Opinion
Bankr. 20-18118 BAP CO-24-010
07-01-2024
IN RE SHERRY ANN MCGANN, Debtor. v. JEANNE Y. JAGOW, Chapter 7 Trustee, Appellee. SHERRY ANN MCGANN, Appellant,
Chapter 7
Before SOMERS, HALL and THURMAN, Bankruptcy Judges.
ORDER DISMISSING APPEAL
On February 20, 2024, Appellant Sherry McGann filed a notice of appeal identifying several documents as subjects of the appeal. Subsequently, the Clerk's Office entered an order construing the notice of appeal as multiple notices of appeal and assigned the Bankruptcy Court's Minutes of Proceeding (the "Minute Order") as the subject of BAP No. 24-7.
In the Minute Order, the Bankruptcy Court (i) found McGann was in civil contempt for failure to comply with the Bankruptcy Court's prior Order Requiring Debtor to Turnover Property to the Trustee, (ii) determined the Trustee was entitled to an award of attorney's fees as a sanction, and (iii) ordered the Trustee to "file a motion seeking award for attorney's fees" by a certain date. The Minute Order further directed that Appellant "may, within 7 days after the filing by the Chapter 7 Trustee of a motion for award of attorney's fees, file a response contesting the amount of the request, but only if she has a valid factual and legal basis for doing so." On February 19, 2024, the Trustee filed its Motion for Award of Attorney's Fees (the "Fee Motion") in the bankruptcy case, which the Bankruptcy Court granted (the "Fee Order"). On April 24, 2024, McGann appealed the Fee Order, which was opened as BAP No. 24-10.
Minute Order at 3.
Subsequently, this Court issued an Order to Show Cause Why Appeal Should Not Be Dismissed for Lack of Standing in BAP No. 24-10. McGann responded arguing she is a "person aggrieved" because the Fee Order directly and adversely affects her pecuniary interest and thus she has standing. She acknowledges she failed to object to the Fee Order but argues this should not preclude her from having standing given her status as a pro se litigant. The Chapter 7 Trustee responded arguing McGann (1) has waived her right to appeal the Fee Order by failing to object to the Fee Motion, (2) is not a person aggrieved because her burdens have not increased, and (3) has not shown her neglect in failing to object to the Fee Motion was excusable.
We note that many of the cases cited by Appellant do not appear to be real cases. Thus, we strongly caution Appellant against using generative artificial intelligence (such as ChatGPT, Harvey AI, or Google Bard) to compose future legal pleadings. In their current state, these platforms do not provide the necessary guarantees of accuracy and reliability that are required for legal writing and have been shown to return false information when used as a substitute for traditional legal databases curated by human beings.
"Standing is a threshold issue in every federal case." Because the issue of standing is jurisdictional, it remains open to review at all stages of litigation. This Court "has an independent duty to inquire into its jurisdiction over a dispute, even where neither party contests it." Only a 'person aggrieved' by a bankruptcy court's order may appeal." Additionally, the Tenth Circuit has held that the "[prerequisites for being a person aggrieved are attendance and objection at a bankruptcy court proceeding."
In re Thomas, 469 B.R. 915, 921 (10th Cir. BAP 2012).
In re Lacy, 335 B.R. 729, 736 (10th Cir. BAP 2006) (citing Natl Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994)).
In re Am. Ready Mix, Inc., 14 F.3d 1497, 1500 (10th Cir. 1994); see also In re Petroleum Prod. Mgmt., Inc., 282 B.R. 9, 15 (10th Cir. BAP 2002) (citing Paine v. Dickey (In re Paine), 250 B.R. 99, 104 (9th Cir. BAP 2000) (noting a BAP may raise jurisdictional issues sua sponte)).
In re Petroleum Prod. Mgmt, Inc., 282 B.R. 9, 15 (10th Cir. BAP 2002) (quoting In re Am. Ready Mix, Inc., 14 F.3d at 1500).
In re Weston, 18 F.3d 860, 864 (10th Cir. 1994) (concluding creditors did not have standing because they did not file an objection or response to motion to approve election of chapter 7 trustee and failed to appear at the related hearing).
Here, despite having notice of the Minute Order and the Fee Motion and a pecuniary interest in the outcome of the Fee Order, McGann did not file an objection to the Fee Motion, nor request a hearing. Thus, she has not met all of the Tenth Circuit's prerequisites for being a "person aggrieved" and does not have standing to appeal the Fee Order. For these reasons, it is HEREBY ORDERED that this appeal is DISMISSED for lack of jurisdiction.
To the extent McGann argues that her neglect in failing to object was excusable, she points to no authority directing that the Tenth Circuit's "attendance and objection requirement" may be waived by a showing of excusable neglect. And even if such a waiver was available, Appellant has failed to demonstrate that her failure to respond or object was the result of any excusable neglect.