Ivan Uribe v. Laurie K. Weatherford

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11524
Non-Argument Calendar
____________________
In Re: IVAN URIBE,
Debtor.
___________________________________________________
IVAN URIBE,
Plaintiff-Appellant,
versus
LAURIE K. WEATHERFORD,
Chapter 13 Trustee,
Defendant-Appellee.
____________________
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 1 of 9

-- 1 of 9 --

2 Opinion of the Court 22-11524
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-01976-PGB
____________________
Before WILSON, L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
Ivan Uribe appeals the bankruptcy court’s order denying his
motion for reconsideration of the dismissal of his chapter 13 plan,
and the district court’s dismissal of the appeal of the bankruptcy
court’s order. After careful review, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2018, Uribe filed a voluntary petition for bankruptcy. Un-
der schedule D of the petition, Uribe listed Wells Fargo as the cred-
itor holding a secured claim over a home he rented out for income.
Laurie Weatherford was appointed as the trustee. After the bank-
ruptcy court dismissed the case for failure to file a chapter 13 plan,
Uribe filed his initial plan and moved to reinstate the case. Uribe
proposed to make monthly payments from November 2018
through October 2023. The bankruptcy court granted the motion
to reinstate the case, and the plan was modified—after several pro-
posed amendments by Uribe—to require monthly payments of
$819.17 from May 2, 2019, through March 2, 2021, with a balloon
payment of $172,000 due on April 2, 2021.
In July 2020, Uribe again moved to modify the plan, asking
for a pause in his monthly payments because he needed time to
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 2 of 9

-- 2 of 9 --

22-11524 Opinion of the Court 3
replace his tenant who’d moved out during the coronavirus pan-
demic. After a hearing presided over by Judge Vaughan, the bank-
ruptcy court permitted Uribe to skip six monthly payments, but it
did not modify the due date of the balloon payment. In March
2021, Uribe moved yet again to modify the plan, asking to extend
the pause in monthly payments for another month and to push the
balloon payment back to March 2022. The bankruptcy court held
a hearing—again presided over by Judge Vaughan—in May 2021
and granted Uribe’s motion to modify, extending the balloon pay-
ment deadline by five months but requiring monthly payments in
the meantime.
Uribe was delinquent in the amount of $3,126.94 by August
2021, having missed numerous payments, so Weatherford moved
to dismiss the case. After another hearing presided over by Judge
Vaughan, the bankruptcy court dismissed the case without preju-
dice. Uribe moved for reconsideration of the dismissal in Septem-
ber 2021. He argued that his financing to cover the balloon pay-
ment had fallen through before the dismissal but that he’d since
been able to secure another source.
In October 2021, the bankruptcy court held a hearing pre-
sided over by Judge Jennemann. Uribe told the bankruptcy court
that he’d secured lenders willing to loan him money so he could
carry out his plan, he’d removed the second mortgage on his rental
property, and circumstances related to both the pandemic and the
rental market had improved. Weatherford argued that Uribe was
attempting to “cram down” a non-homestead property but that he
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 3 of 9

-- 3 of 9 --

4 Opinion of the Court 22-11524
went twelve months without making any payments and, although
Judge Vaughan had extended the plan multiple times, the case
eventually was dismissed after Uribe failed to make the balloon
payment. Counsel representing Wells Fargo clarified that Uribe
hadn’t made any payments for sixteen months. In denying Uribe’s
motion, the bankruptcy court reasoned that Uribe had ample time
to fix the problem, but had failed to do so, and hadn’t made any
substantial payments.
The bankruptcy court entered an order denying Uribe’s mo-
tion for reconsideration, signed by Judge Vaughan. The order was
vacated the next day, at which time the bankruptcy court re-en-
tered the same order signed by Judge Jennemann. The order deny-
ing the motion for reconsideration noted that Uribe had “failed to
provide any valid basis to reinstate the case.”
Uribe filed a notice of appeal with the district court, appeal-
ing both the order dismissing his bankruptcy case and the order
denying his motion for reconsideration. He then filed a motion for
extension of time to file his initial brief, which was granted, making
his brief due on or before February 7, 2022.
On February 8, 2022, Uribe filed a “motion for leave to sup-
plement record on appeal,” seeking to supplement the record with
the transcript of the final hearing before the bankruptcy court. He
argued that he’d been diligently working on his initial brief and was
acting in good faith but would be unduly prejudiced without the
benefit of the hearing transcript. The next day, the district court
denied the motion without prejudice, concluding that—because
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 4 of 9

-- 4 of 9 --

22-11524 Opinion of the Court 5
Uribe had failed to file his brief by the deadline, and he couldn’t
request any other relief without also requesting more time to file
his initial brief—the motion effectively was a second motion for an
extension of time to file an initial brief. And because Uribe hadn’t
indicated when he ordered the transcript and his motion rested
solely on his assertion—without explanation—that he needed the
transcript, the district court concluded that Uribe hadn’t demon-
strated that his failure to file a brief—and hence to prosecute the
appeal—wasn’t the product of bad faith, negligence, or indiffer-
ence. In denying the motion, the district court gave Uribe five days
to submit an amended motion for extension of time but ordered
that failure to do so would result in dismissal of his appeal. The
order also required Uribe to attach his order form for the bank-
ruptcy court transcript, an explanation for why he failed to timely
request the transcript (if it wasn’t ordered within the required
time), an explanation for why the transcript was necessary, and an
estimate for when his initial brief would be completed.
On February 14, 2022, Uribe submitted an identical motion
for leave to supplement the record on appeal. The district court
denied the motion and dismissed the appeal, noting that the re-
newed motion ignored the court’s instructions and “merely re-
peat[ed] the three-sentence argument presented in the original
[m]otion, which the [c]ourt already rejected as deficient.”
Uribe appeals the dismissal.
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 5 of 9

-- 5 of 9 --

6 Opinion of the Court 22-11524
STANDARD OF REVIEW
We sit as a second court of review in the bankruptcy context,
independently examining the factual and legal determinations of
the bankruptcy court and employing the same standards of review
as the district court. Finova Cap. Corp. v. Larson Pharmacy, Inc., 425
F.3d 1294, 1299–300 (11th Cir. 2005). We review the bankruptcy
court’s factual findings for clear error and the bankruptcy court’s
and district court’s legal conclusions de novo. Id. at 1300. But we
review for abuse of discretion a district court’s order dismissing a
bankruptcy appeal on procedural grounds. See Pyramid Mobile
Homes, Inc. v. Speake, 531 F.2d 743, 746 (5th Cir. 1976). A district
court abuses its discretion when it applies the wrong principle of
law or makes clearly erroneous findings of fact. In re Piazza, 719
F.3d 1253, 1271 (11th Cir. 2013).
DISCUSSION
On appeal, Uribe argues first that he followed the district
court’s order on how to amend his motion to supplement the rec-
ord and that the district court erred by construing his motion to
supplement the record as a motion for an extension of time to file
his initial brief.
In bankruptcy appeals to the district court, the appellant
must file a brief within thirty days after the docketing of notice that
the record has been transmitted, unless the district court specifies
different time limits. Fed. R. Bankr. P. 8018(a). If the appellant fails
timely to file a brief, the district court may sua sponte dismiss the
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 6 of 9

-- 6 of 9 --

22-11524 Opinion of the Court 7
appeal after notice. Id. 8018(a)(4). Generally, dismissal upon disre-
gard of an order, especially where the litigant has been forewarned,
isn’t an abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837
(11th Cir. 1989). But in the bankruptcy context, we’ve explained
that because a brief—unlike a notice of appeal—isn’t a jurisdic-
tional prerequisite, a showing of bad faith, negligence, or indiffer-
ence is necessary in determining whether dismissal for failure to file
a brief is appropriate. Brake v. Tavormina, 778 F.2d 666, 667 (11th
Cir. 1985) (interpreting former Fed. R. Bankr. P. 8009(a)(1), requir-
ing timely filing of briefs).
The district court didn’t abuse its discretion by dismissing
Uribe’s appeal for failure to comply with a court order. See Pyramid
Mobile Homes, 531 F.2d at 746. A day after his initial brief was due,
Uribe neither filed his initial brief nor moved for an extension of
time to do so. Instead, he moved to supplement the record on ap-
peal. Under these circumstances, the district court acted reasona-
bly in construing this motion as one for extension of time, laying
out detailed instructions on how to proceed, and providing ample
forewarning of what would happen if Uribe didn’t comply. See Fed.
R. Bankr. P. 8018(a); Moon, 863 F.2d at 837. Uribe demonstrated
negligence and indifference by re-filing the same motion he’d filed
the previous week and failing to address the district court’s instruc-
tions—effectively ignoring the court order. See In re Beverly Mfg.
Corp., 778 F.2d 666, 667 (11th Cir. 1985) (dismissal for failure to
timely file brief is “proper only when bad faith, negligence or indif-
ference has been shown”). The district court also provided Uribe
with the opportunity to show that he was acting in good faith by
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 7 of 9

-- 7 of 9 --

8 Opinion of the Court 22-11524
instructing him to address whether he’d timely requested the tran-
script from the bankruptcy court, but Uribe didn’t do so. See id.
Therefore, Uribe hasn’t shown that the district court applied the
wrong principle of law or made a clearly erroneous factual finding,
and the district court didn’t abuse its discretion in sua sponte dis-
missing his appeal. See Fed. R. Bankr. P. 8018(a)(4); In re Piazza, 719
F.3d at 1271.
Second, Uribe argues that the bankruptcy court’s order
denying his motion for reconsideration was arbitrary and capri-
cious because a bankruptcy judge who hadn’t heard the case’s ear-
lier proceedings presided over the hearing on the motion. Ordinar-
ily, we don’t review arguments that weren’t raised in the district
court. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998) (holding that issues not raised below normally are
deemed waived). But because we sit as a second court of review in
the bankruptcy context, independently examining the conclusions
of the bankruptcy court, and because Weatherford doesn’t raise
the issue of waiver in her brief, we’ll address the merits of Uribe’s
argument on this issue. See Finova Cap., 425 F.3d at 1299–300.
The bankruptcy court didn’t abuse its discretion in denying
Uribe’s motion for reconsideration. See Mincey v. Head, 206 F.3d
1106, 1137 (11th Circ. 2000). Uribe’s argument is unpersuasive be-
cause a different—but still well-qualified—judge presiding over the
hearing and ruling on the motion doesn’t constitute either newly
discovered evidence or an error of law or fact. See In re Kello, 197
F.3d 1116, 1119 (11th Cir. 1999) (“The only grounds for granting
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 8 of 9

-- 8 of 9 --

22-11524 Opinion of the Court 9
Kellogg’s motion are newly-discovered evidence or manifest errors
of law or fact.”).
Finally, Uribe argues that the bankruptcy court’s order deny-
ing his motion for reconsideration was arbitrary and capricious be-
cause it was re-entered by the judge who’d presided over the mo-
tion hearing after the original order was vacated. But this appears
to be a mere clerical error that was quickly remedied and certainly
doesn’t constitute an abuse of discretion. See Fed. R. Civ. P. 60(a)
(“The court may correct a clerical mistake or a mistake arising
from oversight or omission whenever one is found in a judgment,
order, or other part of the record. The court may do so on motion
or on its own, with or without notice.”).
AFFIRMED.
USCA11 Case: 22-11524 Document: 29-1 Date Filed: 09/13/2023 Page: 9 of 9

-- 9 of 9 --