Kulick v. Leisure Vill. Ass'n (In re Kulick)

In re: ROBERT JACOB KULICK, Debtor.

ROBERT JACOB KULICK, Appellant, v. LEISURE VILLAGE ASSOCIATION, INC., Appellee.

BAP No. CC-22-1114-FTL

Bk. No. 9:21-bk-10017-RC

United States Bankruptcy Appellate Panel of the Ninth Circuit

December 16, 2022

NOT FOR PUBLICATION

Appeal from the United States Bankruptcy Court for the Central District of California Ronald A. Clifford III, Bankruptcy Judge, Presiding

Before: FARIS, TAYLOR, and LAFFERTY, Bankruptcy Judges.

MEMORANDUM ^[*]

INTRODUCTION

After debtor Robert Jacob Kulick obtained dismissal of his third chapter 13^[1] case, creditor Leisure Village Association, Inc. ("Leisure Village") sought a two-year refiling bar. The bankruptcy court agreed in part and barred Mr. Kulick from refiling a bankruptcy petition through the end of 2022, a period of about ten months.

Mr Kulick appeals the bankruptcy court's refiling bar. We discern no error and AFFIRM.

FACTS^[2]

A. Mr. Kulick's prior litigation

In 2013, Leisure Village filed a breach of contract lawsuit against Mr. Kulick and obtained a state court judgment for approximately $430,000. Mr. Kulick paid that judgment in full but then sued Leisure Village and others in state court for defamation. The defendants eventually prevailed against Mr. Kulick in the superior court and on appeal and were awarded attorneys' fees and costs totaling $504,965 plus interest. Leisure Village holds a judgment lien against Mr. Kulick's residential real property located in Camarillo, California.

During the second lawsuit, Mr. Kulick filed two chapter 13 petitions. He filed his first petition in January 2018, which the court dismissed on his motion in April of that year. He filed another petition in October, which he again voluntarily dismissed a month later.

Additionally, Mr. Kulick filed at least five complaints against Leisure Village in the U.S. District Court for the Central District of California between 2018 and 2020. The district court dismissed each of those cases in short order.

B. Mr. Kulick's current chapter 13 case

In January 2021, with the aid of counsel, Mr. Kulick filed another chapter 13 petition. He filed a chapter 13 plan (and an amended plan) to which the chapter 13 trustee ("Trustee") and Leisure Village objected.

Just before the third hearing on plan confirmation, Mr. Kulick filed a motion for voluntary dismissal. The bankruptcy court granted the motion and dismissed the case.^[3]

C. Leisure Village's motion to impose a bar on refiling

On May 5, 2022, Leisure Village filed a motion to bar Mr. Kulick from refiling a bankruptcy petition for two years ("Motion"), pointing to his "history of bankruptcy filings, misrepresentations of assets and liabilities, and egregious conduct . . . ."

Leisure Village characterized Mr. Kulick as a "serial chapter 13 filer, who has demonstrated no intent to reorganize his financial affairs and instead only abuses the bankruptcy process to hinder and delay [Leisure Village's] judgment collection efforts." It pointed out various misleading or untrue statements, as well as an undisclosed apartment lease and unscheduled assets such as cash and jewelry. It also outlined his attempts to avoid any inquiry into his assets and frustrate the § 341 meeting of creditors and Rule 2004 examination. It argued that, based on the totality of the circumstances, Mr. Kulick abused the bankruptcy process and should be barred from refiling a bankruptcy petition for at least two years.

Mr. Kulick opposed the Motion and argued that he filed the petition in good faith with the intent to save his home from foreclosure. He said that he had no plans to file another bankruptcy petition. He explained that his deceased wife owned the unscheduled jewelry and that he could not locate it. He also said that he had not resided at the rental apartment since 2000 and kept it only as a "safe house" in the event of a natural disaster. He argued that his conduct was not so egregious as to warrant a lengthy refiling bar. He pointed to his medical disabilities and his good faith efforts to save his home from foreclosure.

Before the hearing on the Motion, the bankruptcy court issued a tentative ruling and published it on its public calendar. The court did not, however, place the tentative decision on the docket.

At the hearing, Leisure Village pointed out that Mr. Kulick had filed approximately seven district court cases and three bankruptcy court cases, which showed egregious conduct that called for an extended bar on refiling. Mr. Kulick's counsel countered that Mr. Kulick had filed the present chapter 13 case in good faith and intended to use exempt assets to fund his chapter 13 plan. Speaking for himself, Mr. Kulick echoed his counsel's statements and explained his learning and medical disabilities to the court. He also told the court that, if "you still will permit me to have my six months' bar date, well, then I would accept that, Your Honor, but I don't think it's fair that I should be barred for a year."

The bankruptcy court ruled from the bench. It adopted the reasoning of its tentative ruling but revised the length of the refiling bar. It stated that it did not believe that "Mr. Kulick is without fault here or that the allegations made hold no merit[,]" but it was "of the mindset that there do seem to be some factors here that seem to at least weigh into some of the things that Mr. Kulick has done including his age and what appear to be serious health issues . . . ." It thus granted the Motion and imposed a bar on refiling a bankruptcy petition under any chapter from the date the case was dismissed (February 16, 2022) through the end of the year.

D. The appeal to the BAP

Mr. Kulick, proceeding pro se, timely appealed. The notice of appeal requested a stay of the bankruptcy court's order, which was "in retaliation/an abuse of judicial court authority & Unconstitutional."

Additionally, Mr. Kulick filed numerous motions before the BAP. In one motion, he argued that Leisure Village was not a proper appellee and that only the bankruptcy court should be a party to the appeal. In another, he sought an injunction to stay foreclosure of his property.

On July 8, 2022, the BAP motions panel entered an order (the "July 8 Order") that denied Mr. Kulick's motions and required him to complete the record on appeal and pay certain fees by a deadline. The July 8 Order provided that, if Mr. Kulick did not comply, the BAP would dismiss the appeal "without further notice to the parties." Mr. Kulick complied with the Panel's order.

JURISDICTION

The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and 157(b)(2)(A). We have jurisdiction under 28 U.S.C. § 158.

ISSUE

Whether the bankruptcy court abused its discretion in granting the Motion and barring Mr. Kulick from refiling a bankruptcy petition through December 31, 2022.

STANDARD OF REVIEW

We review for an abuse of discretion the bankruptcy court's decision to impose a refiling bar following dismissal. In re Bayati, BAP No. CC-16-1072-KiTaKu, 2016 WL 5848892, at *3 (9th Cir. BAP Oct. 5, 2016) ("The decision to dismiss a bankruptcy case with prejudice and impose a filing bar is also reviewed for abuse of discretion.").

To determine whether the bankruptcy court has abused its discretion, we conduct a two-step inquiry: (1) we review de novo whether the bankruptcy court "identified the correct legal rule to apply to the relief requested" and (2) if it did, we consider whether the bankruptcy court's application of the legal standard was illogical, implausible, or without support in inferences that may be drawn from the facts in the record. United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

DISCUSSION

Mr Kulick filed three informal briefs that identify the bankruptcy court's order granting the Motion as the basis for the appeal. His substantive arguments are difficult to understand, but they seem to focus on naming the bankruptcy court as an appellee, asserting undefined bias by the court and the Trustee, and referencing matters presented in district court cases. None of his arguments suggest reversible error.

A. The bankruptcy court did not err in imposing a limited bar on refiling.

Although the Bankruptcy Code does not explicitly authorize the bankruptcy court to bar a debtor from refiling a petition for a particular amount of time, we have previously stated that "[s]ection 349(a)^[4] is not ambiguous, and plainly provides that the bankruptcy court may, at its discretion and for cause, bar the discharge of existing debt. Inherent in this authority is the power to bar subsequent bankruptcy petitions that seek to discharge such debt." Leavitt v. Soto (In re Leavitt), 209 B.R. 935, 942 (9th Cir. BAP 1997), aff'd, 171 F.3d 1219 (9th Cir. 1999). In other words, the bankruptcy court may "dismiss a bankruptcy case with a bar preventing a debtor from re-filing in cases of abuse. . . . [T]he issue of the length of the bar is a matter for the Court's discretion." In re Craighead, 377 B.R. 648, 657 (Bankr. N.D. Cal. 2007); see also TICO Constr. Co. v. Van Meter (In re Powell), 644 B.R. 181, 187 (9th Cir. BAP 2022) (recognizing that a chapter 13 debtor has a right to dismiss his petition, but the bankruptcy court can prevent abuse by "impos[ing] a bar on refiling or other conditions under § 105").

The bankruptcy court did not place its findings on the record at the hearing on the Motion. It largely adopted its tentative ruling that was part of the court's calendar but never docketed. It directed counsel not to attach a copy of the tentative ruling to the order. As a result, the tentative ruling is not formally part of the record and not readily accessible to the public or to litigants who are unfamiliar with this bankruptcy...