Geberegeorgis v. Gammarino (In Re Geberegeorgis)

310 B.R. 61, 58 Fed. R. Serv. 3d 671, 2004 Bankr. LEXIS 664, 2004 WL 1147074
CourtBankruptcy Appellate Panel of the Sixth Circuit
DecidedMay 24, 2004
Docket03-8007
StatusPublished
Cited by40 cases

This text of 310 B.R. 61 (Geberegeorgis v. Gammarino (In Re Geberegeorgis)) is published on Counsel Stack Legal Research, covering Bankruptcy Appellate Panel of the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Geberegeorgis v. Gammarino (In Re Geberegeorgis), 310 B.R. 61, 58 Fed. R. Serv. 3d 671, 2004 Bankr. LEXIS 664, 2004 WL 1147074 (bap6 2004).

Opinion

OPINION

WHIPPLE, Bankruptcy Judge.

Creditor A1 Gammarino (Gammarino) appeals the bankruptcy court’s order granting Debtor Sirak W. Geberegeorgis’ (Debtor) motion to vacate its prior order dismissing Debtor’s Chapter 13 case and allowing him to resume performance of his confirmed Chapter 13 plan. The bankruptcy court determined that cause existed for vacating the dismissal order because the conditions that resulted in dismissal, namely Debtor’s illness and failure to make plan payments, had been resolved, and Gammarino would not be prejudiced by reinstatement of the case. The Panel finds that the bankruptcy court did not abuse its discretion in vacating the prior order of dismissal and AFFIRMS the bankruptcy court’s order.

I. ISSUE ON APPEAL

The issue is whether the bankruptcy court abused its discretion by vacating its order of dismissal and allowing Debtor to resume performance of his confirmed Chapter 13 plan.

II. JURISDICTION AND STANDARD OF REVIEW

The Panel has jurisdiction to decide this appeal from a final order of the bankruptcy court. The United States District Court for the Southern District of Ohio has authorized appeals to the Bankruptcy Appellate Panel. 28 U.S.C. § 158(b). The “final order” of a bankruptcy court may be appealed by right under 28 U.S.C. § 158(a)(1).

For purposes of appeal, the Supreme Court defines an order as final if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 798, 109 S.Ct. 1494, 1497, 103 L.Ed.2d 879 (1989) (internal quotations and citations omitted). Courts view the concept of finality in a more pragmatic and flexible way in bankruptcy proceedings than in other civil proceedings, “[t]o avoid the waste of time and resources that might result from reviewing discrete portions of the action only after [a bankruptcy case concludes or] a plan of reorganization is approved.” Lindsey v. O’Brien, Tanski, Tanzer & Young Health Care Providers of Conn. (In re Dow Corning Corp.), 86 F.3d 482, 488 (6th Cir.1996); see Cottrell v. Schilling (In re Cottrell), 876 F.2d 540, 541-42 (6th Cir.1989). Accordingly, an order that concludes a particular adversarial matter within the larger case should be deemed final and reviewable in a bankruptcy setting. Lindsey, 86 F.3d at 488; In re James Wilson Assocs., 965 F.2d 160, 166, (7th Cir.1992); Martin Bros. Toolmakers, Inc. v. Indus. Dev. Bd. (In re Martin Bros. Toolmakers, Inc.), 796 F.2d 1435, 1437-38 (11th Cir.1986).

Upon dismissal of the case, Gammarino was permitted to pursue his collection rights and remedies free of the automatic stay and Debtor’s confirmed Chapter 13 plan. In re Hill, 305 B.R. 100, 105 (Bankr.M.D.Fla.2003) (“Although a case may remain open after dismissal, the automatic stay of § 362 of the Bankruptcy Code terminates when the case is dismissed.”). Vacation of the dismissal order reinstated Debtor’s Chapter 13 case, and Gammarino’s rights under the confirmed Chapter 13 plan. At that point, all that was left to do was Debtor’s performance and the Chapter 13 Trustee’s administration of Debtor’s already confirmed Chapter 13 plan. Absent separate *64 future defaults or other disputes related to the confirmed Chapter 13 plan, there were no further orders required by the bankruptcy court and Gammarino was again bound by the terms of the plan. 11 U.S.C. § 1327(a). The order vacating the dismissal concluded the dispute over dismissal such that it is a final order immediately appealable by Gammarino without waiting until completion of the Chapter 13 plan and Debtor’s discharge. See 11 U.S.C. §§ 1322(d), 1328.

In addition, the procedural basis for the bankruptcy court’s order was ultimately Fed.R.Civ.P. 60(b), which applied to Debt- or’s Chapter 13 case through Fed. R. Bankr.P. 9024. The Sixth Circuit has held that an order ruling on a Rule 60(b) motion is appealable. Mallory v. Eyrich, 922 F.2d 1273, 1277 (6th Cir.1991) (citing Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 263 n. 7, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Honneus v. Donovan, 691 F.2d 1, 2 (1st Cir.1982)).

The granting of relief under Fed. R.Civ.P. 60(b) is reviewed for abuse of discretion. Mallory, 922 F.2d at 1279; Cincinnati Ins. Co. v. Byers, 151 F.3d 574, 578 (6th Cir.1998). Therefore, the Panel will affirm the order presently on appeal unless the Panel has “a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Union Oil Co. of Cal. v. Serv. Oil Co., 766 F.2d 224, 227 (6th Cir.1985); Cincinnati Ins. Co., 151 F.3d at 578. “The question is not how the reviewing court would have ruled, but rather whether a reasonable person could agree with the bankruptcy court’s decision; if reasonable persons could differ as to the issue, then there is no abuse of discretion.” Barlow v. M.J. Waterman & Assocs. (In re M.J. Waterman & Assocs.), 227 F.3d 604, 608 (6th Cir.2000) (citations omitted).

III. FACTS

Debtor filed his Chapter 13 petition in the United States Bankruptcy Court for the Southern District of Ohio on March 1, 2000. Among his assets is his business, a Dairy Mart, located in Cincinnati, Hamilton County, Ohio. The business property is subject to a first mortgage held by Provident Bank and a second mortgage held by Gammarino. The bankruptcy court confirmed Debtor’s Chapter 13 plan on March 22, 2001, overruling Gammarino’s objections.

Debtor was hospitalized for congestive heart failure in September of 2002.

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310 B.R. 61, 58 Fed. R. Serv. 3d 671, 2004 Bankr. LEXIS 664, 2004 WL 1147074, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geberegeorgis-v-gammarino-in-re-geberegeorgis-bap6-2004.