Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moya v. U.S. Eagle Federal Credit Union

United States District Court, D. New Mexico

March 9, 2018

CYNTHIA MOYA, Appellant,
v.
U.S. EAGLE FEDERAL CREDIT UNION and PHILIP J. MONTOYA, Trustee, Appellees.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS 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)[1] 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. Doc. 2.

         Thereafter, 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.

         I. Procedural History

         Appellant 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.

         On 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.

         Noting 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.

         II. 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)

         When an 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.

         III. Analysis

         In the 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.[2] 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.

         The 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 ยง 341 meeting. But, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.