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Kufrovich v. Dehart

United States District Court, M.D. Pennsylvania

November 5, 2019

GERALD KUFROVICH, Appellant
v.
CHARLES J. DEHART, III, Appellee
v.
GOSHEN MORTGAGE LLC as Separate Trustee for GBDT I Trust 2011-1, Intervenor-Appellee

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Pending before the court is the appeal filed by pro se appellant Gerald Kufrovich (“appellant”), in which he challenges the June 11, 2019 Order of the Bankruptcy Court denying his motion to reinstate his Chapter 13 bankruptcy case after it was previously dismissed.[1] Named as appellee is Charles J. DeHart, III, the Chapter 13 Bankruptcy Trustee. The court has previously allowed Goshen Mortgage LLC as Separate Trustee for GBDT I Trust 2011-1 (“Intervenor”) to intervene in this case pursuant to Fed.R.Civ.P. 24. For the reasons that follow, the Order of the Bankruptcy Court will be AFFIRMED and, appellant's appeal, (Doc. 1), will be DENIED.

         I. BACKGROUND [2]

         On August 7, 2018, appellant filed, pro se, a voluntary Petition under Chapter 13 of the Bankruptcy Code which was docketed to case number 5-18-bk-03317, M.D.Pa.[3]

         Charles J. DeHart, III, (“appellee”), was named the Chapter 13 Standing Trustee in appellant's case.

         Intervenor holds the first mortgage lien on appellant's real property located at 31 Hilltop Road, Barnesville, Pennsylvania.[4] On November 30, 2018, intervenor filed an objection to the confirmation of appellant's proposed Chapter 13 plan.

         On February 7, 2019, appellee filed a motion to dismiss appellant's Chapter 13 Case for material default due to appellant's failure to make Chapter 13 Plan Payments towards his Reorganization Plan as required. (Doc. 65, 5-18-bk-03317). A hearing on the Doc. 65 motion to dismiss was then scheduled for March 5, 2019. On the same day that the Doc. 65 motion was filed, the docket indicates that a second motion to dismiss was inadvertently filed by appellee and a hearing was also scheduled on this motion for March 5, 2019. (Doc. 66, 5-18-bk-03317). However, when appellee later realized on February 7, 2019 that his Doc. 66 motion to dismiss was a duplicate of his Doc. 65 motion, he withdrew the Doc. 66 motion. (Doc. 67, 5-18-bk-03317). The Bankruptcy Court Case Administrator then terminated the Doc. 66 motion to dismiss and the duplicate March 5, 2019 hearing schedule on the Doc. 66 motion was cancelled. (Doc. 68, 5-18-bk-03317).

         Thus, appellee's Doc. 65 motion to dismiss was not withdrawn. Nor was the March 5, 2019 hearing scheduled on the Doc. 65 motion cancelled. The docket also indicates that notice of appellee's Doc. 65 motion to dismiss and March 5, 2019 hearing were served on debtor. (Doc. 65, 5-18-bk-03317).

         On February 15, 2019, intervenor filed a motion for relief from the automatic stay pursuant to 11 U.S.C. §362(d), alleging that appellant failed to make monthly post-petition mortgage payments to it. Intervenor sought relief from the stay in order to have the sheriff's sale of appellant real property re-scheduled. The Bankruptcy Court scheduled a hearing on intervenor's relief from stay motion for March 28, 2019.

         A hearing on appellee's Doc. 65 motion to dismiss was held before the Bankruptcy Court on March 5, 2019. Despite the notice appellee sent to appellant, appellant did not attend the hearing. The Bankruptcy Court then issued an Order on March 5, 2019 granting appellee's Doc. 65 motion to dismiss, and appellant's Chapter 13 bankruptcy case was dismissed for material default, namely appellant had failed to make any payments to appellee pursuant to appellant's own Bankruptcy plan. As such, intervenor's motion for relief from the automatic stay was deemed moot since the case was dismissed. (Docs. 77, 78 & 79, 5-18-bk-03317).

         On March 14, 2019, appellant filed a motion to reinstate his Chapter 13 case. On May 2, 2019, intervenor filed an opposition to appellant's motion to reinstate his bankruptcy case. On June 11, 2019, the Bankruptcy Court held a hearing on appellant's reinstatement motion. Appellant was present at the hearing. Counsel for intervenor participated in the hearing by telephone. Appellee was also present at the hearing. The Bankruptcy Court construed appellant's motion to reinstate his case as a motion for reconsideration under Fed.R.Civ.P. 59 regarding the Court's March 5, 2019 Order granting appellee's Doc. 65 motion to dismiss and dismissing the case. (Doc. 15, Civil No. 19-1057). After the hearing, the Bankruptcy Court stated its findings and conclusions on the record and, then issued an Order denying appellant's motion to reinstate his case. (Docs. 92 & 93, 5-18-bk-03317), (Doc. 1-1, Civil No. 19-1057).

         On June 21, 2019, appellant timely filed his instant pro se notice of appeal with this court appealing the Bankruptcy Court's June 11, 2019 Order denying his motion to reinstate his Chapter 13 case. (Doc. 1).[5]

         On June 24, 2019, this court issued a Scheduling Order pursuant to Rule 8001 of the Rules of Bankruptcy Procedure setting the dates for appellant to file a designation of the items to be included in the record on appeal and a statement of the issues to be presented on appeal, as well as setting the dates briefs were due by the parties. (Doc. 2). Appellant's designation of the items to be included in the record on appeal and his statement of the issues to be presented were due 14 days after he filed his notice of appeal, i.e., by July 5, 2019.

         On July 5, 2019, appellant filed his purported 2-sentence designation of the items to be included in the record on appeal and his statement of the issues to be presented on appeal, but they were not in conformance with Federal Rule of Bankruptcy Procedure 8009. (Doc. 7). Nonetheless, since appellant is proceeding pro se, the court construes the issue in appellant's appeal to be whether the Bankruptcy Court erred in denying appellant's motion to reinstate his Bankruptcy case. Also, since appellant did not submit items to be included in the record on appeal, the court ...


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