Jones v. Kivitz et al

Filing 5

MEMORANDUM. Signed by Judge William M Nickerson on 6/25/13. (c/m apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

LADONNA JONES

*

*
*
*
*
*
*
*

*

*
*
*
*
*

V.
MARK KIVITZ et al.
*

*

*

*

*

*

*

In re: LADONNA JONES

*

*

*

*

*

*

*

Civil Action No. WMN-12-3559

*

*

*

*

*

*

*

Bankr. No. 10-24377
Chapter 7
*

*

*

*

*

*

*

MEMORANDUM
There appears to have been some procedural confusion in the
course of this appeal from the Bankruptcy Court.

On March 13,

2012, Debtor LaDonna Jones, proceeding pro se, filed a pleading
in the Bankruptcy Court for the District of Maryland captioned
as a “Notice of Appeal to United States Court of Appeals for the
Fourth Circuit.”

Bankr. Doc. No. 84.1

This document indicated

that Debtor was appealing orders entered by the Bankruptcy Court
on March 12, 2012.

It also included, in what the Court assumes

to be the form of a proposed order, the request that the “Denick
Motion (Dkt. No. 62) is vacated;” that Par Excellence, a company
for which Debtor was the director and resident agent, be

1

Documents filed in the Bankruptcy Court will be designated as
“Bankr. Doc. No. _” Documents filed in this Court will be
referenced as “ECF No. _.”

stricken as a party; and that “the Kivitz Motion and Parker
Motion be granted.”

Id.

On March 27, 2012, Debtor filed in the Bankruptcy Court a
document captioned, “Appeal to the United States Court of
Appeals for the Fourth Circuit.”

Bankr. Doc. No. 85.

This

pleading indicated that Debtor was seeking a finding that
attorneys David Ellin, John Denick, Rebecca Daley, Mark Kivitz
and Kim Parker be held in contempt for violating the bankruptcy
stay and discharge order.

Id. at 2.

This pleading also

included allegations that Parker, Debtor’s bankruptcy attorney,
had converted Debtor’s Chapter 7 case into a Chapter 13 case
without Debtor’s consent.

Debtor filed an “Amended Notice of

Appeal to the United States Court of Appeals for the Fourth
Circuit” on November 30, 2012, seeking similar relief.

Bankr.

Doc. 91.
Viewing these documents as an attempt to circumvent an
appeal to the District Court and take a direct appeal to the
Fourth Circuit, the Bankruptcy Court treated them as a request
for certification.

Bankr Doc. 95.

In denying that request for

certification in an order issued on December 3, 2012, the
Bankruptcy Court concluded that:
this dispute finds its genesis in the Debtor’s refusal
to accept facts – the Debtor’s former attorney did not
consent to an adverse order against the Debtor’s will,
the Debtor’s case was not converted from Chapter 7 to
Chapter 13, the Respondents did not violate the
2

automatic stay and the Debtor’s business entity was not
involuntarily made a debtor in bankruptcy – which even
a cursory review of the docket and underlying papers
would establish as incontrovertible.
Id. at 2.
Plaintiff’s appeal was then transmitted to this Court on
December 4, 2012.

On December 5, 2012, this Court issued an

order requiring Debtor to designate the items to be included in
the record on appeal and a statement of the issues to be
presented within fourteen days of the date of that order.
Debtor responded with an “Answer” on December 26, 2012.
4.

ECF No.

In this Answer, Debtor explained her efforts to track the

status of her appeal and complains that the Bankruptcy Court
negligently delayed transferring the appellate record to this
Court.

Id. at 2.

From this response, it would appear that

Debtor perhaps did not intend to seek certification to
circumvent an appeal to this Court but simply mis-captioned her
pleadings.

Regardless, this Court finds that there was no

inappropriate delay in transferring the appeal to this Court.
Six months have passed since Debtor’s appeal was docketed
in this Court and the Court has received nothing further from
Debtor.

Contrary to Rule 8009 of the Bankruptcy Rules, Debtor

failed to submit an appellate brief within 15 days of the entry
of the appeal in this Court.

Under Local Rule 404.3, dismissal

3

is appropriate when appellant fails to serve and file a timely
brief.
Were the Court to assume that the document filed in the
Bankruptcy Court, Bankr. Doc. 85, and in this Court as ECF No.
1-1, was intended as Debtor’s appellate brief, the Court would
still dismiss the appeal, but on its merits.
relate to two allegations.

Debtor’s concerns

First, that her counsel was

complicit in the conversion of her Chapter 7 case to a case
under Chapter 13.

Second, that Respondents violated the

automatic stay and/or discharge order by proceeding against her
in state court proceedings.

Both of these concerns arise out of

a lift stay order issued by the Bankruptcy Court on November 1,
2010.

Bankr. No. 45.
As the Bankruptcy Court correctly observed, the alleged

conversion never happened.

In the motion to lift stay,

Respondents made a typographic error in the caption that
indicated that this was a Chapter 13 proceeding.

Bankr. No. 31.

The Bankruptcy Court then issued the proposed order prepared by
the Respondents that repeated that same error.

There was no

significance to this simple scrivener’s error and the case was
never converted to Chapter 13.
As to the alleged violation of the automatic stay and/or
discharge order, the record reveals no such violation.

As

explained in the motion to lift stay, several employees of Par
4

Excellence Emporium, Inc. filed actions in the District Court of
Maryland for Baltimore City for unpaid wages and emotional
injuries.

The motion to lift stay was premised on the need to

have Debtor included as a nominal defendant in those cases to
trigger potential insurance coverage.

The order granting the

motion specified that any judgment against Debtor could only be
satisfied from any insurance coverage and, therefore, would not
affect or diminish the property of the Debtor’s estate.

Bankr.

No. 45.
After the cases progressed in state court, the Bankruptcy
Court issued an order on February 29, 2012, reopening the
bankruptcy case to permit Debtor the opportunity to submit any
evidence to support her claim that a judgment order was entered
against her in the state court in a manner that violated the
automatic stay.

Bankr. No. 75.

The documents submitted by

Respondents and Debtor in response to that order all confirm
that the judgments entered against Debtor in the state court
were in the amounts of zero dollars.

Bankr. Nos. 80 and 82.

Thus, there was no violation of the automatic stay or discharge
order and the Bankruptcy Court properly denied Debtor’s request
that Respondents be held in contempt.
Finding no merit in Debtor’s contentions, the Court will
affirm the judgment of the Bankruptcy Court and dismiss this
appeal.

A separate order will issue.
5

_______________/s/________________
William M. Nickerson
Senior United States District Judge
DATED: June 25, 2013

6