Due Process Not Violated Where Non-Dischargability Judgment Was Entered By Default Against Pro Se Debtor Who Had Not Notified Bankruptcy Court Of His Change Of Address
Banks v. Moore (In re Banks), No. 06-1828, 204 Fed. Appx. 141, 2006 WL 2818950 (3d Cir. Oct. 3, 2006) (per curiam)
This court of appeals ruling affirming a default judgment in favor of a creditor in an adversary action on non-dischargability turned on the principle that “the debtor who failed to keep the court apprised of his proper mailing address has only himself to blame.” In this case, the debtor’s new address was the county jail. This decision was entered per curiam and is marked as “not precedential.”
A creditor of Frederick Banks (the debtor) filed an adversary action in the Bankruptcy Court to determine the non-dischargability of a debt owed by the debtor to him for reasons of alleged defalcation and embezzlement. When the action was filed, the debtor was represented by counsel. However, three weeks before trial, the debtor’s counsel filed motions to withdraw and for continuance of trial. Those motions were granted and the trial was scheduled for two months later. The bankruptcy court sent notice of the trial to the address the debtor had submitted in his bankruptcy petition papers. The debtor did not appear at trial and a judgment was entered in favor of the creditor.
Less than a week after entry of the judgment, the bankruptcy court received papers from the debtor which were docketed as a “motion for pro se appearance.” (There was no indication of an awareness that permission to appear pro se was not required.) Two days later, the bankruptcy court received from the debtor a notice of appeal from the judgment. On both documents, the debtor listed his updated address as the Allegheny County jail.
In his appeal in district court, the debtor claimed he was not served with his former counsel’s motions, and did not know of the trial date. The district court denied his appeal. The Third Circuit affirmed.
The court of appeals dismissed the appeal because it “had no arguable basis in fact or law.” The court did not use the word “credibility,” but found that the debtor’s unawareness of the former counsel’s motion was unsupported by the record. The record was replete with examples of how his former counsel had tried to communicate with him by letters, phone calls and emails, while there were no examples of the debtor seeking to contact his attorneys, and as such, there was no evidence to support the debtor’s assertion that his former attorneys knew he had been incarcerated. Similarly, there was no evidence that the debtor had apprised the bankruptcy court of his new jail address until after entry of the judgment in favor of the creditor.
