In Re: David Lee Smith and Mary Julia Hook
ORDER: The following Bankruptcy o 12 BANKRUPTCY RECORD ON APPEAL. Number of Volumes: 1. Sealed/Restricted Volume Numbers:IV.rders at issue are affirmed: 1 Bankruptcy Appeal, filed by Mary Julia Hook, David Lee Smith; 11 BANKRUPTCY RECORD ON APPEAL. Number of Volumes: 3; 12 BANKRUPTCY RECORD ON APPEAL. Number of Volumes: 1. Sealed/Restricted Volume Numbers:IV; 21 Bankruptcy Appeal, filed by Mary Julia Hook, David Lee Smith; and 22 BANKRUPTCY RECORD ON APPEAL. Number of Volumes: 5. Sealed/Restricted Volume Numbers:Volume IV. Judgment shall enter accordingly. Entered by Judge Raymond P. Moore on 4/27/2021. (cpear)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 18-cv-03259-RM
(Bankruptcy No. 17-16354-TBM)
(Adversary Proceeding No. 18-01265-TBM)
DAVID LEE SMITH, and
MARY JULIA HOOK,
DAVID LEE SMITH, and
MARY JULIA HOOK,
DENNIS W. KING, Chapter 7 Trustee, and
COLORADO DEPARTMENT OF REVENUE,
This matter is before the Court on Appellants Smith and Hook’s appeal of the following
orders issued by the Bankruptcy Court arising from or related to their Chapter 7 bankruptcy case:
(1) “Order and Notice of Evidentiary Hearing”1 (the “Notice”) dated July 17, 2018; (2) “Minutes
of Proceedings/Minute Order”2 (the “Minute Order”) dated August 2, 2018; (3) “Order
Accepting Trustee’s Report and Closing Case” (the “Closure Order”) dated October 5, 2018; (4)
ECF No. 1, pp. 4-12; Appendix, ECF No. 11-1, pp. 51-52.
As used in this Order, the page references are to the page numbers assigned to the document by the court’s
CM/ECF system and found in the upper right-hand corner of the document.
References to cases other than this bankruptcy appeal are preceded by the case at issue, e.g., Bankruptcy Court or
ECF No. 11-1, p. 62.
“Order Denying Debtors’ Motion to Vacate and Set Aside Order Accepting Trustee’s Report and
Closing Case; and Order Denying Debtors’ Motion to Continue Automatic Stay Pending
Disposition of Motion to Vacate” (the “Post-Closure Order”) dated December 4, 21083; and (5)
“Order Granting the Colorado Department of Revenue’s Motion to Dismiss or Abstain”4 (the
“CDOR Dismissal Order”) dated February 5, 20195 (all five orders, collectively, the “Appealed
Orders”). Essentially, as to the first four orders, Appellants appeal the Bankruptcy Court’s
acceptance of the Chapter 7 Trustee’s Final Report and Account, discharge of the Trustee, and
closure of the bankruptcy case. As to the last order, issued in Appellants’ adversary proceeding
against the Colorado Department of Revenue (“CDOR”), Appellants appeal the Bankruptcy
Court’s dismissal of their complaint against CDOR. After considering the Appealed Orders and
relevant parts of the bankruptcy record, taking judicial notice of LNV Corp. v. Hook, No. 18-cv00955-RM-SKC (D. Colo.) (the “Foreclosure Action”),6 reviewing the applicable law, and being
otherwise fully advised, the Court finds and orders as follows.
Appellants filed a Chapter 7 proceeding on July 11, 2017. There was, however, already a
civil foreclosure action pending against Appellants at that time which is relevant to the issues
here. Accordingly, the Court starts with the civil action.
In 2014, LNV Corporation (“LNV”) filed the Foreclosure Action against Appellants and
others, including the United States. The Foreclosure Action sought a determination of the rights
and priorities of various interests related to Appellants’ real property located in Denver,
Colorado (the “Denver Property”) and a judicial foreclosure of the Denver Property. The United
ECF No. 11-3, pp. 175-178.
ECF No. 22-8, pp. 25-34.
See Notice of Appeal and Supplemental/Amended Notice of Appeal, ECF Nos. 1 & 21.
Appellants refer to and rely on the Foreclosure Action in their papers.
States asserted it had numerous valid liens on the Denver Property. After Appellants filed for
bankruptcy in July 2017, the Foreclosure Action was administratively closed. Just days prior to
Appellants’ bankruptcy filing, the Court in the Foreclosure Action ruled in favor of LNV on its
claim for judicial foreclosure on the Denver Property.7 The action was reopened when LNV
obtained relief from the automatic stay.
Many proofs of claim were filed in the bankruptcy case. CDOR filed a proof of claim,
alleging Appellants owed state taxes. The United States filed a proof of claim, alleging
Appellants owed federal taxes. LNV also filed a proof of claim based on a promissory note and
deed of trust on the Denver Property.8 On November 8, 2017, Appellants obtained a discharge
from personal liability on certain debts.
Meanwhile, the Foreclosure Action proceeded against Appellants and the Denver
Property. By Order dated June 21, 2018, the Court found all issues in the Foreclosure Action
resolved except for the manner and method of judicial foreclosure to be had on the Denver
On June 29, 2018, the Chapter 7 Trustee (“Trustee”) filed his Final Account and Report
(the “Initial Report”), to which Appellants objected. No creditor or any other person objected.
On August 2, 2018, after giving the Notice, the Bankruptcy Court held a hearing on the Initial
Report and Appellants’ objection. Appellants argued the Trustee should take action on the proof
of claims filed by the United States and by LNV. Their objection was based on the same
arguments they raised against the United States and LNV in the Foreclosure Action, e.g., that the
United States had erroneously or illegally assessed or collected taxes from Appellants and that
Foreclosure Action, ECF No. 320, p. 14, issued June 28, 2107.
LNV’s proof of claim was filed after Appellants’ discharge.
Foreclosure Action, ECF No. 404, p. 10.
LNV lacked standing to sue on the promissory note and deed of trust. At bottom, Appellants
wanted the Trustee to pursue actions against the United States and LNV but the Trustee chose to
abandon such actions to Appellants.10 The Bankruptcy Court orally overruled Appellants’
objection, finding they lacked standing to object.11 The Minute Order was entered that day.12
Thereafter, Appellants filed several adversary proceedings. As relevant here, on August
3, 2018, Appellants filed an adversary proceeding against the United States, seeking to recover
the allegedly overpaid and illegally assessed taxes.13 On August 5, 2018, Appellants filed an
adversary proceeding against LNV.14 And, on August 21, 2018, Appellants filed an adversary
proceeding against CDOR, which is part of this appeal.15
On September 4, 2018, the Trustee filed his second Final Report and Account (the
“Second Report”). No objections were filed by Appellants or anyone else. In the October 5, 2018
Closure Order, the Bankruptcy Court discharged the Trustee and closed the bankruptcy case.16
Thereafter, on October 17, 2018, Appellants filed “Debtors’ Motion to Vacate and Set Aside
Order Accepting Trustee’s Report and Closing Case; and Motion to Continue Automatic Stay
Pending Disposition of Motion to Vacate and Set Aside Order,” which the Bankruptcy Court
construed as two motions – a Motion to Vacate and a Motion to Stay.17
In the Post-Closure Order, the Bankruptcy Court denied the Motion to Vacate, finding
There may have been other actions which Appellants wanted the Trustee to pursue but Appellants focused on the
United States and LNV. Appellants listed assets of $11 million in the form of taxes and damages allegedly owed by
the United States/IRS and $1.2 million in the Denver Property in which LNV claimed an interest via a promissory
note and deed of trust.
B. Ct., Dkt. Nos. 61, 64, 69; ECF No. 11-3, p. 62; ECF No. 12-1 (transcript).
B. Ct., Dkt. No. 83; ECF No. 1, p. 7 & No. 23-1, p. 89.
ECF No. 23-1, pp. 13-14; Adversary Proceeding No. 18-1248. The Court has withdrawn the reference on that
proceeding and is dismissing it concurrently with this case.
ECF No. 23-1, p. 14; Adversary Proceeding No. 18-1250. The Court has withdrawn the reference on that
proceeding and is dismissing it concurrently with this case.
ECF No. 23-1, pp. 14-15; Adversary Proceeding No. 18-1265.
B. Ct., Dkt. Nos. 75, 80; ECF No. 23-1, pp. 16-17.
B. Ct., Dkt. Nos. 81, 82; ECF No. 22-6, pp. 51-61.
Appellants lacked standing and failed to state any grounds to set aside the Closure Order. The
Bankruptcy Court also denied the Motion to Stay, finding Appellants failed to provide legal or
factual support for relief and no stay is required as the Motion to Vacate had been resolved.
Appellants’ appeal to this court followed.
Meanwhile, CDOR moved to dismiss Appellants’ complaint in the adversary proceeding.
By order dated February 5, 2019, the Bankruptcy Court granted CDOR’s motion, finding it
lacked subject matter jurisdiction based on Appellants’ lack of standing to sue and mootness.
The Bankruptcy Court also found that even if it did have subject matter jurisdiction, Appellants
failed to plausibly allege any claim for relief. Appellants’ appeal of the dismissal to this court
followed via an amendment of the appeal over the Bankruptcy Court’s Chapter 7 orders
(collectively, the “Bankruptcy Appeal”).18
In this Bankruptcy Appeal, Appellants filed an emergency motion to enjoin the sale of
the Denver Property pending appeal. Appellants’ emergency motion sought to enjoin the sale of
the Denver Property authorized by the Order of Foreclosure and Judicial Sale (the “Foreclosure
Order”) entered by this Court in the Foreclosure Action. This Court denied the emergency
motion, which the Tenth Circuit affirmed on appeal. See In re Hook, 816 F. App’x 269 (10th Cir.
While the bankruptcy case was proceeding, the Court found in favor of LNV and against
Appellants, and allowed LNV to foreclose on the Denver Property in the Foreclosure Action.
The Denver Property has since been sold and its sale confirmed. Appellant Hook appealed the
Foreclosure Action, which the Tenth Circuit affirmed. See LNV Corp. v. Hook, 807 F. App’x 893
(10th Cir. 2020). Appellant Hook’s Petition for Writ of Certiorari was denied on December 7,
B. Ct., Dkt. No. 72; Adv. Proceeding, Dkt. Nos. 2, 10, 11, 12; ECF No. 21.
2020. Hook v. United States, 141 S. Ct. 939, 208 L. Ed. 2d 477 (2020). Appellant Hook also
appealed the Foreclosure Order, which the Tenth Circuit just affirmed. LNV Corp. v. Hook, -- F.
App’x -- , 2021 WL 1343674 (10th Cir. Apr. 12, 2021). At issue now is Appellants’ Bankruptcy
Appeal. The Court also raises and addresses, sua sponte, whether any of the issues are moot in
light of subsequent events in the Foreclosure Action. 1mage Software, Inc. v. Reynolds &
Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (“Federal courts have an independent
obligation to determine whether subject-matter jurisdiction exists, even in the absence of a
challenge from any party, and thus a court may sua sponte raise the question of whether there is
subject matter jurisdiction at any stage in the litigation.” (internal quotation marks and citation
omitted)); Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir.
2010) (federal courts “have no subject-matter jurisdiction if a case is moot”).
A. Pro Se Attorneys
Appellants appear pro se, but they are attorneys. Therefore, their filings are not afforded
the liberal construction ordinarily given to pro se litigants. See Smith v. Plati, 258 F.3d 1167,
1174 (10th Cir. 2001); see also Hook v. United States, 624 F. App’x 972, 976 (10th Cir. 2015)
(“Because Ms. Hook is an attorney proceeding pro se, we do not afford her filings the liberal
construction ordinarily given to pro se pleadings.”).
B. Review of Bankruptcy Appeals
In reviewing a bankruptcy court’s decision, the district court functions as an appellate
court and is authorized to affirm, reverse, modify, or remand the bankruptcy court’s ruling. See
28 U.S.C. § 158(a); Fed. R. Bankr. P. 8005. “A bankruptcy court’s legal conclusions are
reviewed de novo, while its factual findings are reviewed for clear error.” In re Long, 843 F.3d
871, 873 (10th Cir. 2016) (quotation marks and citation omitted).
Appellants argue the issues are whether the Bankruptcy Court abused its discretion,
committed reversible error, and/or violated the due process clause under the Fifth Amendment in
the various orders at issue. In addition, Appellants argue such orders created the appearance of
judicial bias. The Court, however, starts with mootness. Then, the Court moves on to alleged
violations of due process and judicial bias which Appellants raise as to all Appealed Orders.
Finally, the Court examines each order complained of.
Article III of the Constitution limits federal jurisdiction to “[c]ases” or “[c]ontroversies.”
U.S. Const. art. III, § 2, cl. 1. The doctrine of mootness is an aspect of Article III’s case or
controversy requirement. “At all stages of litigation, a plaintiff must maintain a personal interest
in the dispute. The doctrine of standing generally assesses whether that interest exists at the
outset, while the doctrine of mootness considers whether it exists throughout the
proceedings.…And if in the course of litigation a court finds that it can no longer provide a
plaintiff with any effectual relief, the case generally is moot.” Uzuegbunam v. Preczewski, -U.S. -- , 141 S. Ct. 792, 796 (2021). If a party no longer suffers from a redressable injury, federal
courts no longer have jurisdiction. United States v. Salazar, 987 F.3d 1248, 1251 (10th Cir.
2021).19 In other words, “the mootness question turns on what relief is available to [Appellants]
if [they] were to prevail in this appeal.” In re C.W. Min. Co., 740 F.3d 548, 564 (10th Cir. 2014)
(quotation marks, alteration, and citation omitted).
There are some exceptions to mootness, but none apply here. Hendrickson v. AFSCME Council 18, No. 20-2018,
-- F.3d --, 2021 WL 1152656, at *5 (10th Cir. Mar. 26, 2021) (exceptions to mootness include conduct capable of
repetition yet evading review, voluntary cessation, and transitory claims).
At bottom, Appellants seek to have their bankruptcy case reopened so the Trustee could
“fully administer the assets of the estate,” which means, for example, filing adversary
proceedings to recover the alleged sums owed from the United States (IRS) or to challenge
LNV’s ability to foreclose on the Denver Property. But, even if the Court were to reverse the
Bankruptcy Court’s orders relating to the closure of the bankruptcy case, no effective relief may
be had. First, Appellants have already filed adversary proceedings on those claims which they
contend the Trustee should have pursued. Second, and importantly, issues concerning the two
main “assets” Appellants claim – monies or refunds owed from the United States and the Denver
Property – have already been resolved against Appellants. After LNV obtained relief from the
automatic stay, this Court, in the Foreclosure Action, determined the interests of the United
States and others in the Denver Property and ordered the Denver Property be judicially
foreclosed. The Denver Property has now been sold. Appellant Hook has appealed the
Foreclosure Action orders which the Tenth Circuit has affirmed.20 In other words, there would
be no claims for the Trustee to pursue. Accordingly, the Court finds Appellants’ appeal of the
bankruptcy case closure orders are moot.
Even assuming Appellants’ appeal of the closure orders is not moot, they fail to show any
of the Appealed Orders should be reversed.
B. Judicial Bias and Violation of Due Process
Appellants repeatedly – and cursorily – argue the Bankruptcy Court’s adverse orders
show judicial bias and a violation of their due process rights. “‘To demonstrate a violation of due
process because of judicial bias, a claimant must show either actual bias or an appearance of
bias.’” Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting United States v. Nickl, 427
Appellant Smith did not appeal and the time for him to do so has long expired.
F.3d 1286, 1298 (10th Cir. 2005)). And “adverse rulings alone do not demonstrate judicial bias,
meaning that an argument relying solely on the district court’s adverse rulings is devoid of
merit.” LNV Corp. v. Hook, 2021 WL 1343674, at *1 (brackets and quotation marks omitted)
(quoting LNV Corp. v. Hook, 807 F. App’x at 895). See also Bixler, 596 F.3d at 762 (same).
Accordingly, Appellants’ arguments against the Bankruptcy Court based on alleged judicial bias
in violation of the Fifth Amendment due process right to a fair and impartial decision-maker is
Appellants make the same argument against this Court – the undersigned – in their reply
brief. They contend this Court’s rulings and orders create an appearance of “extreme” judicial
hostility and bias. This argument is rejected for the same reason that it is rejected as to the
Bankruptcy Court: adverse rulings and orders alone do not establish judicial bias in violation of
the due process clause of the Fifth Amendment.
C. Evidentiary Hearings and Violation of Due Process
Appellants’ briefs are riddled with statements that evidentiary hearings were not held by
the Bankruptcy Court. To the extent Appellants contend that their due process rights were
violated because no evidentiary hearing was held before the closure orders were issued, such
contention is without merit. First, during the August 2, 2018, hearing, Appellant Smith stated he
did not suggest an evidentiary hearing was required and Appellant Hook did not state
otherwise.22 Indeed, no party requested an evidentiary hearing. Further, Appellants fail to explain
how they were prejudiced by the lack of any hearing before any order was issued. As the Tenth
Circuit has previously advised Appellant Hook, “[a]bsent any argument regarding prejudice, her
Appellants’ argument of judicial bias relies on not only the adverse decisions appealed but also a number of other
adverse decisions issued by the Bankruptcy Court. (See ECF No. 23, pp. 40-41, n. 2.)
See ECF No. 23-1, p. 72 at 11. 3-6.
due-process argument is meritless.” In re Hook, 816 F. App’x at 271 (citing Miller v. Fed.
Bureau of Prisons, 989 F.2d 420, 423 (10th Cir. 1993)). Appellants’ argument here is similarly
D. The Minute Order – Standing
The Minute Order, which memorialized the Bankruptcy Court’s oral ruling, found
Appellants lacked standing to object. In the bankruptcy context, the Tenth Circuit applies a
prudential standing requirement that “‘is more stringent than the case or controversy standing
requirement of Article III.” Parr v. Rodriguez (In re Parr), 732 F. App’x 714, 716 (10th Cir.
2018) (ellipsis omitted) (quoting C.W. Mining Co. v. Aquila, Inc. ( In re C.W. Mining Co. ), 636
F.3d 1257, 1260 n.5 (10th Cir. 2011)). To have standing to object to a bankruptcy court order,
the party must be an “aggrieved person.” In re Parr, 732 F. App’x at 716. To qualify as a person
aggrieved, the party “must have a pecuniary interest in the outcome of the bankruptcy
proceedings.” In re Morreale, No. BR 13-27310 TBM, 2015 WL 3897796, at *7 (Bankr. D.
Colo. June 22, 2015) (quotation marks and citation omitted). See also In re Parr, 732 F. App’x at
716 (same). As relevant here, a debtor does not qualify as a person aggrieved “unless the estate is
solvent and excess will eventually go to the debtor.” In re Parr, 732 F. App’x at 716. In other
words, the debtor must show a “‘reasonable probability of a surplus.’” In re Morreale, 2015 WL
3897796, at *8.
The Bankruptcy Court found Appellants’ estate was insolvent. Specifically, the
Bankruptcy Court found that, even if it accepted Appellants’ argument that only $12,380.23 of
the approximately $2.4 Million in claims filed against the estate are valid, the estate is
nonetheless insolvent. To wit, there would be $12,380.23 in claims but the estate only had
$1,013.99. The Bankruptcy Court also found that Appellants wanted the Trustee to pursue claims
on behalf of the estate against the IRS and LNV but the Trustee exercised his business judgment
not to do so. And the Bankruptcy Court found Appellants failed to show the Bankruptcy Court
could force the Trustee to do so. Thus, the Trustee abandoned such assets to Appellants to do as
they saw fit.
Appellants do not challenge the Bankruptcy Court’s findings that, at best, at that time,
there would be $12,380.23 in claims but the estate only had $1,013.99. Instead, Appellants argue
the estate was not “hopelessly insolvent” because there was a reasonable probably of a surplus if
the Trustee were to file adversary proceedings and the like to administer the estate’s assets, e.g.,
file adversary proceedings against the IRS and LNV. In other words, if the Trustee pursued – or
were forced to pursue – the IRS and LNV, Appellants’ estate would not be insolvent.
The Trustee counters that he was not required to liquidate every asset or prosecute every
cause of action and may exercise business judgment to determine that a cause of action was not
worth pursuing and abandon the property to the debtor. The Bankruptcy Court agreed; this Court
does so as well. See In re Consol. Indus. Corp., 330 B.R. 712, 715 (Bankr. N.D. Ind. 2005) (A
trustee is not required to prosecute every cause of action. Instead, “a trustee is given a substantial
degree of discretion in deciding how best to administer the estate committed to his care and his
actions are measured by a business judgment standard.”). Appellants’ conclusory arguments that
the Trustee should have pursued such actions – especially in light of the then pending
Foreclosure Action – do not establish the Trustee abused his discretion or otherwise failed to
properly exercise his business judgment. Accordingly, Appellants fail to show the Bankruptcy
Court erred in finding the estate was insolvent or hopeless insolvent and, therefore, that
Appellants lacked standing to object.23, 24
E. The Closure Order
Appellants’ arguments here are cursory at best, consisting of three sentences without
analysis. As such, they are waived. In re C.W. Mining Co., 740 F.3d 548, 564 (10th Cir. 2014)
(“Arguments raised in a perfunctory manner, such as in a footnote, are waived.” (internal
quotation marks, brackets, and citation omitted)). Even if not waived, Appellants’ arguments are
rejected for the reasons stated above. Namely, Appellants fail to show why an evidentiary
hearing was required or how they were prejudiced; fail to show which findings and conclusions
of the Trustee’s Initial Report (or Second Report) were allegedly “unsubstantiated” and how this
supports any relief; and fail to show judicial bias by their mere disagreement with the order.
F. The Post-Closure Order Denying the Motion to Vacate and Motion to Stay
Appellants claim because the Bankruptcy Court violated their due process rights under
the Fifth Amendment in issuing the Closure Order, the Closure Order was void. Therefore,
according to Appellants, the Bankruptcy Court erred in not granting the Motion to Vacate. But
the Court finds there have been no violations of Appellants’ due process rights. Thus, it follows
that Appellants’ reliance on such alleged violations is unavailing and provides no grounds for
relief. Concomitantly, the Bankruptcy Court did not err in denying the Motion to Stay.
G. The CDOR Dismissal Order
Appellants raise four arguments in support of their appeal of the February 5, 2019 order
granting CDOR’s Motion to Dismiss. The Court discusses – and rejects – them below.
First, Appellants contend that their complaint against CDOR does not fail to state a claim
The Trustee also asserts that, where the property is abandoned to the debtor, the debtor has no standing to object,
regardless of whether the estate is or is not insolvent. In light of the Court’s determination, it need not reach this
To the extent Appellants’ arguments here apply to the Notice, they are rejected for the same reasons.
and refer the Court to their response brief filed before the Bankruptcy Court for their rationale.
The Court, however, declines to search Appellants’ response brief to find what rationale supports
rejection of the Bankruptcy Court’s decision. It is up to Appellants to set forth how and where
the Bankruptcy Court erred. Thus, this argument is waived. See Gaines-Tabb v. ICI Explosives,
USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998).
Next, Appellants “deny” their claims are implausible, without making any showing of
why they are plausible or how the Bankruptcy Court erred in its decision. The Court will not
construct arguments or theories for them. See Shero v. City of Grove, Okl., 510 F.3d 1196, 1207
(10th Cir. 2007) (court will not fashion argument for party).
Third, Appellants argue the Bankruptcy Court should have allowed them leave to amend.
But Appellants fail to argue – or show – they sought leave to amend and it is unknown whether
any proposed amendment would not be futile. Anderson v. Suiters, 499 F.3d 1228, 1238 (10th
Cir. 2007) (“A proposed amendment is futile if the complaint, as amended, would be subject to
dismissal.” (quotation marks and citation omitted)). And Appellants provide no authority which
requires a court to sua sponte allow attorneys leave to amend.
Finally, Appellants argue the Bankruptcy Court’s granting of the Motion to Dismiss
without holding a jury trial created an appearance of judicial bias and resulted in harm. However,
it has long been held that the Seventh Amendment is not violated by the dismissal of a complaint
on legal grounds “because such rulings mean that no triable issue exists to be submitted to a
jury.” Smith v. Kitchen, 156 F.3d 1025, 1029 (10th Cir. 1997). Here, because Appellants fail to
show their claims were not properly dismissed on legal grounds, they were not deprived of any
constitutional right to a jury trial. Overton v. United States, No. 99-2069, 2000 WL 14274, at *4,
202 F.3d 282 (10th Cir. 2000) (unpublished table decision). Therefore, the granting of a motion
to dismiss without a jury trial does not support an appearance of judicial bias.
As a final matter, the Bankruptcy Court also dismissed Appellants’ claims because it
found they were moot. Appellants fail to challenge that basis for dismissal in their opening brief.
Thus, the Bankruptcy Court’s order may also be affirmed for that reason.
In their “conclusion” and reply brief, Appellants make several requests – all of which are
First, Appellants request the reversal of the Bankruptcy Court’s orders appealed. The
Court, however, finds they are to be affirmed.
Next, Appellants request a withdrawal of the reference of their entire bankruptcy case and
“all related adversary proceedings” to an Article III judge. Appellants’ bankruptcy case,
however, is closed. The Court has withdrawn two adversary proceedings involving parties to the
Foreclosure Action, and those proceedings are resolved concurrently with this appeal. As to any
other proceedings, Appellants fail to identify them or to show they should be withdrawn.
Accordingly, this request is denied.
Third, Appellants request Judge Blackburn to vacate and set aside final judgments and
orders entered in the Foreclosure Action. But, Judge Blackburn is not the presiding judge in this
Bankruptcy Appeal. Moreover, Appellants’ request is frivolous as their appeal of the Bankruptcy
Court’s orders can in no way serve to support vacating orders from the Foreclosure Action.
Finally, Appellants request the Court to issue sanctions against the Trustee, CDOR, and
CDOR’s attorney. The Court’s review of the filings shows no basis to issue any sanctions against
Based on the foregoing, it is ORDERED
(1) That the Bankruptcy Orders at issue (ECF Nos. 1, 11, 12, 21, and 22) are
(2) That all requests for relief by Appellants are DENIED;
(3) That the Clerk shall enter judgment in favor of Defendants; and
(4) That the Clerk shall close this case.
DATED this 27th day of April, 2021.
BY THE COURT:
RAYMOND P. MOORE
United States District Judge
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