Kufrovich v. DeHart, CIVIL ACTION NO. 3:19-1057
| Decision Date | 05 November 2019 |
| Docket Number | CIVIL ACTION NO. 3:19-1057 |
| Parties | GERALD KUFROVICH, Appellant v. CHARLES J. DEHART, III, Appellee v. GOSHEN MORTGAGE LLC as Separate Trustee for GBDT I Trust 2011-1, Intervenor-Appellee |
| Court | U.S. District Court — Middle District of Pennsylvania |
(JUDGE MANNION)
Pending before the court is the appeal filed by pro se appellant Gerald Kufrovich ("appellant"), in which he challenges the June 11, 2019 Order of the Bankruptcy Court denying his motion to reinstate his Chapter 13 bankruptcy case after it was previously dismissed.1 Named as appellee is Charles J. DeHart, III, the Chapter 13 Bankruptcy Trustee. The court has previously allowed Goshen Mortgage LLC as Separate Trustee for GBDT I Trust 2011-1 ("Intervenor") to intervene in this case pursuant to Fed.R.Civ.P. 24. For the reasons that follow, the Order of the Bankruptcy Court will be AFFIRMEDand, appellant's appeal, (Doc. 1), will be DENIED.
On August 7, 2018, appellant filed, pro se, a voluntary Petition under Chapter 13 of the Bankruptcy Code which was docketed to case number 5-18-bk-03317, M.D.Pa.3
Charles J. DeHart, III, ("appellee"), was named the Chapter 13 Standing Trustee in appellant's case.
Intervenor holds the first mortgage lien on appellant's real property located at 31 Hilltop Road, Barnesville, Pennsylvania.4 On November 30,2018, intervenor filed an objection to the confirmation of appellant's proposed Chapter 13 plan.
On February 7, 2019, appellee filed a motion to dismiss appellant's Chapter 13 Case for material default due to appellant's failure to make Chapter 13 Plan Payments towards his Reorganization Plan as required. (Doc. 65, 5-18-bk-03317). A hearing on the Doc. 65 motion to dismiss was then scheduled for March 5, 2019. On the same day that the Doc. 65 motion was filed, the docket indicates that a second motion to dismiss was inadvertently filed by appellee and a hearing was also scheduled on this motion for March 5, 2019. (Doc. 66, 5-18-bk-03317). However, when appellee later realized on February 7, 2019 that his Doc. 66 motion to dismiss was a duplicate of his Doc. 65 motion, he withdrew the Doc. 66 motion. (Doc. 67, 5-18-bk-03317). The Bankruptcy Court Case Administrator then terminated the Doc. 66 motion to dismiss and the duplicate March 5, 2019 hearing schedule on the Doc. 66 motion was cancelled. (Doc. 68, 5-18-bk-03317).
Thus, appellee's Doc. 65 motion to dismiss was not withdrawn. Nor was the March 5, 2019 hearing scheduled on the Doc. 65 motion cancelled. The docket also indicates that notice of appellee's Doc. 65 motion to dismiss and March 5, 2019 hearing were served on debtor. (Doc. 65, 5-18-bk-03317).
On February 15, 2019, intervenor filed a motion for relief from theautomatic stay pursuant to 11 U.S.C. §362(d), alleging that appellant failed to make monthly post-petition mortgage payments to it. Intervenor sought relief from the stay in order to have the sheriff's sale of appellant real property re-scheduled. The Bankruptcy Court scheduled a hearing on intervenor's relief from stay motion for March 28, 2019.
A hearing on appellee's Doc. 65 motion to dismiss was held before the Bankruptcy Court on March 5, 2019. Despite the notice appellee sent to appellant, appellant did not attend the hearing. The Bankruptcy Court then issued an Order on March 5, 2019 granting appellee's Doc. 65 motion to dismiss, and appellant's Chapter 13 bankruptcy case was dismissed for material default, namely appellant had failed to make any payments to appellee pursuant to appellant's own Bankruptcy plan. As such, intervenor's motion for relief from the automatic stay was deemed moot since the case was dismissed. (Docs. 77, 78 & 79, 5-18-bk-03317).
On March 14, 2019, appellant filed a motion to reinstate his Chapter 13 case. On May 2, 2019, intervenor filed an opposition to appellant's motion to reinstate his bankruptcy case. On June 11, 2019, the Bankruptcy Court held a hearing on appellant's reinstatement motion. Appellant was present at the hearing. Counsel for intervenor participated in the hearing by telephone. Appellee was also present at the hearing. The Bankruptcy Court construedappellant's motion to reinstate his case as a motion for reconsideration under Fed.R.Civ.P. 59 regarding the Court's March 5, 2019 Order granting appellee's Doc. 65 motion to dismiss and dismissing the case. (Doc. 15, Civil No. 19-1057). After the hearing, the Bankruptcy Court stated its findings and conclusions on the record and, then issued an Order denying appellant's motion to reinstate his case. (Docs. 92 & 93, 5-18-bk-03317), (Doc. 1-1, Civil No. 19-1057).
On June 21, 2019, appellant timely filed his instant pro se notice of appeal with this court appealing the Bankruptcy Court's June 11, 2019 Order denying his motion to reinstate his Chapter 13 case. (Doc. 1).5
On June 24, 2019, this court issued a Scheduling Order pursuant to Rule 8001 of the Rules of Bankruptcy Procedure setting the dates for appellant to file a designation of the items to be included in the record on appeal and a statement of the issues to be presented on appeal, as well as setting the dates briefs were due by the parties. (Doc. 2). Appellant's designation of the items to be included in the record on appeal and his statement of the issues to be presented were due 14 days after he filed his notice of appeal, i.e., by July 5, 2019.
On July 5, 2019, appellant filed his purported 2-sentence designationof the items to be included in the record on appeal and his statement of the issues to be presented on appeal, but they were not in conformance with Federal Rule of Bankruptcy Procedure 8009. (Doc. 7). Nonetheless, since appellant is proceeding pro se, the court construes the issue in appellant's appeal to be whether the Bankruptcy Court erred in denying appellant's motion to reinstate his Bankruptcy case. Also, since appellant did not submit items to be included in the record on appeal, the court obtained a copy of the transcript from the Bankruptcy Court's June 11, 2019 hearing and it has filed the transcript of record in this case. (Doc. 15).
On July 29, 2019, intervenor filed its motion to intervene in this case, (Doc. 5), and its brief in support, (Doc. 6).
On August 29, 2019, the court granted intervenor's unopposed motion to intervene. (Docs. 10 & 11).
After being granted two extensions of time, appellant filed his brief in support of his appeal, pursuant to Federal Rule of Bankruptcy Procedure 8018(a)(1), on September 13, 2019. (Doc. 12). Intervenor filed its brief in opposition to appellant's appeal on October 14, 2019. (Doc. 13). To date, appellee did not file a brief in response to appellant's appeal.
This court has appellate jurisdiction over the appellant's appeal of the Bankruptcy Court's June 11, 2019 Order pursuant to 28 U.S.C. §158(a)(1) (). See In re Michael, 699 F.3d 305, 308 n. 2 (3d Cir. 2012) (). When a district court sits as an appellate court over a final order of a bankruptcy court, it reviews the bankruptcy court's legal determinations de novo, its findings of fact for clear error, and its exercise of discretion for abuse of discretion. In re Trans World Airlines, Inc., 145 F.3d 124, 131 (3d Cir. 1998). See also In re Zinchiak, 406 F.3d 214, 221-22 (3d Cir. 2005) ().
The court in Forever Green Athletic Fields, Inc. v. Dawson, 514 B.R. 768, 778 (E.D.Pa. 2014), discussed the legal standard regarding appeals of bankruptcy court orders and stated:
Federal Rule of Bankruptcy Procedure 8013 provides that a reviewing court "may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings." Fed. R. Bankr.P. 8013. In our review, we are governed by traditional standards of appellate review and accordingly review a bankruptcy court's legal determinations denovo, independent of that court and without deference to its analysis and conclusions of law. SeeAmerican Flint Glass Workers Union v. Anchor Resolution Corp., 197 F.3d 76, 80 (3d Cir. 1999); see also Fed. R. Bankr. P. 8013. We review its factual findings, whether based on oral or documentary evidence, for clear error, and its exercise of discretion for abuse thereof. In re Trans World Airlines, Inc., 145 F.3d 124, 130-31 (3d Cir. 1998). Mixed questions of fact and law must be broken down and reviewed under the applicable standard. SeeIn re Montgomery Ward Holding Corp., 326 F.3d 383, 387 (3d Cir. 2003). We review a bankruptcy court's dismissal of a bankruptcy case as a bad faith filing for abuse of discretion. In re SGL Carbon Corp., 200 F.3d 154, 159 (3d Cir. 1999).
Additionally, "[a] factual finding is clearly erroneous if the district court is firmly convinced, based on all of the evidence, that the bankruptcy court made a mistake." Id. (citation omitted). The district court "may not engage in independent factfinding." Id. (citation omitted).
In his brief, appellant claims that he had no knowledge of the bankruptcy court's March 5, 2019 hearing regarding appellee DeHart's motion to dismiss his Chapter 13 case, which motion appellant thought was withdrawn and terminated on February 7, 2019, the same day that it was filed. Appellant states that the Bankruptcy Court then issued an Order on March 5, 2019, despite his absence, and granted the motion to dismiss and dismissed his case.
Appellant states that his motion to reinstate his bankruptcy case was denied on June 11, 2019, after the Bankruptcy Court held a hearing, which heattended, and he now seeks this court to reverse the Bankruptcy Court's Order and reinstate his Chapter 13 case.
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