Morozov v. Hancock Whitney Bank

Filing 65

ORDER granting 63 Appellant's Renewed Motion for Substitution of Real Party in Interest. The Clerk of the Court is directed to substitute Yevgeny Morozov as personal representative for the estate of Vladimir Morozov in this appeal. The Bankruptcy Court's Order [2-2] Granting Motion to Annul the Automatic Stay is affirmed. The Clerk of the Court is directed to close the file. See Order for details. Signed by Judge Marcia Morales Howard on 3/7/2025. (JPA)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
IN RE: VLADIMIR MOROZOV
and LYUDMILA MOROZOV
Debtors.
________________________________

Bankruptcy Case No. 3:10-bk-724-BAJ

VLADIMIR MOROZOV,
Appellant,
v.

Case No. 3:23-cv-135-MMH

HANCOCK WHITNEY BANK,
Appellee.

ORDER
THIS CAUSE is before the Court on appeal from the United States
Bankruptcy Court for the Middle District of Florida, Jacksonville Division. On
February 6, 2023, Vladimir Morozov filed this appeal challenging an order of
the Bankruptcy Court granting Appellee’s Motion to Annul the Automatic Stay
(Doc. 2-2; Bankruptcy Court’s Order). 1 After several extensions of time,
Vladimir Morozov belatedly filed his initial brief on July 14, 2023. See Brief of
Vladimir Morozov [and] Lyudmila Morozov (Doc. 20; Initial Brief). And

1 On September 11, 2024, the Court directed the Clerk of the Court to correct the case

caption to reflect that Vladimir Morozov was the only appellant in this appeal. See Order
(Doc. 54).

Appellee, Hancock Whitney Bank (“Hancock”), filed an answer brief on October
6, 2023. See Answer Brief of Appellee (Doc. 38; Answer Brief). Before the Court
could consider the merits of this appeal, Vladimir Morozov passed away, and
Yevgeny Morozov now seeks to be substituted as the real party in interest. See
Appellant’s Renewed Motion for Substitution of Real Party in Interest
(Doc. 63; Third Motion to Substitute), filed December 6, 2024. Hancock filed a
response to the Third Motion to Substitute, and opposes Yevgeny Morozov’s
substitution. See Objection to Appellant’s Renewed Motion for Substitution of
Real Party in Interest (Doc. 64; Response to Third Motion to Substitute), filed
December 20, 2024. This matter is ripe for review.
I.

Motion to Substitute
On January 4, 2024, Lyudmila Morozov filed a notice advising the Court

that Vladimir Morozov had passed away. See Suggestion of Death and Motion
to Extend Time to File Reply Brief (Doc. 45). Three months later, on April 2,
2024, Lyudmila Morozov moved the Court “to substitute Yevgeny Morozov for
Vladimir Morozov” in this appeal. See Motion for Leave to Substitute Party at
2 (Doc. 47; First Motion to Substitute). Then, on August 27, 2024, on the eve of
a hearing scheduled by the Court, Yevgeny Morozov, proceeding pro se, initiated
a probate case in the Circuit Court of the Fourth Judicial Circuit in and for
Duval County, Florida, by filing a Petition for Administration and Appointment
of Personal Representative. See Appellant’s Motion for Substitution of Real

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Party in Interest at 1 (Doc. 57; Second Motion to Substitute). The following day,
during the hearing, the Court denied the First Motion to Substitute. See Clerk’s
Minutes (Doc. 52), entered August 28, 2024.
After the hearing, the Court entered an Order advising that “[a]ny person
who wishes to be substituted for [Vladimir] Morozov in this appeal, and has the
legal authority to do so, shall file a motion for substitution on or before October
11, 2024.” See Order at 2 (Doc. 55; First Order), entered September 13, 2024.
On October 11, 2024, Yevgeny Morozov filed his motion seeking to be
substituted “for Vladimir Morozov, as the real party in interest” in this appeal.
See Second Motion to Substitute at 1. The Court denied the Second Motion to
Substitute, and instructed Hancock to file a notice indicating its position on
whether the Court still had subject matter jurisdiction over this appeal. See
Order at 4 (Doc. 61; Second Order), entered October 30, 2024. Responding to the
Second Order, Hancock filed a notice advising that “[b]ecause the decedent has
no representative and no proper motion for substitution [has been] filed, the
Court may dismiss this appeal for lack of subject matter jurisdiction.” See
Notice Indicating Appellee’s Position on the Court’s Subject Matter Jurisdiction
at 3 (Doc. 62; Notice), filed November 6, 2024. Before the Court could address
the arguments raised in the Notice, Yevgeny Morozov filed the Third Motion to
Substitute.

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In the Third Motion to Substitute, Yevgeny Morozov argues that because
he has now been appointed as the “Personal Representative of the Probate
Estate,” the Court should allow him to be substituted for Vladimir Morozov in
this appeal. Id. at 1. Although Hancock is correct that Yevgeny Morozov has
“failed to timely follow Rule 43 of the Federal Rules of Appellate Procedure,”
despite having had ample time “to secure a personal representative and to move
for substitution,” the Court finds that Yevgeny Morozov’s appointment as
Vladimir Morozov’s personal representative, untimely as it may have been,
warrants substitution. See Response to Third Motion to Substitute at 3; Logan
v. Smith, No. 3:07-cv-1156-J-JBT, 2016 WL 9115544, at *2 (M.D. Fla. Feb. 8,
2016) (“If a personal representative has been appointed to represent the
interests of a decedent, then the personal representative is a proper party for
substitution.”). 2

Accordingly, the Court will grant the Third Motion to

Substitute, direct the Clerk of the Court to substitute Yevgeny Morozov for
Vladimir Morozov as the Appellant in this appeal, and refer to Yevgeny Morozov
in his representative capacity as “Appellant.” 3
2 See also Metcalfe v. Lee, 952 So. 2d 624, 630 (Fla. 4th DCA 2007) (“[W]here a personal

representative has been appointed, he or she is most certainly a proper party.”); Schaeffler v.
Deych, 38 So. 3d 796, 800 (Fla. 4th DCA 2010) (“Generally, if the decedent’s estate has been
opened, then the personal representative should be substituted in place of the decedent[.]”).
3 That said, the Court will consider the merits of this appeal without Appellant filing

a reply brief. After filing this appeal, Vladimir Morozov repeatedly sought extensions of time
to file his initial brief, and only did so tardily after the Court advised him that “[n]o further
extensions of time will be granted.” See Order (Doc. 13), entered on July 7, 2023. Vladimir
Morozov then sought three separate extensions of time to file a reply, which the Court granted.

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II.

Bankruptcy Court’s Order
A. Background 4
On June 22, 2022, Hancock filed a motion with the Bankruptcy Court

requesting an annulment of the automatic stay. See Motion to Annul the
Automatic Stay (Doc. 2-339; Motion). The Bankruptcy Court held an
evidentiary hearing on the request, see Trial on Motion to Annul Automatic
Stay for Relief From Stay (Doc. 9-2), on December 9, 2022. Following the
hearing, the Bankruptcy Court entered an order granting the Motion. See
Bankruptcy Court’s Order at 14. In doing so, the Bankruptcy Court found that
Vladimir

Morozov’s loans were

nondischargeable

under 11 U.S.C.

§

523(a)(3)(A), and that he had acted in bad faith during the bankruptcy

See Order (Doc. 40), entered October 26, 2023 (granting a twenty -one-day extension of time);
see Order (Doc. 42), entered November 14, 2023 (granting a ten -day extension of time); see
Order (Doc. 44), entered December 4, 2023 (granting a thirty -eight-day extension of time).
Despite being warned that “[n]o further extensions of time will be granted,” Vladimir Morozov
failed to timely file a reply. Id. at 3. In light of the record of delay attributable solely to
Vladimir Morozov, the Court informed Appellant that it “intends to decide the appeal on the
briefs that are currently filed.” See Clerk’s Minutes (Doc. 52), entered August 28, 2024. And
cautioned that “[i]f a proper party is eventually substituted . . . the briefing in this case is
closed, and the filing of a reply brief will not be permitted.” First Order at 2 n.2 (emphasis
added). Consistent with these admonitions, the Court will consider the merits of this appeal
without Appellant filing any additional briefing.
4 “In reviewing bankruptcy court judgments, a district court functions as an appellate

court. It reviews the bankruptcy court’s legal conclusions de novo, but must accept the
bankruptcy court’s factual findings unless they are clearly erroneous.” In re JLJ Inc., 988 F.2d
1112, 1116 (11th Cir. 1993) (internal citation omitted). Upon review, the factual findings made
by the Bankruptcy Court are well-supported by the evidence in the record. Moreover, although
Vladimir Morozov raises general objections to the Bankruptcy Court’s factual findings, he has
failed to show that these findings are “clearly erroneous.” Id. Accordingly, the Court adopts
the Bankruptcy Court’s factual findings and incorporates them herein by reference. See
Bankruptcy Court’s Order at 2–5.

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proceedings. See id. at 11–12. The Bankruptcy Court further found that the
circumstances of the bankruptcy case warranted annulling the automatic stay.
See id. at 14. On February 6, 2023, Vladimir Morozov filed his Notice of Appeal,
see Notice of Appeal and Statement of Election (Doc. 1), challenging the
Bankruptcy Court’s Order, see Initial Brief at 1–3.
B. Standard of Review
This Court has jurisdiction to hear an appeal from a final judgment
entered by the Bankruptcy Court. See 28 U.S.C. § 158(a). In functioning as an
appellate court, the Court reviews de novo the legal conclusions of a bankruptcy
court, but must accept a bankruptcy court’s factual findings unless they are
clearly erroneous. See In re JLJ Inc., 988 F.2d at 1116. “A finding [of fact] is
‘clearly erroneous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364,
395 (1948). The burden is on the appellant to show that the bankruptcy court’s
findings of fact are clearly erroneous. See Griffin v. Mo. Pac. R.R. Co., 413 F.2d
9, 13 (5th Cir. 1969);5 Ballato v. Ballato, 190 B.R. 447, 448 (M.D. Fla. 1995);6

5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the

Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981.
6 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310
(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

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In re Fernandez, 132 B.R. 775, 778 (M.D. Fla. 1991). In addition, the Court may
not make independent factual findings. See In re JLJ Inc., 988 F.2d at 1116; In
re Englander, 95 F.3d 1028, 1030 (11th Cir. 1996). Accordingly, “[i]f the
bankruptcy court is silent or ambiguous as to an outcome determinative factual
question, the case must be remanded to the bankruptcy court for the necessary
factual findings.” In re JLJ Inc., 988 F.2d at 1116.
The Court uses an abuse of discretion standard when reviewing a
bankruptcy court’s decision to grant relief from an automatic stay and to allow
or disallow a claim. See In re Bagwell, 741 F. App’x 755, 758 (11th Cir. 2018)
(per curiam);7 In re Dixie Broad., Inc., 871 F.2d 1023, 1026 (11th Cir. 1989);
Carnegia v. Ga. Higher Educ. Assistance Corp., 691 F.2d 482, 483
(11th Cir. 1982) (per curiam); Nat’l Cap. Mgmt., LLC v. Herman, No. 6:11-cv-9ORL-28, 2011 WL 4531736, at *1 (M.D. Fla. Sept. 29, 2011). An abuse of
discretion occurs when a court “misapplies the law or bases its decision on
factual findings that are clearly erroneous.” Baker v. Bank of Am., N.A., 837 F.
App’x 754, 757–58 (11th Cir. 2020) (per curiam) (quoting In re Daughtrey, 896
F.3d 1255, 1274 (11th Cir. 2018)).

other district court’s determination, the decision would have significant persuasive effects”).
7 The Court does not rely on unpublished opinions as binding precedent, but they may

be cited in this Order when the Court finds them persuasive on a particular point. See
McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022); see generally Fed. R. App. P.
32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.”).

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C. Discussion
On appeal, Appellant argues that the Bankruptcy Court erred in finding:
(1) that Vladimir Morozov’s loans were nondischargeable under 11 U.S.C. §
523(a)(3)(A) and (2) that his conduct during the bankruptcy proceedings
warranted annulling the automatic stay. See Initial Brief at 22, 27.8 For the
reasons discussed below, the Bankruptcy Court’s Order is due to be affirmed.
Dischargeability. In the Initial Brief, Appellant argues that the
Bankruptcy Court erred in finding that Vladimir Morozov’s loans were
nondischargeable. Id. at 22. Under 11 U.S.C. § 523(a)(3)(A), “a debt will only be
excepted from discharge if it is not listed or scheduled in time to permit the
creditor to file a timely proof of claim and such creditor had no notice or actual
knowledge of the case.” In re Garza, 138 B.R. 100, 101 (Bankr. M.D. Fla. 1992)
(citing 11 U.S.C. § 523(a)(3)(A))). This makes sense as notice of the “filing
deadline is necessary to establish a timeline in order to get a plan confirmed,
get creditors paid, and get a case closed.” In re Horlacher, 389 B.R. 257, 263
(Bankr. N.D. Fla. 2008). And, absent such notice, a creditor will not have

8 On appeal, a debtor abandons arguments “not raised below or raised in a cursory

fashion without citation to authority in [his] opening brief.” In re Sussman, 816 F. App’x 410,
414 n.1 (11th Cir. 2020) (per curiam) (“Debtor’s cursory allegations of bias, unsupported by
record cites and case authority, are insufficient to preserve the issue for appeal.”); see also
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held
that an appellant abandons a claim when he either makes only passing references to it or
raises it in a perfunctory manner without supporting arguments and authority.”) In
accordance with this authority, the Court declines to address many of the unsupported
assertions and insinuations raised by Appellant in the Initial Brief.

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received due process such that its claims can be rendered dischargeable. See In
re Spring Valley Farms, Inc., 863 F.2d 832, 834–35 (11th Cir. 1989) (collecting
cases).
Here, the Bankruptcy Court found that Vladimir Morozov “knew of [his]
Loans, yet failed to list or schedule” them. See Bankruptcy Court’s Order at 9.
As a result of this failure, Hancock “did not have actual knowledge of the
bankruptcy case in time to file a timely proof of claim” and was “deprived of the
opportunity to meaningfully participate in the bankruptcy case.” Id. Based upon
these findings, the Bankruptcy Court concluded that the loans “were
nondischargeable under 11 U.S.C. § 523(a)(3).” Id. (citing In re Spring Valley
Farms, 863 F.2d at 834–35). Because the record supports the Bankruptcy
Court’s finding that Hancock did not have actual knowledge of the bankruptcy
case prior to the proof of claim deadline, the Bankruptcy Court did not err in
finding that the loans were nondischargeable under 11 U.S.C. § 523(a)(3)(A).
Annulment of the Automatic Stay. Appellant also argues that the
Bankruptcy Court erred in finding that Vladimir Morozov’s conduct warranted
annulling the automatic stay. See Initial Brief at 27. Generally, “acts taken in
violation of [an] automatic stay are . . . deemed void and without effect.” In re
Albany Partners, Ltd., 749 F.2d 670, 675 (11th Cir. 1984). However, 11 U.S.C.
§ 362(d) “authorizes the annulment of [an automatic] stay nunc pro tunc to the
date of the petition, provided that the circumstances of the particular case

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warrant such relief.” In re Barr, 318 B.R. 592, 598 (Bankr. M.D. Fla. 2004)
(emphasis added). In determining whether annulment of an automatic stay is
warranted, a court considers a number of factors:
(1) [W]hether the creditor had actual or constructive knowledge of
the bankruptcy filing, (2) whether the debtor acted in bad faith, (3)
whether grounds would have existed for modification of the stay if
a motion had been filed before the violation, (4) whether the denial
of retroactive relief would result in unnecessary expense to the
creditor, and (5) whether the creditor has detrimentally changed its
position on the basis of the action taken.
Id. (citing In re Stockwell, 262 B.R. 275, 281 (Bankr. D. Vt. 2001)). Notably, “the
debtor’s actions and lack of good faith are important [factors] in evaluating
whether retroactive relief is warranted.” See id. Here, reviewing all of the
factors in their totality, the Court readily concludes that the Bankruptcy Court
did not err in finding that the automatic stay should be annulled. Notably, the
Bankruptcy Court found that Vladimir Morozov’s conduct throughout the
bankruptcy proceedings “indicate[s] bad faith and his failure to mitigate reflects
a lack of respect for the judicial process.” Bankruptcy Court’s Order at 11–12.
The Bankruptcy Court also found that without an annulment, “[y]ears of
litigation, as well as third-party settlements, would be undone.” Id. at 12. And
that “forcing [Hancock] to repeat years of litigation as a result of [Vladimir
Morozov’s] silence would be inequitable and would almost certainly lead to the
same results, but with unnecessary delay and substantial expense.” Id. at 14.

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On the record before the Court, the Bankruptcy Court did not err in finding that
the automatic stay should be annulled.
III.

Conclusion
For the foregoing reasons, the Bankruptcy Court did not err in finding

that Vladimir Morozov’s loans were nondischargeable. Nor did the Bankruptcy
Court err in finding that the automatic stay should be annulled.
Accordingly, it is
ORDERED:
1. Appellant’s Renewed Motion for Substitution of Real Party in Interest
(Doc. 63) is GRANTED. The Clerk of the Court is DIRECTED to
substitute Yevgeny Morozov as personal representative for the estate
of Vladimir Morozov in this appeal.
2. The Bankruptcy Court’s Order Granting Motion to Annul the
Automatic Stay (Doc. 2-2) is AFFIRMED.
3. The Clerk of the Court is DIRECTED to close the file and terminate
any pending motions as moot.
DONE AND ORDERED in Jacksonville, Florida this 7th day of March,
2025.

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Lc32
Copies to:
The Honorable Jason A. Burgess, United States Bankruptcy Judge
Counsel of Record

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