Opinion
21-CV-11006 (PAE) (KHP)
04-25-2023
HEATHER JEANNE LINDSAY, Appellant, v. KRISTA M. PREUSS, Appellee.
TO: HONORABLE PAUL A. ENGELMAYER, United States District Judge.
REPORT AND RECOMMENDATION
KATHARINE H. PARKER, United States Magistrate Judge
Before the Court for a Report and Recommendation is Appellant Heather Jeanne Lindsay's (“Lindsay”) appeal from various decisions by the bankruptcy court (ECF No. 18), and Appellee Office of the Chapter 13 Trustee Krista M. Preuss's (the “Trustee”) motion to dismiss the appeal. For the reasons stated below, I respectfully recommend that the appeal be dismissed for lack of jurisdiction, or in the alternative, denied as meritless.
BACKGROUND
1. Underlying Bankruptcy Case
On February 4, 2020, Lindsay filed for Chapter 7 relief in the Southern District of New York, at case number 20-10339. This case (the “Underlying Bankruptcy Case”) forms the basis of the instant appeal. Lindsay previously filed four bankruptcy actions in the District of Connecticut, all of which were dismissed for failure to file the required documents or to appear.
These actions are at Case Nos. 09-50088, 18-50647, 18-51236, and 18-51310 in the District of Connecticut.
The Underlying Bankruptcy Case was initially assigned to the Honorable James L. Garrity. The filing of the case effected an automatic stay on a state court foreclosure action (“Foreclosure Action”) against a Connecticut real property owned by Lindsay. On April 21, 2020, New Rez LLC (“New Rez”), the lender's mortgage servicing company, filed a motion in the Underlying Bankruptcy Case to lift the automatic stay. (Bankr. ECF No. 22.)
To be precise, the property was initially owned by Anthony Consiglio, and on August 8, 2016, during the course of the foreclosure action, Consiglio executed a quitclaim deed transferring his interests in the property to Lindsay. The Foreclosure Action was initiated by the mortgage lender in 2008 in the Judicial District of Stamford, Connecticut. See Bank of New York v. Consiglio, FST-CV08-5006978-S. On June 2, 2008, the state court issued an order granting judgment of strict foreclosure.
“Bankr. ECF” citations refer to the underlying bankruptcy docket before the case was transferred, at In Re Lindsay, Case No. 20-10339 (Bankr. S.D.N.Y.). “ECF” citations refer to the docket before this Court on appeal, at In Re Lindsay, Case No. 21-cv-11006 (S.D.N.Y.). “D. Conn. Bankr. ECF” citations refer to the post-transfer D. Conn. underlying bankruptcy docket, at In Re Lindsay, Case No. 21-50476 (Bankr. D. Conn.).
On August 7, 2020, Lindsay filed a motion to convert her Chapter 7 case to a Chapter 13 case, arguing that she had inadvertently filed the case under Chapter 7. (Bankr. ECF No. 57.)
On November 12, 2020, Lindsay filed a “response and objection” to New Rez's stay relief motion, arguing that the foreclosure judgment was invalid. (Bankr. ECF No. 81.) New Rez filed a reply in support of its motion arguing that the Rooker-Feldman doctrine and res judicata principles barred the bankruptcy court from reviewing the validity of the foreclosure judgment. Lindsay filed a “response” to New Rez's reply brief, which made several requests of the court, including for Judge Garrity to recuse himself from the case. (Bankr. ECF No. 96.)
On November 18, 2020, New Rez filed a letter stating that it had approved Lindsay for a Streamlined Modification Agreement with respect to the mortgage and it would agree to adjourn its motion to lift the stay to a later date if Lindsay accepted its offer to modify the mortgage. Lindsay did not respond to that offer. (Bankr. ECF No. 82.) On December 29, 2020, Lindsay filed a Loss Mitigation request, which New Rez opposed. (Bankr. ECF Nos. 92, 94.) After a hearing, the court denied the Loss Mitigation request. (Bankr. ECF No 106.)
On January 27, 2021, after a hearing, Judge Garrity granted New Rez's motion to lift the automatic stay. (Bankr. ECF No. 103.) Judge Garrity found that cause existed to lift the automatic stay because Lindsay had failed to make mortgage payments and did not have any equity in the property. Moreover, Judge Garrity found that Lindsay had filed a series of bankruptcy petitions “either on or just prior to a Law Date or in a way that interfered with the Movant's scheduling a Law Date,” but Lindsay did not prosecute any of these petitions, thus demonstrating that the Underlying Bankruptcy Case was a bad faith attempt to delay the Foreclosure Action. (Bankr. ECF No. 103.) Judge Garrity also held that the Rooker-Feldman doctrine barred him from considering the validity of the foreclosure judgment.
2. First Appeal of Judge Garrity's Orders
On February 16, 2021, Lindsay filed a notice of appeal of Judge Garrity's decision lifting the automatic stay. (Bankr. ECF No. 112.) Lindsay argued that the order constituted an “abuse of a permanently disabled person,” and asserted that Judge Garrity had “ordered” her not to speak or “to file anything.” (Id.) Lindsay also asserted that Judge Garrity had “ignore[ed]” certain of her filings, including her motion to convert the case to Chapter 13 and her motion for Judge Garrity's recusal, but had accepted filings from New Rez despite the fact that those filings did not comply with unspecified court “procedures.” (Id.) The appeal was assigned to the Honorable J. Paul Oetken at In Re Lindsay, 21-cv-01605 (S.D.N.Y.).
On February 24, 2021, while the appeal was pending, Judge Garrity granted Lindsay's motion to convert the case to a Chapter 13 case. (Bankr. ECF No. 117.) That same day, the case was reassigned to the Honorable Cecelia G. Morris. (Bankr. ECF No. 118.)
On July 19, 2021, Judge Oetken dismissed Lindsay's appeal because Lindsay failed to file the Designation of Items to be Included in the Record as required under Federal Bankruptcy Rule 8009. (In Re Lindsay, 21-cv-01605 ECF No. 1.) Accordingly, Judge Oetken deemed the appeal “abandoned.” (Id.) On August 16, 2021, Lindsay moved to reopen the appeal, and Judge Oetken denied the motion because Lindsay still had not met the procedural requirements and had not provided good cause for failing to comply. (In Re Lindsay, 21-cv-01605, ECF No. 7.)
3. Case is Transferred and Dismissed
On June 3, 2021, the Trustee moved to dismiss the case because Lindsay failed to comply with necessary procedural requirements. (Bankr. ECF No. 143.) On July 23, 2021, after a hearing on the motion to dismiss, Chief Judge Morris entered an order converting the case back to a Chapter 7 case because Lindsay had “failed to undertake many of the basic requirements to remain in Chapter 13.” (Bankr. ECF No. 148.) By separate order, Chief Judge Morris found that there was no jurisdictional basis for the case to have been filed in the Southern District of New York pursuant to 11 U.S.C. § 1408 and Federal Rules of Bankruptcy Procedure 1014(a)(2), and transferred the case to the District of Connecticut. (Bankr. ECF No. 149.)
On August 12, 2021, the Honorable Julie A. Manning in the District of Connecticut issued an Order to Show Cause why the case should not be dismissed. (D. Conn. Bankr. ECF No. 153.) The order noted that Lindsay had named only one creditor-New Rez-and the case was “essentially a two-party dispute” that “should be resolved in the Connecticut Superior Court.” (Id.) She further noted that the case did not appear to be filed in good faith based on the timing of the filing and prior filings in relation to the Foreclosure Action, and because Lindsay had “repeatedly failed to perform the duties required of a debtor under the Bankruptcy Code.” (Id.)
Lindsay failed to show cause why the case should not be dismissed, and accordingly, on September 23, 2021, Judge Manning dismissed the case with prejudice. (D. Conn. Bankr. ECF No. 158.) In light of Lindsay's numerous bankruptcy cases, Judge Manning also barred her from filing for bankruptcy relief in the District of Connecticut for two years. (Id.)
On August 27, 2021, Lindsay filed a Motion for Reconsideration before Chief Judge Morris, asking her to reconsider her orders converting and transferring the case. Chief Judge Morris held a hearing on November 4, 2021 and adjourned the matter to November 18, 2021 to allow Lindsay time to seek legal counsel. (Bankr. ECF No. 159.) On November 22, 2021, Judge Morris denied the Motion to Reconsider. (Id.)
4. The Instant Appeal
On December 6, 2021, Lindsay filed a notice of appeal (“Notice of Appeal”) in this Court. (ECF No. 1.) The Notice of Appeal challenges the same orders by Judge Garrity that Lindsay previously unsuccessfully appealed. In addition, the Notice of Appeal references Chief Judge Morris' decision not to grant Lindsay a fee waiver to access the Pacer System and her order denying Lindsay's motion for reconsideration. The Notice of Appeal also lists a host of difficult-to-follow allegations regarding a wider conspiracy by various judges and attorneys to harm Lindsay. The Notice of Appeal also asserts that Lindsay's California property, which was previously foreclosed on, should have been considered in her Underlying Bankruptcy Case.
The instant appeal was assigned to the Honorable Paul A. Engelmayer. On February 3, 2022, Judge Engelmayer issued an order stating that because the record on appeal was unavailable, Lindsay was directed to file an opening brief by March 4, 2022. (ECF No. 4.) On March 10, 2022, Lindsay requested an extension of time to file the brief, stating that she needed to assist her brother with a medical emergency. (ECF No. 5.) Judge Engelmayer then referred the case to me for general pretrial management. (ECF No. 6.) I granted Lindsay an extension of time until October 14, 2022 to file the opening brief. (ECF No. 7.) When no brief was filed by that date, in light of Lindsay's pro se status, I granted a second extension of time, and when that deadline also was not met, I granted a final extension to January 17, 2023. (ECF Nos. 12, 17.)
Lindsay filed the opening brief on January 17, 2023. (ECF No. 18.) The brief attaches voluminous copies of court documents from unrelated or marginally related actions, including transcripts from the Foreclosure Action and documents reflecting Lindsay's legal battles against Stamford-based physician, Ajay Ahuja, whom Lindsay unsuccessfully sued in 2013 for alleged sexual assault and rape, and subsequently unsuccessfully sued in 2017 for allegedly fraudulently causing Lindsay to lose her California home. (Id. at 3-79.) The opening brief also provides a brief “statement of issues” in which Lindsay explains that she is seeking “a reversal of the bankruptcy dismissal” based on unspecified errors of fact and law by Judge Garrity as well as by Connecticut judges in the Foreclosure Action.
On February 6, 2023, the Trustee moved to dismiss the appeal. (ECF No. 22.) On February 21, 2023, Lindsay filed an opposition to the motion to dismiss. (ECF No. 25.) The opposition brief primarily focuses on the validity of the Foreclosure Action.
Judge Engelmayer referred Lindsay's appeal and the Trustee's motion to dismiss to me for a Report and Recommendation. On March 9, 2023, I held a telephonic conference with the parties at which the parties stated that no further briefing on either motion was forthcoming.
DISCUSSION
1. The Court Lacks Jurisdiction Over This Appeal
28 U.S.C. § 158(a)(1) confers jurisdiction on a United States district court to hear an appeal from orders and decrees of bankruptcy judges. This jurisdiction is not without limits, and the district court must ensure that it maintains jurisdiction over an appeal before considering the merits of the appeal. Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003) (“Failure of subject matter jurisdiction, of course, is not waivable and may be raised at any time by a party or by the court sua sponte.”). For the reasons discussed below, the Court lacks jurisdiction over Lindsay's appeal, and accordingly the appeal should be dismissed.
a. The Court Lacks Jurisdiction Over Orders by Courts Outside this District.
An appeal under 28 U.S.C. § 158(a)(1) “shall be taken only to the district court for the judicial district in which the bankruptcy judge is serving.” 28 U.S.C.A. § 158(a). This appeal was brought in the District Court for the Southern District of New York, and accordingly, to the extent Lindsay's appeal challenges decisions made by the District of Connecticut bankruptcy court, the Connecticut state court, or any other court other than the Southern District of New York bankruptcy court, this Court lacks jurisdiction over those portions of the appeal. See Quintana v. DuMond, 2019 WL 4602341, at *4 (N.D.N.Y. Sept. 23, 2019), report and recommendation adopted, 2019 WL 6914043 (N.D.N.Y. Dec. 19, 2019) (finding the court lacked jurisdiction to review orders of the bankruptcy court for the Western District of Texas and recommending the appeal be dismissed on that basis).
b. The Court Lacks Jurisdiction Over Orders Issued Prior to November 22, 2021
An appeal to the district court of a bankruptcy judge's order must be made within fourteen days. In re Sterling, 690 Fed.Appx. 747 (2d Cir. 2017) (citing Fed.R.Bankr.P. 8002(a)(1) and 28 U.S.C. § 158(c)(2)). This limitation is jurisdictional and applies to pro se parties. Id. (citation omitted). Thus, absent a timely notice of appeal in the district court, the district court “is without jurisdiction to consider the appeal, regardless of whether the appellant can demonstrate ‘excusable neglect.'” Id. The only order implicated in the instant appeal that was made within the fourteen-day period prior to the filing of the Notice of Appeal is Chief Judge Morris' November 22, 2021 decision denying Lindsay's motion for reconsideration. To the extent Lindsay seeks to appeal any other order, the appeal is untimely and the Court may not consider it.
c. The Appeal is Moot
This Court's jurisdiction over a bankruptcy appeal is limited by the requirement set forth in Article III of the United States Constitution that there be a live case or controversy that permits the Court to grant effective relief. In re Loral Space & Commc'ns, Ltd., 342 B.R. 132, 137 (S.D.N.Y. 2006). “[W]hen a bankruptcy case has been dismissed, and that dismissal is not itself on appeal, an appeal of an interlocutory order of the bankruptcy court in that case is moot.” Moss v. 245 E. 25th Realty Corp., 2003 WL 256780, at *2 (S.D.N.Y. Feb. 5, 2003).
The Underlying Bankruptcy Case was dismissed on August 12, 2021 in the District of Connecticut. The dismissal is not on appeal here, because this Court lacks jurisdiction to consider a decision by the District of Connecticut. The case was dismissed for several reasons, including because it was a two-party dispute that should be resolved in state court, and it was not brought in good faith. If this Court were to vacate any order by a Southern District of New York bankruptcy judge, the relief would not be effective because there is no longer an active bankruptcy case. See, e.g., Booker v. Notice U.S. Tr., 2021 WL 1178375, at *3-5 (D. Conn. Mar. 29, 2021) (appeal of motion for reconsideration was moot where the bankruptcy case had been dismissed); In re Dunia, 2021 WL 1700194, at *2-3 (S.D.N.Y. Apr. 29, 2021) (same regarding appeal of order lifting the automatic stay); Nanan v. Nationstar Mortg., LLC, 2021 WL 1998933, at *2 (E.D.N.Y. May 19, 2021) (same regarding appeal of the bankruptcy's court's denial of the appellant's Loss Mitigation request).
A possible exception to this conclusion could be Chief Judge Morris' order converting the case back to a Chapter 7 case and her denial of reconsideration of that order, because those orders were final rather than interlocutory. See In re Firstcent Shopping Ctr., Inc., 141 B.R. 546, 550-51 (S.D.N.Y. 1992) (an order converting a case to one brought under another chapter is “final”). However, the reasons for the dismissal of the Underlying Bankruptcy case also apply to Chapter 13 cases. See In re Lin, 499 B.R. 430, 435-38 (Bankr. S.D.N.Y. 2013) (dismissing Chapter 13 case for the same reasons Lindsay's case was dismissed, i.e. because it was a two-party dispute and it had been brought in bad faith). Thus, Lindsay's case would have been subject to dismissal even if it had not been converted back to a Chapter 7 case. Accordingly, even though Chief Judge Morris' conversion order was final rather than interlocutory, no meaningful effective relief would be available from an appeal of that order. Without the possibility of effective relief, the appeal is moot and must be dismissed.
2. The Appeal is Meritless
In the event the Court finds it has jurisdiction to consider any portion of Lindsay's appeal, it should deny the appeal as meritless.
On an appeal of an order by the bankruptcy court, the bankruptcy court's findings of fact are reviewed for clear error and its conclusions of law are reviewed de novo. In re Lehal Realty Assocs., 101 F.3d 272, 276 (2d Cir. 1996). Clear error is present only when “upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed.” United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (quotation marks and citation omitted). The district court may not consider evidence outside the record, and any arguments not raised in the bankruptcy court are generally considered waived. In re Campbell, 539 B.R. 66, 72 (S.D.N.Y. 2015).
In reviewing a bankruptcy appeal by a pro se litigant, the Court must construe the litigant's pleadings “liberally” and read her papers “to raise the strongest arguments that they suggest.” In re Tronox Inc., 2023 WL 2744136, at *3 (S.D.N.Y. Mar. 31, 2023) (citing, inter alia, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).
a. Judge Garrity's Orders
There are several reasons why an appeal from Judge Garrity's orders is meritless. To start, Lindsay already appealed these orders, and that appeal was denied. It is improper for Lindsay to re-litigate a prior appeal under the guise of a new appeal. In re Sterling, 2019 WL 2250386, at *3 (S.D.N.Y. May 23, 2019) (rejecting pro se litigant's appeal because the litigant had already appealed the same order and the district court had dismissed the appeal for failure to prosecute it).
Additionally, Judge Garrity's orders were interlocutory rather than final orders. A litigant must seek leave from the Court to appeal an interlocutory order. 28 U.S.C. § 158(a)(3). Here, Lindsay has not stated any reason why leave should be granted, and the Court is aware of none.
Lindsay also has not pointed to any mistakes of fact or law in any of Judge Garrity's orders, and on a de novo review, there are none this Court has identified. Regarding Judge Garrity's order lifting the automatic stay, a bankruptcy court has the discretion to grant relief from the automatic stay “for cause,” and “cause” in this circumstance “is an intentionally broad and flexible concept.” In re Froman, 566 B.R. 641, 652-53 (S.D.N.Y. 2017). A debtor's bad faith is relevant in determining whether cause exists to lift an automatic stay. In re Sonnax Industries, 907 F.2d 1280 (2d Cir. 1990). Lindsay does not meaningfully contest Judge Garrity's finding that her prior bankruptcy filings evidenced a bad faith attempt to delay the foreclosure action. Moreover, her actions on this appeal - including the fact that she delayed almost a year before filing her opening brief - further evince a pattern of intentionally prolonging the foreclosure judgment. Judge Garrity appropriately concluded that this bad faith, coupled with the other factors he considered in his decision, provided a sufficient basis to lift the automatic stay. See In re Froman, 566 B.R. at 654 (affirming bankruptcy court's order lifting automatic stay because of the debtor's bad faith).
Judge Garrity also appropriately held that the Rooker-Feldman doctrine barred him from considering the validity of the foreclosure judgment. See Hoblock v. Albany Cnty. Bd. of Elecs, 422 F.3d 77, 83-84 (2d Cir. 2005) (explaining that the Rooker-Feldman doctrine bars a litigant that loses in a state court proceeding from subsequently seeking review of the state decision in federal court); see also In re Abraham, 2021 WL 5597939, at *7-8 (S.D.N.Y. Nov. 30, 2021) (the Rooker-Feldman doctrine applies to foreclosure actions); In re Lau, 2021 WL 796619, at *5 (S.D.N.Y. Feb. 26, 2021) (noting, in the context of a bankruptcy appeal challenging a foreclosure action, that “there is not a fraud exception to the Rooker-Feldman doctrine”).
To the extent Lindsay seeks to challenge the foreclosure judgment here, the Rooker-Feldman doctrine also bars this Court from considering that judgment for the same reasons laid out in Judge Garrity's decision.
To the extent Lindsay's appeal challenges the decision by Judge Garrity or any other judge to deny her discovery, this is not an appealable order that this Court can consider. Lothian Oil (USA), Inc. v. Sokol, 526 Fed.Appx. 105, 108 (2d Cir. 2013) (citation omitted) (“discovery orders are non-appealable interlocutory orders”).
As to Lindsay's allegations that Judge Garrity told her not to speak, it is not clear what Lindsay is referring to, because it appears that Lindsay filed numerous items on the docket and participated in several telephonic conferences and hearings before Judge Garrity. In any event, Judges may, in their discretion, institute filing injunctions in an attempt to manage the docket and prevent vexatious or frivolous filings. See, e.g., Mergenthaler v. Barnard, 2019 WL 3457808, at *1-2 (E.D.N.Y. July 31, 2019). Such decisions concerning docket management are reviewed narrowly for abuse of discretion. Fletcher v. Davis (In re Fletcher Int'l, Ltd.), 536 B.R. 551, 557 (S.D.N.Y. 2015), aff'd sub nom. In the Matter of Fletcher Int'l, Ltd., 661 Fed.Appx. 124 (2d Cir. 2016). While it does not appear that Judge Garrity instituted a filing injunction here, if he did do so, such an injunction would be within his discretion, and there is no basis for this Court to find that he committed any mistake in exercising that discretion.
Finally, Lindsay's assertion that her California property should have been included in the Underlying Bankruptcy Action is an improper attempt to challenge the California state court's judgment of foreclosure on that property. For the reasons discussed above, the Rooker-Feldman doctrine bars this Court from considering that earlier state court judgment.
b. Chief Judge Morris' Orders
Lindsay's Notice of Appeal implicates four orders by Chief Judge Morris in the Underlying Bankruptcy Case: an order transferring the case to Connecticut, an order converting the case to Chapter 7, an order denying reconsideration of the transfer and conversion orders, and an unspecified order denying Lindsay a PACER fee exemption. There is no merit to an appeal of these orders.
As to the transfer order, review is generally considered “unavailable for orders deciding questions of venue.” In re Alexander, 248 B.R. 478, 483 (S.D.N.Y. 2000) (citing, inter alia, SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 177 n. 5 (2d Cir. 2000)). Accordingly, the Court should deny leave to hear the appeal as to the transfer to the District of Connecticut. In any event, Lindsay cannot meaningfully challenge the transfer because she has not put forth any jurisdictional basis for the case to remain in this District.
As to the conversion order, this should be reviewed for abuse of discretion. In re Prisco, 574 Fed.Appx. 19, 19 (2d Cir. 2014). The same is true for a denial of a motion to reconsider a conversion order. Cyrus v. City of New York, 450 Fed.Appx. 24, 26 (2d Cir. 2011). There is no basis for the Court to find that Chief Judge Morris abused her discretion as to the conversion. Chief Judge Morris converted Lindsay's case because she found that Lindsay failed to undertake the requirements necessary to remain in Chapter 13. Lindsay does not contest that she in fact did not undertake these requirements. Moreover, in converting the case rather than dismissing it outright, Chief Judge Morris appropriately chose the “less drastic” step. In re Froman, 566 B.R. at 650 (S.D.N.Y. 2017). As to the motion for reconsideration, the standard for granting such a motion is strict, and “reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Lindsay has not pointed to any decisions or data that Chief Judge Morris overlooked that might reasonably be expected to have altered her conclusion. See Booker, 2021 WL 1178375, at *5 (appeal of bankruptcy court's denial of motion for reconsideration failed on the merits where appellant did not point to any controlling decisions or data that the bankruptcy judge overlooked).
Finally, as to Chief Judge Morris' denial of a PACER Fee Exemption, this decision is also reviewed for abuse of discretion. In re Club Ventures Invs. LLC, 507 B.R. 91, 99-100 (S.D.N.Y. 2014) (denying appeal of bankruptcy court's decision not to grant PACER exemption). PACER fees are set forth in the Electronic Public Access fee schedule adopted by the Judicial Conference of the United States Courts. The fee schedule contains several automatic fee exemptions, including a limited exemption for pro se litigants. Courts may, in their discretion, grant additional exemptions, but the party seeking a discretionary exemption “must demonstrate that an exemption beyond the four automatic exemptions ‘is necessary . . . to avoid unreasonable burdens and to promote public access to information.'” Id. (citation omitted). Lindsay has not shown why the standard PACER fee exemptions were insufficient for her or why an additional exemption was needed. Accordingly, there is no basis to find that Chief Judge Morris abused her discretion in denying Lindsay a discretionary PACER exemption.
c. District of Connecticut Order
An appeal of Judge Manning's order dismissing the case, even if brought in the correct jurisdiction, would also be meritless.
“A Bankruptcy Court's order dismissing a case is reviewed under an abuse of discretion standard.” Holt v. JPMorgan Chase Bank, N.A., 2019 WL 452056, at *1 (S.D.N.Y. Feb. 5, 2019) (citations omitted). Section 707(a) of the Bankruptcy Code authorizes a court to dismiss a Chapter 7 case for “cause.” In re Murray, 900 F.3d 53, 61 (2d Cir. 2018).
Judge Manning found that cause existed here, because the dispute was essentially a two-party dispute that was better resolved in state court, and because Lindsay's filings were made in bad faith. It was not an abuse of discretion for Judge Manning to consider these factors and to find that they amounted to cause for dismissal. Id. (holding that bankruptcy court did not abuse its discretion in dismissing Chapter 7 case for cause where it found that the action was part of a two-party dispute; there were no other creditors to protect; and it had been brought solely as a judgment enforcement device for which adequate remedies existed in state law); see also C-TV9th Ave. P'ship v. Norton Co., 113 F.3d 1304 (2d Cir. 1997) (affirming dismissal of Chapter 11 case for cause where bankruptcy court found that petition was filed as “litigation tactic” and dispute could be “fully resolved in non-bankruptcy forum”); Holt, 2019 WL 452056, at *1 (affirming dismissal of Chapter 13 case where serial filings suggested bad faith).
Accordingly, there is no basis to find that Judge Manning abused her discretion or committed any mistake in dismissing the Underlying Bankruptcy Case.
CONCLUSION
For the reasons stated above, I respectfully recommend that the bankruptcy appeal be dismissed for lack of jurisdiction, or in the alternative denied as meritless.
NOTICE
Appellant shall have seventeen days and Appellee shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)).
A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2). If any party files written objections to this Report and Recommendation, the plaintiff shall have seventeen days to serve and file a response. Defendants shall have fourteen days to serve and file any response. Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Engelmayer at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Engelmayer. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).