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In re Mergenthaler

United States District Court, E.D. New York

March 13, 2017

PETER MERGENTHALER, Defendant-Appellant. DEAN OSEKAVAGE d/b/a PATHFINDERS USA as assignee of Judith Wetzstein, Plaintiff-Appellee,


          JOANNA SEYBERT, U.S.D.J.

         Currently pending before the Court are: (1) Appellant Peter Mergenthaler’s (“Appellant”) motion to re-open the instant bankruptcy appeal (Docket Entry 14), which was dismissed on February 12, 2016 and (2) Appellee Dean Osekavage’s (“Osekavage”) cross-motion for an injunction (Docket Entry 16). For the following reasons, Appellant’s motion is GRANTED IN PART and DENIED IN PART, and Osekavage’s cross motion is DENIED WITHOUT PREJUDICE.


         The Court assumes familiarity with the facts of this appeal, which are detailed in this Court’s Orders dated April 29, 2015 and January 15, 2016 (the “April 2015 Order,” Docket Entry 9; the “January 2016 Order,” Docket Entry 12). This appeal is the latest in a series of efforts by Appellant and his wife Rosemary to attempt to prevent the sale of their residence.

         Briefly, Appellant’s former wife, Judith Wetzstein, secured a divorce judgment against Appellant which was never satisfied. (April 2015 Order at 2.) Subsequently, she assigned the debt to Dean Osekavage d/b/a Pathfinders USA (“Osekavage”). (April 2015 Order at 3.) After litigating the matter against Appellant in state court, Osekavage obtained a lien on the home that Appellant shares with his second wife, Rosemary, and a court-appointed receiver began the eviction process.[1] (April 2015 Order at 3-4.) Before the eviction process was completed, and while a contract for the sale of the property was pending, Appellant filed for bankruptcy. (April 2015 Order at 4.)

         Osekavage subsequently commenced an adversary proceeding against Appellant to prevent him from discharging the lien during the bankruptcy proceedings. (April 2015 Order at 4-5.) In the adversary proceeding, the bankruptcy court judge found that the debt was not dischargeable because it was a domestic support obligation and granted summary judgment for Osekavage. (April 2015 Order at 5-6.) Additionally, the bankruptcy court judge lifted the automatic stay with regard to the property. (April 2015 Order at 6.) On April 10, 2015, Appellant filed four appeals challenging those Orders, as well as Orders denying reconsideration of those decisions. (Notice of Appeal, Docket Entry 1.) On April 17, 2015, Appellant filed a proposed order to show cause to stay the bankruptcy court’s orders pending resolution of his appeals. (Unsigned Order to Show Cause, Docket Entry 5.) On April 29, 2015, this Court consolidated the pending appeals under the above-referenced docket number and denied Appellant’s request for a stay of the bankruptcy court’s orders. (April 2015 Order at 14.) On May 4, 2015, Appellant filed a motion for reconsideration. (Recons. Mot., Docket Entry 10.) The Court denied Appellant’s motion for reconsideration on January 15, 2016. (January 2016 Order at 6.)

         On February 12, 2016, this Court sua sponte dismissed this appeal due to Appellant’s failure to file a brief in accordance with Federal Rule of Bankruptcy Procedure 8018. (Electronic Order, February 12, 2016.)


         I. Appellant’s Motion to Reopen

         On March 14, 2016, Appellant filed a motion to reopen his appeal. (Mot. to Reopen, Docket Entry 14.) Appellant does not dispute that he failed to file a brief or request an extension of time to do so. (Mot. to Reopen at 5-6.) Liberally construed, Appellant argues that: (1) he was not provided with a briefing schedule by the Court; (2) reopening the appeal will not prejudice Osekavage; and (3) his underlying appeal is meritorious. (Mot. to Reopen at 5-7.) In opposition, Osekavage argues that Appellant should not be granted additional time to file his brief because he has not demonstrated excusable neglect. (Levine Decl., Docket Entry 16-1, ¶ 3.)

         Federal Rule of Bankruptcy 8018(a) states in relevant part: “unless the district court . . . in a particular case excuses the filing of briefs or specifies different time limits [t]he appellant must serve and file a brief within 30 days after the docketing of notice that the record has been transmitted or is available electronically.” Fed. R. Bankr. P. 8018(a). Subsection (a)(4) states: “If an appellant fails to file a brief on time or within an extended time authorized by the district court . . . an appellee may move to dismiss the appeal--or the district court . . . after notice, may dismiss the appeal on its own motion.” Fed. R. Bankr. P. 8018(a)(4).

         “The bankruptcy appeal brief filing deadlines are strictly enforced” and “a bankruptcy appellant’s failure to timely file a brief can, in certain circumstances, be grounds for dismissal of the appeal.” In re Segal, 557 B.R. 46, 49 (E.D.N.Y. 2016). However, even if the appeal suffers from procedural defects, dismissal is not mandatory; the district court has discretion to consider dismissal if appropriate. See Fed. R. Bankr. P. 8003(a)(2) (“An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the district court . . . to act as it considers appropriate, including dismissing the appeal.”). Generally, the appellant must receive notice that his failure to comply will lead to dismissal. See Segal, 557 B.R. at 49 (declining to dismiss bankruptcy appeal due to lack of notice); see also In re Hawkins, 295 F. App’x 452, 453 (2d Cir. 2008) (quoting In re Harris, 464 F.3d 263, 272 (2d. Cir. 2006)) (“[D]istrict courts ‘will generally need to provide notice of the potential dismissal and an opportunity for the errant litigant to explain its conduct.’”).

         Because the Court did not set an alternative briefing schedule, Appellant’s deadline to file his brief was thirty (30) days from the docketing of a notice indicating that the record on appeal was transmitted to the district court or available electronically. No notice was ever docketed.[2] Therefore, Appellant’s time to file his appeal brief did not begin to run. Additionally, Appellant was not given notice that his noncompliance would result in dismissal. As such, Appellant should be given an opportunity to file a brief.[3] Although the Court strongly suspects that the appeal will be unsuccessful, the Court must follow the applicable procedural rules.

         Accordingly, Appellant’s motion to reopen is GRANTED in part and DENIED IN PART. Appellant must file a brief within thirty (30) days of the date of this Memorandum and Order. Should Appellant fail to file a timely brief, the appeal will be dismissed with prejudice. Appellant is advised that no extensions of this deadline will be granted absent ...

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