.I. 82, 93) During the hearing, appellant identified herself and the Conaways as creditors of debtors who were intentionally omitted from the bankruptcy proceeding. ( Id. at D.I. 93 at 16) Appellant testified that she is not an attorney, and that she appeared on behalf of other parties named as movants pursuant to powers of attorney. ( Id. at D.I. 93 at 4, 16) Appellant is the Conaways' typist and secretary. ( id. at D.I. 93 at 16-17) Appellant testified that she did not have an ownership interest in the property at issue, and she acknowledged during the hearing that she first became aware of the bankruptcy proceeding on March 14, 2006. ( Id. at D.I. 93 at 9, 16) Neither appellant nor her principles filed claims in the bankruptcy proceeding. ( Id. at D.I. 93 at 33)

Objections were raised to appellant's appearance on behalf of others. Said objections were overruled by the bankruptcy court for the limited purposes associated with the motion to reopen and the February 26, 2013 hearing. ( Id. at D.I. 83 n.1) The bankruptcy judge stated that he considered appellant's motion and argument on the merits as is the practice in his court. ( Id. at D.I. 93 at 19)

On February 28, 2013, the bankruptcy court denied the motion to reopen finding that it was not timely filed under 11 U.S.C. ยง 1328(e). ( Id. at D.I. 83) In addition, the bankruptcy court struck appellant's rebuttal brief pursuant to an oral ...


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