The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
This is a bankruptcy appeal. Appellant, Elroy Dewitt Pinkeney, appeals the Order of the Bankruptcy Court, dismissing his Chapter 13 case. In addition, the Appellant appeals the Order of the Bankruptcy Court waiving the automatic stay*fn1 permitting the creditor Appellee, Chase Home Finance, LLC, to move forward with the sheriff's sale of Appellant's residence on November 3, 2008. The Appellant appeals on the basis that his constitutional right to Procedural Due Process was violated when his former counsel instructed him that there would be no Plan Confirmation hearing (Confirmation hearing) on October 29, 2008 when, in fact, a confirmation hearing was conducted. After full consideration, the Court affirms the order of the Bankruptcy Court, dismissing the Appellant's Chapter 13 claim.
The Appellant filed his Chapter 13 claim on July 5, 2008, in the United States Bankruptcy Court for the Western District of Pennsylvania. (Doc. No. 1). The Appellant requested an extension to the automatic stay on the sheriff's sale, and the Bankruptcy Court granted the Appellant's motion on July 30, 2008. (Doc. No. 14). The Appellant filed his Chapter 13 Plan on August 1, 2008 and attended his mandatory meeting of creditors on October 20, 2008. (Doc. No. 19). There is no question that there was confusion over whether the Confirmation hearing would occur on October 29, 2008 due to a scheduling error. Appellant's former counsel informed him that there would be no hearing; however, upon learning of the error and that the hearing would be held, Appellant's former counsel attended the Confirmation hearing on October 29, 2008 without the Appellant. The following day, the Bankruptcy Court dismissed the Appellant's Chapter 13 case and granted the creditor relief from the stay, permitting the sheriff sale of the property to proceed. (Doc. No. 33). The Court determined that this filing, being Appellant's fifth bankruptcy filing, was an abusive filing, meriting its dismissal. (Doc. No. 53 at lines 18-23 p. 9).
On November 7, 2008, the Appellant, with new counsel, Donald Calaiaro, filed a motion for reconsideration of the orders granting relief from stay in rem and dismissal of the case. (Doc. No. 39). Upon review, during the hearing on December 18, 2008, the Bankruptcy Court denied the motion. (Doc. No. 44).
The district court acts as an appellate tribunal and is governed by traditional standards of appellate review when reviewing a decision of the bankruptcy court. Accordingly, the court reviews the bankruptcy court's findings of fact under a clearly erroneous standard, and its conclusions of law are reviewed de novo. In re Four Three Oh, Inc., 256 F.3d 107, 112 (3d Cir. 2001); In re Trans World Airlines, Inc., 145 F.3d 124, 131 (3d Cir.1998); Fed.R.Bankr.P. 8013.*fn2
The Appellant alleges that his Procedural Due Process rights were violated when his former counsel informed him that there would be no contested confirmation hearing on October 29, 2008. The hearing did, in fact, occur in Appellant's absence. (Doc. No. 7 at 6-7). As a result of this alleged violation, he argues that he was denied the opportunity to properly present his testimony. (Doc. No. 7 at 6-7). Appellant further maintains that this alleged violation led to an improper dismissal of his Chapter 13 claim by the Bankruptcy Court. For the reasons that follow, this Court finds this claim to be without merit.
The Bankruptcy Court for the United States District Court for the Western District of Pennsylvania in In re Electro-Met Coal Co., Inc., 121 B.R. 480, 483-484 (Bkrtcy.W.D.Pa., 1990) aptly summarized the concept of procedural due process as follows:
Procedural due process imposes constraints on governmental decisions which deprive a person of "liberty" or "property" within the meaning of the Due Process Clause of the Fifth and Fourteenth Amendments. Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 901, 47 L.Ed.2d 18 (1976). The fundamental requirement of due process is an opportunity to be heard "at a meaningful time and in a meaningful manner". Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965). Consequently, some form of hearing is required before one may be finally deprived of a property interest. Mathews, 424 U.S. at 333, 96 S.Ct. at 902.
Unlike certain legal principles, however, due process is not a technical concept having a fixed content in relation to time, place and circumstances. Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961). It defies any notion of an invariant procedure which applies to every conceivable situation. The procedures required by due process may vary from situation to situation. See Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 320, 105 S.Ct. 3180, ...