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Mohamed Ismail Elmasri, E.D. v. Coleen Rupp

February 2, 2011

MOHAMED ISMAIL ELMASRI, E.D.
APPELLANT
v.
COLEEN RUPP, ET AL., APPELLEES.



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

MEMORANDUM & ORDER

Pending before the Court is pro se appellant Mohamed Ismail Elmasri's ("Debtor") appeal from the April 19, 2010 Memorandum Decision and Order by Bankruptcy Judge Dorothy Eisenberg dismissing Debtor's adversary complaint and sanctioning him for commencing a frivolous proceeding (the "April 19 Order"). The Appellees are Coleen Rupp, Heath S. Berger, Esq., Steinberg, Fineo, Berger and Fischoff P.C. and Keith Swensen (collectively, "Appellees"). For the reasons that follow, the April 19 Order is AFFIRMED.

BACKGROUND

This case arises from a long and tortured series of bankruptcy proceedings. The Court only sets forth the facts necessary to put this appeal into context.

Debtor filed for Chapter 7 relief in October, 2005 and was discharged in July 2006. (April 19 Order at 1.) In connection with Debtor's bankruptcy, Bankruptcy Judge Melanie Cyganowski confirmed the sale of a property that Debtor owned with his ex-wife, Appellee Rupp, in Patchogue, New York (the "Property"), with payment of Debtor's $50,000 homestead exemption to be made to him at the closing. (Id. at 1-2.)

I. The Order to Show Cause

On August 28, 2006, two days before the closing,

Appellee Rupp filed an application for an order to show cause seeking, among other things, an injunction and a temporary restraining order enjoining the Chapter 7 trustee from releasing Debtor's homestead exemption from the sale's proceeds. (Id. at 2.) Judge Cyganowski scheduled an emergency hearing for the next day, and notice of the hearing was allegedly served on Debtor by a process server who affixed the notice to Debtor's door. See id.

Debtor did not appear at the emergency hearing, and Judge Cyganowski issued an Order to Show Cause and granted Rupp's request for a temporary restraining order directing the Trustee to hold the homestead exemption funds in escrow until a further hearing which was scheduled for September 12, 2006 (the "Order to Show Cause"). Id. The Order to Show Cause explicitly found that Debtor had been served with sufficient notice. E.D.N.Y. Bankr. No. 805-88238-511, Docket Entry 60. The September 12 hearing was eventually rescheduled to October 4, 2006. April 19 Order at 3. Debtor never appealed the Order to Show Cause. Id. at 4.

On September 7, 2006, Debtor filed an affidavit in response to the Order to Show Cause in which he protested that Appellees acted in bad faith by scheduling the emergency hearing while Debtor was on an airplane and thus unable to attend. See E.D.N.Y. Bankr. No. 805-88238-511, Docket Entry 61, ¶¶ 16-17. Using similar language in a September 20, 2006 motion to vacate the temporary restraining order, Debtor again complained that notice was insufficient. E.D.N.Y. Bankr. No. 805-88238-511, Docket Entry 64, ¶ 7. These arguments, along with various other motions, were taken up together by Bankruptcy Judge Joel Rosenthal who, notwithstanding Debtor's suggestions that service had been improper, continued the restrictions on the homestead exemption initially imposed by Judge Cyganowski. E.D.N.Y. Bankr. No. 805-88238-511, May 24, 2007 Order at 14.

II. Further Litigation

On December 11, 2007, Appellee Rupp moved for an order compelling the Trustee to turn over the homestead exemption to her in satisfaction of a child support judgment that she had previously obtained against Debtor. See E.D.N.Y. Bankr. No. 805-88238-511, Docket Entry 97. The next day, Debtor filed his own motion seeking the turnover of the homestead exemption. See E.D.N.Y. Bankr. No. 805-88238-511, Docket Entry 101. In this filing, Debtor reiterated his argument that service of the initial application for an order to show cause had been insufficient. Id. ¶ 7. Bankruptcy Judge Jerome Feller held a hearing on the motions on March 20, 2008, during which Debtor pressed the issue of improper service. (See A'ee Br. Ex. H, Transcript of Hrg. 55:21-25.) Judge Feller denied Debtor's motion at the hearing, and entered an order confirming as much on April 28, 2008 (the "April 28 Order"). E.D.N.Y. Bankr. No. 805-88238-511, April 28, 2008 Order.

Debtor appealed both Judge Rosenthal's May 24, 2007 Order and Judge Feller's April 28, 2008 Order, and raised the improper service issue in both appeals. See E.D.N.Y. No. 07-CV-2816, Docket Entry 11 at 11-12; E.D.N.Y. No. 08-CV-2709, Docket Entry 6 at 14.) This Court affirmed both orders on March 31, 2009, albeit without explicitly discussing ...


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