Andrea Rosen Liebman v. Ocwen Loan Servicing, LLC

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 7, 2019
• Docket: 18-10495
• Status: Unpublished

Opinion

Case: 18-10495 Date Filed: 06/07/2019 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10495 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:17-cv-22874-RNS; 1:15-bkc-13372-AJC

In re:

ANDREA ROSEN LIEBMAN,

Debtor. _________________________________________________________________

Plaintiff-Appellant,

versus

OCWEN LOAN SERVICING, LLC, FUTURA MIAMI INVEST LLC,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 7, 2019) Case: 18-10495 Date Filed: 06/07/2019 Page: 2 of 5

Before WILSON, WILLIAM PRYOR, and GRANT, Circuit Judges.

PER CURIAM:

Andrea Rosen Liebman filed for bankruptcy under Chapter 13. The

bankruptcy court eventually dismissed her case after determining that Liebman’s

Chapter 13 payment plan was inadequate. The bankruptcy court denied her second

amended emergency motion to reinstate her Chapter 13 bankruptcy case and

granted Ocwen Loan Servicing, LLC’s (Ocwen) motion to amend the court’s prior

order denying confirmation of the payment plan and dismissing the case. In the

same order, the bankruptcy court determined that Liebman was not entitled to a

retroactive stay of the sale of her townhouse. The district court affirmed the

bankruptcy court’s order, and Liebman appealed.

On appeal, Liebman does not argue that the bankruptcy court erred by not

reinstating her case or by refusing to grant a retroactive stay. Rather, her

arguments spawn from previous bankruptcy court orders. Specifically, Liebman

argues that (1) we should grant relief under Federal Rule of Civil Procedure 60(b)

because Ocwen violated appellate jurisdiction; (2) the bankruptcy court erred by

refusing to grant her request for punitive damages in her Rule 60(b) motion; (3) the

bankruptcy court erred by refusing to acknowledge one of the arguments in her

Rule 60(b) motion; and (4) her motion for a stay of disbursement should have been

granted. We have previously concluded that we do not have jurisdiction to hear

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these arguments. Order Granting Mot. to Dismiss for Lack of Jurisdiction (Sept.

10, 2018), ECF No. 49.

Because Liebman did not sufficiently brief the decisive issues—whether the

bankruptcy court erred by refusing to (1) reinstate Liebman’s Chapter 13

bankruptcy case or (2) retroactively stay the sale of her townhouse—we affirm.

In an appeal from a district court’s order affirming the bankruptcy court, we

review the bankruptcy court’s factual findings for clear error and its legal

conclusions de novo. In re Ocean Warrior, Inc., 835 F.3d 1310, 1315 (11th Cir.

2016).

To “brief” a claim, a party must “plainly and prominently” raise it by, for

example, devoting a discrete section of her argument to that claim. Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (quotations

omitted). A claim is abandoned if the appellant only makes passing references to it

or raises it in a perfunctory manner without supporting arguments or authority. Id.

We generally do not address arguments made for the first time in a reply brief. Id.

at 683. These principles do not change if the appellant is pro se. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (“While we read briefs

filed by pro se litigants liberally, issues not briefed on appeal by a pro se litigant

are deemed abandoned.” (internal citations omitted)); see also id. (“[W]e do not

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address arguments raised for the first time in a pro se litigant’s reply brief.”

(citation omitted)).

Liebman has not presented any arguments or evidence suggesting that the

bankruptcy court erred by refusing to reinstate her case. Likewise, she has not

presented any arguments or evidence suggesting that the bankruptcy court

inappropriately applied the Stockwell factors, which are the factors a bankruptcy

court must consider in determining whether to grant a retroactive stay. See In re

Stockwell, 262 B.R. 275, 281 (Bankr. D. Vt. 2001). Rather, she devotes only one

sentence of her initial brief, reply brief, and amended reply briefs to the latter issue.

Specifically, the only sentence in Liebman’s amended initial brief mentioning the

Stockwell factors states, “Futura has no protection from a purchase made in

(Willful) Violation of an Automatic Stay nor are they are [sic] a creditor, who could

have implemented the Stockwell Factors.” And in Liebman’s original and

amended reply briefs, she frames one of the issues as “[w]hether the [bankruptcy

court] correctly applied the facts set forth in In re Stockwell,” but only makes a

one-sentence argument regarding that issue: “Stockwell factor # 5 in itself

invalidated the Stockwell factors . . .” The single sentence in her amended initial

brief is insufficient to raise a claim that the bankruptcy court’s application of the

Stockwell factors was erroneous, and we will not consider the argument raised in

her original and amended reply briefs. Sapuppo, 739 F.3d at 681, 683. We

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therefore affirm the district court’s affirmance of the bankruptcy court’s order

denying Liebman’s second amended emergency motion to reinstate. 1

AFFIRMED.

1 Appellant’s motion to file an amended reply brief is GRANTED. Both Appellee’s and Appellant’s motion for sanctions are DENIED. Appellee’s motion to dismiss the appeal as frivolous is likewise DENIED. 5