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C Harles A. G Uerriero v. R Amin R Ayhan

September 19, 2011

C HARLES A. G UERRIERO APPELLANT,
v.
R AMIN R AYHAN, E STHETIC P ROCEDURES OF L ONG I SLAND, LLC,
R ICHARD J ARETT, & M ICHAEL K ELLY, APPELLEES.



The opinion of the court was delivered by: Joseph F. Bianco, District Judge:

MEMORANDUMANDORDER

The instant case is an appeal by Charles where appellees Ramin Rayhan, Esthetic Guerriero (hereinafter "Guerriero" or Procedures of Long Island, LLC, Richard "appellant"), a debtor, from the July 23, 2010 Jarett and Michael Kelly (hereinafter Order ("July Order") of the Honorable Alan "appellees") failed to serve appellant with the

S. Trust, United States Bankruptcy Judge, June Order as it required. denying appellant's motion to dismiss the adversary complaint as untimely. As set forth below, the Court affirms the Appellant, who voluntarily filed for Bankruptcy Court's determination denying bankruptcy pursuant to Chapter 7 of the appellant's motion to dismiss the adversary Bankruptcy Code in the United States complaint. Specifically, the Bankruptcy Bankruptcy Court for the Eastern District of Court's interpretation of its own order- New York ("Bankruptcy Court"), appeals namely, that the grant of the extension of from the judgment of the Bankruptcy Court, time for appellees to file their adversary arguing that: (1) the Bankruptcy Court's proceeding was not contingent upon interpretation in its July Order of its June 2, compliance with the separate "personal 2010 Order ("June Order") was unreasonable service" provision in the same order-is and in contravention of the clear and reasonable, and certainly not an abuse of unambiguous language of that Order; and (2) appellant's due process rights were violated discretion. *fn1 Similarly, appellant's related they sought "to compel compliance with the due process argument has no merit. 2004 order that was served upon the debtor Accordingly, the Bankruptcy Court's Order and to extend the creditor's time to object to is affirmed. discharge and dischargeability." (Id. at 2:6-9.) The Bankruptcy Court first

I. BACKGROUND

A. Bankruptcy Proceeding the Court will enter an order directing the debtor to comply

On July 8, 2009 appellant filed a with the 2004 order . . . That voluntary petitioner for bankruptcy under order is going to need to be Chapter 7 of the Bankruptcy Code. (Docket personally served on the 1-30 at 1; Docket 1-10 & 1.) Appellees debtor because if for any requested a number of extensions by which reason he doesn't comply with to object to the dischargeability of appellant's this order I'm assuming I will debt. Central to the dispute at hand is see you all back on a appellee's motion dated April 21, 2010, contempt motion. So I want to requesting an extension of time for the be certain of personal service. creditors to file objections to the discharge of . . . you may now unilaterally appellant's debt. (Docket 1-21.) In that pick the date, time and place motion, appellees also sought an order for both production and compelling appellant to comply with the examination [of the debtor] . . Bankruptcy Court's March 9, 2010 Order . . regarding the production of documents and the examination of appellant under Rule (Id. at 2:19-25, 3:1-8.) With respect to the 2004 of the Federal Rules of Bankruptcy extension request, the Bankruptcy Court Procedure ("2004 Order"). (Id.; see also found that "cause exists to extend . . . [the] Docket 1-23.) request [] through June 21, 2010. . . .

Presumably you all will schedule the 2004

The Bankruptcy Court held a hearing on [production and examination] prior to that appellees' motion on May 25, 2010. time if possible." (Id. at 3:9-13.) (Docket 1-21 (June Order), 1-28 (Hearing Transcript).) Appellant did not appear for the hearing and did not file opposition papers to appellees' motion. (Docket 1-28 at 2:9, 4:20-21.) At the hearing, appellees stated addressed the 2004 Order, stating that

The Bankruptcy Court memorialized its (adversary complaint).) On July 6, 2010 decision in the June Order, which, as noted appellant filed a motion to dismiss the above, was issued on June 2, 2010. The adversary proceeding (Docket 1-30 at 3), Bankruptcy Court "extended through and claiming that the action was time-barred including June 21, 2010" the creditors' time because: (1) service was inappropriately to object to the discharge of appellant's debt. made on appellant's wife where the June (Docket 1-21 & a.) In addition, the June Order never made provisions for "substitute Order stated that: service"; and (2) even if serving appellant's wife was appropriate, she was never served

(b) the Debtor is hereby with the June Order. (Docket 1-10 && 8-9, compelled to comply with the 15.) Appellees opposed appellant's motion, 2004 Order . . . thereby arguing that: (1) the Bankruptcy Court requiring a turnover of granted appellees an extension of time to file documents as set forth in the their adversary proceeding until June 21, 2004 Order . . . .; 2010 and that the mandate to serve appellant was referring to the 2004 Order; and (2) even

(c) the Debtor is hereby if appellees were required to serve appellant, required to appear at the appellant waived or should be equitably offices of [appellees' law estopped from raising the timeliness of the firm] on June 16, 2010 at adversary complaint because he appeared for 12:00 a.m. for an examination his 2004 examination as required by the June pursuant to the 2004 Order Order and did not raise any objections dated March 9, 2010, and regarding service at that time. (Docket 1-14 && 5-7, 9-11.)

(d) personal service of this

Order on the Debtor is to be On July 23, 2010, the Bankruptcy Court effectuated on or before June denied appellant's motion to dismiss the 10, 2010. adversary proceeding as timely. (Docket 1-3.) The Bankruptcy Court stated that the (Docket 1-21 && b-d.) An affidavit of June Order "contained several service filed with the Bankruptcy Court non-interdependent decretal paragraphs to indicated that the June Order was served in address the various forms of relief sought in person on June 9, 2010 on Frances Guerriero, the Motion . . . . " and indicated that, "as appellant's wife, at her home address. correctly stated by [appellees], the provision (Docket 1-12.) The Order was also served regarding service of the Order related to the by mail to appellant's home address on June mode of service for the 2004 Order, and not 11, 2010. (Id.) related to the relief extending time; therefore, the adversary [complaint] was timely filed on On June 21, 2010 appellees filed an June 21, 2010." (Id. at 2.) In addition, the adversary complaint against the debtor Bankruptcy Court concluded that it "makes challenging the dischargeability of his debt. no determination as to the efficacy of service (Docket 1-30 at 2 (docket sheet); id. 1-4 of the Order as the issue of the Debtor's compliance with the 2004 Order is not bankruptcy court's interpretation of its own presently before the Court." (Id. at 3.) order is given deference on appeal and is Appellant now appeals from this July Order. reviewed for abuse of discretion. See, e.g., In re The 1031 Tax Grp., LLC, No. 10 Civ.

B. Procedural History 2799 (RJH), 2011 WL 1158445, at *1 (S.D.N.Y. Mar. 29, 2011) (citing Deep v. Appellant filed a notice of appeal on Copyright Creditors, 122 F. App'x 530, 531 October 1, 2010, and filed his brief on April (2d Cir. 2004) and Casse v. Key Bank Nat'l 22, 2011. Appellees filed their opposition Ass'n, 198 F.3d 327, 333 (2d Cir. 1999)); see brief on June 10, 2011. Appellant did not also In re Resource Tech. Corp., 624 F.3d file a reply, which was due by June 27, 2011. 376, 386 (7th Cir. 2010) ("We owe The Court has fully considered the substantial deference to ...


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