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Wazney v. Chase

United States District Court, D. South Carolina

March 6, 2018

Robert Williams Wazney, #363679, Appellant,
v.
Chase, Appellee.

          REPORT AND RECOMMENDATION

          Kevin F. McDonald, United States Magistrate Judge.

         Robert Williams Wazney (“Appellant”), proceeding pro se, filed this appeal from an order issued by the United States Bankruptcy Court for the District of South Carolina (“Bankruptcy Court”) dismissing his miscellaneous proceeding. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(e) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the appeal and submit findings and recommendations to the district judge.[1] For the reasons that follow, the court recommends that the district judge dismiss this appeal.

         I. Factual and Procedural Background

         On October 2, 2017, Appellant filed a Voluntary Petition for Non-Individuals Filing for Bankruptcy (“Petition”), naming the debtor as “2040 Hideaway Drive” (the “Debtor”) and the Debtor's principal place of business as 990 Wisacky Highway, Bishopville, SC 29010-the address of Lee Correctional Institution, operated by the South Carolina Department of Corrections-where Appellant is incarcerated. See In re 2040 Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd, doc. 2 at 2. Appellant stated in the Petition that the Debtor was a corporation (id.). Appellant signed the Petition, under penalty of perjury, as “attorney for [D]ebtor”. See In re 2040 Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd, doc. 2 at 5.

         On October 6, 2017, the Bankruptcy Court entered an order (“Order”) dismissing the Petition. See In re 2040 Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd, doc. 3. The Bankruptcy Court held that although Petition identified the Debtor as a corporation, there was no such corporation registered with the South Carolina Secretary of State. See id., doc. 3 at 2 and Exhibit A. In addition, although the Appellant had signed the Petition as attorney for the Debtor, records of the South Carolina Bar Association showed that Appellant was not a licensed attorney in South Carolina and was not admitted to practice in the District of South Carolina. See id., doc. 3 at 2 and Exhibits B & C. The Bankruptcy Court held that because Appellant was not a licensed attorney, he was not permitted to file a voluntary petition on behalf of a corporation as its attorney. See id., doc. 3. The Bankruptcy Court dismissed the Petition, concluding: “2040 Hideaway Drive is not an eligible debtor, no relief is available under the petition, and the petition did not commence a bankruptcy case.” (D.) The Order was mailed from the Bankruptcy Noticing Center on October 7, 2017, to the Debtor at “2040 Hideaway Drive, 990 Wisacky Highwy [sic], Bishopville, SC 29010-1775.” See In re 2040 Hideaway Drive, Bankr. Case No. 3:17-mp-90009-dd, doc. 4 at 6. A Record of Returned Mail filed in the Bankruptcy Court's docket indicates that the Order was returned to the Bankruptcy Court on October 31, 2017. See Id. at doc. 8.

         On November 22, 2017, Appellant appealed the Order by mailing a Notice of Appeal to the Bankruptcy Court. See Bankr. Case No. 3:17-mp-90009-dd, doc. 10 at 2. The Notice of Appeal was filed on November 27, 2017. See Bankr. Case No. 3:17-mp-90009-dd, doc. 10 at 1. Appellant specifically stated that he received the Order on November 9, 2017. See Bankr. Case No. 3:17-mp-90009-dd, doc. 10 at 2. On November 29, 2017, the Bankruptcy Clerk transmitted the Notice of Appeal to the Clerk of this Court, which docketed the appeal. See Bankr. Case No. 3:17-mp-90009-dd, doc. 13.

         II. Discussion

         A. Standard of Review

         The Appellant is a pro se litigant, and thus his pleadings are accorded liberal construction. See Erickson v. Pardus, 551 U.S. 89, 90-95 (2007) (per curiam). When a federal court is evaluating a pro se complaint or petition, the allegations are assumed to be true. Merriweather v. Reynolds, 586 F.Supp.2d 548, 554 (D.S.C. 2008). Even under this less stringent standard, the complaint is subject to summary dismissal. The requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts that set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).

         B. Analysis

         “Federal courts are courts of limited jurisdiction, ‘constrained to exercise only the authority conferred by Article III of the Constitution and affirmatively granted by federal statute.'” Wilson v. Moss, C.A. No. 5:15-2230-MBS, 2015 WL 4257121, at *2 (D.S.C. July 13, 2015) (quoting In re Bulldog Trucking, Inc., 147 F.3d 347, 352 (4th Cir. 1998)). “Accordingly, a federal court is required, sua sponte, to determine whether a valid basis for jurisdiction exists, ‘and to dismiss the action if no such ground appears.'” Id. (quoting In re Bulldog Trucking, Inc., 147 F.3d at 352).

         In considering an appeal from the Bankruptcy Court, a federal court first must determine whether the notice of appeal has been timely filed. Wilson, 2015 WL 4257121, at *2 (citing Reig v. Wells Fargo Bank, N.A., No. PWG-12-3518, 2013 WL 3280035, at *1 (D. Md. June 26, 2013)). If the notice of appeal has not been timely filed, the district court is without jurisdiction. Smith v. Dairymen, Inc., 790 F.2d 1107, 1109 (4th Cir. 1986).

         Rule 8003(a)(1) of the Federal Rules of Bankruptcy Procedure states that “[a]n appeal from a judgment, order, or decree of a bankruptcy court to a district court . . . may be taken only by filing a notice of appeal with the bankruptcy clerk within the time allowed by Rule 8002.” Fed.R.Bankr.P. 8003(a)(1). Rule 8002 requires that “a notice of appeal must be filed with the bankruptcy clerk within 14 days of the entry of the judgment, order or decree being appealed.” Fed.R.Bankr.P. 8002(a)(1); see also 28 U.S.C. § 158(a)(1) (requiring appeal to “be taken . . . in the time provided by Rule 8002 of the Bankruptcy ...


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