Wilton Perez v. Maria Yip

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 23, 2020
• Docket: 19-12111
• Status: Unpublished

Opinion

Case: 19-12111 Date Filed: 01/23/2020 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-12111 Non-Argument Calendar ________________________

D.C. Docket Nos. 1:18-cv-24810-RNS; 1:16-bkc-20517-AJC

In Re: WILTON PEREZ,

Debtor.

_______________________________________________________

WILTON PEREZ,

Plaintiff-Appellant,

versus

MARIA YIP, as Trustee of Providence Financial Investments, Inc. and Providence Fixed Income Fund, LLC,

Defendant-Appellee.

________________________

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

(January 23, 2020) Case: 19-12111 Date Filed: 01/23/2020 Page: 2 of 4

Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.

PER CURIAM:

Wilton Perez appeals pro se the district court’s order affirming the

bankruptcy court’s judgment in favor of Maria Yip, as Trustee (“the Trustee”) of

Providence Financial Investments, Inc., and Providence Fixed Income Fund, LLC

(collectively, “Providence”), in an adversary proceeding against Perez and his

company for fraudulent transfer and unjust enrichment, to recover commissions

paid in relation to an alleged Ponzi scheme. On appeal, Perez argues that the

bankruptcy court lacked jurisdiction to enter judgment for the Trustee under

Federal Rules of Civil Procedure 7 and 8, as the Trustee did not allege that he had

received an excessive commission. He also argues that the evidence did not

support the bankruptcy court’s finding that he had managed a mere $1.1 million for

Providence (rather than over $8 million, as he alleges) and that—as a result—the

court erred by calculating that he had received a 23% commission, finding that

commission excessive, and awarding the Trustee $176,000.

I

“We review questions of subject matter jurisdiction de novo,” Milan

Express, Inc. v. Averitt Express, Inc., 208 F.3d 975, 978 (11th Cir. 2000), and they

may be raised at any time, “even initially at the highest appellate instance.” Grupo

Dataflux v. Atlas Glob. Grp., L.P., 541 U.S. 567, 576 (2004) (internal quotation

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marks and citation omitted). We review both the bankruptcy court’s and district

court’s conclusions of law de novo and the bankruptcy court’s findings of fact for

clear error. In re Sublett, 895 F.2d 1381, 1383 (11th Cir. 1990).

A bankruptcy court has jurisdiction to “hear . . . all core proceedings” in

bankruptcy cases referred to it by the district court, including “proceedings to

determine, avoid, or recover fraudulent conveyances,” and to “enter appropriate

orders and judgments” therein. 28 U.S.C. § 157(a)–(b)(1), (2)(H), (c)(2). As

relevant to Perez’s argument on appeal, Federal Rule of Civil Procedure 7 lists

allowed pleadings and the requirements for motions requesting court orders, and

Rule 8 lists requirements for the contents of pleadings.

Perez’s jurisdictional argument is meritless. The bankruptcy court

indubitably had jurisdiction over the underlying dispute as a “proceeding[] to . . .

recover fraudulent conveyances” in a bankruptcy case. 28 U.S.C. § 157(b)(1),

(2)(H). That the Trustee failed to plead that Perez received excessive commissions

is irrelevant: The Trustee stated proper claims for fraudulent conveyances, then

Perez raised the defense that he received those payments “for value and in good

faith”—elements which Perez had the burden of proving. 11 U.S.C. § 548(c); see

also In re Am. Way Serv. Corp., 229 B.R. 496, 525 (Bankr. S.D. Fla. 1999). This

affirmative defense only allows him to retain the payments “to the extent that

[he] . . . gave value to the debtor in exchange.” 11 U.S.C. § 548(c). Because the

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burden was on Perez to plead and prove that the payments were proportional to the

value of his services, the Trustee’s failure to plead disproportionality is no defect at

all. And it certainly creates no jurisdictional problem; nothing in Federal Rules of

Civil Procedure 7 or 8 even purports to limit the bankruptcy court’s jurisdiction.

II

“When an appellant fails to challenge properly on appeal one of the grounds

on which the district court based its judgment, he is deemed to have abandoned any

challenge of that ground, and it follows that the judgment is due to be affirmed.”

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

The district court below held that because Perez had not designated a record

on his appeal, it could not review his challenges to the bankruptcy court’s factual

findings. Even reading his initial brief liberally, we can identify no argument that

the district court erred in affirming the judgment of the bankruptcy court on that

ground. Perez does not so much as mention his failure to designate a trial

transcript in his initial brief on appeal and explicitly refers to his factual contention

that he never received commissions in excess of 7.5% as “[t]he only issue [on] this

appeal.” Accordingly, because he does not challenge an independently adequate

ground for the district court’s affirmance of the bankruptcy court’s decision, we

affirm.

AFFIRMED.