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In re Nath

United States District Court, S.D. New York

March 31, 2017

In re PREM NATH, Debtor.
v.
SELECT PORTFOLIO SERVICING, INC., Appellee. PREM NATH, Appellant, In re PREM NATH, Debtor. PREM NATH, Appellant,
v.
SELECT PORTFOLIO SERVICING, INC., Appellee.

          Prem Nath Blauvelt, NY Pro Se Debtor-Appellant

          Locke Lord Bissell & Liddell LLP New York, NY Counsel for Appellee

          OPINION & ORDER

          KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.

         This Opinion addresses two more attempts by Appellant Prem Nath (“Nath” or “Appellant”) to avoid the effects of his default on a promissory note and mortgage he signed almost 20 years ago with respect to real property located at 12 John Calvin Street in Blauvert, New York (the “Subject Property”). Pending before the Court are two appeals from orders entered by Judge Robert J. Drain of the Bankruptcy Court for the Southern District of New York (the “Bankruptcy Court”); one denying Nath's motions for an extension of the automatic stay and for sanctions in his Chapter 7 bankruptcy case, (14-BK-23714), docketed as No. 15-CV-3694, and the other denying Nath's motion to vacate the foreclosure sale of the Subject Property in his Chapter 13 bankruptcy case (15-BK-23531), docketed as No. 16-CV-2032.

         I. Factual and Procedural Background

         The Court assumes the Parties' familiarity with the facts, and as the Court is fully familiar with them from other cases Appellant has filed, what follows is an abbreviated history of the factual background and procedural history relevant to the instant appeals.[1]

         On December 12, 2014, prior to the sale of the Subject Property, Appellant filed a pro se bankruptcy petition under Chapter 7 (the “Third Bankruptcy”). (See Dkt. No. 1 (14-BK-23714 Dkt.); see also Att'y Decl. of Casey B. Howard in Supp. of U.S. Bank Trustee's Appellee Br. (“Howard Decl.”) Ex. 10 (Dkt. No. 7) (requesting that the foreclosure referee cancel the foreclosure sale of the Subject Property).) Shortly after filing the Third Bankruptcy, Appellant submitted a motion to extend the automatic stay (the “Automatic Stay Motion”), (see Dkt. No. 8 (14-BK-23714 Dkt.)), and later a motion for sanctions against Select Portfolio Servicing, Inc. (“SPS”), and its attorneys (the “Sanctions Motion”), (see Dkt. No. 15 (14-BK-23714 Dkt.)).[2] On April 13, 2015, after oral argument on both motions, the Bankruptcy Court granted the Automatic Stay Motion as to all creditors except U.S. Bank, and denied the Sanctions Motion (the “April 13, 2015 Decision”). (See Howard Decl. Ex. 18 (“April 13, 2015 Decision”); see also Howard Decl. Exs. 17, 19.) Nath appealed the April 13, 2015 Decision, and this appeal is one of the subjects of this Opinion. (See Dkt. No. 1 (15-CV-3694 Dkt.).)

         On October 21, 2015, Nath filed yet another bankruptcy petition, this one under Chapter 13 (the “Fourth Bankruptcy”). (See Dkt. No. 1 (15-BK-23531 Dkt.).) The following day, U.S. Bank filed an emergency lift stay motion to permit it to proceed with a foreclosure sale of the Subject Property that was scheduled for October 26, 2015. (See Dkt. No. 5 (15-BK-23531 Dkt.).) The Bankruptcy Court granted the motion over Nath's objection and an order lifting the automatic stay was entered by the Bankruptcy Court on October 26, 2015. (See Dkt. No. 15 (15-BK-23531 Dkt.).) Later that day, the State Court-appointed referee, Ira Emanuel, conducted an auction to sell the Subject Property pursuant to the State Court Foreclosure Judgment (the “Foreclosure Sale”). (See U.S. Bank Tr.'s Appellee Br. 5 (Dkt. No. 6) (16-CV-2032 Dkt.).) On January 15, 2016, Nath filed a motion to vacate the Foreclosure Sale (the “Motion To Vacate”), (see Dkt. No. 36 (15-BK-23531 Dkt.)), which the Bankruptcy Court denied in a bench ruling on February 10, 2016, (see Dkt. No. 42 (15-BK-23531 Dkt.)). Nath appealed that decision, and this appeal is one of the subjects of this Opinion. (See Dkt. No. 1 (16-CV-2032 Dkt.).)

         II. Discussion

         A. Standard of Review

         District courts have jurisdiction to review “final judgments, orders, and decrees” of bankruptcy courts pursuant to 28 U.S.C. § 158(a)(1). See Dishi & Sons v. Bay Condos LLC, 510 B.R. 696, 700 (S.D.N.Y. 2014); In re Josephson, No. 09-CV-3371, 2010 WL 3937297, at *1 (E.D.N.Y. Sept. 30, 2010). A district court reviews a bankruptcy court's findings of fact for clear error and reviews conclusions of law de novo. In re Bayshore Wire Prods. Corp., 209 F.3d 100, 103 (2d Cir. 2000) (“Like the District Court, we review the [b]ankruptcy [c]ourt's findings of fact for clear error, [and] its conclusions of law de novo . . . .” (citation and italics omitted)); In re Enron Corp., 307 B.R. 372, 378 (S.D.N.Y. 2004) (“A bankruptcy court's conclusions of law are reviewed de novo and its findings of fact for clear error.” (italics omitted)).

         Under the clear error standard, “[t]here is a strong presumption in favor of a trial court's findings of fact if supported by substantial evidence, ” and a reviewing court will not upset a factual finding “unless [it is] left with the definite and firm conviction that a mistake has been made.” Travellers Int'l A.G. v. Trans World Airlines, Inc., 41 F.3d 1570, 1574 (2d Cir. 1994) (first alteration in original) (internal quotation marks omitted); see also Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985) (“[A] finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (internal quotation marks omitted)); Ceraso v. Motiva Enters., LLC, 326 F.3d 303, 316 (2d Cir. 2003) (stating that an appellate court should not overturn a trial judge's choice “between permissible competing inferences”). “Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous.” Travellers Int'l, 41 F.3d at 1574-75 (internal quotation marks omitted); see also UFCW Local One Pension Fund v. Enivel Props., LLC, 791 F.3d 369, 372 (2d Cir. 2015) (same); In re CBI Holding Co., Inc., 419 B.R. 553, 563 (S.D.N.Y. 2009) (“In reviewing findings for clear error, [an appellate court] is not allowed to second-guess . . . the trial court's . . . choice between competing inferences. Even if the appellate court might have weighed the evidence differently, it may not overturn findings that are not clearly erroneous.” (alterations in original) (internal quotation marks omitted)).

         B. Analysis

         1. Bankruptcy Appeal No. 15-CV-3694

         In the first of his two bankruptcy appeals, Appellant challenges the Bankruptcy Court's April 13, 2015 Decision denying (1) his motion for an extension of the automatic stay and (2) his motion for sanctions ...


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