IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
January 3, 2013
IN RE: DENNIS ATIYEH DENNIS ATIYEH, APPELLANT,
UNITED STATES TRUSTEE, APPELLEE.
The opinion of the court was delivered by: Rufe, J.
Appellant, Dennis Atiyeh, appeals pro se from the Bankruptcy Court's order dated March 1, 2012. For the following reasons, the Court will affirm the order of the Bankruptcy Court, and writes primarily for the parties, who are familiar with the long history of the bankruptcy case.
I. PROCEDURAL HISTORY
On March 1, 2010, Appellant filed a voluntary petition under Chapter 12 of the Bankruptcy Code. On Appellant's own motion, the case was converted to a Chapter 11 proceeding on September 8, 2011. *fn1 Appellee, the United States Trustee, filed a motion to dismiss the case pursuant to 11 U.S.C. § 1112(b). *fn2 Appellant filed a motion to convert his case back to Chapter 12. The Bankruptcy Court held a hearing on both motions on January 12, 2012, and by separate orders issued the same day, granted Appellee's motion to dismiss and denied Appellant's motion to reconvert. Appellant filed a motion to reconsider the orders on February 13, 2012, and after a hearing on March 1, 2012, the Bankruptcy Court denied the reconsideration motion. Appellant then appealed from both the January 12, 2012, and March 1, 2012, orders.
After the appeals were filed in this Court, Appellee filed a motion to dismiss the appeal as to the January 12, 2012 orders. By order dated August 17, 2012, the Court dismissed for lack of jurisdiction Appellant's appeal of the orders entered by the Bankruptcy Court on January 12, 2012. *fn3 The Court retained jurisdiction over Appellant's appeal of the order entered by the Bankruptcy Court on March 1, 2012, denying the motion for reconsideration of the January 12, 2012 orders. The Court issued a briefing schedule, with which Appellant did not initially comply, but both Appellant and Appellee have now submitted briefs.
II. STANDARD OF REVIEW
A district court, sitting as an appellate tribunal, "may affirm,
modify, or reverse a bankruptcy judge's judgment, order, or decree or
remand with instructions for further
proceedings." *fn4 The denial of a motion
for reconsideration is reviewed for an abuse of discretion, but
underlying legal determinations are reviewed de novo
and factual determinations for clear error. *fn5
The district court may affirm the correct decision of the
bankruptcy court on grounds different than those relied upon by that
court. *fn6 The district court also may
affirm on any basis for which it finds support in the record.
The issue remaining in this appeal is whether the Bankruptcy Court properly denied the motion for reconsideration. The Bankruptcy Court cited two reasons for the denial: first, that it lacked jurisdiction over the motion because it was filed more than 14 days after entry of the January 2, 2012 orders, and second, that the motion lacked merit. *fn8
Although Appellant did not raise the argument, the Trustee contends that the Bankruptcy Court erred in holding that it lacked jurisdiction to decide an untimely motion for reconsideration. Based upon recent Supreme Court case law, the Bankruptcy Court did err in this regard. *fn9 However, the Bankruptcy Court also set forth the substantive reasons for denial of the motion for reconsideration.
"The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." *fn10 A motion for reconsideration should be granted only if:
1) there is an intervening change in the controlling law; 2) new evidence not previously available to the movant emerges; or 3) there is a need to correct a clear error of law or fact or to prevent manifest injustice. *fn11 The Bankruptcy Court had granted the motion to dismiss and denied the motion to reconvert because Appellant failed to file the required monthly operating reports after the case was converted to Chapter 11, or the plan of reorganization as required by the Bankruptcy Court, and failed to meet with the Trustee. *fn12 At the hearing on the motion for reconsideration, Appellant acknowledged that, with some exceptions, he failed to file monthly operating reports from March 2010 to September 2011, while proceeding in Chapter 12. *fn13 These failures constituted reason to dismiss the bankruptcy case and to deny the motion to reconvert. *fn14 The Bankruptcy Court on reconsideration held that there was no basis for finding that the earlier orders were in error or the result of mistake, and found that Appellant accepted no responsibility for having failed to provide the required information. *fn15
In his briefs on appeal, Appellant fails to address the standard
for reconsideration, and presents no clear argument. To the extent
that the briefs are comprehensible, Appellant argues in one brief that
the Trustee, motivated by discrimination against Appellant's Christian
faith, lied to the Bankruptcy Court that Appellant failed to meet with
the Trustee and that "Portnoff Law Offices" violated the Automatic
Stay. *fn16 In another brief, Appellant
argues that the conversion to Chapter 12 was forced by a fraudulent
judgment against him obtained by MCI WorldCom, and that he attempted
to meet with the Trustee, without success. *fn17
None of these arguments provides a basis for reversing
the order of the Bankruptcy Court.
There is nothing at all in the record to support the accusation of religious bias, *fn18 and no evidence that the Trustee lied to the Bankruptcy Court. Appellant had the opportunity to explain to the Bankruptcy Court why he had not met with the Trustee; it is uncontested that the meetings did not occur and that Appellant failed to file the required monthly reports and reorganization plan. *fn19
The communications from "Portnoff Law Associates, Ltd." appear to
relate to a property in Whitehall, Pennsylvania. *fn20
The Bankruptcy Court explained at the time it denied the
motion for reconsideration that it had dismissed without prejudice
actions that Appellant filed against Whitehall Township, and Appellant
does not explain how this was error or what relevance this has to the
The Bankruptcy Court denied an earlier motion to cancel the MCI WorldCom Judgment for fraud, *fn22 and it appears no appeal was taken from this order. Moreover, as the Bankruptcy Court noted at the hearing on the motion for reconsideration, the MCI WorldCom judgment against Appellant is on the record in Lehigh County, Pennsylvania, and Appellant has taken no steps to vacate that judgment. *fn23
Finally, to the extent that Appellant argues that the Bankruptcy Court failed to consider his pro se status, that claim is belied by a review of the record in this case and the Bankruptcy Court docket, which shows that the Bankruptcy Court fully considered Appellant's pro se status and for nearly two years attempted every reasonable accommodation. *fn24 A pro se debtor still must comply with the requirements of the Bankruptcy Code, and the debtor here did not. *fn25
Having considered fully the briefs and the record on appeal, and having determined that oral argument is not necessary in this case, *fn26 the Court will affirm the order of the Bankruptcy Court. An order will be entered.