Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

IN RE DAVIS

United States District Court, S.D. New York


June 15, 2004.

In re JOHN H. DAVIS, Debtor. JOHN L. OLIVIER and ARMAND J. BRINKHAUS d/b/a OLIVIER AND BRINKHAUS, Appellants.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Appellants appealed from an order of the Bankruptcy Court which awarded the Trustee in this Chapter 7 case $8,216.33 in compensation and the Trustee's law firm, which had been engaged as counsel to the Trustee, $38,845.75 in fees and $720.67 in expenses. This Court affirmed the order appealed from by order dated February 20, 2004, stating that "most of [appellants'] arguments are frivolous and border on the sanctionable." The Trustee now moves, pursuant to Bankr. R. 8020, for damages and costs in the amount of $13,407 on the ground that the appeal was frivolous.

Bankr. Rule 8020 adopts for the bankruptcy courts the standard employed in Fed.R.App.P. 38. Maloni v. Fairway Wholesale Corp., 282 B.R. 727, 733-34 (1st Cir. BAP 2002). The Rule 38 standard, which therefore is applicable here, permits an award of sanctions "where the appeal taken is found to be groundless, without foundation, and without merit, even though appellant did not bring it in bad faith." In re 60 East 80th Street Equities, Inc., 218 F.3d 109, 119 (2d Cir. 2000) (quoting In re Drexel Burnham Lambert Group, 995 F.2d 1138, 1147 (2d Cir. 1993) (internal quotation marks omitted)). Sanctions of course are not appropriate merely because an appellant does not prevail.

  As this Court pointed out previously, the scope of its review of the Bankruptcy Court's order was to determine whether there had been an abuse of discretion. While appellants made some arguments that were appropriate when addressed to the bankruptcy judge, their brief on the appeal substantially ignored this Court's limited scope of review, largely confining itself to rehashing the arguments properly addressed to the discretion of, but rejected by, the bankruptcy judge. In no instance did they cite any authority for the proposition that the Bankruptcy Court erred as a matter of law, made a clearly erroneous finding of fact, or clearly erred in weighing the factors pertinent to the exercise of its discretion.

  Accordingly, this Court finds that the appeal was at least substantially frivolous. Taking into account the possibility that there may have been marginally more merit to it than this Court perceives, and bearing in mind that the Trustee seeks fees and costs totaling $13,407,*fn1 the motion is granted to the extent that the Trustee shall recover of the appellants a total of $7,000 pursuant to Bankr. R. 8020.

  SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.