Ablitt v. Michaud

2006 DNH 075

• Court: District Court, D. New Hampshire
• Decided: June 27, 2006
• Docket: CV-05-391-PB
• Status: Published

Opinion

Ablitt v. Michaud CV-05-391-PB 06/27/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Ablitt & Caruolo, P.C.

v. Case No. 05-cv-391-PB Opinion No. 2006 DNH 075 Maureen Michaud

O R D E R

Ablitt & Caruolo, P.C. ("Ablitt") appeals the decision1 of

the bankruptcy court to deny its motion to dismiss an adversary

proceeding brought against it by the debtor, Maureen Michaud.2

Recognizing that this is an interlocutory appeal, Ablitt filed a

motion, in the bankruptcy court, for leave to appeal. See 28

U.S.C. § 158(a); Fed. R. Bankr. P. 8001(b). Michaud agrees that

this court "has the jurisdiction to hear this interlocutory

appeal." Brief for the Appellee at 1. Nonetheless, I find that

1 The bankruptcy court also denied Ablitt's motion to reconsider that decision.

2 Michaud alleges that Ablitt, the law firm that represents the holder of a mortgage on her residence, willfully violated the automatic stay by continuing a "power of sale" foreclosure, see N.H. Rev. Stat. Ann. § 479:25, after the bankruptcy court confirmed her Chapter 13 plan of reorganization. subject matter jurisdiction is lacking and accordingly dismiss

Ablitt's appeal.3 See Perry v. First Citizens Fed. Credit Union

(In re Perry) , 391 F.3d 282, 284 (1st Cir. 2004).

A bankruptcy court's denial of a motion to dismiss an

adversary proceeding is not a final judgment, but rather is "an

interlocutory order within what may be . . . a discrete dispute"

within the bankruptcy proceeding. Stubbe v. Banco Central Corp.

(In re Empresas Noroeste. Inc.). 806 F.2d 315, 316-17 (1986).

28 U.S.C. § 158(a)(3) gives this court jurisdiction over appeals,

"with leave of the court," from "interlocutory orders and

decrees." Although § 158 "provides no express criteria to guide

[the court's] discretion, . . . most courts utilize the same

standards as govern the propriety of district courts'

certification of interlocutory appeals to the circuit courts

under [28 U.S.C.] § 1292(b)." Fleet Data Processing Corp. v.

Branch (In re Bank of New Eng. Corp.). 218 B.R. 643, 652 (1st

Cir. B.A.P. 1998). Accordingly, I must determine whether the

bankruptcy court's order "involves a controlling question of law

3 Judge DiClerico arrived at the same decision in another interlocutory appeal brought by Ablitt that involves nearly identical facts and raises the same issues. Ablitt & Caruolo. P.C. v. Cunha. No. 05-cv-390-JD (D.N.H. May 31, 2006).

- 2 - as to which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially

advance the ultimate termination of the litigation." 28 U.S.C. §

12 92(b); Bank of New Eng.. 218 B.R. at 652.

Ablitt's primary argument on appeal is that its

communications with Michaud "were absolutely privileged under the

well-recognized state litigation privilege." Brief for the

Appellant at 5. The bankruptcy court held a hearing on Ablitt's

motion to dismiss and issued an order denying the motion "for the

reasons set forth in the record this date." Bankr. C t . Order

(October 13, 2005). I am unable to determine whether the

bankruptcy court's decision involved "a controlling question of

law as to which there is substantial ground for difference of

opinion" because Ablitt did not designate the hearing transcript

as part of the record on appeal.4

Moreover, the cases cited by Ablitt in its motion for leave

to appeal do not present an unsettled question of law. Rather,

they recognize that "statements made in the course of judicial

4 Although Federal Rule of Bankruptcy Procedure 8006 does not require the inclusion of a transcript in the record for all cases, here it is necessary to determine the basis for the bankruptcy court's decision.

- 3 - proceedings are absolutely privileged from civil actions,

provided they are pertinent to the subject of the proceeding."

McGranahan v. Dahar. 119 N.H. 758, 763 (1979) (emphasis added).

This absolute privilege applies to pre-litigation communications

where "litigation was contemplated in good faith and under

serious consideration" at the time the communication was made.

Provencher v. Buzzell-Plourde Assocs., 142 N.H. 848, 855 (1998).

Ablitt concedes that a foreclosure action under RSA § 479:25 is

not a judicial proceeding, and it has not provided any authority

to support the proposition that the privilege extends to

communications made in a non-judicial foreclosure action where

litigation has not been contemplated. See Def.'s Mem. of Law in

Supp. of Mot. for Leave to File Interlocutory Appeal at 8.

Accordingly, I decline to grant Ablitt's request for

interlocutory review.

Conclusion

For the reasons set forth above, Ablitt's motion for leave

to file an interlocutory appeal is denied and its appeal is

dismissed. In accordance with Federal Bankruptcy Rule 8014, all

- 4 - costs of appeal shall be taxed against Ablitt. The case is

remanded to the bankruptcy court for further proceedings.

SO ORDERED.

/s/Paul Barbadoro________ Paul Barbadoro United States District Judge

June 27, 2006

cc: William J. Amann, Esq. Raymond J. DiLucci, Esq. Lawrence P. Sumski, Esq. Geraldine L. Karonis, Esq., US Trustee US Bankruptcy Court - NH, Clerk

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