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Norman Rijo v. Jpmorgan Chase Bank

January 15, 2012


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


This appeal arises from an April 16, 2012 Decision (the "Decision") by the Bankruptcy Court for the Eastern District Court of New York (the "Bankruptcy Court"), which denied the motion by Norman Rijo ("Rijo" or the "Appellant") to vacate the Bankruptcy Court's Order of June 11, 2010, granting a default judgment against the Appellant and in favor of JPMorgan Chase Bank, N.A. ("Chase" or "the Appellee"). For the reasons set forth below, the Court finds that the Bankruptcy Court's determination was not erroneous and the Court affirms the denial of Rijo's motion to vacate.


On June 23, 2009, Rijo filed a voluntary Chapter 7 petition. Also on June 23, 2009, Rijo's business NCI Construction, Inc., ("NCI") filed a voluntary Chapter 7 petition.

On August 26, 2009, Chase filed a motion pursuant to Federal Rules of Bankruptcy Procedure ("Fed. R. Bankr. P.") 2004 to examine Rijo and review the documents with regard to a 2007 loan made by Chase to NCI, and guaranteed by Rijo and his business partner, Andrew DiMarco ("DiMarco"). Chase alleged that there had been material misstatements in the loan application and that Rijo had diverted millions of dollars from NCI. On October 20, 2009, the Bankruptcy Court granted Chase's Rule 2004 motion to examine Rijo and review the documents relating to the 2007 loan. On November 20, 2009, Chase deposed Rijo. However, Chase alleges that Rijo did not provide the requested documents. Chase alleges that, despite repeated requests and a court order, Rijo never provided them with the requested documentation.

On November 25, 2009, Chase filed a complaint with the Bankruptcy Court objecting to the dischargeability of its debt. Chase alleged that Rijo and NCI fraudulently obtained the loan by providing false financial information in the loan application. On December 23, 2009, Rijo filed an answer with counterclaims, denying the allegations in the complaint and making a demand for fees, costs, and attorney's fees.

On March 15, 2010, Macco & Stern, LLP ("Macco & Stern"), Rijo's then attorneys, moved to withdraw as counsel. On March 30, 2010, Chase filed a motion for an order to strike Rijo's answer and counterclaims and enter a default judgment in favor of Chase due to Rijo's failure to comply with the Bankruptcy Court's orders, or, alternatively, to compel Rijo to comply with discovery.

On April 28, 2012, United States Bankruptcy Judge Robert E. Grossman held a hearing on both the motion to strike and the motion to withdraw as counsel. Macco & Stern appeared as Rijo's counsel, but Rijo himself did not appear. Macco & Stern informed Judge Grossman that they had attempted to contact Rijo several times; that Rijo had not been cooperative; and that Rijo was inclined to default in the adversary proceeding. Judge Grossman gave Rijo "one last chance" to appear and ordered Rijo to produce the requested documents; appear for examination pursuant to the Rule 2004 Order; and appear at a hearing on June 7, 2010. Rijo did not appear at the June 7th hearing, and Rijo's counsel advised Judge Grossman that Rijo wished to default in the adversary proceeding between himself and Chase. The Bankruptcy Court granted Chase's motion to strike Rijo's answer and counterclaims. On June 11, 2010, Judge Grossman entered an Order striking Rijo's answer and counterclaims, thereby entering a default against Rijo, and granted Chase a non-dischargeable judgment against the Debtor in the amount of $336,348.22. On June 13, 2010, Rijo was served with a notice of entry of the Bankruptcy Court's. Rijo did not appeal from the Order and it became final on or about June 25, 2010.

On June 10, 2011, Rijo filed a motion to vacate the Bankruptcy Court's Order pursuant to Federal Rules of Civil Procedure ("Fed. R. Civ. P.") 60(b). On April 16, 2012, Judge Grossman denied Rijo's motion to vacate. On April 26, 2012, Rijo filed the present appeal to this Court. The Appellant raises the following issues: (1) did the Bankruptcy Court err in not finding sufficient cause to vacate its prior Order dated June 11, 2010, both in light of the record and the Supreme Court's decision in Stern v. Marshall, ___U.S. ____, 131 S. Ct. 2594, 180 L. Ed. 2d 475 (2011); and (2) whether the Court erred in entering a sum certain default judgment without an inquest.


A. Legal Standard

United States district courts have jurisdiction to hear appeals from final judgments, orders, and decrees of bankruptcy judges. Fed. R. Bankr. P. 8013. The standard of review in a bankruptcy appeal is plenary. In re MarketXT Holdings Corp., 346 Fed App'x 744, 745 (2d Cir. 2009). The reviewing court "review[s] the bankruptcy court decision independently, accepting its factual findings unless clearly erroneous, but reviewing its conclusions of law de novo." Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006). "On appeal, a district court 'may affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings.'" Eton Centers, Co. v. McNally (In re McNally), No. 02-CV-85, 2003 U.S. Dist. LEXIS 25856, at *3 (S.D.N.Y. June 2, 2003) (citing Fed. R. Bankr. P. 8013).

A decision to vacate a judgment under Fed R. Civ. P. 60(b) ("Rule 60(b)") is within the sound discretion of the bankruptcy court, and such a ruling is reviewed under the abuse of discretion standard. In re Barquet Group, Inc., No. 12-CV-8001, 2012 WL 6582367, at *2 (S.D.N.Y. December 17, 2012) ("It is well established, however, that a bankruptcy court's decision on a motion to vacate a prior judgment or order is reviewed only for an abuse of discretion.") (citing Olsen v. 419 Apartment Corporation, No. 06-CV-4004, 2008 WL 4298586, at *2 (S.D.N.Y. Sept.19, 2008)); In re Blaise, 219 B.R. 946, 949--50 (2d Cir. BAP 1998) (citation ...

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