Afsar v. RJRE Investments, LLC

Filing 14

MEMORANDUM OPINION AND ORDER AFFIRMING the Bankruptcy Court's Order denying Appellant Nurul Afsar's Motion to Reconsider the Court's Order Terminating Automatic Stay and Imposing an Equitable Servitude; directing that the Clerk SHALL CLOSE the case and directing that Afsar SHALL SHOW CAUSE why sanctions would be inappropriate under Fed.R.Bankr.P. 8020(a) within 14 days. Signed by Judge Paul W. Grimm on 3/20/2017. (kns, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division

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NURUL AFSAR and

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Appellants,

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Case No.: PWG-16-3024

v.

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RJRE INVESTMENTS, LLC,

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Appellee.

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MEMORANDUM OPINION AND ORDER
Appellant-Debtor Nurul Afsar1 appeals the bankruptcy court's Order that terminated an
automatic stay against eviction proceedings on property formerly owned by Afsar and that
imposed an equitable servitude on the property.
ECF NO.9;
necessary.

Appellee's

The appeal is fully briefed.

Br., ECF No. 12; Appellant's

See Fed. R. Bankr. P. 8019(b).

Appellant's Br.,

Reply, ECF No. 13.

No hearing is

Because Afsar's bankruptcy case remains open;

because the Order that is the subject of this Appeal is unrelated to another Order that Afsar
previously

appealed; and because the matter is moot, I will affirm the bankruptcy court's

decision.
Background
On March 23,2016, Appellant-Debtor Nurul Afsar filed for Chapter 13 bankruptcy in the

u.s.

Bankruptcy Court for the District of Maryland without representation.

Bankruptcy Court

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I Nasrin Akter is named as an Appellant in the Notice of Appeal, ECF NO.1, but she is not a
Debtor in the underlying bankruptcy case, Bankruptcy Court Docket, ECF NO.4-50.
Accordingly, this Memorandum Opinion and Order will refer to Afsar as the only Appellant in
the Appeal.

Docket No.1,

ECF NO.4-50.

The bankruptcy court declined to confirm Afar's proposed

Chapter 13 Plan after he failed to appear at a scheduled Confirmation Hearing. Order Denying
Confirmation of Chapter 13 Plan Without Leave to Amend, ECF No. 4-18. Shortly thereafter,
attorney Kos N. Johns entered an appearance on behalf of Afsar, Notice of Appearance, ECF No.
4-20, and filed a Motion to Reconsider the court's denial of confirmation.

Mot Reconsider, ECF

No. 4-21. After reviewing the filings, the court denied Afsar's Motion on June 28,2017.

Order

Denying Mot. Reconsider, ECF No. 4-6. Afsar appealed the decision, ECF No. 4-30, which I
affirm in a separate Memorandum Opinion and Order issued today, see Afsar v. Grigsby, No.
PWG-16-2552 (D. Md.).
On July 21, 2016, Appellee RJRE Investments, LLC ("RJRE") filed a Motion to Obtain
Relief.

RJRE Mot., ECF No. 4-34.

RJRE sought to evict Afsar from property to which it

obtained a deed in a 2014 foreclosure sale. Id. ~~ 2-3.
Afsar obtained an automatic stay pursuant to 11 U.S.C.

By filing for Chapter 13 bankruptcy,

S 362 that

prevented RJRE from evicting

Afsar and his spouse from the property. Id. ~ 9. RJRE requested a termination of the automatic
stay and the imposition of an equitable servitude to prevent any further bankruptcy filings by
Afsar or his spouse from resulting in further automatic stays. Id. Prayer for Relief ~~ 1-2. The
bankruptcy court granted RJRE's Motion, Order Terminating Automatic Stay and Imposing an
Equitable Servitude, ECF No. 4-42, which Afsar appealed to this Court, Notice of Appeal, ECF
No.1.
Standard of Review
The district court reviews a bankruptcy court's findings of fact for clear error and
conclusions of law de novo. In re Dornier Aviation (N. Am.), Inc., 453 F.3d 225, 231 (4th Cir.
2006).

"With respect to the bankruptcy court's application of the law to the facts, the district

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court reviews for abuse of discretion."

In re Rood, No. DKC-12-1623, 2013 WL 55650, at *2

(D. Md. Jan. 2, 2013).
Discussion
Appellate Jurisdiction
Afsar argues that the bankruptcy court lacked jurisdiction to terminate the automatic stay
or to impose an equitable servitude because it had already dismissed the bankruptcy case and
because the appeal of the court's Order denying Afsar's Motion for Reconsideration vitiated the
court's jurisdiction.
According

Appellant's Br. 2-3.
to Afsar, the court dismissed the case when it denied his Motion to

Reconsider.

Id. at 2.

confirmation

of Afsar's proposed Chapter 13 plan, which did not dismiss the case.

But the Motion to Reconsider addressed the Court's Order denying
Order

Denying Confirmation of Chapter 13 Plan Without Leave to Amend; Mot. Reconsider, ECF No.
4-21. The underlying bankruptcy case remains open. See Bankruptcy Court Docket. Of course,
if Afsar were correct, and the bankruptcy case had been dismissed, then the automatic stay would
have already been lifted, because an automatic stay terminates upon the closure or dismissal of
the bankruptcy case. 11 U.S.C.

S 362(c)(2);

see also Bullard v. Blue Hills Bank, 135 S. Ct. 1686,

1692-93 (noting that "when confirmation is denied and the case is dismissed as a result ...
[d]ismissallifts
"persist").

the automatic stay" but that denial without dismissal causes the automatic stay to

In other words, if Afsar's characterization of the bankruptcy court's rulings were

correct, there would have been no need for RJRE's Motion for Relief and the resulting Order that
he now challenges.
Afsar is also incorrect that his appeal of the bankruptcy court's order denying his Motion
for Reconsideration

prohibited the court from granting RJRE the relief at issue here. "[T]he

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filing of a notice of appeal divests a bankruptcy court of its 'control over those aspects of the
case involved in the appeaL'" In re Howes, No. ELH-16-840, 2016 WL 7188444, at *10 (D. Md.
Dec. 12, 2016) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per
curiam)). But "when a notice of appeal has been filed in a bankruptcy case, the bankruptcy court
retains jurisdiction to address elements of the bankruptcy proceeding that are not the subject of
the appeal." Id. (quoting Transtexas Gas Corp., 303 F.3d 571, 580 n.2 (5th Cir. 2002)). Afsar's
appeal concerned whether the bankruptcy court should have confirmed his Chapter 13 Plan. See
Order Denying Confirmation of Chapter 13 Plan Without Leave to Amend; Mot. Reconsider;
Order Denying Mot. Reconsider.

RJRE's Motion for Relief dealt not with the substance of

Afsar's bankruptcy case, but only with an automatic stay instated during the pendency of the
bankruptcy case that affected collateral legal proceedings.

See RJRE Mot.

Afsar's appeal

concerning the bankruptcy court's denial of confirmation did not strip the court of authority to
grant RJRE relief from the automatic stay and from further attempts by Afsar to forestall eviction
proceedings.
In any event, Afsar's appeal is now moot because RJRE is apparently now in physical
possession of the property formerly owned by Afsar. Appellee's Br. 7. There would be little
utility in reinstating a stay meant to prevent legal action that has already transpired.
Sanctions
RJRE also requests that I consider imposing sanctions in this case.

Appellee's Br. 7.

Fed. R. Bankr. P. 8020(a) authorizes the district court to award damages to the appellee in an
appeal the court deems "frivolous" after providing the appellee with notice and an opportunity to
respond.

Given the lack of legal support for this appeal, I will order Afsar to show cause why

sanctions would be inappropriate.

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ORDER
Accordingly, for the reasons stated in this Memorandum Opinion and Order, it is this~
day of March, 2017, hereby ORDERED that:
1. The bankruptcy court's Order denying Appellant Nuru1 Afsar's Motion to Reconsider
the court's Order Terminating Automatic Stay and Imposing an Equitable Servitude,
ECF No. 4-42, IS AFFIRMED;
2. The Clerk SHALL CLOSE the case;
3. Within fourteen (14) days of this Order, Afsar

LL SHOW CAUSE why

sanctions would be inappropriate under Fed. R. Ba

Paul W. Grimm
United States District Judge
jIb

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