United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE UNITED STATES DISTRICT JUDGE.
February 3, 2017, Appellant Abdel Satti, proceeding pro
se, filed this appeal arising from a bankruptcy
proceeding in the United States Bankruptcy Court for the
Eastern District of New York (the “Bankruptcy
Court”), under Chapter 7 of the United States
Bankruptcy Code, 11 U.S.C. § 101 et seq. The
bankruptcy proceeding involved the estate of debtor
corporation 33 Vanderbilt A&P, Inc. (the
“Debtor”), of which Appellant is the principal.
(See 33 Vanderbilt A&P, Inc., No. 16-BK-40569
(E.D.N.Y. Br. filed Feb. 10, 2016) (“Main
Case”).) During that proceeding, an adversary
complaint, together with a motion for a temporary restraining
order (“TRO”), was filed on August 3, 2016 by
Trustee of the bankruptcy estate Richard J. McCord against
Appellant, (see generally Adv. Proceeding Compl.,
Docket Entry No. 1, No. 16-BK-1143 (E.D.N.Y. Br. filed Aug.
3, 2016) (“Adversary Proceeding”)), which motion
was granted by the Honorable Nancy Hershey Lord on August 5,
2016 and extended periodically thereafter, (see
Order dated Aug. 5, 2016, Docket Entry No. 4, Adversary
Proceeding). Appellant appeals from the Bankruptcy
Court's orders granting the Trustee's application for
a TRO, and from an order approving the sale of the
Debtor's real property located at 1172 Fulton Street,
Brooklyn, New York (the “Brooklyn Property”).
(Notice of Appeal, Docket Entry No. 1.) For the reasons set
forth below, the Court dismisses the appeal.
February 10, 2016, the Debtor filed a voluntary bankruptcy
petition pursuant to Chapter 11 of the United States
Bankruptcy Code, signed by Appellant as
“President.” (See Ch. 11 Voluntary Pet.,
Docket Entry No. 1, Main Case.) The Debtor owned the Brooklyn
Property, as well as real property located at 245 West 134th
Street in New York (the “Manhattan Property”).
(See, e.g., Adv. Proceeding Compl. ¶ 13.) On
June 12, 2016, the case was converted to a proceeding under
Chapter 7 of the United States Bankruptcy Code, (Order dated
June 12, 2016, Docket Entry No. 28, Main Case), and on June
15, 2016, the United States Trustee appointed the Trustee,
(Order dated June 15, 2016, Docket Entry No. 29, Main Case).
On August 3, 2016, the Trustee filed an adversary action
against Appellant, alleging that Appellant (1) improperly
continued to operate the Brooklyn Property after bankruptcy
had been declared, (2) failed to produce documents necessary
for the Trustee to administer the bankruptcy estate, and (3)
took various actions to frustrate the Trustee's efforts
to discharge his obligations. (See generally Adv.
Proceeding Compl.) By order dated August 5, 2016, the
Bankruptcy Court enjoined Appellant from entering the
Brooklyn Property and Manhattan Property. (Order dated Aug.
5, 2016, Docket Entry No. 4, Adversary Proceeding.) Appellant
was further enjoined from collecting rents or other monies
owed to the Debtor, and from “interfer[ing] with the
Trustee's administration of the estate and its assets . .
. .” (Id.) The Bankruptcy Court scheduled a
hearing on the TRO for August 11, 2016. (Id.)
along with counsel for the Debtor, appeared for the August
11, 2016 hearing, but various subpoenaed witnesses failed to
appear. (See Minute Entry dated Aug. 11, 2016,
Adversary Proceeding.) The hearing was adjourned to three
subsequent dates between September through December of 2016,
but Debtor's counsel and the various witnesses failed to
appear on each occasion. (Minute Entries dated Aug. 11, 2016,
Sept. 14, 2016, Oct. 6, 2016, and Dec. 1, 2016, Adversary
November 7, 2016, the Trustee moved for an order approving
the sale of both properties. (Mot. to Approve Sale, Docket
Entry No. 50, Main Case.) Mohamed Satti, Appellant's son,
(Mohamed Satti Obj., Docket Entry No. 55, Main Case), Pamela
Rodgers, Appellant's spouse, (Pamela Rodgers Obj., Docket
Entry No. 56, Main Case), and Appellant, (Abdel Satti Obj.,
Docket Entry No. 57, Main Case), each of whom self-identified
as a “part owner” of the Brooklyn Property and
Manhattan Property, among others, filed objections to the
Trustee's motion. The objections of both Mohamed Satti
and Rodgers stated that they objected because they “did
not file a bankruptcy for the above listed properties.”
All three objectors claimed that the offering price for each
property was below market value.
orders dated December 9, 2016 and December 12, 2016, the
Bankruptcy Court granted the Trustee's motions to sell
the Manhattan Property and Brooklyn Property at a public
auction scheduled for January 11, 2017. (Order dated Dec. 9,
2016, Docket Entry No. 61, Main Case; Order dated Dec. 12,
2016, Docket Entry No. 62, Main Case.) The sale of the
Brooklyn Property was confirmed by the Bankruptcy Court on
January 24, 2017. (Order dated Jan. 24, 2017, Docket Entry
No. 78, Main Case.)
challenges the Bankruptcy Court's orders (1) enjoining
him from entering onto the Brooklyn Property and Manhattan
Property, and (2) approving the sale of the Brooklyn
Property. (Notice of Appeal.) However, Appellant failed to
file an appellate brief in violation of Rule 8018 of the
Federal Rules of Bankruptcy Procedure, despite repeatedly
being directed by the Court to do so. (See Orders
dated Aug. 7, 2017 and Oct. 10, 2017.)
filed a notice of appeal on February 3, 2017. (Notice of
Appeal.) On March 31, 2017, the clerk of court notified all
parties that the bankruptcy court record “ha[d] been
received or is available electronically” and directed
the parties to “follow [the] briefing schedule as set
forth in Federal Rule of Bankruptcy Procedure 8018, ”
specifically instructing that “appellant must serve and
file a brief within [thirty] days of this notice . . .
.” (Notice dated Mar. 31, 2017). On June 9, 2017, the
Trustee filed a letter with the Court requesting that the
appeal be dismissed for Appellant's failure to file a
brief. (Letter dated June 9, 2017, Docket Entry
No. 4.) On August 7, 2017, the Court issued an order noting
that “Plaintiff-appellant has failed to file a brief in
accordance with Rule 8018 of the Federal Rules of Bankruptcy
Procedure, ” and directing Appellant to file a brief
“or risk dismissal of the action for failure to
prosecute.” (Order dated Aug. 7, 2017.) The Court
issued a second warning on October 10, 2017. (Order dated
Oct. 10, 2017.) Appellant has not complied with either order.
Standard of review
courts have appellate jurisdiction over “final
judgments, orders, and decrees” entered in bankruptcy
court. 28 U.S.C. § 158(a). On appeal, a district court
reviews the legal conclusions of a bankruptcy court de
novo, and its factual findings for clear error.
Wenegieme v. Macco, No. 17-CV-1218, 2018 WL 334032,
at *2 (E.D.N.Y. Jan. 9, 2018) (citing In re Bayshore Wire
Prods. Corp., 209 F.3d 100, 103 (2d Cir. 2000)).
“A finding is ‘clearly erroneous' when, on
consideration of the record as a whole, the reviewing court
‘is left with the definite and firm conviction that a
mistake has been ...