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In re Wojciechowski

United States Court of Appeals, Eighth Circuit

June 15, 2017

In re: Paul M. Wojciechowski; Mary E. Wojciechowski, also known as Mary Aubertin Debtors
v.
Paul M. Wojciechowski; Mary E. Wojciechowski Debtors-Appellees Susan H. Mello; Susan H. Mello, LLC Creditors-Appellants Diana Spuhl Daugherty Trustee-Appellee

          Submitted: May 2, 2017

         Appeal from United States Bankruptcy Court for the Eastern District of Missouri - St. Louis

          Before KRESSEL, NAIL, and SHODEEN, Bankruptcy Judges.

          NAIL, Bankruptcy Judge.

         Susan H. Mello and Susan H. Mello, LLC (collectively, "Mello") appeal the October 21, 2016 order of the bankruptcy court[1] confirming Debtors Paul M. Wojciechowski and Mary E. Wojciechowski's second amended plan.[2] We affirm.

         BACKGROUND

         Debtors filed a petition for relief under chapter 13 of the bankruptcy code in April 2016. Debtors listed Mello, who had represented Debtor Paul Wojciechowski in his pre-petition divorce proceeding and was still owed attorney fees for her services, on their schedule E/F.

         Over the next several months, Mello filed numerous motions, objections, and an adversary proceeding.[3] Two ultimately led to this appeal: Mello's amended motion to dismiss Debtors' case and Mello's amended objection to Debtors' second amended plan.[4]

         In her amended motion to dismiss, Mello alleged Debtors had filed their petition in bad faith and listed a number of perceived errors and omissions in Debtors' schedules and statements and in Debtors' testimony at their meeting of creditors. In her amended objection to Debtors' second amended plan, Mello alleged Debtors' second amended plan had not been proposed in good faith and again listed a number of perceived errors and omissions in Debtors' schedules and statements and in Debtors' testimony at their meeting of creditors.[5] Mello also alleged Debtors had not applied their disposable income to payments under their second amended plan, Debtors' second amended plan was not feasible, and Debtors had failed to pay a domestic support obligation.

         Both Mello's amended motion to dismiss and Debtors' second amended plan came before the bankruptcy court in October 2016. After hearing the arguments of counsel and considering the voluminous record, the bankruptcy court denied Mello's amended motion to dismiss, overruled Mello's objections to confirmation, [6] and confirmed Debtors' second amended plan. The bankruptcy court's oral rulings were memorialized in an order confirming Debtors' second amended plan entered October 21, 2016 and an order denying Mello's amended motion to dismiss entered November 10, 2016.

         On October 24, 2016, Mello filed a motion to amend, inter alia, the bankruptcy court's order confirming Debtors' second amended plan. On November 10, 2016, the bankruptcy court entered an order denying Mello's motion to amend. On November 23, 2016, Mello filed a notice of appeal.[7] Mello's appeal is therefore timely. See Fed.R.Bankr.P. 8002(a) and (b).

         STANDARD OF REVIEW

         Mello contends the bankruptcy court erred in confirming Debtors' second amended plan. To the extent this implicates the bankruptcy court's findings of fact, we review those findings for clear error. Islamov v. Ungar (In re Ungar), 633 F.3d 675, 679 (8th Cir. 2011). To the extent it implicates the bankruptcy court's conclusions of law, we review those conclusions de novo. Ungar, 633 F.3d at 679.

         Mello also contends the bankruptcy court erred in denying her request for an evidentiary hearing on the confirmation of Debtors' second amended plan. We review the bankruptcy court's decision not to conduct an evidentiary hearing for an abuse of discretion. United ...


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