Makozy v. Crawford, Case No. 13-61533-CIV-ROSENBAUM
| Decision Date | 22 November 2013 |
| Docket Number | Case No. 13-61533-CIV-ROSENBAUM |
| Parties | GREGORY MAKOZY, Appellant, v. ROSEMARY CRAWFORD, Appellee. In re: GREGORY MAKOZY, Debtor. |
| Court | U.S. District Court — Southern District of Florida |
This matter is before the Court upon the Brief of Appellant Gregory Makozy [ECF No. 8] on his appeal of the Bankruptcy Court's Order Denying Debtor's Motion to Continue Automatic Stay and Transferring Case to Western District of Pennsylvania. The Court has considered the brief, all supporting and opposing filings, and the record in this case. For the reasons set forth below, the Court affirms the Bankruptcy Court's Order.
On April 5, 2010, A-1 Mortgage Corporation filed a Chapter 7 bankruptcy petition with the United States Bankruptcy Court for the Western District of Pennsylvania. In re A-1 Mortgage Corporation, No. 10-22459, ECF No. 1 (Bankr. W.D. Pa. Apr. 5, 2010). Maria Makozy, wife ofappellant Gregory Makozy ("Makozy"),1 was the sole shareholder and president of A-1 Mortgage Corporation. Id. at 3; ECF No. 10 at 2. Two weeks after the filing of A-1 Mortgage Corporation's bankruptcy petition, Maria Makozy herself filed a Chapter 7 bankruptcy petition in her individual capacity. In re Maria Makozy, No. 10-22879, ECF No. 1 (Bankr. W.D. Pa. Apr. 21, 2010). Appellee Rosemary Crawford was appointed to serve as the Chapter 7 Trustee of both of these petitions. See id., ECF No. 4. In 2008, prior to the filing of the bankruptcy petitions, judgment had been entered against Maria Makozy and A-1 Mortgage Corporation and in favor of a prior A-1 Mortgage Corporation employee in a civil suit brought in the Court of Common Pleas of Butler County, Pennsylvania. See ECF No. 10 at 1.
During the course of these Chapter 7 proceedings, Crawford initiated an adversary proceeding against Appellant Gregory Makozy, alleging that shortly before and after entry of the Pennsylvania state-court judgment, Makozy orchestrated a series of fraudulent transfers to divert funds away from A-1 Mortgage Corporation and another corporation owned by Maria Makozy. Crawford v. Makozy, No. 11-02128, ECF No. 1 (Bankr. W.D. Pa. Feb. 28, 2011). Crawford alleged that Makozy diverted these funds to two new Pennsylvania corporations formed by Makozy in 2008 and that he also deeded real property in Pennsylvania and Florida away from a corporation jointly owned by the Makozys to Makozy, individually. Id. at 4-6, ¶ 15.
The adversary proceeding in Case No. 11-02128, however, was stayed when Makozy filed his own Chapter 13 bankruptcy petition in the Southern District of Florida, In re Gregory Michael Makozy, No. 11-36301, ECF No. 1 (Bankr. S.D. Fla. Sept. 23, 2011), five days before the trail datein the adversary proceeding in Case No. 11-02128. See ECF No. 10 at 3. The Honorable Raymond B. Ray dismissed Makozy's Florida bankruptcy petition for failure to file necessary documents by the court-ordered due date. Makozy, No. 11-36301, ECF No. 11 (Bankr. S.D. Fla. Oct. 11, 2011). Judge Ray also denied Makozy's two attempts to vacate the dismissal. Makozy, No. 11-36301, ECF No. 16 (Bankr. S.D. Fla. Nov. 29, 2011); Makozy, No. 11-36301, ECF No. 27 (Bankr. S.D. Fla. Feb. 17, 2012).
After the dismissal of Makozy's bankruptcy proceeding in Florida, the trial date in Crawford's adversary proceeding against Makozy in Pennsylvania was rescheduled for June 11, 2012, but the court granted Makozy's motion to continue the trial date until August 29, 2012. Crawford, No. 11-02128, ECF No. 33 (Bankr. W.D. Pa. June 6, 2012). Crawford alleges that Makozy's true intent in rescheduling the trial was to allow him the time to dispose of real properties located in Pennsylvania that he owned prior to the trial and therefore avoid having liens placed on these properties as a result of the state-court judgment. ECF No. 10 at 3-4. On the eve of the rescheduled trial, the Pennsylvania bankruptcy court granted the parties' joint stipulation to enter final judgment in the adversary proceeding in favor of Crawford and against Makozy in the amount of $100,000.00. Crawford, No. 11-02128, ECF No. 36 (Bankr. W.D. Pa. Aug. 28, 2012).
On February 26, 2013, Makozy filed a Chapter 7 bankruptcy petition in the Southern District of Florida, his second bankruptcy petition in this district. In re Gregory Michael Makozy, No. 13-14226, ECF No. 1 (Bankr. S.D. Fla. Feb. 26, 2013). Crawford alleges that Makozy filed the petition in an attempt to stay Pennsylvania state-court proceedings related to Crawford's efforts to enforce the $100,000.00 judgment entered against Makozy by the Pennsylvania bankruptcy court. ECF No. 10 at 4-5. These state-court proceedings resulted in the issuance of a bench warrant against Makozyand an order finding Makozy in contempt of court for his willful failure to comply with state-court orders to appear at depositions. Id. The Honorable John K. Olson dismissed Makozy's petition without prejudice, finding Makozy ineligible as a debtor under 11 U.S.C. § 109(h) because he had failed to complete budget-and-credit counseling from an approved agency in the 180 days prior to filing his petition and had no exigent circumstances that warranted exemption from this statutory requirement. Makozy, No. 13-14226, ECF No. 10 (Bankr. S.D. Fla. Mar. 1, 2013). Judge Olson also denied Makozy's motion to reinstate this second bankruptcy petition. Makozy, No. 13-14226, ECF No. 18 (Bankr. S.D. Fla. Apr. 16, 2013).
On April 11, 2013, Makozy filed a second Chapter 7 petition with the Southern District of Florida, his third bankruptcy petition in the district. In re Gregory Michael Makozy, No. 13-18173, ECF No. 1 (Bankr. S.D. Fla. Apr. 11, 2013). The following day, Makozy filed a Motion for Continuation of Automatic Stay. Makozy, No. 13-18173, ECF No. 10 (Bankr. S.D. Fla. Apr. 12, 2013). Crawford objected to the Motion and sought transfer of the case to the Bankruptcy Court for the Western District of Pennsylvania. Makozy, No. 13-18173, ECF No. 17 . After a hearing on the matter, Judge Olson issued an Order that both denied the Motion to Continue Automatic Stay and also directed the Bankruptcy Clerk of Court to transfer the case to the Western District of Pennsylvania in the "interests of justice." Makozy, No. 13-18173, ECF No. 23 . Makozy appeals that Order here.
In addition to the instant appeal, Makozy's third bankruptcy petition in this district also involved two adversary proceedings. The first adversary proceeding was initiated by the United States to declare as non-dischargeable the monies that Makozy owed the United States for his willful violations of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., incurred as a result of litigationinitiated in the District Court for the Western District of Pennsylvania. United States v. Makozy, No. 13-01518, ECF No. 1 (Bankr. S.D. Fla. July 12, 2013). Crawford brought the second adversary proceeding, alleging that Makozy failed to disclose in his bankruptcy documents conveyances of real property made within two years before the filing of his third bankruptcy petition. Id. at 3, ¶ 9-11. These alleged conveyances included three Pennsylvania properties and one Florida property. Id. at 2-3, ¶ 8.
Bankruptcy courts are governed by the Federal Rules of Bankruptcy Procedure. Under Rule 8013, Fed. R. Bankr. P., a district court reviews the factual findings of a bankruptcy court for clear error. As for the conclusions of law of the bankruptcy court and the application of the law to the particular facts of the case, a district court must conduct a de novo review. See In re Feingold, 474 B.R. 293, 294 (S.D. Fla. 2012) (citing In re Globe Mfg. Corp., 567 F.3d 1291, 1296 (11th Cir. 2009); In re Club Assocs., 951 F.2d 1223, 1228-29 (11th Cir.1992)) ("The Court reviews the Bankruptcy Court's factual findings for clear error and its legal conclusions de novo").
Federal courts are courts of limited jurisdiction. Federated Mut. Ins. Co. v. McKinnon Motors, LLC, 329 F.3d 805, 807 (11th Cir. 2003). With regard to appeals from bankruptcy courts, district courts enjoy jurisdiction over only three types of orders: (1) final orders, as described in 28 U.S.C. § 158(a)(1); (2) interlocutory appeals issued under 11 U.S.C. § 1121(d), as described in 28 U.S.C. § 158(a)(2); and (3), with leave of the court, other interlocutory orders, as described in 28 U.S.C. § 158(a)(3) and Fed. R. Bankr. Pro. 8001(b). Tobkin v. Calderin, 2012 WL 3609867, at *1(S.D. Fla. Aug. 22, 2012). As this Court has explained, district courts have jurisdiction to hear appeals "from final judgments, orders, and decrees." Id. at *1-2; 28 U.S.C. § 158(a)(1).
Makozy asserts that this Court has jurisdiction because the Bankruptcy Court Order denying his Motion to Continue Automatic Stay and transferring the case to the Western District of Pennsylvania "effectively ends the case in this district," and thus, the order appealed is a final order under 28 U.S.C. § 158(a). ECF No. 8 at 7. Crawford does not challenge this Court's appellate jurisdiction. Nevertheless, a court sitting on appeal is "obligated to consider jurisdiction even if it means raising the issue sua sponte." In re Celotex Corp., 700 F.3d 1262, 1265 (11th Cir. 2012) (citing In re Donovan, 532 F.3d 1134, 1136 (11th Cir. 2008)).
As noted, 28 U.S.C. § 158(a) endows district courts with jurisdiction to hear appeals from bankruptcy-court orders without leave of the court only if those orders are (1) final orders or (2) interlocutory orders issued under 11 U.S.C. § 1121(d). 28 U.S.C. §§ 158(a)(1), (2). A party must move the district court for leave to appeal any other type of interlocutory order. Id. § 158(a)(3). Makozy did not first move the District Court for leave before filing his appeal. Makozy, No. 1318173, ECF No. 24 . Nor does Makozy appeal an interlocutory order issued pursuant to 11 U.S.C. § 1121(d).2...
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