Dismissal for Failure to Prosecute: Debtor’s Bankruptcy Appeal Tossed for Delay by Eleventh Circuit

By: Jacob J. Payne and Scott St. Amand

As creditors’ counsel, we have often faced debtors who file bankruptcy simply to delay and frustrate the collection process.  A recent case out of the Eleventh Circuit typifies the no-nonsense attitude that bankruptcy and appellate judges take with debtors who attempt to use the Bankruptcy Code as a vehicle for delay.

In 2009 a pro se debtor filed for Chapter 7 bankruptcy and disclosed that he had nearly $40,000 in student loan obligations.  The debtor filed an adversary complaint against the lender and sought a determination that his student loan obligations were dischargeable.  The lender served a set of interrogatories on the debtor, which the debtor steadfastly refused to answer (even after being compelled to do so by the court).  Ultimately, the court dismissed the debtor’s case.

On appeal to the district court, the debtor failed to file or serve his initial appellate brief, never requested an extension of time, and had not otherwise appeared in the case.  More than five months after the debtor filed his notice of appeal, the district court sua sponte dismissed the appeal for failure to prosecute.