                                                           FILED
                                                            APR 09 2013
 1                                                      SUSAN M SPRAUL, CLERK
                                                          U.S. BKCY. APP. PANEL
 2                                                        OF THE NINTH CIRCUIT


 3                  UNITED STATES BANKRUPTCY APPELLATE PANEL
 4                            OF THE NINTH CIRCUIT
 5   In re:                        )      BAP No.    EC-12-1393-MkDJu
                                   )
 6   JIMMIE STEPHEN C56483,        )      Bk. No.    12-27800
                                   )
 7                  Debtor.        )
     ______________________________)
 8                                 )
     JIMMIE STEPHEN C56483,        )
 9                                 )
                    Appellant,     )
10                                 )
     v.                            )      MEMORANDUM*
11                                 )
     THOMAS E. MAY; U.S. TRUSTEE, )
12                                 )
                    Appellees.     )
13   ______________________________)
14                      Submitted Without Oral Argument
                                on March 22, 2013
15
                             Filed – April 9, 2013
16
               Appeal from the United States Bankruptcy Court
17                 for the Eastern District of California
18       Honorable Robert S. Bardwil, Bankruptcy Judge, Presiding
19
     Appearances:     Appellant Jimmie Stephen C56483, pro se, on brief;
20                    no brief filed or other appearance made by either
                      appellee.
21
22   Before:   MARKELL, DUNN and JURY, Bankruptcy Judges.
23
24
25
26        *
           This disposition is not appropriate for publication.
27   Although it may be cited for whatever persuasive value it may
     have (see Fed. R. App. P. 32.1), it has no precedential value.
28   See 9th Cir. BAP Rule 8013-1.
 1                               INTRODUCTION**
 2        Appellant Jimmie Stephen C564831 (“Stephen”) appeals the
 3   dismissal of his case under Section 521(i)(1)2 for failure to
 4   file the information required by Section 521(a)(1).     We AFFIRM.
 5                                   FACTS
 6        Stephen filed a chapter 7 bankruptcy petition on April 23,
 7   2012.3    With his petition, Stephen ostensibly filed a Schedule B
 8   identifying his personal property.      The Schedule B was
 9   incomplete, however, because it only contained entries 1 through
10   11, leaving the remaining entries from 12 to 35 missing.4
11
12        **
           We have exercised our discretion to independently review
     several electronically filed documents in Stephen’s underlying
13
     bankruptcy case in order to develop a fuller understanding of the
14   record. See O’Rourke v. Seaboard Sur. Co. (In re E.R. Fegert,
     Inc.), 887 F.2d 955, 957-58 (9th Cir. 1989); Atwood v. Chase
15   Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th
     Cir. BAP 2003).
16
          1
           C56483 appears to refer to Stephen’s identification number
17
     from the California Department of Corrections. He is, and was at
18   the time of his bankruptcy filing, incarcerated.
          2
19         Unless specified otherwise, all chapter and Section
     references are to the Bankruptcy Code, 11 U.S.C. §§ 101–1532, all
20   “Rule” references are to the Federal Rules of Bankruptcy
     Procedure, Rules 1001–9037.
21
          3
22         This case followed dismissal of Stephen’s previous
     chapter 7 bankruptcy on November 19, 2010, also for failure to
23   timely file required documents. He appealed that prior dismissal
     to our Panel, and we affirmed. We take judicial notice of the
24   records in Stephen’s prior bankruptcy and appeal. United States
     v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
25
          4
26         The Official Form Schedule B is three pages long, and
     requests information about 35 categories of personal property.
27   Stephen filed only the first page of Schedule B, which identifies
     the first 11 categories. The remaining two pages, which refer to
28                                                      (continued...)

                                       2
 1        On his Master Address List of creditors, Stephen identified
 2   four entities as follows:
 3        1.   “I.R.S.”-# 55-1001-0093..p.o. box
 4             21126..PHILADELPHIA,PA..19114
 5        2.   “U.S.D.COURT”“EASTERN”..501 “I” ST # 4-200 SACRAMENTO
 6             CALIF..95814..
 7        (ANY AND ALL CREDITORS AND NEW LOANS,SANCTIONS ECT [sic])
 8             A.   CV-09-1516-MCE
 9             B.   CV-10-1678-KJM
10             C.   CV-10-3469-KJM
11             D.   CV-12-0630-GGH
12        3.   “U.S.D.COURT”“NORTHERN”..235 PINE ST 19TH FL. SAN
13             FRANCISCO CALIF.94104
14             A.   CV-10-0349-SI
15             B.   CV-10-0496-SI
16        4.   “U.S.D.COURT”“SOUTHERN”..800 FRONT ST SAN DIEGO
17             CALIF..92101
18             A.   CV-06-1054-LAB
19             B.   CV-06-0171-L
20        Apparently, the notations beginning with “CV” represent
21   civil cases that Stephen was or is a party to.
22        Stephen’s Schedule E, relating to his priority unsecured
23   creditors, listed the same four entities and corresponding
24   addresses from the Master Address List.
25        On Stephen’s list of nonpriority unsecured creditors,
26
27
          4
           (...continued)
28   the remaining 24 categories of personal property, were omitted.

                                       3
 1   Schedule F, the sole entry for a creditor’s name and mailing
 2   address states “ALL CREDITORS.”
 3           Stephen filed a Motion/Application for Waiver of the
 4   Chapter 7 Filing Fee or Other Fee (“IFP Motion”) on April 23,
 5   2012.    On June 20, 2012, he filed what he styled an “opposition”
 6   to the hearing set on the IFP Motion, requesting to either appear
 7   telephonically, or have counsel appointed to appear for him.    The
 8   bankruptcy court denied the IFP Motion on July 2, 2012.
 9           On May 21, 2012, Stephen filed a Motion/Application to Waive
10   Presence at 341 Meeting of Creditors Based on Exceptional
11   Circumstances (“341 Waiver Motion”).    The United States Trustee
12   opposed the 341 Waiver Motion, but agreed to allow Stephen to
13   appear telephonically from prison for his meeting of creditors.
14   In correspondence attached to the opposition, Stephen was
15   notified that he was responsible for making arrangements for his
16   appearance with Trustee Thomas E. May (“May”) and the prison
17   through certain described procedures.
18           On June 8, 2012, May filed a Motion to Dismiss for Failure
19   to Appear at Section 341 Meeting of Creditors and Motion to
20   Extend the Deadlines for Filing Objections to Discharge and
21   Motions to Dismiss (“Motion to Dismiss”).    Stephen opposed the
22   Motion to Dismiss on June 28, 2012, alleging that May engaged in
23   misconduct by refusing to ask for Stephen when he called the
24   prison during the meeting of creditors.
25           On June 11, 2012, Stephen filed a Motion for Appointment of
26   Counsel for Federal Civil Rights Proceeding (“Motion for
27   Counsel”).    He brought the Motion for Counsel based on 28 U.S.C.
28   § 1915, arguing that an attorney should be appointed for him to

                                        4
 1   protect his due process rights during the bankruptcy.      The
 2   bankruptcy court denied the Motion for Counsel on June 19, 2012.
 3           On July 11, 2012, the bankruptcy court denied the Motion to
 4   Dismiss as moot because it found Stephen’s bankruptcy case had
 5   already been automatically dismissed pursuant to Section 521(i).5
 6   The court noted two reasons for the dismissal.      First, Stephen
 7   had omitted the information in entries 12 through 35 in his
 8   Schedule B.      Therefore, he did not file all of the information
 9   required by Section 521(a)(1) within 45 days of his petition
10   date.       Second, he failed to properly identify his creditors and
11   their addresses in his Schedules E or F, or in his Master Address
12   List.       Accordingly, Stephen again did not comply with the
13   requirements of Section 521(a)(1) because there was no filed list
14   of creditors or schedule of liabilities.6
15           The bankruptcy court’s order, entered on July 13, 2012,
16   states that the Motion to Dismiss was denied as moot, and
17   confirmed that Stephen’s bankruptcy had been automatically
18   dismissed on June 8, 2012, the 46th day after he filed for
19   bankruptcy.
20                                  JURISDICTION
21           The bankruptcy court had jurisdiction pursuant to 28 U.S.C.
22   §§ 1334 and 157(b)(1) and (b)(2)(A).      We have jurisdiction under
23   28 U.S.C. § 158.
24
25           5
           The bankruptcy court resolved the Motion to Dismiss without
26   oral argument.
             6
27         This dismissal should not have come as a surprise.
     Stephen’s prior chapter 7 bankruptcy was dismissed because he
28   failed to file a list of creditors, among other documents.

                                          5
 1                                   ISSUE
 2        Did the bankruptcy court commit reversible error when it
 3   dismissed Stephen’s bankruptcy case pursuant to Section 521(i)(1)
 4   for failure to file the information required under
 5   Section 521(a)(1)?
 6                            STANDARDS OF REVIEW
 7        We review the bankruptcy court’s order dismissing Stephen’s
 8   case based on Section 521(i) de novo.     Wirum v. Warren
 9   (In re Warren), 568 F.3d 1113, 1116 (9th Cir. 2009).
10                                DISCUSSION
11   I.   The Bankruptcy Court Did Not Commit Reversible Error in
          Dismissing Stephen’s Case
12
          A.   Section 521(a)(1) and (i)(1)
13
          Pursuant to Section 521(a)(1), a debtor must file a list of
14
     creditors, and, unless otherwise ordered, a schedule of assets
15
     and liabilities.7    Section 521(a)(1)(A) and (B)(i).   “[I]f an
16
     individual debtor in a voluntary case under chapter 7 or 13 fails
17
     to file all of the information required under subsection (a)(1)
18
     within 45 days after the date of the filing of the petition, the
19
     case shall be automatically dismissed effective on the 46th day
20
     after the date of the filing of the petition.” Section 521(i)(1).
21
          Relief from automatic dismissal under Section 521(i)(1) can
22
     only be obtained if: (1) the court grants a debtor’s request for
23
     an extension; (2) the court grants a trustee’s motion requesting
24
     an exception based on the debtor’s good faith and the best
25
26        7
           Section 521(a)(1)(B) requires a debtor to file several
27   documents in addition to a schedule of assets and liabilities,
     however, those documents are not relevant to review of the
28   bankruptcy court’s dismissal order in this case.

                                       6
 1   interest of creditors; or (3) the court uses its discretion to
 2   waive the filing requirements because it determines the
 3   information is unnecessary or because dismissal will reward abuse
 4   by the debtor.   Section 521(i)(3), (4); Warren, 568 F.3d 1113,
 5   1118-19.
 6         Here, the provisions of Section 521(a)(1) and (i)(1) applied
 7   to Stephen’s case because he was an individual debtor in a
 8   voluntary chapter 7 case.
 9         He has made no convincing showing, however, that he was
10   entitled to relief from automatic dismissal based on any
11   exception.   As to the first basis for relief from automatic
12   dismissal, Stephen never sought an extension of time to file the
13   information required under Section 521(a)(1).   As to the second
14   grounds for relief, May did not file a motion requesting a good
15   faith exception.   As to the third basis for relief, the
16   bankruptcy court did not exercise its discretion to waive the
17   filing requirements.8   Therefore, Stephen’s failure to file a
18   list of creditors, schedule of assets and schedule of liabilities
19   within 45 days of his petition, as explained below, properly
20   resulted in the automatic dismissal of his case.
21         Stephen’s purported Schedule B, which should have identified
22   all of his personal property assets, omitted entries 12 through
23   35.   This left the filing so facially deficient as to not
24   substantially comply with Section 521(a)(1)(B)(i)’s requirement
25
26
27
           8
           Stephen did not point to any basis for waiver of Section
28   521(a)(1)’s filing requirements.

                                      7
 1   of a schedule of assets.9   Accordingly, Stephen’s failure to file
 2   a Schedule B, or to correct the one he did file, within 45 days
 3   of his bankruptcy filing warranted automatic dismissal under
 4   Section 521(i)(1).
 5        Similarly, Stephen’s purported Master Address List, and
 6   Schedules E and F, did not properly identify the names and
 7   addresses of his creditors, other than the IRS.10   Instead, those
 8   documents refer to litigation pending in particular courts.     The
 9   courts themselves, however, are not creditors, as they are not
10   the parties who have claims against Stephen.11   Apparently, the
11   opposing parties in the referenced cases are entities that have
12   prepetition claims against Stephen, but his filings leave no clue
13   as to any of their names or addresses.   In addition, Stephen’s
14   generic reference to “ALL CREDITORS” in his Schedule F and Master
15   Address List did not properly describe those who have claims
16   against him or his property.   Again, this is an example of a
17   failure to substantially comply with Section 521(a)(1).
18        Stephen “ha[d] a duty to prepare [his] schedules carefully,
19   completely, and accurately[,]” but instead he left the bankruptcy
20   court without the necessary information to notify his creditors
21   of his bankruptcy.   Cusano v. Klein, 264 F.3d 936, 946 (9th Cir.
22
          9
23         Debtors must prepare their schedules of assets and
     liabilities in compliance with the Official Forms.
24   Rule 1007(b)(1)(A).
25        10
           Stephen did not properly list the IRS’ address.
26   Bankr. E.D. Cal. R. 2002-1(b).
          11
27         A creditor is an “entity that has a claim against the
     debtor that arose at the time of or before the order for relief
28   concerning the debtor.” Section 101(10)(A).

                                      8
 1   2001) (citations and quotations omitted).    His failure to file a
 2   proper list of creditors and schedule of assets and liabilities
 3   within 45 days of his petition date merited dismissal of his
 4   case.
 5           Stephen argues that his Master Address List had all of his
 6   creditors and that any errors in his petition were corrected or
 7   correctable.    Therefore, he argues it was a violation of his due
 8   process rights to automatically dismiss his case.    His argument
 9   is not persuasive.
10           Contrary to Stephen’s position that his Master Address List
11   was proper, as discussed above, his method of describing his
12   creditors was inadequate.    In addition, although the errors in
13   his Master Address List, and Schedules B, E and F could have been
14   corrected, they never were.
15           Stephen has not pointed to any authority supporting the
16   proposition that a notice of filing deficiencies or any other
17   notice must be sent to a debtor prior to automatic dismissal
18   under Section 521(i)(1), nor is this Panel aware of any such
19   requirement.    Indeed, the contrast between Section 521(i)(1)’s
20   language, with its automatic effect of dismissal, and the
21   language of Section 707(a), which requires notice and a hearing
22   prior to dismissal, belies the notion that Congress believed that
23   a debtor must independently receive some prior notice of filing
24   deficiencies under Section 521(i).     Compare 11 U.S.C. 521(a)(1)
25   (“notwithstanding section 707(a),” failure to file the required
26   Section 521(a)(1) information will result in automatic dismissal)
27   with Section 707(a)(“[t]he court may dismiss a case under this
28   chapter only after notice and a hearing and only for cause

                                        9
 1   . . . .”).
 2        Moreover, when read together, the provisions of
 3   Section 521(a)(1) and (i)(1) identify the information that
 4   debtors are required to file as well as the consequences for not
 5   timely doing so.   The Panel finds this to be sufficient notice
 6   for due process purposes.     Stephen’s due process argument is thus
 7   without merit.12   In re Parker, 351 B.R. 790, 801 (Bankr. N.D.
 8   Ga. 2006)(automatic dismissal under Section 521(i)(1) “would not
 9   require notice and a hearing.    Rather, it is a determination that
10   the court can make with no notice to any party in interest and no
11   hearing of any nature.”).13
12
13        12
           The docket report for Stephen’s underlying bankruptcy case
     has a notation at BK Dkt. No. 1 that states, “[a]ll Schedules and
14   Statements filed.” Stephen, however, did not indicate in his
15   opening brief or any other filings that he relied on that
     notation for any purpose, or that he was even aware it existed.
16   The Panel declines to find that the notation has any bearing on
     this appeal.
17
          13
           Some courts have suggested that automatic dismissal under
18   Section 521(i)(1) without notice to the debtor and trustee, or an
19   opportunity for a hearing, gives rise to “due process concerns.”
     In re Dienberg, 348 B.R. 482, 483 n.1 (Bankr. N.D. Ind. 2006);
20   In re Spencer, 388 B.R. 418, 425 n.7 (Bankr. D.C. 2008).
     Similarly, a recent article discusses alleged due process
21   violations caused by automatic dismissal. Gregory Germain,
     A Constitutional Challenge to the Automatic-Dismissal Rules,
22
     32 Am. Bankr. Inst. J. 22 (March 2013).
23
          These authorities do not raise any issues on the facts of
24   this case. To the extent a few courts have raised due process
     concerns in dicta without analysis, they are not persuasive.
25   Moreover, the arguments made in Professor Germain’s article do
26   not influence this Panel’s conclusion that any violation of
     Stephen’s due process rights (of which we think there were none)
27   would lead to reversal. That result would only follow if Stephen
     could identify some prejudice that he suffered as a result of the
28                                                      (continued...)

                                       10
 1        Based on the foregoing, the bankruptcy court properly
 2   dismissed Stephen’s case.
 3        B.      Stephen’s Remaining Arguments
 4        The other issues Stephen raised in his appeal relate to the
 5   bankruptcy court’s denial of the IFP Motion and Motion for
 6   Counsel, and May’s alleged misconduct during the meeting of
 7   creditors.    None of those arguments change the outcome of this
 8   appeal.
 9        There are two reasons to dismiss Stephen’s IFP Motion
10   challenge.    First, the denial of the IFP Motion was irrelevant to
11   the disposition of Stephen’s bankruptcy case because the court
12   dismissed his case for failure to timely file the required
13   information, not for failure to pay filing fees.   Second, the
14   order denying the IFP Motion indicates that the motion was denied
15   for the reasons stated on the record.    We do not have a
16   transcript of that hearing and thus we ordered Stephen to provide
17   the necessary transcripts for review by January 23, 2013.    No
18   transcripts were ever filed.    Therefore, the Panel assumes that
19   Stephen did not believe there is anything in the transcripts that
20   would help his position on appeal, and summary affirmance of the
21   bankruptcy court’s denial of the IFP Motion is appropriate.
22   Gionis v. Wayne (In re Gionis), 170 B.R. 675, 680-81 (9th Cir.
23   BAP 1994); see Explanatory Note to 9th Cir. BAP R. 8006-1;
24
          13
           (...continued)
25   dismissal. Van Zandt v. Mbunda (In re Mbunda), 484 B.R. 344, 359
26   (B.A.P. 9th Cir. 2012) (“An appellant, however, must show
     prejudice to support a due process claim.”) (citing Rosson v.
27   Fitzgerald (In re Rosson), 545 F.3d 764, 776 (9th Cir. 2008)).
     And Stephen has neither identified nor argued for the existence
28   of any prejudice flowing from the dismissal of his case.

                                       11
 1   Ehrenberg v. Cal. State Univ., Fullerton Found. (In re Beachport
 2   Entm’t), 396 F.3d 1083, 1087 (9th Cir. 2005); Morrissey v.
 3   Stuteville (In re Morrissey), 349 F.3d 1187, 1190-91 (9th Cir.
 4   2003).14
 5           Regarding the bankruptcy court’s denial of the Motion for
 6   Counsel, “a civil litigant, including an incarcerated prisoner,
 7   is presumed to have no constitutional entitlement to
 8   court-ordered counsel unless his case carries the risk of
 9   affecting his physical liberty.”          Hernandez v. Whiting, 881 F.2d
10   768, 770-71 (9th Cir 1989) (citing Lassiter v. Dept. of Social
11   Servs., 452 U.S. 18, 25–27 (1985)); see Davis v. Central Bank
12   (In re Davis), 23 B.R. 773, 776 (9th Cir. BAP 1982).         Stephen’s
13   physical liberty was not implicated in any way by his bankruptcy
14   case.        Stephen’s argument as to mandatory appointment of counsel
15   is without merit.
16           Stephen’s sole remaining argument addresses May’s alleged
17   misconduct during the meeting of creditors.         Even assuming
18   Stephen’s allegation is true, his lack of appearance at the
19   meeting of creditors had no bearing on the dismissal of his case.
20   The bankruptcy court denied the Motion to Dismiss based on
21   Stephen’s failure to appear at the meeting as moot, thus, never
22   reaching the substantive issue.       Accordingly, May’s alleged
23   interference with Stephen’s appearance is irrelevant to the
24   issues related to this appeal.
25
26           14
           This Panel warned Stephen that failure to provide the
27   required transcripts could cause his appeal to be dismissed or
     result in summary affirmance of the bankruptcy court’s decision
28   in its Order re Transcript.

                                          12
 1                              CONCLUSION
 2        For all of the reasons set forth above, we AFFIRM the
 3   bankruptcy court’s order dismissing Stephen’s case.
 4
 5
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

                                    13
