In Re: Peter Kostyshyn

Filing 28

MEMORANDUM ORDER - denying 27 MOTION for Preliminary Injunction filed by Peter Kostyshyn. Signed by Judge Sue L. Robinson on 8/1/13. (mdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

)
) Chapter 13
)
) Br. No. 10-10595 (BLS)
)
)

In re:
PETER KOSTYSHYN,
Debtor.

PETER KOSTYSHYN,
Appellant,

v.
MICHAEL B. JOSEPH, CHAPTER 13
TRUSTEE,

)
)
)
) Civ. No. 10-615-SLR
)
)

)

)

)

Appellee.

r

MEMORANDUM ORDER
At Wilmington this

)1,0. day of

,2013, having considered appellant's

emergency injunction motion (0.1. 27);
IT IS ORDERED that the motion is denied, for the reasons that follow:
1. Background. On February 25,2010, Peter Kostyshyn ("Kostyshyn"),
proceeding pro se, filed a voluntary petition under chapter 13 of the bankruptcy code in
the United States Bankruptcy Court for the District of Delaware ("the Bankruptcy
lJ

Action ).1 On March 31,2010, Michael B. Joseph, Esquire (the "Trustee"), the Chapter

1Kostyshyn filed for bankruptcy relief on five other occasions: (1) Chapter 13,
No. 02-11541 (JKF), filed on May 29,2002, dismissed on August 18, 2003, following a
final account by the trustee; (2) Chapter 13, No. 07-10798 (BLS), filed on June 11,
2007, dismissed on June 28, 2007 finding Kostyshyn ineligible to file bankruptcy; (3)
Chapter 13, No. 07-11305 (BLS), filed on September 10,2007, dismissed on October 5,
2007; (4) Chapter 13, No. 07-11691 (BLS), filed on November 9,2007, dismissed on
January 31, 2008. In the dismissal order, Kostyshyn was found ineligible to file
bankruptcy and he was banned from filing additional bankruptcy cases for two years;

13 Trustee filed a motion to dismiss Kostyshyn's case. The Trustee sought dismissal
on the grounds that Kostyshyn's serial bankruptcy filings were abusive and indicated a
lack of good faith in properly seeking Chapter 13 relief. In addition, the Trustee noted
that Kostyshyn listed only two creditors and that only state law issues were involved.
Kostyshyn opposed the motion. (Bankruptcy Action, 0.1. 26, 33)
2. The bankruptcy court held a hearing on April 27, 2010. Following the hearing,
the bankruptcy court granted the motion, dismissed the petition with prejudice, and
barred Kostyshyn from filing for bankruptcy relief for two years from the date of the
order. (Bankruptcy Action, 0.1. 37) Kostyshyn sought reconsideration and a hearing
was held on June 29,2010. (/d. at 0.1. 45, 66) In denying the motion for reconsid­
eration, the bankruptcy court took note that Kostyshyn was afforded the opportunity to
address the court at length, and found that the order was based upon substantial
evidence and was otherwise well-founded. (ld. at 0.1. 66) Kostyshyn appealed the
bankruptcy court's order to this court on July 20,2010. (0.1. 1) On February 25,2011,
the court affirmed the bankruptcy court's decision and found no reason to reverse the
bankruptcy court's April 28, 2010 dismissal of the action. (0.1. 24) Kostyshyn did not
appeal the February 24,2011 order, and the bankruptcy court closed its case on March
23, 2011. A review of the Public Access to Court Electronic Records ("PACER")
database, reveals no pending bankruptcy cases filed on behalf of Kostyshyn in the
United States Bankruptcy Court for the District of Delaware, although Kostyshyn

and (5) Chapter 7, No. 07-13964 (BLS), filed on November 9,2009, dismissed on
November 9,2009. In the dismissal order, Kostyshyn was banned from filing additional
bankruptcy cases for two years.
2

indicates in the pending motion that he recently filed a new bankruptcy filing. (0.1. 27 at

2)
3. On July 30,2013, Kostyshyn filed the instant emergency injunction motion to
stay August 2013 sheriffs sales in New Castle County, Delaware, Case Nos.
CAN13J01723 and CAN13J01724. Kostyshyn indicates that there may be more cases.
He asks the court to: (1) reopen the bankruptcy appeal "for fraud perpetrated by parties
involved and deceit and lies made during a bankruptcy hearing" and "misrepresentation";
(2) issue a briefing schedule or remand the case to the bankruptcy court for a fact finding
hearing; (3) provide notice to the parties of his motion; (4) provide him the correct
address of government officials and entities; and (5) order a hearing in the bankruptcy
court to acknowledge, accept, and act upon Kostyshyn's new bankruptcy filing.
4. Discussion. The motion is untimely. The bankruptcy case is closed and the
appeal was concluded over two years ago. Therefore, the court declines to reopen the
matter or to consider the request for injunctive relief.
5. In addition, based upon Kostyshyn's filing)it appears that there are actions
pending in State court that Kostyshyn wishes this court to enjoin. Under the Younger
abstention doctrine, a federal district court must abstain from hearing a federal case
which interferes with certain state proceedings. 2 See Younger v. Harris, 401 U.S. 37
(1971). In addition, under Younger, federal courts are prevented from enjoining pending

2The court may raise the issue of Younger abstention sua sponte. O'Neill v. City
of Philadelphia, 32 F.3d785, n.1 (3d Cir. 1994).

3

state proceedings absent extraordinary circumstances. 3 Middlesex Cnty. Ethics Comm.
v. Garden State Bar Ass'n, 457 U.S. 423, 437 (1982). Abstention is appropriate when:
(1) there are ongoing state proceedings that are judicial in nature; (2) the state
proceedings implicate important state interests; and (3) the state proceedings provide
an adequate opportunity to raise the federal claims. Lazaridis v. Wehmer, 591 F.3d
666, 670 (3d Cir. 2010). The doctrine applies to proceedings until all appellate
remedies have been exhausted, unless the matter falls within one of the Younger
exceptions. 4 Huffman v. Pursue Ltd., 420 U.S. 592,608 (1975).
6. The Younger elements have been met and none of the its exceptions apply.
It appears that there are on-going state proceedings for the foreclosure of real property.
Delaware has an important interest in resolving real estate issues, and a ruling in the
Delaware courts implicates the important interest of preserving the authority of the
state's judicial system. See e.g., Almazan

V.

1st 2nd Morlg. CO. of NJ, Inc., 2011 WL

2670871 (D.N.J. June 2, 2011) (finding that the State has important interests in the
foreclosure of property under the Younger doctrine); Greg

V.

Pagano, 287 F. App'x 155

(3d Cir. 2008) (unpublished) (court abstained under the Younger doctrine where

3The abstention doctrine as defined in Youngerv. Harris, 401 U.S. 37 (1971),
provides that federal courts are not to interfere with pending state criminal proceedings.
The Younger doctrine has been extended to civil cases and state administrative
proceedings. Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423
(1982); Huffman v. Pursue Ltd., 420 U.S. 592 (1975).
4Exceptions to the Younger doctrine exist where irreparable injury is "both great
and immediate," Younger, 401 U.S. at 46, where the state law is "flagrantly and patently
violative of express constitutional prohibitions," id. at 53, or where there is a showing of
"bad faith, harassment, or ... other unusual circumstances that would call for equitable
relief." Id. at 54.

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plaintiffs sought a declaration that the judge was not authorized to nullify transfer of title
and for an order enjoining the sheriff from conducting a sheriff's sale.). Finally, plaintiff
has an adequate opportunity to raise any potential fraud claims in State court.
Accordingly, pursuant to Younger and its progeny, the court must abstain. See

Pennzoi! Co. v. Texaco, Inc., 481 U.S. 1 15 (1987) (stating that Younger abstention is
J

favored even after the plaintiffs failed to raise their federal claims in the ongoing state
proceedings).
7. Conclusion. For the above reasons, the court denies Kostyshyn's emergency
injunction motion. (0.1. 27)

UNITED STA ES DISTRICT JUDGE

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