In re Campbell

Full title: In re: DANIEL P. CAMPBELL, Chapter 13, Debtor

Court: United States Bankruptcy Court, E.D. Wisconsin

Date published: Jan 5, 2011

Case No. 09-35301-jes (Bankr. E.D. Wis. Jan. 5, 2011)

Opinion

Case No. 09-35301-jes.

January 5, 2011

OPINION AND ORDER

JAMES SHAPIRO, Chief Judge

On December 27, 2010, Daniel P. Campbell, the above-named debtor ("debtor") appearing pro se, filed an objection to this court's December 22, 2010 order denying debtor's motion to vacate its prior order dated November 15, 2010 dismissing this case. Debtor asks that "the proposed order entered on December 21, 2010 be ignored/vacated, and a proper hearing on the issues be held in accordance with Debtor's right to due process."¹ On January 3, 2011, debtor filed a document entitled "Debtor's Motion to Vacate Order Denying Debtor's Motion to Vacate Order Dismissing Case," which essentially repeats the same assertions in the debtor's December 27, 2010 objection.

1 Although debtor's objection refers to the "proposed order entered on December 21, 2010", for purposes of clarity, the order was signed and docketed on December 22, 2010."

In order to place this matter in its proper perspective, a chronological record of the key events leading up to the December 22, 2010 order is as follows:

Date Event ²

2 Court's oral ruling can be obtained by any of the following methods:

October 23, 2009 Debtor files chapter 13 petition. March 8, 2010 Order confirming chapter 13 plan entered, requiring the debtor to pay $1,000 per month for 12 months to be followed by $2,310 per month for 48 months. August 3, 2010 Chapter 13 trustee's motion to dismiss this case filed for debtor's failure to make plan payments necessary to fund plan. October 6, 2010 Hearing on chapter 13 trustee's motion to dismiss. Court ordered that, if debtor fails to make the equivalent of one monthly payment through and including March of 2011, chapter 13 trustee may submit an order dismissing this case without further hearing. November 5, 2010 Chapter 13 trustee submits affidavit of debtor's default in support of order dismissing case based upon failure to maintain required monthly plan payments under confirmed plan. November 15, 2010 Order dismissing case. November 19, 2010 Debtor's objection to chapter 13 trustee's affidavit in support of motion to dismiss (objection construed as a motion to vacate the November 15, 2010 order dismissing case). November 22, 2010 Debtor's motion to vacate order dismissing case was scheduled for hearing on December 21, 2010 and was mailed to debtor and all interested parties. November 24, 2010 Debtor's motion filed by debtor to reconsider November 15, 2010 order dismissing case. December 21, 2010. Hearing held on debtor's motion to vacate order dismissing case. Debtor fails to appear. Court renders oral ruling on electronic sound recording denying debtor's motion. December 22, 2010 Order denying debtor's motion to vacate order dismissing case. December 27, 2010 Debtor files document entitled: "Objection to Proposed Order Denying Debtor's Motion to Vacate Order Dismissing Case and Request for Hearing on the Matter." January 3, 2011 Debtor files pleading entitled "Debtor's Motion to Vacate Order Denying Debtor's Motion to Vacate Order Dismissing Case" A review of the court docket of this case (including all pleadings and proceedings) reveals that, on November 24, 2010, the Bankruptcy Noticing Center mailed to the debtor at his last known address by first class mail notice of the hearing to be held on December 21, 2010. This notice was sent to the debtor at his address on the docket, bankruptcy petition, and mailing matrix of this case (see Exhibit 1). In his objection, debtor asserts that he "did not receive notice of hearing and was not aware of the hearing until after the fact." The law presumes that a properly mailed document was received by the addressee. Hagner v. United States, 285 U.S. 427, 430 (1932). Mere denial of receipt is not sufficient to overcome this presumption. In re Cruey, 158 B.R. 66, 69 (Bankr. W.D. Va. 1993).

The court's review of the docket of this case further reveals that the notice of hearing was not returned to the Clerk of the United States Bankruptcy Court for the Eastern District of Wisconsin as undeliverable. The established procedure in this district is to enter on the docket all documents returned as undeliverable. No such entry appears on the docket of this case.

The hearing on the debtor's motion to vacate order dismissing case was conducted on December 21, 2010 in accordance with the notice of hearing. Mary B. Grossman, chapter 13 trustee, appeared at this hearing. There was no appearance by the debtor or any other interested party. This court then proceeded to render its oral ruling and denied the debtor's motion to vacate the order dismissing this case.

This court rejects debtor's assertion that he was denied due process. Due process does not require that an interested party actually receive notice. In re Longardner Associates, Inc., 855 F.2d 455, 459 (7^th Cir. 1988); In re Otto, 409 B.R. 912, 916 (Bankr. D. Minn. 2009). What is required for due process is that interested parties, including in this case the debtor, be given a notice and an opportunity to be heard. Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950). See also Midway Motor Lodge of Elk Grove v. Innkeepers' Telemanagement Equip. Corp., 54 F.3d 406, 408 (7^th Cir. 1995). Where, as in this case, notice is sent to the address last listed by the debtor as his mailing address on the documents filed by the debtor with the court, due process is satisfied. Otto, 409 B.R. at 916; In re Vincze, 230 F.3d 297, 298 (7^th Cir. 2000).

Debtor's latest pleading filed on January 3, 2011 entitled "Debtor's Motion to Vacate Order Denying Debtor's Motion to Vacate Order Dismissing Case" is the most recent of his repeated attempts to have this court vacate the November 15, 2010 order dismissing this case. It adds nothing other than to create confusion as well as unnecessary time and effort on the part of this court.

Accordingly:

IT IS ORDERED:

1. The debtor's objection to this court's order dated December 22, 2010 is OVERRULED.

2. The debtor's motion for a further hearing on the issues which were addressed and ruled upon at the hearing held on December 21, 2010 is DENIED.

3. The Clerk of the United States Bankruptcy Court for the Eastern District of Wisconsin shall not accept any further pleadings or other documents filed by or on behalf of the debtor in this dismissed case unless permission is first obtained from this court.

Dated at Milwaukee, Wisconsin, this 5^th day of January, 2011. NOTICE TO PARTIES IN INTEREST: NOTICE IS HEREBY GIVEN THAT: A hearing on the DEBTOR'S MOTION TO VACATE ORDER DISMISSING CASE has been scheduled in the above-captioned matter on December 21, 2010 at 9:00 AM United States Courthouse, Room 133, 517 East Wisconsin Avenue, Milwaukee, WI 53202.

NOTICE IS HEREBY FURTHER GIVEN THAT: If sufficient grounds to grant the motion are alleged or to deny the motion are not alleged, the court may rule at the time of the hearing.

SHOULD ANY PARTY HAVE A CONFLICT WITH THE FOREGOING DATE AND TIME FOR THIS HEARING, THAT PARTY SHOULD CONTACT THE COURT, WITH THE OTHER INTERESTED PARTIES ON THE LINE, TO RESCHEDULE THIS HEARING TO A MUTUALLY AGREEABLE DATE/TIME.

Dated at Milwaukee, Wisconsin, November 22, 2010.

EXHIBIT 1 CERTIFICATE OF NOTICE

11 U.S.C. 342 2002

District/off: 0757-2 User: tdf Page 1 of 1 Date Rcvd: Nov 22, 2010 Case: 09-35301 Form ID: jesntc13 Total Noticed: 21 The following entities were noticed by first class mail on Nov 24, 2010. db +Daniel P Campbell, N79 W13020 Country Club Dr, Menomonee Falls, WI 53051-4465 cr Chase Home Finance, LLC, c/o Gray and Associates, LLP, 16345 West Glendale Drive, New Berlin, WI 53151-2841 6184773 +American Express, Po Box 297812, Ft Lauderdale, FL 33329-7812 6193397 American Express Centurion Bank, c/o Becket and Lee LLP, POB 3001, Malvern PA 19355-0701 6184774 +Chase, 800 Brooksedge Blvd, Westerville, OH 43081-2822 6415867 +Chase Home Finance, LLC, 3415 Vision Drive, Columbus, OH 43219-6009, Dept G7-PP 6184775 +Chase Manhatten Mortgage, Po Box 24696, Columbus, OH 43224-0696 6184776 +Citibank, Po Box 6241, Sioux Falls, SD 57117-6241 6184777 +Countrywide Home Loans, 450 American St sv416, Simi Valley, CA 93065-6285 6184778 +Falls Anesthesia, Po Box 465, Brookfield, WI 53008-0465 6184779 +Internal Revenue Service, 1500 Pennsylvania Ave, Washington Dc, DC 20220-0001 6248870 +Menomonee Falls Amulatory Surgery Ctr., Account Recovery Service, Inc., 3031 N. 114th Street, Milwaukee, WI 53222-4218 6201694 +PRA Receivables Management, LLC, As Agent Of Portfolio Recovery Assocs., PO Box 12914, NORFOLK VA 23541-0914 6184780 +State Of Wisconsin, 2135 Rimrock Road, Madison, WI 53713-1443 6381202 ++TOYOTA MOTOR CREDIT CORPORATION, PO BOX 8026, CEDAR RAPIDS IA 52408-8026 (address filed with court: Toyota Motor Credit Corporation, 500 Redbrook Blvd., Owings Mills, MD 21117) 6184782 +Unvl citi, Po Box 6241, Sioux Falls, SD 57117-6241 6184784 +Village of Menomonee Falls, W156 N8480 Pilgrim Rd, Menonomonee Falls, WI 53051-3140 The following entities were noticed by electronic transmission on Nov 23, 2010. 6184772 +E-mail/Text: collect@arspif.com Account Recovery Service, 3031 N 114th Street, Wauwatosa, WI 53222-4218 6290323 E-mail/PDF: BNCEmails@blinellc.com Nov 23 2010 01:43:05 CR Evergreen, LLC, MS 550, PO Box 91121, Seattle, WA 98111-9221 6184783 +E-mail/Text: dcaldwell@waukeshacounty.gov Waukesha County, 515 W Moreland Blvd, Waukesha, WI 53188-2428 6184785 +E-mail/Text: Bankruptcy-Notifications@we-energies.com We Energies, PO Box 2046, Milwaukee, WI 53201-2046 TOTAL: 4 ***** BYPASSED RECIPIENTS (undeliverable, * duplicate) ***** 6184781 ##+Toyota Financial, Po Box 5726, Hopkins, MN 55343-5726 TOTALS: 0, * 0, ## 1 Addresses marked '+' were corrected by inserting the ZIP or replacing an incorrect ZIP. USPS regulations require that automation-compatible mail display the correct ZIP. Addresses marked '++' were redirected to the recipient's preferred mailing address pursuant to (f)/Fed.R.Bank.PR. (g)(4). Addresses marked '##' were identified by the USPS National Change of Address system as undeliverable. Notices will no longer be delivered by the USPS to these addresses; therefore, they have been bypassed. The debtor's attorney or pro se debtor was advised that the specified notice was undeliverable. I, Joseph Speetjens, declare under the penalty of perjury that I have sent the attached document to the above listed entities in the manner shown, and prepared the Certificate of Notice and that it is true and correct to the best of my information and belief. Meeting of Creditor Notices only (Official Form 9): Pursuant to Fed.R.Bank.P. 2002(a)(l), a notice containing the complete Social Security Number (SSN) of the debtor(s) was furnished to all parties listed. This official court copy contains the redacted SSN as required by the bankruptcy rules and the Judiciary's privacy policies. Date: Nov 24, 2010

a. obtaining a transcript from Audio Edge Transcription, LLC, 425 Eagle Rock Avenue, Ste. 201, Roseland, NJ 07068 (800/532-6878 or 973/618-2310); b. obtaining audio compact disc from the Clerk of the United States Bankruptcy Court for the Eastern District of Wisconsin at a cost of $26; or c. making arrangements with the Clerk of the United States Bankruptcy Court for the Eastern District of Wisconsin to listen to the audio compact disc at no charge.