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In re Enterzari-Ullah

United States District Court, S.D. New York

February 20, 2018


          OPINION & ORDER


         On February 15, 2018, appellant Farrin B. Enterzari-Ullah ("Ullah") filed a notice of appeal in this case. Dkt. 1. The next day, she filed an emergency motion seeking reversal of an order dated February 13, 2018 by the Honorable Shelley C. Chapman, United States Bankruptcy Judge. See Dkt. 2 ("Emergency Mot."). That order, which dismissed Ullah's fourth successive bankruptcy petition as made in bad faith and barred Ullah from filing successive such petitions, effectively cleared the way for the sale on February 21, 2018 of Ullah's condominium unit. On February 20, 2018, appellee the Columbia Condominium (the "Condominium") filed a letter response urging denial of the motion. Dkt. 3 ("Response"). For the reasons that follow, Ullah's emergency motion is denied.

         I. Background

         This bankruptcy cases arises out of a lien held by the Condominium on Ullah's condominium unit resulting from Ullah's failure to pay common charges. On October 6, 2015, Ullah filed for relief under Chapter 11 of the Bankruptcy Code. See In re Farrin Ullah, Bankr. S.D.N.Y. No. 15-12737 (SCC), Dkt. 1. During those proceedings, the Condominium filed, and the Bankruptcy Court granted, a motion for relief from the automatic stay. See id., Dkts. 36, 51.

         On May 16, 2016, Ullah filed a Chapter 7 case arising from the same foreclosure, also before Judge Chapman. See In re Farrin B. Enterzari-Ullah, Bankr. S.D.N.Y. No. 16-11416 (SCC), Dkt. 1. Ullah's initial, Chapter 11 bankruptcy case was still pending. On June 14, 2016, the Bankruptcy Court dismissed the Chapter 7 case, construed the petition as a motion to convert the pending Chapter 11 case to a Chapter 7 case, and granted the motion to convert. See id., Dkt. 23. Ullah thereupon withdrew the original petition, as converted, and Judge Chapman dismissed the case. See No. 15-12737, Dkt. 70.

         On July 26, 2017, Ullah filed yet another bankruptcy petition, her third, arising from the same foreclosure. See In re Farrin (Batool) Enterzari-Ullah, Bankr. S.D.N.Y. No. 17-12053 (SCC), Dkt. 1. This petition, brought under Chapter 11 and also before Judge Chapman, remains pending. In connection with this matter, as with the two before, the Condominium filed a motion for relief from the automatic stay so as to permit the sale of Ullah's condominium to go forward. See id., Dkt. 14. On October 27, 2017, the Bankruptcy Court granted the motion. See id., Dkt. 26. On November 13, 2017, Ullah filed a notice of appeal. See id., Dkt. 31. On January 17, 2018, the Bankruptcy Court entered an order denying Ullah's motion for a stay pending appeal. See id., Dkt. 42.

         On January 22, 2018, in connection with her third petition (i.e., in the 17-12053 matter), Ullah filed an emergency motion in the United States District Court to reverse Judge Chapman's order lifting the automatic stay. See In re Farrin (Batool) Enterzari-Ullah, S.D.N.Y. No. 17-cv-8971 (PGG), Dkt. 7. On January 24, 2018, Judge Gardephe denied that motion on the ground that the notice of appeal had not been timely filed. See id., Dkt. 12. Judge Gardephe therefore directed the Clerk of Court to close the case. See Id. at 5. On February 12, 2018, Ullah moved for reconsideration. See id., Dkt. 14. On February 15, 2018, Judge Gardephe denied the motion for reconsideration. See id., Dkt. 16.

         Consistent with the Bankruptcy Court's repeated liftings of the automatic stay attendant to Ullah's petitions, the Condominium scheduled a foreclosure sale for Ullah's unit for January 24, 2018. See In re Farrin (Batool) Enterzari-Ullah, Bankr. S.D.N.Y. No. 18-10160 (SCC), Dkt. 7-1 at 4; id, Dkt. 10 at 3. That day, January 24, 2018, with the 17-12053 bankruptcy case still pending, Ullah filed a fourth petition-the Chapter 7 petition from which this appeal is taken. See Bankr. S.D.N.Y. No. 18-10160 (SCC), Dkt. 1 (the "18-10160 Petition"). On January 25, 2018, the Condominium moved to dismiss the 18-10160 Petition for abuse pursuant to 11 U.S.C. § 707(b). It argued that the petition, Ullah's fourth, was "an obvious attempt to circumvent [the Bankruptcy Court's] orders, and frustrate the Condominium's attempts to foreclose." See id., Dkt. 7 at 2. On January 30, 2018, Ullah filed an opposition. See id, Dkt. 10.

         On February 13, 2018, Judge Chapman dismissed the fourth petition as having been filed in bad faith. She reasoned, first, that "all interested parties [were] afforded an opportunity to be heard"; second, that Ullah's Chapter 11 case was still pending; and third, that Ullah filed the instant bankruptcy case "solely to trigger a new automatic stay to stop a foreclosure sale that was scheduled for January 24, 2018." Id., Dkt. 12 at 1 (the "Order"). Judge Chapman further enjoined Ullah from commencing a voluntary case under any chapter of the Bankruptcy Code, in any jurisdiction, for 180 days following issuance of the order. Order at 2.

         On February 15, 2018, Ullah filed a notice of appeal to this Court. See id., Dkt. 13. The next day, Ullah filed an emergency motion to reverse Judge Chapman's February 13, 2018 order. As the ground for the motion, she stated that the Bankruptcy Court had "made its decision without considering [Ullah's] reply opposition." Emergency Mot. at 1. Ullah's motion was made on an emergency basis because her apartment is scheduled to be sold at auction on February 21, 2018. Id. at 4-5. Ullah claims that this auction is unlawful, as the Condominium failed to give three weeks' public notice as required by law. Id. at 4.

         II. Discussion

         The Court denies Ullah's emergency motion on both procedural and substantive grounds.

         As to procedural deficiencies: Ullah's motion seeks to "reverse Judge Chapman's order dated February 13, 2018." Emergency Mot. at l.[1] But to grant such relief- i.e., to revive Ullah's fourth bankruptcy action as potentially meritorious-the Court would require a complete record and briefing. See Bankr. R. 8006, 8009. Given the press of time, the Condominium has not had a full opportunity to develop its arguments for affirmance. Moreover, to the extent that Ullah recasts the relief she seeks as a request that this Court intervene to stay the auction scheduled for February 21, 2018, see Emergency Mot. at 4-5, Ullah effectively asks the Court to vitiate Judge Gardephe's and Judge Chapman's orders in the third petition, as well as Judge Chapman's order in the fourth, so as to re-impose the automatic stays that Judge Chapman held were properly lifted. Ullah does not, however, appeal Judge Gardephe's ruling dismissing her appeal. The Court will not permit Ullah to end-run this proper procedure.

         As to substantive deficiencies: Assuming arguendo that the Court may reverse Judge Chapman's Order without the benefit of full briefing and an appellate record, Ullah's motion is substantively without merit. The Court has taken judicial notice of the proceedings underlying this bankruptcy ...

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