Opinion
Bankruptcy Case No. 395-34055-SAF-7, Civil Action No. 3:98-CV-2185-M.
May 4, 2000.
MEMORANDUM OPINION AND ORDER
On this date came on for consideration the appeal of Appellant Philip S. Bayoud from an Order of Bankruptcy Judge. Steven A. Felsenthal signed on August 10, 1998, and entered on August 11, 1998 ("the August 11 Order"), denying Appellant's "Motion to Object, Deny and Correct False, Frivolous Allegations in Bad Faith." For the reasons set out m detail below, such motion is DENIED. The Court further determines, for the reasons detailed below, that Appellant's appeal is frivolous.
On July 3, 1995, the Appellant's brother, Paige Bayoud (the "Debtor") filed a voluntary petition under Chapter 13, Title 11 of the United States Code (the "Bankruptcy Code"). The Debtor died on April 9, 1996, after which the Bankruptcy Court converted the case to one under Chapter 7 of the Bankruptcy Code. Jeffrey Mims (the "Trustee") was appointed the Chapter 7 Trustee of the Debtor's bankruptcy estate.
Having determined that the Debtor's bankruptcy estate had an interest in certain real property, on July 2, 1997, the Trustee initiated an Adversary Proceeding, No. 397-3296, by filing a complaint against several persons (not including Appellant) seeking to recover such property ("Adversary Proceeding I"). Appellant is not now and never has been a party in Adversary Proceeding I and Appellant has never sought, nor otherwise been permitted, to intervene in Adversary Proceeding I.
Appellant claims an interest in the same real property which is the subject of Adversary Proceeding I, arising out of an "Assignment" dated December 10, 1986, purportedly signed by the Debtor, and attached to Appellant's Brief as Exhibit E. After the commencement of the Debtor's bankruptcy proceedings, Appellant filed the Assignment of record. The Trustee filed an Aversary Proceeding against Appellant, as No. 397-3003 ("Adversary Proceeding II") by which the Trustee sought to avoid the effect of the Assignment, which the Trustee characterized as an "unauthorized postpetition transfer of property," since it was recorded after the commencement of the bankruptcy case. On October 29, 1997, United States Bankruptcy Judge Felsenthal entered a Final Judgment in Adversary Proceeding II, avoiding the Assignment and declaring it to have no effect under §§ 544(a), 549 and 550 of the Bankruptcy Code (the "Avoidance Judgment"). On April 27, 1998, United States District Judge Solis entered a Memorandum Opinion and Order affirming the Avoidance Judgment, in Civil Action No. 3:97-CV-3 109-P. The Appellant's subsequent appeal to the Fifth Circuit was dismissed on September 4, 1998, for want of prosecution. Bayoud v. Mims, etal., No. 98-10549.
The District Court's Opinion in Adversary Proceeding II reflects that the recording occurred on July 15, 1996.
On February 25, 1998, Bankruptcy Judge Felsenthal entered an order denying a motion filed by Appellant to reconsider the extension of discovery deadlines in Adversary Proceeding I, noting that Appellant was not a party to Adversary Proceeding I, and finding that the motion was filed for an improper purpose, for which he sanctioned Appellant. Judge Felsenthal specifically ordered that Philip Bayoud file no further papers in Adversary Proceeding I, until he became a party to it. That Order was affirmed by Judge Maloney on May 28, 1998 in Civil Action No. 3:98-CV-0873-T. Undeterred, on August 5, 1998, Appellant filed in Adversary Proceeding I the "Motion to Object, Deny and Correct False, Frivolous Allegations in Bad Faith." In the August 11 Order, Judge Felsenthal denied that Motion, again noting that Appellant was not a party to Adversary Proceeding I, and finding that he had no standing to file the Motion and directing that the Clerk should not accept any papers submitted by Appellant for filing in Adversary Proceeding I, unless otherwise ordered by the Court.
Although Appellant's brief purports to set forth ten separate points of error, most of those relate to matters either already determined in Adversary Proceeding II ( e.g., Point of Error 5, "The Bankruptcy Court erred in the issue of the assignment (sic) property") or not properly the subject of this appeal ( e.g., Point of Error 4, "The Bankruptcy Court erred in the order for continuance"). Only Point of Error No. 1 is germane to the appealed August 11 Order ("The Bankruptcy Court erred in the issue (sic) of the order"). See Notice of Appeal filed August 19, 1998.
The August 11 Order is interlocutory. As such, it is not appealable unless this Court permits appeal by granting a motion for leave, which is to be filed with the Notice of Appeal. See FED. R. BANKR. P. 8001(b). Appellant never sought such leave, so the appeal is improper and should be dismissed. Askanase v. Livingwell, Inc., 981 F.2d 807, 810 (5th Cir. 1993).
Even had Appellant been granted leave to file the appeal, the Bankruptcy Court's August 11 Order would be affirmed. This Court reviews the Bankruptcy Court's conclusions of law de novo, and its findings of facts under the clearly erroneous standard. In re Young, 995 F.2d 547, 548 (5th Cir. 1993); In re Allison, 960 F.2d 481, 483 (5th Cir. 1992). To reverse, this Court must "be left with the definite and firm conviction that a mistake has been made." In re Allison, at 483.
The basis for Judge Felsenthal's decision was that Appellant is not a party to Adversary Proceeding I and thus does not have standing to challenge action taken in it. The record indicates no dispute as to whether Appellant is a party, nor does Appellant claim he is a party in Adversary Proceeding I. He has repeatedly been told by Judge Felsenthal that he has no standing in Adversary Proceeding I, and appellate courts have repeatedly agreed. Judge Felsenthal's directive to the Clerk not to file Appellant's papers without court approval is thus a logical and appropriate means of enforcing his prior determinations of Appellant's lack of standing. There would be no basis for this Court to conclude that Judge Felsenthal's August 11 Order is not entirely correct; certainly, there would be no basis for this Court to conclude that Judge Felsenthal's determinations were clearly erroneous.
The Appellant's rambling and incomprehensible briefs contain no proper legal or factual basis for an attack on the August 11 Order. Instead, Appellant makes unsupported, irrelevant allegations against the Trustee and his attorneys and attempts to relitigate what has already been conclusively found against him in decisions long ago final. This Court finds this appeal legally and factually unjustified and frivolous. It is an improper attempt to appeal from an interlocutory order, and even on the merits it is wholly without merit. The Court, will, therefore, separately notify the Appellant of its frivolousness determination and give him an opportunity to respond.