Regan v. Hon (In re Regan)

• Decision Date: 07 November 2022
• Docket Number: 3:21-cv-1231 (BKS) Lead,3:21-cv-1238 (BKS) Member,3:21-cv-1246 (BKS) Member,3:21-cv-1247 (BKS) Member,3:22-cv-0191 (BKS) Member
• Parties: In Re WALTER JOSEPH REGAN, Debtor. v. STEPHANIE HON, et al., Appellees. WALTER JOSEPH REGAN, Appellant,
• Court: U.S. District Court — Northern District of New York

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In Re WALTER JOSEPH REGAN, Debtor.

WALTER JOSEPH REGAN, Appellant, v. STEPHANIE HON, et al., Appellees.

Nos. 3:21-cv-1231 (BKS) Lead, 3:21-cv-1238 (BKS) Member, 3:21-cv-1246 (BKS) Member, 3:21-cv-1247 (BKS) Member, 3:22-cv-0191 (BKS) Member

United States District Court, N.D. New York

November 7, 2022

Appellant pro se: Walter Joseph Regan

For Appellees Stephanie Hon, Henry Hon, and Michele Domres-Hon Kirstin E. Tiffany

For Appellee United States Trustee: William K. Harrington United States Trustee for Region 2 Erin P. Champion, U.S. Department of Justice

MEMORANDUM-DECISION AND ORDER

BRENDA K. SANNES, CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Debtor-Appellant Walter Joseph Regan (“Appellant”) brings these appeals pro se from orders of the United States Bankruptcy Court for the Northern District of New York (“Bankruptcy Court”) in a Chapter 7 bankruptcy proceeding, In re Walter Joseph Regan, No. 1831694 (Bankr. N.D.N.Y), and an associated adversary proceeding, Henry Hon and Michele Domres-Hon v. Walter Joseph Regan, Adv. Proc. 19-50006 (Bankr. N.D.N.Y.). The Court consolidated these appeals into Case No. 21-cv-1231.^[1] (Dkt. Nos. 11, 24.) Specifically, Appellant appeals orders of the Bankruptcy Court: denying Appellant's motion to remove the Chapter 7 trustee, (Dkt. No. 1); denying Appellant's motion for a stay of bankruptcy proceedings pending resolution of appeals before this Court and the United States Court of Appeals for the Second Circuit, (Case No. 22-cv-0191, Dkt. No. 1); and granting Appellee Stephanie Hon's motion to lift the automatic stay, (Case No. 21-cv-1247, Dkt. No. 1); as well as orders of the Bankruptcy Court denying Appellant's motions for certification of direct appeal to the Second Circuit of orders of the Bankruptcy Court denying Appellant's motion to remove the Chapter 7 trustee, (Case No. 21-cv-1238, Dkt. No. 1); and granting Appellee Stephanie Hon's motion to lift the automatic stay, (Case No. 21-cv-1246, Dkt. No. 2).

For the reasons below, the order of the Bankruptcy Court granting Appellee Stephanie Hon's motion to lift the automatic stay is affirmed. The remaining appeals are dismissed.

II. BACKGROUND

On December 6, 2018, Appellant Walter Joseph Regan initiated Chapter 7 bankruptcy proceedings “against the backdrop of a contentious divorce proceeding with . . . [Appellee] Stephanie Hon, who is also a creditor.” Regan v. Hon, No. 20-cv-0846, 2020 WL 12846934, at *1, 2020 U.S. Dist. LEXIS 261399, at *1 (N.D.N.Y. Oct. 27, 2020). The Bankruptcy Court appointed a Chapter 7 trustee. (Bankr. Dkt. No. 10.) On February 7, 2019, before the Chapter 7 trustee completed assessment of Appellant's estate, Appellee Stephanie Hon moved for relief from the automatic stay imposed pursuant to 11 U.S.C. § 362 in order to expedite the pending divorce proceeding, and the Bankruptcy Court granted relief “except to the extent that such proceeding seeks to determine the division of property that is property of the estate.” (Bankr. Dkt. No. 27, at 1-2.) Appellant did not appeal that order.

The Chapter 7 trustee continued the administration and attempted liquidation of Appellant's estate, and on April 11, 2019, Appellee Stephanie Hon's parents, Appellees Henry Hon and Michele Domres-Hon, commenced an adversary proceeding objecting to Appellant's discharge under 11 U.S.C. § 727 due to a dispute over whether money Appellees Henry Hon and Michele Domres-Hon had given Appellant and Appellee Stephanie Hon for purchasing a residence was a gift or a loan. (Bankr. Dkt. No. 36.) On March 26, 2021, after attempted mediation, the Bankruptcy Court granted the Chapter 7 trustee's motion to abandon the estate's interest in the residence at issue in the adversary proceeding. (Bankr. Dkt. No. 94.) The adversary proceeding initiated by Appellees Henry Hon and Michele Domres-Hon is ongoing.

On April 2, 2021, the Chapter 7 trustee filed a “Report of No Distribution” stating that Appellant's estate contained “no property available for distribution from the estate over and above that exempted by law” and that Appellant's estate “has been fully administered.” (Bankr. Dkt. text entry dated April 2, 2021.) The Chapter 7 trustee also requested discharge. (Id.)

Appellee Stephanie Hon subsequently moved for further relief from the automatic stay imposed pursuant to 11 U.S.C. § 362, and, after briefing and a hearing on September 16, 2021, (Bankr. Dkt. No. 143), the Bankruptcy Court granted relief. (Bankr. Dkt. No. 133, at 2, 11.) During the pendency of the stay-relief motion, Appellant requested the removal of the Chapter 7 trustee, which the Bankruptcy Court denied. (Bankr. Dkt. No. 127, at 1, 10.)

On October 15, 2021, Appellant sought certification of direct appeal to the Second Circuit of the order of the Bankruptcy Court denying removal of the Chapter 7 trustee, which the Bankruptcy Court denied. (Bankr. Dkt. No. 145, at 1, 3.) Appellant filed a notice of appeal of the order of the Bankruptcy Court denying removal of the Chapter 7 trustee, as well as a notice of appeal of the order of the Bankruptcy Court denying certification of direct appeal to the Second Circuit of that order, with this Court. (Dkt. No. 1; Case No. 21-cv-1238, Dkt. No. 1.) Appellant further sought from the Bankruptcy Court certification of direct appeal to the Second Circuit of the order of the Bankruptcy Court granting relief from the automatic stay, which the Bankruptcy Court denied. (Bankr. Dkt. No. 157, at 1, 3.) Appellant filed a notice of appeal of the order of the Bankruptcy Court granting relief from the automatic stay, as well as a notice of appeal of the order of the Bankruptcy Court denying certification of direct appeal to the Second Circuit of that order, with this Court. (Case No. 21-cv-1247, Dkt. No. 1; Case No. 21-cv-1246, Dkt. No. 2.) Appellant also requested that the Court certify direct appeal to the Second Circuit, which the Court denied. (Dkt. No. 13, at 11-12.)

Finally, on November 18, 2021, Appellant requested a stay of bankruptcy proceedings from the Bankruptcy Court pending appeals before this Court and the Second Circuit, which the Bankruptcy Court denied. (Bankr. Dkt. No. 188, at 1, 7.) Appellant filed a notice of appeal of the order of the Bankruptcy Court denying a stay pending appeals with this Court, (Case No. 21-cv-0191, Dkt. No. 1), and requested a stay directly from the Court, (Case. No. 22-0191, Dkt. No. 5), which the Court denied, Regan v. Hon (In re Regan), No. 21-cv-1231, 2022 WL 1775713, at *3-5, 2022 U.S. Dist. LEXIS 97249, at *7-11 (N.D.N.Y. June 1, 2022). The Court consolidated the five appeals. (Dkt. Nos. 11, 24.)

After an initial scheduling notice on January 13, 2022, (Dkt. No. 14), the Court granted Appellant three extensions for filing his opening brief that ultimately delayed the due date from February 22, 2022, to June 30, 2022. (Dkt. Nos. 22, 25, 33.) Appellant filed a two-page letter on July 1, 2022. (Dkt. No. 35.) The Court construed this letter as Appellant's opening brief. (Dkt. No. 36.) On July 29, 2022, Appellee U.S. Trustee and Appellees Stephanie Hon, Henry Hon, Michele Domres-Hon filed briefs. (Dkt. Nos. 37, 38.) Appellant did not file a reply brief. (Dkt. Nos. 39, 40, 42.)

III. DISCUSSION

A. Appellant's Failure to Sufficiently Brief His Appeals

Federal Rule of Bankruptcy Procedure 8014, which is derived from Federal Rule of Appellate Procedure 28, see Ehrlich ex rel. Hoffmans Trade Grp. v. Com. Factors of Atlanta, 567 B.R. 684, 691 (N.D.N.Y. 2017) (citing Reed v. Rescap Borrower Claims Tr. (In re Residential Capital, LLC), 552 B.R. 50, 62 (S.D.N.Y. 2015)), governs the contents of appellate briefs in the bankruptcy context. On appeal to a district court from an order of a bankruptcy court, an appellant's opening brief must contain, inter alia, a jurisdictional statement, including citations to application statutory provisions, relevant facts, and “an assertion that the appeal is from a final judgment, order, or decree, or information establishing the district court's . . . jurisdiction on another basis”; a statement of the issues presented, including a concise statement of the applicable standard of appellate review; a statement of the case, including relevant facts, procedural history, and the rulings presented for review with references to the record; and argument with citations to authorities. Fed.R.Bankr.P. 8014(a). Failure to comply with Rule 8014 provides adequate grounds for dismissal, and mere reference to previous filings, either from bankruptcy proceedings or the appellate process, is insufficient to satisfy the requirements of Rule 8014. See Ehrlich, 567 B.R. at 691-92. Furthermore, failure to adequately brief an issue generally serves as a waiver of that issue. See Grant v. U.S. Dep't of Def. (In re Grant), 778 Fed.Appx. 69, 70 (2d Cir. 2019) (summary order) (holding that an issue not raised on appeal by a pro se bankruptcy appellant is waived and that merely identifying issues is insufficient (first citing Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998); and then citing Shakur v. Selsky, 391 F.3d 106, 119 (2d Cir. 2004))); Miller v. U.S. Tr. (In re English Sheppard Realty Corp.), 481 Fed.Appx. 691, 692 (2d. Cir. 2012) (summary order) (holding that an issue not raised on appeal by a pro se bankruptcy appellant is waived (citing LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995))).

Appellant's two-page letter-brief does not conform to above-cited requirements in Rule 8014(a). It does not include the required jurisdictional statement, which is required by Rule 8014(a)(4) and was specifically requested by the Court, (Dkt Nos. 14, 20). The letter-brief contains only conclusory allegations and a request for “fairness in review . . . [of] relevant facts, omissions,...