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Lubonty v. Barnard

United States District Court, E.D. New York

May 12, 2014

GREGG LUBONTY, Appellant,
v.
R KENNETH BARNARD, Trustee, and ALS HIBISCUS, LLC, Appellees.

ORDER

SANDRA J. FEUERSTEIN, District Judge.

On March 14, 2014, appellant Gregg Lubonty ("appellant") filed in the United States Bankruptcy Court for the Eastern District of New York ("the bankruptcy court"), inter alia: (1) a notice of appeal from an order of the bankruptcy court (Trust, U.S.B.J.), dated March 3, 2014, inter alia, authorizing and approving a revised stipulation ("the Revised Stipulation of Sale") between appellees R. Kenneth Barnard ("the Trustee"), the Chapter 7 Trustee, and ALS Hibiscus, LLC ("ALS"), a secured creditor of the estate, providing for the terms and conditions of sale of the Chapter 7 estate's interest in the real property located at 102 South Hibiscus Drive, Miami Beach, Florida ("the subject property"); and (2) a motion seeking leave to appeal to this Court from the March 3, 2014 order of the bankruptcy court. Neither appellee has filed an answer in opposition to the motion seeking leave to appeal to this Court from the March 3, 2014 order. See Fed.R.Bankr.P. 8003(a).

Although Rule 8006 of the Federal Rules of Bankruptcy Procedure ("the Bankruptcy Rules") provides, in relevant part, that "[w]ithin 14 days after filing the notice of appeal as provided by Rule 8001(a) * * * the appellant shall file with the [bankruptcy court] clerk and serve on the appellee a designation of the items to be included in the record on appeal and a statement of the issues to be presented" ("the Designation and Statement"), and the bankruptcy court's docket specifically indicates, inter alia, that appellant's Designation was due by March 28, 2014, (Bankr. Doc. No. 278), appellant has not filed a Designation and Statement with the bankruptcy court to date, nor has he ever sought an extension of time to do so. On March 31, 2014, only the record on appellant's motion for leave to appeal, consisting of the notice of appeal and motion for leave to appeal, was transmitted to this Court. For the reasons set forth below, appellant's motion seeking leave to appeal to this Court from the March 3, 2014 order of the bankruptcy court is denied as unnecessary and appellant is ordered to show cause why this appeal should not be dismissed pursuant to Rule 8001(a) of the Bankruptcy Rules for his failure to comply with Rule 8006 of the Bankruptcy Rules.

I. Background

On October 19, 2011, appellant commenced a bankruptcy proceeding by filing a voluntary petition for protection under Chapter 11 of the United States Bankruptcy Code ("the Bankruptcy Code") in the bankruptcy court. (Bankr. Doc. No. 1).

On June 20, 2013, ALS filed a motion in the bankruptcy court pursuant to 11 U.S.C. §§ 105(a) and 1112(b)(1), for an order converting the case to one under Chapter 7 of the Bankruptcy Code, or alternatively, 11 U.S.C. § 1104(a), for an order appointing a Chapter 11 trustee. (Bankr. Doc. No. 198). On July 2, 2013, the bankruptcy court: (1) granted ALS's motion and converted the case to one under Chapter 7 of the Bankruptcy Code, (Bankr. Doc. No. 216); and (2) appointed the Trustee, (Bankr. Doc. No. 219).

On December 20, 2013, the Trustee filed an "Emergency Motion to Sell Property of the [Chapter 7] Estate Free and Clear of Liens under 11 U.S.C. § 363(f) and Authorizing and Approving the * * * [Revised Stipulation of Sale]" ("the Motion to Sell")[1] (Bankr. Doc. No. 248). By order dated December 23, 2013, the bankruptcy court scheduled a hearing on the Motion to Sell for January 7, 2014. (Bankr. Doc. No. 249). On January 2, 2014, appellant filed an objection to the Motion to Sell. (Bankr. Doc. No. 251).

On January 3, 2014, (1) appellant filed a "Motion to Object/Reclassify/Reduce/Expunge * * * [ALS's claim]" ("the Claim Objection Motion"), directing that objections thereto be filed by 4:30 p.m. on February 7, 2014, (Bankr. Doc. No. 252); and (2) ALS filed a response to appellant's objection to the Motion to Sell, (Bailiff. Doc. No. 253).

On January 6, 2014, HSBC Bank, USA, N.A. ("HSBC") filed a limited objection to the Motion to Sell. (Bankr. Doc. No. 255).

On January 7, 2014, the hearing on the Motion to Sell was adjourned until January 29, 2014. (Bankr. Doc. No. 258).

On January 22, 2014, ALS filed a "Response/Statement * * * in Further Support of" the Motion to Sell, (Bankr. Doc. No. 260), and appellant filed a "Reply in Further Objection to" the Motion to Sell, (Bankr. Doc. No. 262).

On January 29, 2014, the hearing on the Motion to Sell was adjourned until February 3, 2014.

On January 31, 2014, the Trustee filed a declaration relating to the Motion to Sell. (Bankr. Doc. No. 264).

The hearing on the Motion to Sell, at which the Trustee testified, was held on February 3, 2014. The bankruptcy court granted the Motion to Sell on the record and directed the ...


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