Richmond v. Caruso (In re Richmond)

• Court: U.S. Bankruptcy Court — Eastern District of New York
• Writing for the Court: CARLA E. CRAIG, Chief United States Bankruptcy Judge
• Citation: Richmond v. Caruso (In re Richmond), 580 B.R. 617 (Bankr. E.D. N.Y. 2017)
• Decision Date: 14 December 2017
• Docket Number: Adv. Pro. No. 17–01107–CEC, Adv. Pro. No. 17–01111–CEC, Adv. Pro. No. 17–01120–CEC,Adv. Pro. No. 17–01080–CEC, Adv. Pro. No. 17–01108–CEC, Adv. Pro. No. 17–01125–CEC, Adv. Pro. No. 17–01109–CEC,Case No. 14–41678–CEC, Adv. Pro. No. 17–01117–CEC, Adv. Pro. No. 17–01118–CEC, Adv. Pro. No. 17–01119–CEC, Adv. Pro. No. 17–01113–CEC, Adv. Pro. No. 17–01106–CEC, Adv. Pro. No. 17–01110–CEC, Adv. Pro. No. 17–01105–CEC
• Parties: IN RE: Eric H. RICHMOND, Debtor. Eric H. Richmond, Plaintiff, v. Theresa Caruso, Defendant. Eric H. Richmond, Plaintiff v. Gregory Cerchione, Defendant. Eric H. Richmond, Plaintiff, v. Barton Schwartz, Defendant. Eric H. Richmond, Plaintiff, v. Vivek Suri, Defendant. Eric H. Richmond, Plaintiff, v. Glenn Warmuth, Defendant. Eric H. Richmond, Plaintiff, v. Stephen Sinatra, Defendant. Eric H. Richmond, Plaintiff, v. Jeffrey Simpson, Defendant. Eric H. Richmond, Plaintiff, v. Catherine O'Hagan Wolfe, Amalya L. Kearse, Richard C. Wesley, and Debra Ann Livingston, Defendants. Eric H. Richmond, Plaintiff, v. Jennifer Kim, Defendant. Eric H. Richmond, Plaintiff, v. Laura Jacobson, Defendant. Eric H. Richmond, Plaintiff, v. Douglas Thaler, Defendant. Eric H. Richmond, Plaintiff, v. Vivek Suri, Defendant. Eric H. Richmond, Plaintiff, v. Christina Bost Seaton, Defendant. Eric H. Richmond, Plaintiff, v. Donald Scott Kurtz, Michael Macco, P..#7, LLC, and Troutman Sanders, LLP, Defendants.

580 B.R. 617

IN RE: Eric H. RICHMOND, Debtor.

Eric H. Richmond, Plaintiff,

v.Theresa Caruso, Defendant.

Eric H. Richmond, Plaintiff

v.Gregory Cerchione, Defendant.

Eric H. Richmond, Plaintiff,

v.Barton Schwartz, Defendant.

Eric H. Richmond, Plaintiff,

v.Vivek Suri, Defendant.

Eric H. Richmond, Plaintiff,

v.Glenn Warmuth, Defendant.

Eric H. Richmond, Plaintiff,

v.Stephen Sinatra, Defendant.

Eric H. Richmond, Plaintiff,

v.Jeffrey Simpson, Defendant.

Eric H. Richmond, Plaintiff,

v.Catherine O'Hagan Wolfe, Amalya L. Kearse, Richard C. Wesley, and Debra Ann Livingston, Defendants.

Eric H. Richmond, Plaintiff,

v.Jennifer Kim, Defendant.

Eric H. Richmond, Plaintiff,

v.Laura Jacobson, Defendant.

Eric H. Richmond, Plaintiff,

v.Douglas Thaler, Defendant.

Eric H. Richmond, Plaintiff,

v.Vivek Suri, Defendant.

Eric H. Richmond, Plaintiff,

v.Christina Bost Seaton, Defendant.

Eric H. Richmond, Plaintiff,

v.Donald Scott Kurtz, Michael Macco, P..#7, LLC, and Troutman Sanders, LLP, Defendants.

Case No. 14–41678–CEC

Adv. Pro. No. 17–01080–CEC

Adv. Pro. No. 17–01105–CEC

Adv. Pro. No. 17–01106–CEC

Adv. Pro. No. 17–01107–CEC

Adv. Pro. No. 17–01108–CEC

Adv. Pro. No. 17–01109–CEC

Adv. Pro. No. 17–01110–CEC

Adv. Pro. No. 17–01111–CEC

Adv. Pro. No. 17–01113–CEC

Adv. Pro. No. 17–01117–CEC

Adv. Pro. No. 17–01118–CEC

Adv. Pro. No. 17–01119–CEC

Adv. Pro. No. 17–01120–CEC

Adv. Pro. No. 17–01125–CEC

United States Bankruptcy Court, E.D. New York.

Signed December 14, 2017

Eric H. Richmond, pro se.

Gregory Cerchione, pro se.

Barton Schwartz, pro se.

Vivek Suri, pro se.

Glenn Warmuth, pro se.

Stephen Sinatra, pro se.

Catherine O'Hagan Wolfe, pro se.

Amalya L. Kearse, pro se.

Richard C. Wesley, pro se.

Debra Ann Livingston, pro se.

Jennifer Kim, pro se.

Laura Jacobson, pro se.

Michael Macco, pro se.

P..# 7, LLC, pro se.

Avrum J. Rosen, Rosen, Kantrow & Dillon, PLLC, Huntington, NY, Stephen B. Selbst, Herrick, Feinstein LLP, Paulina Angela Stamatelos, NY State Attorney General Office, Stephen Rinehart, Troutman Sanders LLP, New York, NY, Jenelle C. Arnold, Aldridge Pite LLP, Atlanta, GA, Jordan S. Katz, Melville, NY, for Defendants.

DECISION DISMISSING DEBTOR'S CASE FOR FAILURE TO FILE A CONFIRMABLE CHAPTER 13 PLAN AND DISMISSING RELATED ADVERSARY PROCEEDINGS

CARLA E. CRAIG, Chief United States Bankruptcy Judge

BACKGROUND AND PROCEDURAL HISTORY

This chapter 13 case was filed on April 7, 2014. Eric H. Richmond (the "Debtor") is the principal of 231 Fourth Avenue Lyceum, LLC ("Lyceum"), a single asset real estate debtor which filed a voluntary petition under chapter 11 of the Bankruptcy Code in this Court on April 11, 2013 (the "Lyceum Case"). (Case No. 13–42125, ECF Doc. No. 1.) By decision and order dated February 28, 2014, entered in the Lyceum Case, the automatic stay in that case was terminated to permit continuation of the foreclosure action involving Lyceum's principal asset, the property located at 227–231 Fourth Avenue, Brooklyn, NY (the "Lyceum Property") (the "Lyceum Foreclosure Action"). (Case No. 13–42125–CEC, ECF Doc. Nos. 76, 77.) The automatic stay was also terminated in this bankruptcy case by order dated July 17, 2014, to permit the Lyceum Foreclosure Action (in which the Debtor was named as a defendant) to continue. (Case No. 14–41678–CEC, ECF Doc. No. 56.)¹ The Lyceum Property was subsequently sold at a foreclosure sale. The orders terminating the automatic stay in this case and in the Lyceum Case, as well as many of the orders entered in these cases, have been the subject of multiple motions to reconsider and appeals, all of which have been denied. (Case No. 13–42125–CEC, ECF Doc. Nos. 79, 80, 92, 116, 117, 120, 127, 160, 169, 170, 172, 174, 176, 177, 197, 199, 200; Case No. 14–41678–CEC, ECF Doc. Nos. 61, 62, 74, 77, 80, 120, 125, 126, 127, 149, 155, 177, 199, 221, 228, 251, 254, 260, 272, 273, 274, 275, 276, 316, 322, 323, 326, 363, 382, 384, 392, 413, 419, 432, 433, 444, 445, 463, 475, 503, 528.)

The claims register in this case shows that the Debtor has a single secured creditor, U.S. Bank National Association, as trustee, on behalf of the holders of the Asset Backed Securities Corporation Home Equity Loan Trust, Series NC 2005–HE8, Asset Backed Pass–Through Certificates Series NC 2005 HE–8 ("U.S. Bank"). (Proof of Claim No. 5–2.) U.S. Bank holds a mortgage on real property owned by the Debtor located at 66 Back Meadow Rd., Nobleboro, ME 04555 (the "Maine Property"). Id. According to its proof of claim (Proof of Claim No. 5–2), U.S. Bank's secured claim totals $236,735.29, and pre-petition arrears owed to U.S. Bank with respect to its secured claim total $64,078.94. Id. On November 13, 2014, the Debtor objected to U.S. Bank's claim and requested that the Court disallow it. (ECF Doc. No. 146.) The Debtor's motion was denied. (ECF Doc. Nos. 266, 269.) The order denying this motion was the subject of a motion for reconsideration (ECF Doc. No. 272), which was denied, as well as multiple appeals, culminating in an appeal to the Second Circuit (ECF Doc. No. 488.) All motions for reconsideration and appeals have been denied. (ECF Doc. Nos. 290, 468, 488.) Accordingly, U.S. Bank has an allowed secured claim in this case as set forth in its proof of claim.

On May 22, 2017, the Court entered an order directing the Debtor to file an amended chapter 13 plan on or before June 5, 2017, that pays the pre-petition arrears owed to U.S. Bank in accordance with Bankruptcy Code § 1322(b)(5), together with applicable trustee's commissions, in equal monthly installment payments over the remaining life of the chapter 13 plan, which may not exceed June 30, 2019 (the "Scheduling Order"). (ECF Doc. No. 495.) The Scheduling Order further directed the debtor provide proof that the post-petition mortgage payments owed to U.S. Bank have been paid in accordance with Bankruptcy Code § 1322(b)(5) by June 15, 2017. (ECF Doc. No. 495.) Finally, the Scheduling Order provided that in the event the Debtor fails to comply timely with these requirements, this chapter 13 case may be dismissed without further notice or hearing.

(ECF Doc. No. 495.) On June 5, 2017, the Debtor filed an amended chapter 13 plan providing for payments to the chapter 13 trustee of $4,000 per month for a period of 18 months (the "Amended Plan"). (ECF Doc. No. 502.) The Amended Plan provides for no payments to U.S. Bank. No proof was filed showing that post-petition mortgage payments to U.S. Bank have been made.

On June 8, 2017, U.S. Bank filed a motion for relief from the automatic stay pursuant to § 362(d) of the Bankruptcy Code, seeking stay relief based upon a lack of adequate protection under § 362(d)(1) of the Bankruptcy Code. (ECF Doc. No. 504.) The affidavit attached to U.S. Bank's motion shows that no payments have been made on the mortgage securing U.S. Bank's claim since December, 2014, prior to the commencement of this case. (ECF Doc. No. 504–1.)

On July 21, 2017, the Court issued an Order to Show Cause (I) Directing the Debtor to Show Cause Why Case Should Not Be Dismissed for Failure to Comply with Order Dated May 22, 2017 Directing Debtor to File Amended Plan and Cure Post Petition Mortgage Arrears and (II) Establishing Deadline for Filing Opposition to Lift Stay Motion, which scheduled a hearing for August 22, 2017 and required the Debtor to file any opposition to U.S. Bank's lift stay motion and to the dismissal of this chapter 13 case on or before August 4, 2017. (ECF Doc. No. 507.)

On that date, the Debtor filed an Affirmation in Opposition to Motion to Dismiss Bankruptcy and Motion to Lift Stay (ECF Doc. No. 511), in which he argued (1) this Court's alleged failure to report crimes by the Second Circuit Court of Appeals and to hold Federal Rule of Evidence hearings pursuant to Federal Rule of Evidence 201"strip" this Court of jurisdiction; (2) U.S. Bank "failed to demonstrate how the property in question is not necessary to the reorganization of the Debtor;" (3) U.S. Bank failed to prove that there is a lack of equity in the Maine Property; (4) U.S. Bank is not the holder of the mortgage on the Maine Property (an argument that was rejected in this Court's decision denying the Debtor's motion objecting to U.S. Banks claim (ECF Doc. No. 265), and in a motion to reconsider (ECF Doc. No. 272), and on appeal).

Also on August 4, 2017, the Debtor filed a Motion to Recuse Judge under 28 U.S.C. §§ 455 and 144. This motion was denied by Decision and Order dated August 21, 2017. (ECF Doc. No. 526, 527.)

Commencing June 15, 2017, the Debtor filed fourteen adversary proceedings (the "Adversary Proceedings") against the following defendants: (1) Theresa Caruso ("Caruso"), the notary who notarized the Referee's Deed in Foreclosure transferring the Lyceum Property to Greystone Property Development II Corp. (Adv. Pro. No. 17–01080–CEC) (seeking damages of $25 million); (2) Gregory Cerchione, the referee who in the Lyceum Foreclosure Action (Adv. Pro. No. 17–01105–CEC) (seeking damages of $22.8 million); (3) Barton Schwartz, a receiver appointed in the Lyceum Foreclosure Action (Adv. Pro. No. 17–01106–CEC) (seeking damages of $500,000); (4) Vivek Suri, an attorney who represented the receiver in the Lyceum Foreclosure Action (Adv. Pro. No. 17–01107–CEC) (seeking damages of $150,000); (5) Glenn Warmuth, an attorney who represented P.B. # 7 LLC, which foreclosed on the Lyceum Property, in the Lyceum Case and in this case (Adv. Pro. No. 17–01108–CEC) (seeking damages of $150 million); (6) Stephen Sinatra, an attorney for a bidder in the Lyceum Foreclosure Action (Adv. Pro. No. 17–01109–CEC) (seeking damages of $450,000); (7) Jeffrey Simpson, a member of a bidder in the Lyceum Foreclosure Action (Adv. Pro. No. 17–01110–CEC) (seeking damages of $6 million); (8) Catherine O'Hagan Wolfe, the Clerk of the United States Court of Appeals for the Second Circuit, and Amalya L. Kearse, Richard C. Wesley, and Debra Ann Livingston, each of whom is a judge of that Court (Adv. Pro. No. 17–01111–CEC) (seeking damages of $100 million); (9) Jennifer Kim, an...