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In re Miller

January 23, 2009

IN RE: MAYNE MILLER, DEBTOR.
MAYNE MILLER, APPELLANT,
v.
JEFFREY L. SAPIR, CHAPTER 13 TRUSTEE, IRENE CARGONJA, AND 79 EAST OWNER, LLC, APPELLEES.



The opinion of the court was delivered by: John G. Koeltl, District Judge

MEMORANDUM OPINION AND ORDER

On January 4, 2008, United States Bankruptcy Judge James M. Peck issued an order denying pro se debtor Mayne Miller's ("Miller") motion for reconsideration of a decision not to grant an extension of time in which to perform certain bankruptcy-related obligations. The original decision followed a hearing on the matter that had taken place on December 27, 2007. On January 14, 2008, Miller appealed from the order. In an Order dated May 14, 2008, this Court dismissed Miller's appeal for failure to prosecute his bankruptcy appeal, more specifically, for failure to file timely the designation of record and statement of issues on appeal. In Docket No. 08 Civ. 4305, Miller moves for relief pursuant to Federal Rules of Civil Procedure 59(e) and 60(b) from the judgment dismissing his appeal from the January 4, 2008 order.*fn1

On February 28, 2008, United States Bankruptcy Judge Martin Glenn issued an order denying reconsideration of the dismissal of Miller's bankruptcy case. This order followed oral argument on January 24, 2008, in which Judge Glenn granted the Chapter 13 Trustee's motion to dismiss. Miller filed a notice of appeal from this order on March 6, 2008. That appeal is Docket No. 08 Civ. 4306.

I.

A Rule 8013 of the Federal Rules of Bankruptcy Procedure provides that "[o]n an appeal [from the bankruptcy court,] the district court . . . may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings." The Court reviews a bankruptcy court's factual findings for clear error, Fed. R. Bankr. P. 8013, and its legal conclusions de novo, Nat'l Union Fire Ins. Co. v. Bonnanzio, 91 F.3d 296, 300 (2d Cir. 1996). The Court may affirm on any ground that finds support in the record, and need not limit its review to the bases raised or relied upon in the decisions below. See, e.g., Borrero v. Conn. Student Loan Found., No. 97 Civ. 1382, 1997 WL 695515 at *1 (D. Conn. Oct. 21, 1997); In re Coronet Capital Co., No. 94 Civ. 1187, 1995 WL 429494 at *3 (S.D.N.Y. July 20, 1995).

B.

The procedural history of this case is as follows. On November 1, 2007, Miller, who is an attorney, commenced a voluntary case under Chapter 13 of the Bankruptcy Code. On November 19, 2007, Miller brought an order to show cause to extend his time to file his schedules, statement of financial affairs, Official Form 22C, and proposed Chapter 13 plan until December 10, 2007 (the "Extension Application"). Miller additionally submitted a declaration explaining why additional time was required. Judge Peck considered the order to show cause and declaration, but took no action on it prior to the hearing on December 13, 2007. At the hearing, Judge Peck inquired as to the status of the schedules and statement of financial affairs. Upon learning that Miller still had not completed these documents, Judge Peck found insufficient cause to grant the Extension Application. At the same hearing, Judge Peck also denied Miller's motion requesting additional time to perform his obligations under the lease for his Long Island City office (the "Lease Extension").

On December 26, 2007, Miller filed a motion for reconsideration of the denials of the Extension Application and the Lease Extension (the "First Reconsideration Motion"). On January 4, 2008, Judge Peck issued an order denying the First Reconsideration Motion (the "First Reconsideration Denial"). Judge Peck explained:

When compared with most other chapter 13 cases, this case is exceptional in that this particular pro se debtor has the skill and background to cope with the process. Instead of utilizing his experience to move the case forward, the Debtor has chosen a path of excuse and delay. His pleadings including the Motion for Reconsideration seem designed to prolong the case and to defer performing his responsibilities as a Chapter 13 debtor.

The extreme irony is that the Debtor has found the time and taken the effort to file long-winded papers that seek to excuse his failure to perform while at the same time alleging that he is too distracted by other obligations to concentrate on preparation of his bankruptcy schedules. Something is terribly wrong when a lawyer-debtor can manage his time to file lengthy papers requesting extensions of deadlines but is unable to discipline or dedicate himself to do the work to prepare the very documents that are required of all debtors.

In re Mayne Miller, No. 07-13481, slip op. at 10 (Bankr. S.D.N.Y. Jan. 4, 2008)

In a separate order, also dated January 4, 2008, Judge Peck lifted the automatic stay provision of 11 U.S.C. § 362 and allowed the owner of Miller's rent-stabilized Manhattan apartment, 79 East Owner LLC ("79 East"), to proceed in state court against Miller. Judge Peck noted that 79 East would first need to seek approval of the Bankruptcy court before a warrant of eviction could issue or judgment against Miller could be executed.

On January 14, 2008, Miller appealed the First Reconsideration Denial (the "First Appeal"). Under Bankruptcy Rule 8006, an appellant is required to file a designation of items to be included in its record on appeal and a statement of issues presented within ten days of filing the notice of appeal. Those items were not filed and, almost four months later, on May 14, 2008, this Court issued an order dismissing the appeal for failure to prosecute, namely, for failure to file a designation of items to be included in the record on appeal and statement of issues on appeal (the "District Court Dismissal"). The District Court Dismissal was entered on May 19, 2008. On June 3, 2008, Miller moved for relief from the District Court Dismissal pursuant to Federal Rules of Civil Procedure 59(a) and 60(b).

On December 20, 2007, Jeffrey L. Sapir, as Chapter 13 trustee (the "Trustee"), moved to dismiss Miller's bankruptcy case for failure to file timely a Chapter 13 plan and for failure to remit timely payments to the Trustee. A hearing was held on January 24, 2008 before Judge Glenn,*fn2 who granted the Trustee's motion from the bench. An order to the same effect, dated January 24, 2008, was entered on February 1, 2008 (the "Dismissal Order"). The court found that the appeal should be dismissed under 11 U.S.C. § 1307(c)(1) because the debtor had caused unreasonable delay that was prejudicial to creditors; under 11 U.S.C. § 1307(c)(3) because the debtor failed to timely file a plan under 11 U.S.C. § 1321 and Federal Rule of Bankruptcy Procedure 3015(b); and under 11 U.S.C. § 1307(c)(4) because the debtor had failed to remit timely payments to the Chapter 13 trustee as required by 11 U.S.C. § 1326.

On February 7, 2008, Miller filed a motion for reconsideration of the Dismissal Order and on February 13, 2008, brought an order to show cause to stay the dismissal and enjoin enforcement of a state court judgment for possession of his apartment (together, the "Second Reconsideration Motions"). On February 28, 2008, Judge Glenn issued an ...


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