Johnston v. Johnston

536 B.R. 576, 2015 U.S. Dist. LEXIS 113738, 2015 WL 5089348
CourtDistrict Court, D. Vermont
DecidedAugust 27, 2015
DocketNo. 2:14-cv-260
StatusPublished
Cited by4 cases

This text of 536 B.R. 576 (Johnston v. Johnston) is published on Counsel Stack Legal Research, covering District Court, D. Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Johnston, 536 B.R. 576, 2015 U.S. Dist. LEXIS 113738, 2015 WL 5089348 (D. Vt. 2015).

Opinion

OPINION AND ORDER DENYING MOTION FOR EXTENSION OF TIME TO PERFECT RECORD AND FILE BRIEF BASED UPON PRO SE EXCUSABLE NEGLECT AND/OR MOTION TO STAY CASE PENDING RESOLUTION OF VERMONT SUPREME COURT AND RUTLAND SUPERIOR COURT PROBATE REVIEW

CHRISTINA REISS, Chief Judge.

Pending before the court is a motion for an extension of time to perfect the record on appeal and submit a brief, or for a stay, filed by Appellant Kamberleigh Johnston (“Appellant”). Appellant is the son of Debtor Marjorie W. Johnston (“Debtor”).

Debtor is represented by Kathleen Walls, Esq. Creditor Wells Fargo Bank, N.A. (“Wells Fargo”) is represented by Grant C. Rees, Esq. Creditor Ocwen Loan Servicing, LLC, is represented by Sarah B. Gullon, Esq. The Chapter 13 Standing Trustee is Jan M. Sensenich. Appellant is self-represented. None of Appellees sub[580]*580mitted a response to Appellant’s motion or have otherwise participated to date in this appeal.

I. Procedural History.

A. Proceedings Before the Bankruptcy Court.

On July 28, 2014, Debtor filed a Chapter 13 proceeding. On August 18, 2014, Debt- or filed a notice of voluntary dismissal of her case, pursuant to 11 U.S.C. § 1307(b), on the grounds that her estranged husband had fallen ill and that she needed to travel to Florida to attend to him and other issues. (Docs. 2-2 & 2-4.) Wells Fargo objected to dismissal (Doc. 2-5), arguing that Debtor originally filed her Chapter 13 proceeding two days prior to a scheduled foreclosure sale of two commercial properties in order to delay those sales and thus Debtor had not filed in good faith. Wells Fargo also argued that Debt- or had a practice of filing Chapter 13 proceedings to avoid foreclosure sales. On this basis, Wells Fargo requested that the Bankruptcy Court impose a one-year ban on Debtor’s right to file a subsequent bankruptcy petition if Debtor’s case was dismissed.

On September 16, 2014, Debtor filed a response to Wells Fargo’s objection and request for a one-year filing ban. (Doc. 2-7.) Debtor maintained that she filed her Chapter 13 proceeding in good faith and that she sought voluntary dismissal based on post-petition factors that were beyond her control.

On September 29, 2014, Appellant objected to dismissal of Debtor’s Chapter 13 case as a “non-hostile creditor/interested person” on the basis that he was a bona fide creditor. Appellant requested that the Bankruptcy Court deny Debtor’s request and force Debtor to proceed with her Chapter 13 case and that any dismissal be deferred until the Bankruptcy Court resolved certain issues involving Debtor’s creditors.1 Wells Fargo objected to Appellant’s opposition, arguing it was untimely filed and there was “no basis” for him to “successfully oppose Debtor’s motion to dismiss her bankruptcy.” (Doc. 2-9 at 2.)

On October 6, 2014, the Bankruptcy Court issued a written order, memorializing the court’s earlier ruling at a hearing on Debtor’s request for dismissal. (Doc. 2-11.) The Bankruptcy Court found “nothing in the record to indicate that this particular case was filed in bad faith or that the motion to dismiss was filed in bad faith” and thus Debtor had an “absolute right” to immediate dismissal of her Chapter 13. case. Id. at 2. The Bankruptcy Court overruled Appellant’s objection to dismissal, denied Wells Fargo’s request for a one-year filing ban, and granted Debtor’s motion to dismiss.

Thereafter, Appellant moved for reconsideration of the Bankruptcy Court’s order dismissing Debtor’s case (Doc. 2-12), arguing that there was no evidence of Debtor’s [581]*581bad faith but rather that Wells Fargo acted in bad faith. He requested that Wells Fargo’s objection to dismissal be stricken from the record because there was no support for a one-year filing ban, and he requested that Wells Fargo provide an accounting of billable hours.

The Bankruptcy Court denied Appellant’s motion for reconsideration on the basis that it had “acted appropriately in (1) considering the allegations of bad faith in this case and Wells Fargo’s request for a one-year bar, and (2) having found no substance to the allegations, promptly granting the Debtor’s motion.to dismiss at that time.” (Doe. 2-13 at 2.) The Bankruptcy Court also denied Appellant’s other requests because Wells Fargo had not sought legal fees in the case and because “the fact that a pleading may not espouse the view ultimately adopted by the court is not an appropriate' grounds to strike the pleading.” Id. at 2-3.

Appellant then filed a motion to vacate the Bankruptcy Court’s order denying his motion for reconsideration. (Doc. 2-14.) Appellant maintained that the Bankruptcy Court should have granted his request to strike Wells Fargo’s objections from the record as the denial to do so “le[ft] ‘inaccurate information’ filed by [the attorney for Wells Fargo] in the official record and create[d] ‘future’ prejudice for the [D]ebt- or.” Id. at 2. He requested an evidentia-ry hearing, arguing that the Bankruptcy Court should allow him to question “other creditors on issues directly relevant to the 1 year ban and related issues.” Id. On the same day, Appellant filed a request for permission to file an interlocutory appeal. (Doc. 2-15.)

The Bankruptcy Court denied Appellant’s motion to vacate, finding that Appellant raised the same arguments in that motion as he advanced in support of his objection to dismissal and his motion for reconsideration. (Doc. 2-16.) The Bankruptcy Court also denied, as moot, Appellant’s request for permission to file an interlocutory appeal because the Bankruptcy Court’s order dismissing Debtor’s case was a final order pursuant to 28 U.S.C. § 158(a)(1). The Bankruptcy Court, however, subsequently granted Appellant’s request for an extension of time to file a notice of appeal (Doc. 2-17), finding Appellant had demonstrated excusable neglect for his untimely filing of a notice of appeal (Doc. 2-18). The Bankruptcy Court ordered Appellant’s notice of appeal to be treated as timely filed as of December 2, 2014. (Doc. 2-20 at 4.)

B. Appeal Before This Court.

On December-9, 2014, the court received the record on appeal from the Bankruptcy Court (Doc. 1), and on January 21, 2015, the court received a supplemental record on appeal from the Bankruptcy Court (Doc. 2). Pursuant to Rule 8018 of the Federal Rules of Bankruptcy Procedure, Appellant was required to serve and file his brief within thirty days “after the docketing of notice that the record has been transmitted or is available electronically.” Fed. R. Bankr. P. 8018(a)(1). Appellant did not file his brief within the time accorded under the Rules.

On April 28, 2015, the court issued an Order to Show Cause On or Before June 1, 2015 that directed Appellant to address why the pending appeal should hot be dismissed for his failure to comply with the Federal Rules of Bankruptcy Procedure

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Cite This Page — Counsel Stack

Bluebook (online)
536 B.R. 576, 2015 U.S. Dist. LEXIS 113738, 2015 WL 5089348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-johnston-vtd-2015.