619 N. Calhoun Street, LLC v. Colombo Bank, F.S.B.

Filing 27

MEMORANDUM. Signed by Judge James K. Bredar on 6/26/2015. (ca2s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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619 N. CALHOUN STREET, LLC,

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Appellant

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v.

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COLOMBO BANK, F.S.B.,
Appellee
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CIVIL NO. JKB-15-0419

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MEMORANDUM
Pending before the Court is Appellee’s motion to strike “Appellant’s Brief” and dismiss
the appeal. (ECF No. 14.) The motion has been briefed (ECF Nos. 19, 21), and no hearing is
necessary, Local Rule 105.6 (D. Md. 2014). The motion will be granted.
On February 12, 2015, Morgan W. Fisher, Esq., counsel for 619 N. Calhoun Street, LLC,
the debtor in this bankruptcy appeal, filed a notice of appeal of the bankruptcy court’s decision
granting Colombo Bank, F.S.B.’s motion for relief from the automatic stay on November 18,
2014. (ECF No. 1.) The same day, the Clerk of this Court docketed a briefing schedule, noting
that Appellant’s brief was due within thirty days from February 12, 2015. (ECF No. 2.) Just
before the due date, Appellant’s counsel filed a motion for extension of time to file Appellant’s
brief (ECF No. 3), which was granted (ECF No. 4). The new deadline was April 15, 2015. (Id.)
On April 13, Appellant’s counsel filed a motion to withdraw as attorney for Appellant, indicating
he had not been paid. (ECF No. 5.) That same day, the bankruptcy court granted Appellant’s
counsel’s motion to withdraw in that court. (Id.) Finding Mr. Fisher’s similar motion in this
Court appropriate, the Court granted it. (ECF No. 6.)

Also on April 15, Gerald Yeboah Omari, through his counsel, John Burns, Esq., moved to
intervene and moved for an extension to the briefing schedule in the appeal. (ECF Nos. 7 & 8.)
The motion for extension of time was granted (ECF No. 9), as was a successive motion by Omari
to extend (ECF Nos. 10 & 11). It was the Court’s understanding of Omari’s two motions to
extend that the only extensions being granted were as to Omari’s brief in support of his motion to
intervene. No motion was filed on behalf of Appellant to extend the briefing schedule. Then,
without seeking leave of court or entering an appearance, Mr. Burns filed an “Appellant’s Brief,”
purportedly as counsel for 619 N. Calhoun Street, LLC. (ECF No. 12.) In response, the Court
ordered Mr. Burns to clarify whom he was representing in this case. (ECF No. 13.)
Mr. Burns’s response was unusual, and not particularly enlightening:
The United States District Court has entered an Order asking the undersigned to
clarify whom he represents. The Order recites understandable confusion as to the
intervention by Omari and the Brief filed by Appellant. The answer is that
counsel represents both Omari and Appellant because they are one and the same.
As a body corporate forfeit, the Appellant is Omari and Omari is Appellant. The
undersigned will be filing a memorandum in support hereof; an Opposition to the
Motion to Strike filed by Appellee and a corrected brief immediately which will
make these matters apparent and obvious.
(ECF No. 15.) Mr. Burns also indicated he would file an “Application to Employ” him as
counsel on behalf of Appellant (see ECF No. 16), but he never filed such a document.
Because the docket still did not reflect Mr. Burns’s representation of Appellant, the Court
ordered him to file his Entry of Appearance. (ECF No. 17.) Mr. Burns then filed an Entry of
Appearance for “619 N. Calhoun, LLC aka Gerald Yeboah Omari.” (ECF No. 18.) Mr. Burns
has continued the use of similar fictitious nomenclature in another document filed in this Court.
In opposition to Appellee’s motion to strike “Appellant’s Brief” and to dismiss the appeal (ECF
No. 14), the putative intervenor refers to himself as “Gerald Yeboah Omari aka 619 N. Calhoun
Street, LLC [a forfeited corporation].” (ECF No. 19.) Mr. Burns also filed a “Corrected
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Appellant’s Brief” (ECF No. 20) and, most recently, filed a “motion to withdraw as attorney,”
asking the Court to strike his appearance on behalf of 619 N. Calhoun, LLC (ECF No. 25). In
between those two filings, Appellee filed a Line attaching an order of the bankruptcy court
denying 619 Calhoun Street, LLC’s request to retain Mr. Burns as counsel. (ECF No. 24.) The
bankruptcy court determined that Mr. Burns was not “disinterested,” within the meaning of the
bankruptcy laws, because he represented Omari, who was seeking substantive consolidation of
his bankruptcy estate with that of Appellant’s bankruptcy estate; thus, he could not also represent
Appellant, the object of the consolidation sought by Omari. (Id.)
The Court agrees with Appellee that Mr. Burns never entered a valid appearance on
behalf of 619 N. Calhoun Street, LLC. (Appellee’s Opp’n 1, ECF No. 26.) Instead, he always
qualified his filings with the fictitious nomenclature noted supra. No party in this case is named
“619 N. Calhoun Street, LLC, aka Gerald Yeboah Omari” or “Gerald Yeboah Omari aka 619 N.
Calhoun Street, LLC.” Omari may wish to be perceived as one and the same with Appellant, but
that does not make it so. Concomitantly, permitting Omari to intervene in this case would
frustrate the orderly administration of cases now before the bankruptcy court. Omari’s argument
is more appropriately directed to that court, not in the first instance to this Court. Furthermore,
the Court finds persuasive the bankruptcy court’s denial of Mr. Burns’s application to represent
619 N. Calhoun Street, LLC, based upon an obvious conflict of interest. It would be anomalous
for that standard to apply only in the bankruptcy court and not also in this Court.

See

Winterhalter v. Office of the U.S. Trustee (In re The Harris Agency, LLC), 462 B.R. 514, 522-24
(E.D. Pa. 2011) (affirming bankruptcy court’s disqualification of counsel by same standards
employed by bankruptcy court).

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Thus, the Court concludes that Mr. Burns should not be considered as ever having
represented Appellant. To the extent the docket indicates he is the attorney for Appellant, the
docket will be amended to reflect otherwise. Additionally, Appellant has had no representation
since Mr. Fisher withdrew, and no brief was ever properly filed on Appellant’s behalf.
Consequently, any document filed as “Appellant’s Brief” will be stricken. Finally, because
Appellant did not prosecute this appeal according to the Court’s rules, the appeal will be
dismissed. See Local Rule 404.3 (D. Md. 2014) (upon appellee’s motion, and after time for
response, court may dismiss bankruptcy appeal for noncompliance with Bankruptcy Rule 8018
requiring timely filing of appellant’s brief). A separate order will follow.
DATED this _26th _ day of June, 2015.

BY THE COURT:

_______________/s/___________________
James K. Bredar
United States District Judge

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