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Wynn v. Reiber

United States District Court, W.D. New York

May 1, 2014

JAMES I. WYNN, SR., Appellant,
v.
GEORGE M. REIBER, ESQ., Appellee

James I. Wynn, Sr., Appellant, Pro se, Rochester, NY.

For George M. Reiber, Appellee: George Reiber, LEAD ATTORNEY, Rochester, NY.

Page 29

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge.

This is an appeal from an order of United States Bankruptcy Judge Paul R. Warren (Dkt. #1-4) (the " Order" ). In that Order, Judge Warren granted an application to withdraw by the appellant-debtor's (" Wynn" ) former counsel, William Rieth, because Wynn had expressed a desire to retain new and different counsel. Wynn now appeals, conceding that the Court's decision to permit Rieth to withdraw was proper, but arguing that the Order was " incomplete and misleading" because: (1) it failed to mention a " reply" affidavit that Wynn filed in connection with Rieth's motion to withdraw; and (2) it did not examine the issue of whether Rieth should be " dismissed for cause" instead of simply permitted to withdraw. Plaintiff also suggests that there is a conflict of interest presented by the fact that appellee George Reiber, the Chapter 13 Trustee assigned to plaintiff's case, is " representing" Rieth in connection with the instant appeal. (Dkt. #10). For the reasons set forth below, the Order is affirmed.

DISCUSSION

On February 27, 2013, Wynn filed a petition with the Bankruptcy Court by his then-counsel Rieth, commencing a Chapter 13 bankruptcy action. Upon filing of the petition, the Bankruptcy Court's computerized assignment system automatically assigned the case to Reiber, as Chapter 13 trustee.

On April 1, 2013, Wynn advised one of the staff attorneys for the trustee that he was not satisfied with Rieth and wished to hire a new attorney. On April 2, 2013, Rieth moved to withdraw as Wynn's counsel, citing Wynn's expressed lack of trust in him. On April 15, 2013, Wynn filed a response to that motion, expressing his support for Rieth's withdrawal and asserting additional facts describing why Wynn believed that Rieth had not adequately represented his interests. A hearing was held on that motion on April 18, 2013, and on April 22,2 013, the decision-appealed-from was issued, granting Rieth's motion to withdraw. This appeal followed.

I. The Order's Lack of Discussion Concerning Wynn's Response and/or Whether Rieth Should Be Dismissed As Wynn's Counsel " For Cause"

Initially, appellant argues that the Order was " incomplete" because it failed to mention or discuss Wynn's response to Rieth's motion to withdraw (except to note, correctly, that Wynn did not object to the relief requested), or to explore whether Rieth had committed some error that would justify his dismissal for cause, based on the facts alleged by Wynn in his " reply" affidavit. I find that the Bankruptcy Court's failure to mention these matters does not render the Order erroneous or

Page 30

misleading, or otherwise present any reason to modify the Order. See Fed. R. Civ. Proc. 61 (" the court must disregard all errors and defects that do not affect any party's substantial rights" ).

Initially, Wynn's response explicitly supported the motion to withdraw rather than opposing it, and there was no clear reason why the Bankruptcy Court was required to specifically mention or discuss any collateral matters raised by Wynn's response in its decision granting the motion to withdraw. Indeed, although Wynn recited various complaints he had about Rieth's representation in his " reply" affidavit, he requested no other or further relief than that " the court . . . grant Mr. Rieth [sic] motion to withdraw from representing [me]." (Dkt. #1-3 at 5).

I find no deficiency or omission in the Bankruptcy Court's Order which would " affect any party's substantial rights," and therefore decline to ...


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