Najarian Capital, LLC v. Cunningham (In re Cunningham)

600 B.R. 898
CourtUnited States Bankruptcy Court, N.D. Georgia
DecidedMay 7, 2019
DocketCASE NO. 18-59411-BEM; ADVERSARY PROCEEDING NO. 18-5223-BEM
StatusPublished

This text of 600 B.R. 898 (Najarian Capital, LLC v. Cunningham (In re Cunningham)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Najarian Capital, LLC v. Cunningham (In re Cunningham), 600 B.R. 898 (Ga. 2019).

Opinion

Barbara Ellis-Monro, U.S. Bankruptcy Court Judge

This proceeding was commenced on September 17, 2018, when James D. Cunningham, Defendant herein ("Movant") removed a dispossessory proceeding from DeKalb County Magistrate Court (the "Magistrate Court") to this Court1 . This Court remanded the dispossessory action to the Magistrate Court because Movant's chapter 13 case had been dismissed and there was no bankruptcy purpose to be served by retaining the proceeding (the "Remand Order"). [Doc. 5]. Notwithstanding the Remand Order, on November 5, 2018 Movant filed a Motion for Default Judgment (the "Default Motion") in this proceeding. [Doc. 8].

Movant filed a proposed order on the Default Motion on January 25, 2019, that proposed to grant relief that was inconsistent with prior rulings of this Court and included findings that this Court had jurisdiction over the dispossessory action rather than the Magistrate Court. [Doc. 19]. Additionally, the proposed order granted affirmative relief to Movant and against Plaintiff in the removed action, Najarian Capital, LLC, ("Plaintiff") for: (i) violations of the automatic stay alleged in the coversheet to this proceeding, (ii) "reversal of the foreclosure deed on the property due to 548 fraudulent transfer," (iii) monetary damages of $ 200,000, (iv) a permanent injunction against claims to the property which is the subject of the dispossessory action or against Movant, and (v) a finding that the removal caused all action taken in the state court to be void because the state courts are without jurisdiction. Id. Movant also filed briefs regarding the Default Motion. [Docs. 22, 23, 25].

On February 26, 2018, the Court entered its order denying the Default Motion (the "DJ Order"). [Doc. 32]. On the same day, several hours prior to entry of the DJ Order, Movant filed an Emergency Ex Parte Motion for Temporary Injunctive Relief Pursuant to 28 U.S.C. 1452, 28 USC 1446(d) and 28 U.S.C. 1447(c) (the "Emergency Motion"). [Doc. 30]. In the Emergency Motion, Movant sought entry of an immediate injunction against "all other courts and specifically the Dekalb County Magistrate Court, from acting in 18D55396, pursuant to 28 USC 1452, 28 USC 1446(d) and 28 USC 1447(c)." Id. at 3. More specifically, Movant sought to enjoin a hearing scheduled to be held an hour and one half after the receipt of the Emergency *901Motion2 because the removed action "is not an active case in the lower court, and the lower court has no jurisdiction to act." Id. at 1. Movant alleged further that the Magistrate Court was going to ignore the motions to dismiss he had filed, rule on a recusal motion and then enforce a void order contemplating issuance of a writ of possession against Movant's home, thereby causing irreparable harm to Movant. [Doc. 30, p. 1, 2]. Movant further asserted that, because Plaintiff had defaulted in the removed proceeding, violations of the automatic stay were admitted as was jurisdiction in this Court. And, regardless of this, because no certified copy of the Remand Order had been sent to the Magistrate Court jurisdiction had not re-vested in the state court such that even if a certified copy were to be issued pursuant to 28 U.S.C. § 1446(d)"the State court shall proceed no further unless and until the case is remanded." Id. at 3. This Court issued an Order and Notice of Hearing scheduling a hearing on an expedited basis on the Emergency Motion to be held on February 28, 20193 (the "Original Order and Notice") [Doc. 31].

On February 28, 2019, Movant filed a pleading titled FRBP Rules 9023 and 7062 Motion to Amend Order Denying Motion for Default Judgment (the "Motion to Amend DJ Order") [Doc. 35].

On March 1, 2019, at 1:02 p.m. Movant delivered his FRBP Rules 9023 and 7062 Motion to Amend Order And Notice of Emergency Hearing (the "Motion to Amend O & N") [Doc. 38]. In the Motion to Amend O & N, Movant asserts that the Court erred because it scheduled the expedited hearing after the time a hearing was to be held in the Magistrate Court and did not grant Movant an immediate ex parte injunction staying the Magistrate Court hearing. At the rescheduled hearing held on the Emergency Motion on March 1, 2019 (the "Hearing"), the Court addressed the Emergency Motion and the Motion to Amend O & N. [Doc. 48]. The Court entered an order memorializing the hearing and stating that "for the reasons announced on the record" the Emergency Motion [Doc. 30] and the Motion to Amend O & N [Doc. 38] were Denied. [Doc. 40]. Movant then filed "Movant's FRBP Rules 9023 and 7062 Motion To Amend Doc. 40" (the "Motion to Amend Doc. 40"). In the Motion to Amend Doc. 40, Movant argues that the Court gave him time to file a brief in support of the Motion to Amend DJ [Doc. 35] as well as the Emergency Motion and the Motion to Amend O & N.

On March 8, 2019, Movant filed a document titled "Judicial Notice and Stipulation of Fact" [Doc. 43]. In this pleading, Movant states that he is "showing the Court the following indisputable facts:" and then sets forth several statements that the Remand Order is void for various reasons including: staleness, being a fraudulent forgery, lack of service on Movant of a certified copy of the Remand Order, failure to file a certified copy of the Remand Order in this proceeding, this Court is without jurisdiction after the certified copy was filed in the Magistrate Court on March 4 and this Court's later orders are void but the Remand Order is really the void order; that this Court held that the Remand Order became legally enforceable upon being filed in the Magistrate Court *902case which occurred after the hearings in the Magistrate Court held on September 18, 2018 and October 23, 2018; and finally, Movant argues that sending a certified copy of the Remand Order to the Magistrate Court "blindsided Movant" and has caused him to be delayed in filing promised briefs. Id. at 3. This document also states a brief in support will follow. Id. This document is not styled as a motion and appears to recite Movant's contentions as argued in his briefs such that the Court construes this document as an additional statement of position and argument.

In addition to the Motions: (i) to Amend DJ, (ii) to Amend O & N, and (iii) to Amend Doc. 40, Movant also filed Debtor's Collateral Attack and Emergency Ex Parte Motion for Immediate Injunctive Relief (the "Collateral Motion") [Doc. 44] and a brief in support of the Collateral Motion. [Doc. 45].

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Cite This Page — Counsel Stack

Bluebook (online)
600 B.R. 898, Counsel Stack Legal Research, https://law.counselstack.com/opinion/najarian-capital-llc-v-cunningham-in-re-cunningham-ganb-2019.