                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2006

In Re: Banks
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1828




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Recommended Citation
"In Re: Banks " (2006). 2006 Decisions. Paper 365.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/365


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EPS-60                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 06-1828
                               ________________

                         IN RE: FREDERICK H. BANKS,

                                            Debtor


                               FREDERICK H. BANKS,

                                         Appellant

                                            v.


                               JOHN M. MOORE
                   ____________________________________

                 On Appeal From the United States District Court
                    For the Western District of Pennsylvania
                            (D.C. Civ. No. 05-cv-00261)
                   District Judge: Honorable Joy Flowers Conti
                 _______________________________________

         Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                               September 22, 2006

     Before: FUENTES, CHAGARES AND STAPLETON, CIRCUIT JUDGES

                             (Filed October 3, 2006)

                           _______________________

                                   OPINION
                           _______________________

PER CURIAM
       On February 8, 2002, John Moore t/d/b/a Protium Recordings filed an adversary

action in the United States Bankruptcy Court for the Western District of Pennsylvania to

determine the dischargeability of a debt owed to him by Frederick H. Banks. Banks,

represented by counsel, filed an answer shortly thereafter. On July 21, 2004, the

Bankruptcy Court imposed September 2004 due dates for the parties’ pre-trial statements,

and scheduled trial for October 25, 2004. The parties duly filed their pre-trial statements

that September. However, three weeks before trial, on October 4, 2004, Banks’ counsel

filed a motion to withdraw and a motion for a trial continuance.

       The Bankruptcy Court held a hearing on both motions, the latter of which Moore

opposed. In the motion to withdraw and at the hearing, Banks’ attorneys argued that

Banks had rendered their representation of him unreasonably difficult and was imposing

an unreasonable financial burden on them. They recounted their repeated fruitless

attempts to contact him by sending letters (including one via certified mail) and monthly

bills for legal fees to his last known address, by writing his mother, and by repeatedly

phoning and e-mailing him. They explained that Banks had not honored his fee

agreement with them and owed them $2650.10 for work in the adversary proceeding. On

October 13, 2004, the Bankruptcy Court permitted Banks’ counsel to withdraw. The

Bankruptcy Court also moved back the trial date until December 29, 2004. The

Bankruptcy Court sent notice of the trial to the address Banks had submitted to the

Bankruptcy Court, namely 52 South Eighth Street, Pittsburgh, PA 15203.



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       Banks did not appear for trial. In an order entered December 30, 2004, the

Bankruptcy Court entered judgment in favor of Moore. The Bankruptcy Court held that

Banks’ debt to Moore was non-dischargeable because of Banks’ defalcation while acting

in a fiduciary capacity and embezzlement, see 11 U.S.C. § 523(a)(4), and because of the

willful and malicious injury that Banks caused, see id. at § 523(a)(6). The Bankruptcy

Court also granted Moore relief from the automatic stay to recover the debt from Banks.

       On January 4, 2005, the Bankruptcy Court docketed a “motion for pro se

appearance” from Banks. In his “motion,” Banks acknowledged that his counsel had

filed a motion to withdraw, and he requested that he be permitted to represent himself.

Two days later, the Bankruptcy Court entered Banks’ notice of appeal (dated January 3,

2005) on the docket. On both of the documents that Banks filed, Banks included his

updated address - Allegheny County Jail, 950 Second Avenue, Pittsburgh, PA 15219.

       In the District Court, Banks made the following arguments. He claimed that he

was not served with his former counsel’s motion to withdraw despite the certificate of

service showing mailing to his home address. He stated that his counsel did not serve it

on him at his prison address despite knowing that he was in jail. Banks argued that his

right to due process of law was violated 1) when the Bankruptcy Court permitted his

counsel to withdraw “on the eve of trial;” 2) when the Bankruptcy Court rescheduled the

trial without notice to him; and 3) when the Bankruptcy Court entered judgment in

Moore’s favor in Banks’ absence. The District Court denied Banks’ appeal. Banks,



                                            3
proceeding pro se and in forma pauperis, appeals.

       The District Court had jurisdiction to review the Bankruptcy Court’s orders

pursuant to 28 U.S.C. § 158(a), and we have jurisdiction to review the District Court’s

order under 28 U.S.C. §§ 158(d), 1291. Our review of the District Court’s determination

is plenary. See Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 353 (3d Cir. 2002).

Upon review, we conclude that Banks’ appeal must be dismissed because it has no

arguable basis in fact or law. See 28 U.S.C. § 1915(e)(2)(B)(i); Neitzke v. Williams, 490

U.S. 319, 325 (1989).

       The record before us is replete with examples of how Banks’ counsel tried to

communicate with Banks by sending letters and their motion to withdraw to his last

known address and otherwise. There are no examples of Banks seeking to contact his

attorneys. No evidence supports Banks’ assertion that his counsel knew he had been

incarcerated. Similarly, a review of the record leads to the conclusion that the Bankruptcy

Court served important documents, such as the notice of a new trial date,1 on Banks at

Banks’ address of record then on file in the Bankruptcy Court. Banks did not apprise the

Bankruptcy Court of his new prison address until after the Bankruptcy Court entered its

order granting judgment in favor of Moore. For these reasons, Banks’ claims of due

process violations fail, and his appeal is without merit. See In re Villareal, 304 B.R. 882,

   1
    We note the undisputed fact that the Bankruptcy Court postponed trial after
permitting Banks’ counsel to withdraw undermines the factual premise of one of Banks’
claims. Given the postponement, the order granting the withdrawal motion did not come
on the “eve of trial;” it came approximately two-and-a-half months before trial.

                                             4
886 (B.A.P. 8th Cir. 2004) (“Where notice is sent to the address listed by the Debtor in

his petition, due process is satisfied.”); In re Davis, 275 B.R. 864, 866-67 (B.A.P. 8th Cir.

2002) (“The debtor who fails to keep the court apprised of his proper mailing address has

only himself to blame.”); In re Vincze, 230 F.3d 297, 298 (7th Cir. 2000) (per curiam); In

re DeVore, 223 B.R. 193, 196 (B.A.P. 9th Cir. 1998) (“Mailing a notice by first class mail

to a party’s last known address is sufficient to satisfy due process.”) Accordingly, we will

dismiss Banks’ appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).




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