Vivenzio v. Pruess

• Decision Date: 31 March 2022
• Docket Number: 20-CV-04185 (JMA)
• Parties: JOHN FRANCIS VIVENZIO, Appellant, v. KRISTA PRUESS, [1] Appellee.
• Court: U.S. District Court — Eastern District of New York

JOHN FRANCIS VIVENZIO, Appellant,
v.
KRISTA PRUESS, ^[1] Appellee.

No. 20-CV-04185 (JMA)

United States District Court, E.D. New York

March 31, 2022

ORDER

AZRACK, UNITED STATES DISTRICT JUDGE:

Before the Court is pro se Appellant John Francis Vivenzio's appeal of the August 25, 2020 order (“Dismissal Order”) of the Bankruptcy Court (Trust, A.), dismissing his Chapter 13 petition pursuant to 11 U.S.C. §1307(c). (Dismissal Order, ECF No. 1-2; see also In re Vivenzio, No. 19-71697, 2021 WL 1536398 (Bankr. E.D.N.Y. Jan. 29, 2021)^[2]). For the reasons set forth below, the Bankruptcy Court's judgement is AFFIRMED.

I. BACKGROUND

The Court assumes the parties' familiarity with the full facts and procedural history of this action and summarizes the facts and history relevant to the instant appeal based on the Bankruptcy Record on Appeal ((“R.”), 20-CV-04185, ECF No. 4), the filings in Appellant's bankruptcy proceeding (“Bankr. Dkt.”), and the affidavits and exhibits filed by the parties in this case.

On March 8, 2019, Vivenzio filed a petition for relief under chapter 13 of title 11 of the

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United States Code (the “Bankruptcy Code”).^[3]

On March 22, 2019, Vivenzio filed a proposed Chapter 13 Plan (the “Plan”) including bankruptcy schedules, Statement of Financial Affairs, and Means Test. (Bankr. Dkt. 15.)

On April 12, 2019, the Chapter 13 Trustee (the “Trustee”) filed a Motion to Dismiss the case (the “MTD”) for, among other things, Vivenzio's failure to submit timely Plan payments and the Plan not being adequately funded to provide for full repayment to all secured creditors as required by 11 U.S.C. § 1325(a)(5) and (6) respectively. (Bankr. Dkt. 20.)

On June 13, 2019, the Honorable Judge Alan S. Trust held a hearing on the MTD, granted dismissal of the case and directed the Trustee to settle a dismissal order on twenty-one (21) days' notice. The docket entry provided:

Hearing Held; (related document(s): 20 Chapter 13 Trustee's Motion to Dismiss Case) Appearance: Marianne Derosa - MOTION GRANTED - SETTLE ORDER ON 21 DAYS NOTICE; IF THE PROPOSED ORDER IS NOT SUBMITTED OR SETTLED AS DIRECTED WITHIN 14 DAYS, THE MATTER MAY BE DEEMED ABANDONED PURSUANT TO E.D.N.Y. L.B.R. 9072-1. (ymills) (Entered: 0 6/14/2019)

In accordance with the granting the MTD, the Bankruptcy Court simultaneously marked off three pending items, including the hearing on confirmation of the Vivenzio's Chapter 13 Plan.

On July 3, 2019, Vivenzio filed a Third Amended Chapter 13 Plan. (R. 34.) The Third Amended Plan provided, inter alia, that Vivenzio would make payments starting at $2, 522 per month and rising to $22, 852 per month. (In re Vivenzio, *1.) The same date, Vivenzio also filed a motion objecting to proof of claim (“Claim Objection”) filed by Selene Finance, LP as servicer

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for NJCC NYS Community Restoration Fund LLC (“Selene”), which asserted a claim secured by his residence (the “Claim Objection”). (Bankr. Dkt. 35.)

On July 8, 2019, the Trustee filed a Notice of Settlement of the Proposed Dismissal Order (the “Settled Dismissal Order”). (Bankr. Dkt. 36.) On July 17, 2019, Vivenzio filed a notice objecting to the Settled Dismissal Order. (Bankr. Dkt. 39.)

On August 19, 2019, Selene filed an opposition to the Claim Objection. (Bankr. Dkt. 40.) On August 29, 2019, Vivenzio filed an Affidavit in Support of the Claim Objection and in Response to Selene's Opposition. (Bankr. Dkt. 41.)

On August 29, 2019, the Bankruptcy Court held a hearing on the Claim Objection and determined that, aside from the numerous issues raised by Vivenzio which either had been or could be litigated in the state court foreclosure action, it would hold a hearing to determine whether the Third Amended Plan was feasible, given the projected nearly tenfold increase in play payments from $2, 522 per month to $22, 852 per month; if the Third Amended Plan was not feasible, all other issues raised by Vivenzio were moot; if it was, the Court could then turn to Vivenzio's other objections. (In re Vivenzio, at *1)

On February 24, 2020, Selene filed a Motion for Relief from Stay (the “Stay Relief Motion”). (Bankr. Dkt. 42.) On March 12, 2020, Vivenzio filed an Objection to the Stay Relief Motion. (Bankr. Dkt. 43.) On April 16, 2020, the Court held a hearing on the Stay Relief Motion and marked the Stay Relief Motion as submitted. (In re Vivenzio, at *1.)

On May 12, 2020, Selene filed an Affidavit of Possession of the Note in connection with the Stay Relief Motion. (Bankr. Dkt. 44.) On May 19, 2020, Vivenzio filed a Memorandum of Law in Support of his Objection to the Stay Relief Motion. (Bankr. Dkt. 46.)

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On July 28, 2020, the Bankruptcy Court entered an Order scheduling a video conference evidentiary hearing for August 17, 2020 (the “Scheduling Order” and the “Hearing”) on the feasibility of the Plan, the Claim Objection, the MTD, the Settled Dismissal Order, and the Stay Relief Motion, and setting related deadlines. (Bankr. Dkt. 48.) The Scheduling Order directed Selene to serve a copy of the order on Vivenzio within two (2) business days following entry of the order, and file a certificate of service thereof within two (2) business days thereafter, as required by the Bankruptcy Court's Local Rules. (In re Vivenzio, at *1.)

On July 30, 2020, Selene filed an Affidavit of Service of the Order Scheduling the Hearing. (Bankr. Dkt. 49.) The Affidavit of Service attested to serving the Order Scheduling the Hearing upon Vivenzio on July 30, 2020 at his primary residence of record via USPS First Class Mail. (In re Vivenzio, at *1.)

At the Hearing held on August 17, 2020, the Bankruptcy Court found “as it had at prior hearings” that Vivenzio's Plan lacked feasibility, because he projected himself to have “an incredible increase in income as to be able to increase his Plan payments from $2, 522 per month to $22, 852 per month, ” but failed to demonstrate how this would occur despite ample opportunity. (In re Vivenzio, at *1.)

The Bankruptcy Court noted that Vivenzio “failed to submit any evidence, whether documentary exhibits or witnesses testimony, demonstrating any ability to make these payments.” (Id.) “Vivenzio relied on pleadings, which are not evidence.” (Id.) At the conclusion of the Hearing, the Bankruptcy Court again granted the Motion to Dismiss because, among other things, Vivenzio failed to demonstrate that the Third Amended Plan was feasible and otherwise satisfied the requirements of 11 U.S.C. § 1325(a). (Id.)(emphasis added)

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Accordingly, the Bankruptcy Court noted that “confirmation of the Third Amended Plan, the Claim Objection and the Stay Relief Motion were all moot” and entered an order dismissing the case. (Id.; Bankr. Dkt. 57.) Vivenzio filed a motion for reconsideration of the dismissal order and other text orders which the Bankruptcy Court denied. (In re Vivenzio, at *1.) On September 8, 2020, Vivenzio filed a Notice of Appeal of the Dismissal Order and the three text orders which is currently before this Court. (ECF No. 1.)

II. DISCUSSION

A. Standard of Review

Section 158 of the Bankruptcy Code authorizes district courts to review a bankruptcy court's final judgments, decrees, and orders. See 11 U.S.C. § 158(a). A district court typically reviews findings of fact for clear error and conclusions of law de novo. Rora LLC v. 404 E. 79th St. Lender LLC, 630 B.R. 876, 882 (E.D.N.Y. 2021) (citing Anderson v. Credit One Bank, N.A. (In re Anderson), 884 F.3d 382, 387 (2d Cir. 2018))

Evidentiary decisions and trial management decisions are reviewed for abuse of discretion. See Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006); see also United States v. Yakobowicz, 427 F.3d 144, 149-50 (2d Cir. 2005). This includes a bankruptcy court's decision to dismiss a case with prejudice. In re Murray, 565 B.R. 527, 530 (S.D.N.Y. 2017) (citing In re Smith, 507 F.3d 64, 73 (2d Cir. 2007)), aff'd, 900 F.3d 53 (2d Cir. 2018); see In re Chovev, 559 B.R. 339, 343-44 (Bankr. E.D.N.Y. 2016) (“The determination of what constitutes ‘cause' to dismiss ... is left to the discretion of the court.”).

Even if a...