United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on a bankruptcy appeal by
Appellant Cynthia Moya (“Appellant”), pursuant to
28 U.S.C. § 158(a), from a March 23, 2017 Order
Dismissing Bankruptcy Case entered by the United States
Bankruptcy Court for the District of New Mexico (Record on
Appeal “R.” 50) in Case 16-13074-j7. On April 11,
2017, this bankruptcy appeal was referred to me by the
Honorable Robert C. Brack for a recommended disposition.
Appellant filed various documents with this Court on June 12,
2017. See Docs. 20, 21, 22, 23, 24, 26. In an Order
entered December 12, 2017, the Court gave notice that it was
construing these documents, collectively, as Appellant's
brief in support of her bankruptcy appeal. Doc. 28
at 2. The Court also gave Appellees until January 12, 2018,
to file a response brief. See id. To date, Appellees
have not filed any response, nor have they participated in
this appeal in any manner. Having now considered
Appellant's submissions, the record in the case, and the
relevant law, the Court recommends that the March 23, 2017
Order Dismissing Bankruptcy Case be affirmed and that
Appellant's appeal be dismissed.
filed for Chapter 13 bankruptcy on December 15, 2016. R. 9.
Her bankruptcy petition was converted from a Chapter 13 case
to Chapter 7 case on January 27, 2017. See R.
170-71. Appellee Philip J. Montoya was appointed as Chapter 7
Trustee. See R. 171. A meeting of creditors pursuant
to 11 U.S.C. § 341 (“§ 341 meeting”)
was scheduled for February 21, 2017. R. 172. The Notice of
Chapter 7 Bankruptcy Case, Official Form 309A, informed
Appellant that “Debtors must attend the [§ 341]
meeting to be questioned under oath.” R. 172.
February 21, 2017, the Trustee moved to dismiss
Appellant's bankruptcy petition on the basis that she had
failed to produce proof of identification and/or her social
security number, failed to provide tax returns and payment
advices, and that she “[r]efus[ed] to be sworn unless
all other participants also took oath.” R. 209.
Although the Motion to Dismiss as well as a Notice of
Deadline for Filing Objections was provided to Appellant at
her mailing address, she filed no objections. See R.
220, 285. In an Amended Motion for Protective Order, the
Trustee explained that Appellant appeared at the § 341
meeting on February 21, 2017, but “caused a subpoena to
be served on him” and “refused to be examined
under oath.” R. 240-42. He further noted that Appellant
“has filed at least two previous bankruptcy cases,
being Nos. 14-12353, and 16-11058, both of which were
dismissed, and it appears that the present case is simply an
attempt by the debtor to delay her creditors.” R. 242.
that Appellant had not filed objections to the Trustee's
Motion to Dismiss, Judge Robert Jacobvitz granted the motion
on March 23, 2017. R. 285-86.
Standard of Review
Federal district courts have jurisdiction to hear appeals
from final judgments, orders, and decrees of bankruptcy
courts pursuant to 28 U.S.C. § 158(a). The district
court reviews the bankruptcy court's legal determinations
de novo and its factual findings for clear error.
In re Hedged-Investments Assocs., Inc., 84 F.3d
1267, 1268 (10th Cir. 1996)
appellant proceeds pro se, the district court
generally construes her pleadings liberally, holding them to
a less stringent standard than those filed by a party
represented by counsel. See In re
Akbari-Shahmirzadi, No. 14cv0982 JB/WPL, 2015 WL
8329208, at *1 (D.N.M. Nov. 25, 2015). In so doing, the court
makes “some allowance for a pro se litigant's
‘failure to cite proper legal authority, [her]
confusion of various legal theories, [her] poor syntax and
sentence construction, or [her] unfamiliarity with pleading
requirements[.]'” Id. The Court will not,
however, construct arguments or search the record for the
pro se party. Id.
documents filed by Appellant, which the Court has construed
as her appellate brief, Plaintiff makes a number of arguments
that are entirely tangential to her appeal of the March 23,
2017 Order Dismissing Bankruptcy Case. For example, she
asserts that she has a right to be heard by an Article III
Court, that she has reached the age of majority, that an
entity rather than an individual owns the debts at issue in
the underlying bankruptcy case, that the bankruptcy court
abandoned its sovereign capacity by engaging in commercial
business, that payments on the subject debts were tendered,
that her mortgage insurance was proof of tender, that the
trustee violated her due process rights by suing her, that
she has a claim for adverse possession, that the bankruptcy
court has violated the Gold Repeal Act of 1933, and that her
creditors have not proven that she owes any
debt. But the Order Dismissing Bankruptcy Case
does not take up any of these arguments. Rather, the
bankruptcy court dismissed Appellant's case because she
did not counter the Trustee's Motion to Dismiss, which
asserted that she had failed to produce proof of
identification and/or her social security number, failed to
provide tax returns and payment advices, and that she
“[r]efus[ed] to be sworn unless all other participants
also took an oath.” R. 209.
only comprehensible argument advanced by Appellant in which
the Court can discern a relationship to the Order Dismissing
Bankruptcy Case is her contention that the Trustee
unconstitutionally required her to “swear under
oath” at the § 341 meeting. See, e.g., Doc.
20 at 2. More specifically, Appellant argues as follows:
the trustee made it quite clear that I could not affirm under
oath but I had to swear under oath. My personal as well as
religious belief prohibit me from swearing, the Supreme Court
has recognized this prohibition, and yet the trustee and the
bankruptcy court chose to violate my religious rights, my
personal rights and my due process rights without due process
of law, and I object.
Doc. 20 at 2-3. In essence, Appellant attacks the
dismissal of her bankruptcy case by asserting that the
Trustee required her to swear, rather than affirm, under oath
at the § 341 meeting. But, ...