
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-2116                                   JOSE RAUL PEREZ,                                      Appellant,                                          v.                        FAJARDO FEDERAL SAVINGS BANK, ET AL.,                                      Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Salvador E. Casellas, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                                Boudin, Circuit Judge.                                        _____________                                 ____________________            Jose Raul Perez on brief pro se.            _______________            Viviana  Rodriguez  Ortiz  and Garcia  &  Fernandez  on  brief for            _________________________      ____________________        appellees.                                 ____________________                                    June 13, 1997                                 ____________________                      Per  Curiam.    Debtor-appellant  Jose  Raul  Perez                      ___________            appeals  pro  se  from  a  decision  of  the  district  court                     ___  __            affirming the  dismissal of  his third Chapter  13 bankruptcy            case and a related adversary proceeding.  We affirm.                      Under 11 U.S.C.   109(g)(1), no individual may be a            "debtor" if he or she has  been a debtor in the preceding 180            days and the previous case was dismissed for "willful failure            . .  . to abide by  orders of the court, or  to appear before            the court in proper prosecution of the case."  Perez's second            bankruptcy case was dismissed based upon  his failure to file            a  plan  or  schedules,  failure  to  appear  at  the     341            creditors' meeting, and failure to  make payments.  The third            bankruptcy  petition  was  filed   within  180  days  of  the            dismissal of  the second.   Relying on these  facts, creditor            Fajardo  Federal  Savings Bank  argued before  the bankruptcy            court that Perez was ineligible for bankruptcy relief under              109(g)(1).   The bankruptcy  judge agreed, finding  a willful            failure to abide by orders of the court and to prosecute.                      Perez argues that it was error to dismiss his third            case pursuant to   109(g)(1) because the bankruptcy court, in            its order  dismissing the  second case, did  not specifically            find a "willful"  failure.  He also contends that  he was not            put on notice that  willfulness would be an issue.   Finally,                                         -2-            he argues that  the evidence  does not support  a finding  of            willfulness.                      Contrary to Perez's suggestion, no specific finding            of "willfulness"  was necessary  in the order  dismissing the            second petition.  A finding of willfulness may be made at the            time  of a  dismissal.   However, it  can also  be made  in a            subsequent case  when the  bankruptcy court  is called up  to            determine  if  the  earlier  dismissal   renders  the  debtor            ineligible under    109(g) to proceed in the subsequent case.            See Montgomery v. Ryan  (In re Montgomery), 37 F.3d  413, 415            ___ __________    ____   ________________            (8th  Cir. 1994);  In re  Robinson, 198  B.R. 1017,  1023 n.8                               _______________            (Bankr. N.D. Ga. 1996).                        We  think  that  Fajardo Federal's  citation  to               109(g)  put Perez  on  notice that  willfulness  would be  an            issue.    Moreover,  Perez's  opposition  to  the  motion  to            dismiss--in  which he argued that  "the previous case was not            dismissed for  willful failure"--makes  it plain that  he was                           _______            aware it was a key issue.                      Finally,  based  on  the  record  before  him,  the            bankruptcy judge did not  clearly err in finding willfulness.            There was a pattern  of failure to abide by  court orders, as            well  as of failure to  prosecute.1  Moreover,  Perez did not                                              1                                            ____________________               1Perez's  first  bankruptcy  case was  dismissed  after he               1            failed to  file a plan  and failed  to show up  at the    341            creditors' meeting.  The second case was dismissed based upon            Perez's failure  to  file a  plan  or schedules,  failure  to            appear at the    341 creditors' meeting, and failure  to make                                         -3-            introduce   any   evidence  on   the   point.     Under   the            circumstances, an  inference  of willfulness  was  justified.            See, e.g., In re Herrera, 194 B.R. 178, 189 (Bankr. N.D. Ill.            ___  ____  _____________            1996)  (inferring  willful  conduct  based on  a  pattern  of            repeated failures).                      Since the  dismissal of  the third  bankruptcy case            was proper  under     109(g)(1), we  need  not  consider  the            alternative bases given for dismissal.  Perez has waived, for            failure  to raise the issue  in his brief,  any argument that            the  dismissal  of the  adversary  proceeding  was in  error.            Finally,  since it is not material to any decision before us,            we need  not consider whether  the bankruptcy judge  erred in            making certain  findings in connection with a  motion to stay            pending appeal.                      Affirmed.2                               2                      _________                                            ____________________            payments.  In  his third case, Perez filed his  plan late and            failed to file a statement of affairs or schedules.               2The motion  of appellee  Juan R. Zalduondo-Viera  to join               2            the brief of Fajardo Federal Savings Bank is granted.                                         -4-
