

                    [NOT FOR PUBLICATION]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  &amp;  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,

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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

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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.

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