Bernardin v. EXR LLC
| Docket Number | 21-CV-1152 (WFK)(JMW),21-CV-00382 (WFK)(JMW) |
| Decision Date | 14 August 2023 |
| Parties | DANIEL BERNARDIN, Appellant, v. EXR LLC et al., Appellees. DANIEL BERNARDIN, Appellant, v. EXR LLC, Appellee. |
| Court | U.S. District Court — Eastern District of New York |
Appearing Pro Se
Alan H Weinreb, Esq.
Margolin, Weinreb & Nierer, LLP
Attorney for EXR LLC
Georgia Papazis, Esq.
Hertz, Cherson & Rosenthal, P.C.
Attorney for Retained Realty, Inc. in 21-cv-1152
Georgia Papazis, Esq.
Howard S. Levine, Esq.
Janet Klein Goldstein, Esq.
Hertz, Cherson & Rosenthal, P.C.
Attorneys for Retained Realty, Inc. and Emigrant Bank in 21-cv-0382
Appearing Pro Se, Chapter 7 Trustee
Stan Yuon Yang, Esq.
Christine Black, Esq.
Office of U.S. Trustee
Attorneys for United States Trustee
REPORT AND RECOMMENDATION
Before the Court is pro se Appellant Daniel Bernardin's latest endeavor in a long string of bids to obtain relief from a state court eviction. Bernardin appeals several orders issued by the Hon. Robert E. Grossman, U.S. Bankruptcy Judge, in two related cases: 21-cv-1152 and 21-cv-0382. Namely, he appeals (1) Judge Grossman's December 30, 2020 Order denying his motion to stay the state court eviction order and (2) Judge Grossman's February 9, 2021 Order denying (i) his motion to reopen his bankruptcy case including his motion to vacate the state court orders; (ii) his motion to amend the Chapter 7 Application; and (iii) his motion to avoid lien with Emigrant and debts against coop apartment shares. Appellees, Retained Realty Inc. (“Retained') and Emigrant Bank (“Emigrant”), strenuously oppose the appeals. These appeals were referred to the undersigned for a Report and Recommendation.
For the reasons set forth below, the undersigned respectfully recommends that Judge Grossman's Orders be affirmed on numerous grounds. The undersigned explores each ground below in the alternative in the event the District Judge disagrees with a particular recommendation.
Retained is a subsidiary of Emigrant and manages and sells collateral obtained after a foreclosure sale to satisfy debts owed to Emigrant. (21-cv-1152 at ¶ 6 at 107.) On July 22, 2008 Bernardin signed a Collateral Note and Security Agreement for a $41,250 loan in favor of Emigrant which secured the shares and lease that encumbered the Property at 27 Hendrickson Avenue, Apt. B, Hempstead, NY 11550 (“Property”). (Id. at 70.) Bernardin agreed to make monthly payments of $373.48 at an annual interest rate of 10.375% until August 1, 2038. (Id.)
When Bernardin defaulted on his loan payments, Emigrant Bank served him a notice stating that the shares and right to the Property's lease would be auctioned pursuant to Article 9 of the New York Uniform Commercial Code. (Id. at 70-71.) The Property was publicly auctioned on October 11, 2016. (Id. at 71.) Emigrant was the successful bidder who then assigned its interests to its subsidiary, Retained, on April 20, 2017 through an Assignment of Bid. (Id.) Retained once again assigned its rights to another party, EXR, LLC, which then served a Notice to Quit upon Bernardin on July 13, 2020, demanding that he vacate the Property by August 5, 2020. See Order at 2, Retained Realty, Inc. v. Daniel Bernardin et al., No. 607139/2017 (Nassau Cty. Sup. Ct. November 23, 2020), NYSCEF 85.
On June 19, 2015, Bernardin filed a Chapter 7 petition in Federal Bankruptcy Court in this District. Chapter 7 Voluntary Petition, In re Bernardin, No. 15-72628 (REG) (Bankr. E.D.N.Y. June 19, 2015), ECF No. 1. Bernardin was informed on September 23, 2015 by the Bankruptcy Court that his remaining unpaid loan payments of $50,326 to Emigrant were discharged. (21-cv-0382 at ¶ 7 at 2.) The bankruptcy case was then closed. Electronic Order, In re Bernardin, No. 15-72628 (REG) (Bankr. E.D.N.Y. Sept. 23, 2015.).
On May 31, 2017, Retained served a Notice to Quit on Bernardin which stated that he must vacate the Property by June 19, 2017. Decision and Order on Motion at 3, Retained Realty, Inc., No. 607139/2017 (Nassau Cty. Sup. Ct. Apr. 11, 2018), NYSCEF 32. Bernardin failed to vacate the Property on that date and then sent harassing and threatening communications to Retained's office and its employees. Id. at 1. On July 20, 2017, Retained commenced an ejectment action in the Nassau County Supreme Court of New York (No. 607139/2017) to obtain possession of the Property. When Bernardin failed to appear to defend his case, Retained moved for default judgment against him. Id. at 5.
On April 11, 2018, Justice Anna R. Anzalone addressed Retained's motions to enjoin Bernardin from harassing Retained and for default judgment against Bernardin for his failure to respond to the summons and complaint. Decision and Order on Motion at 1, Retained Realty, Inc., No. 607139/2017 (Nassau Cty. Sup. Ct. Apr. 11, 2018), NYSCEF 32. The court granted Retained's motions in full, finding that it sufficiently alleged the requisite elements to prevail on a motion for a permanent injunction. Id. at 4. Justice Anzalone found that Retained was entitled to a writ of assistance from the Nassau County Sheriff, directing Bernardin to vacate the Property. Id.
Rather than appeal or seek reargument, Bernardin filed various motions in state court including (i) a motion to vacate the April 2018 state court order and to stay his removal from the Property; (ii) a motion for default judgment against Retained and EXR; and (iii) a motion for adjournment of adjudication of the motion to vacate. Order at 1-3, Retained Realty, Inc., No. 607139/2017 (Nassau Cty. Sup. Ct. Nov. 23, 2020), NYSCEF 85. Justice Dicca T. Pineda-Kirwan's denied all of Bernardin's motions on November 12, 2020. Id. On August 31, 2022, the state court issued an order “enjoin[ing] [Bernardin] from any future state Court filings and ‘from bringing any future actions in the New York State Unified Court System'” without prior court approval. Order at 1, Retained Realty, Inc., No. 607139/2017 (Nassau Cty. Sup. Ct. Aug. 31, 2022), NYSCEF 106.
On December 18, 2020, Bernardin sought to re-open the bankruptcy case, which was closed in September 2015, this time seeking the same relief denied by the state court in the ejection action against him. (21-cv-0382 at ¶ 6 at 4 n.4.) Bernardin petitioned the Bankruptcy Court to vacate Justice Anna R. Anzalone's April 11, 2018 Order as well as Justice Dicca T. Pineda-Kirwan's November 12, 2020 Order. Motion to Re-Open Case, In re Bernardin, No. 1572628 (REG) (Bankr. E.D.N.Y. Dec. 18, 2020), ECF No. 29. Bernardin stated that he was previously discharged from his debt and is protected by the New York Homestead Exemption for up to $170,825 because the apartment and accompanying shares he owes is his primary residence. Id. He stated that Judge Grossman directed the parties to appear at a motion hearing on January 25, 2021 to address Bernardin's motion to vacate the April 11, 2018 and November 12, 2020 state court orders. Id. at 3.
On December 29, 2020, Bernardin filed an emergency motion to show cause in Bankruptcy Court seeking a stay of the state court's April 11, 2018 eviction order and any writ of assistance to the Nassau County Sheriff to evict him until his motion to vacate both state court orders were “fully adjudicated.” (21-cv-0382 at ¶ 1 at 3.) However, the following day, Bankruptcy Judge Grossman found “no legal basis to enter a stay of any proceeding” pending a hearing on the motion and accordingly denied Bernardin's motion. (Id.) The court then directed parties to appear at the telephone hearing on January 25, 2021 to consider the remaining relief on his other motions. (Id. at 3-4.)
In January 2021, Bernardin also filed a motion in Bankruptcy Court to “correct[] a harmless and inadvertent error and oversight.” (21-cv-1152 at ¶ 4 at 2.) The error Bernardin refers to is that he intended to include Schedule C-property as exempt property which was initially placed under Schedule-A real property back in 2015 and thus omitted from Schedule-C property. (Id. at 3.) At the January 25, 2021 hearing, Nehemiah Rolle Jr., Bernardin's alleged power of attorney[1] and paralegal, appeared on Bernardin's behalf. Judge Grossman denied several of Bernardin's motions and instructed Rolle Jr. that he could not represent Bernardin given that he was not a licensed attorney. See Recording of Motion Hearing at 15:06:3615:12:03, In re Bernardin, No. 15-72628 (REG) (Bankr. E.D.N.Y. Jan. 25, 2021) (“Motion Hearing”).
On February 9, 2021, Judge Grossman denied Bernardin's (i) motion to reopen his bankruptcy case including his motion to vacate the state court orders; (ii) his motion to amend the Chapter 7 Application; and (iii) his motion to avoid lien with Emigrant and debts against coop apartment shares. Order, In re Bernardin, No. 15-72628 (REG) (Bankr. E.D.N.Y. Feb. 9, 2021), ECF No. 44.
Bernardin appealed two of Judge Grossman's Orders to this Court, each of which were assigned different case numbers: 21-cv-0382 and 21-cv-1152. Specifically, on January 22, 2021, Bernardin filed his Notice of Appeal specifically appealing Judge Grossman's denial of a stay of the state court eviction order on December 30, 2020. Transmittal of Notice of Appeal, In re Bernardin, No. 15-72628 (REG) (Bankr. E.D.N.Y. Jan. 22, 2021), ECF No. 38; (21-cv-0382 at ¶ 1-1.) And on March 3, 2021, he filed his Notice of Appeal appealing Judge Grossman's denial of several motions from an Order dated February 9, 2021.[2] (21-cv-1152 at ¶ 1 at 18.)
All parties filed their respective briefs in 21-cv-0382 by June 29, 2021. (Id. at ¶ 5-7.) As for...
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