In Re Bankruptcy Appeal John Mileusnic v Planet Home Lending LLC

Filing 9

OPINION AND ORDER granting 3 Motion to Dismiss; finding moot 6 Motion to Oppose Dismissal. Signed by Judge William C Lee on 8/11/15. (cc: Appellants) (ksp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
JOHN MILEUSNIC,
Appellant,
v.
PLANET HOME LENDING LLC,
Appellee.

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CIVIL NO. 2:15cv121

OPINION AND ORDER
This matter is before the court on a “Motion to Dismiss Appeal”, filed by the Appellee,
Planet Home Lending LLC , on April 24, 2015. The Appellant, John Mileusnic, proceeding pro
se, filed a response, entitled “Memorandum to Oppose Dismissal Res Judicata”, on May 21,
2015. The Appellee filed its reply on May 29, 2015.
For the following reasons, the motion to dismiss will be granted.
Discussion
On November 23, 2014, Appellee filed its Motion by Secured Creditor for
Relief From Stay and Abandonment of Property and Notice of Objection Deadline with 30-Day
Waiver. Trustee David R. DuBois filed his objection on December 5, 2014. No objection was
filed by Appellant. The basis for the trustee’s objection was formally withdrawn on March 12,
2014. With no other objections before the Court, Appellee’s Motion of November 23, 2014 was
granted. It is, presumably, from this Order that the Appellant appeals. Appellant filed his appeal
on March 31, 2015, but did not file an Appellate Brief, which was due on April 17, 2015, as per
Rule 8009(a) of the Federal Rules of Bankruptcy Procedure.
Appellee has now requested that the appeal be dismissed for failing to give sufficient
notice to Appellee as to the errors of the Bankruptcy Court and for failing to meet the deadline

set for filing the Appellate Brief.
The requirements of a Notice of Appeal are set forth in the Federal Rules of Bankruptcy
Procedure. Rule 8003(a)(3) requires that the “notice of appeal must (A) conform substantially to
the appropriate Official Form; (B) be accompanied by the judgment, order, or decree, or the part
of it, being appealed, and (C) be accompanied by the prescribed fee. The Appellee notes that, in
the present case, the Notice of Appeal does not substantially conform to the Official Form as it
fails to specify the document from which it appeals, by date of the Order/Judgment or even
document number. Appellee also points out that the Appellant further attempts to submit an
additional 201 pages of “evidence” that has never been before the Bankruptcy Court through the
Notice of Appeal. Furthermore, the Notice of Appeal does not include, as an attachment, the
Judgment/Order from which Appellant appeals.
Although Appellant has filed a “Motion to Oppose Dismissal Res Judicata” rather than a
response brief, the court will construe the motion as a response. However, Appellant has not
addressed the issues presented by the Appellee’s motion to dismiss. Rather, the Appellant
discusses Rule 12(b)(6) of the Federal Rules of Civil Procedure, which is not applicable to this
bankruptcy appeal, and fails to explain why he did not file his Appellate brief by the April 17,
2015 deadline.
As the Appellant has not complied with the requirements set forth in the Federal Rules of
Bankruptcy Procedure, his appeal will be dismissed.

Conclusion
On the basis of the foregoing, the Appellee’s Motion to Dismiss [DE3] is hereby

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GRANTED. Further, the Appellant’s Motion to Oppose Dismissal is hereby DEEMED MOOT.

Entered: August 11 , 2015.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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