Greektown Holdings, LLC

Filing 11

OPINION AND ORDER denying 1 Motion for Leave to File Bankruptcy Appeal. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
In re:
GREEKTOWN HOLDINGS, LLC, et al.,

United States District Court
Case No. 14-14271
Judge Paul D. Borman

Debtors,
__________________________________/
BUCHWALD CAPITAL ADVISORS, LLC,
solely in its capacity as Litigation Trustee for
the Greektown Litigation Trust,
Plaintiff,

Bankr. Case No. 08-53104
Chapter 11
Judge Walter Shapero

v.
DIMITRIOS (“JIM”) PAPAS, VIOLA PAPAS,
TED GATZAROS, MARIA GATZAROS,
BARDEN DEVELOPMENT, INC., LAC VIEUX
DESERT BAND OF LAKE SUPERIOR
CHIPPEWA INDIANS, SAULT STE. MARIE
TRIBE OF CHIPPEWA INDIANS, KEWADIN
CASINOS GAMING AUTHORITY, and
BARDEN NEVADA GAMING, LLC,

Adv. Pro. No. 10-05712

Defendants.
______________________________________/
OPINION AND ORDER (1) DENYING THE PAPAS AND GATZAROS DEFENDANTS’
APPEAL AS OF RIGHT FROM BANKRUPTCY JUDGE WALTER SHAPERO’S AUGUST
13, 2014 ORDER DENYING THEIR MOTION FOR SUMMARY JUDGMENT AND
(2) DENYING THEIR MOTION FOR LEAVE TO APPEAL (ECF NO. 1)
Before the Court is Defendants Dimitrios and Viola Papas (the “Papas” Defendants) and Ted
and Maria Gatzaros’s (the “Gatzaros” Defendants) Motion for Leave to Appeal Bankruptcy Judge
Walter Shapero’s August 13, 2014 Order Denying their Motion for Summary Judgment in
Adversary Proceeding No. 10-05712 (ECF No. 473, Bankr. Adv. Pro. 10-05712) (hereinafter “the

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Summary Judgment Order”). (ECF No. 1, Motion for Leave to Appeal.) Also before the Court is
the related issue of whether the Papas and Gatzaros Defendants may appeal the Summary Judgment
Order as of right.1 Plaintiff has filed a response to the Motion for Leave to Appeal and a
Supplemental Brief on the issue of an appeal as of right. (ECF Nos. 3, 9.) The Papas and Gatzaros
Defendants have filed a reply brief in support of their Motion for Leave to Appeal and a
Supplemental Brief on the issue of an appeal as of right. (ECF Nos. 5, 8.) The Court has determined
that oral argument will not assist the Court in determining the merits of the issues presented and
therefore will decide the matter on the briefs submitted and without hearing. See E.D. Mich. L.R.
7.1(f)(2). For the reasons that follow, the Court determines that Judge Shapero’s Summary
Judgment Order is not appealable as of right and DENIES the Papas and Gatzaros Defendants’
Motion for Leave to Appeal the Summary Judgment Order.

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On August 27, 2014, the Papas and Gatzaros Defendants filed a motion for reconsideration and
also a Notice of Appeal of Judge Shapero’s Order denying their motion for summary judgment.
(ECF Nos. 484, 488, Bankr. Adv. Pro. No. 10-05712.) The August 13, 2014 Order was entered on
September 16, 2014. (ECF No. 511 Bankr. Adv. Pro. No. 10-05712.) On September 26, 2014, the
Plaintiff Litigation Trustee filed a Motion to Dismiss the Appeal in the Bankruptcy Court. (ECF No.
521, Bankr. Adv. Pro. 10-05712.) On October 7, 2014, Judge Shapero entered an Order Denying
the Motion for Reconsideration. (ECF No. 536, Bankr. Adv. Pro. 10-05712.) When the Papas and
Gatzaros Defendants filed their Motion for Leave to Appeal in this Court, initiating this action on
November 5, 2014, it was decided at a status conference held before this Court on November 17,
2014 that the Litigation Trustee would withdraw its motion to dismiss the appeal that was then
pending before Judge Shapero. The issues raised in that motion, and the responses of the Papas and
Gatzaros Defendants to that motion, have now been brought before this Court in Supplemental
Briefing filed by Defendants and Plaintiff on December 12 and December 19, 2014, respectively.
(ECF Nos. 8, 9.) Thus, the Court addresses both whether Defendants may appeal Judge Shapero’s
summary judgment Order as of right and, if not, whether the Court should exercise its discretion to
grant their motion for leave to appeal.
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I.

INTRODUCTION
This action is one of several that have come before this Court in connection with the

Greektown Bankruptcy (Bankr. Case No. 08-53104) Adversary Proceeding No. 10-05712, in which
the Litigation Trustee seeks to recover, under 11 U.S.C. §§ 544 and 550 and the Michigan Uniform
Fraudulent Transfer Act, Mich. Comp. Laws § 566.31 et seq. (“MUFTA”), $155 million in transfers
made to the Papas and Gatzaros Defendants in 2005 by the insolvent debtor Greektown Holdings,
LLC. In the MUFTA proceeding, the Litigation Trustee asserts that in 2005, Greektown Holdings,
LLC sold notes and raised $185 million in cash and then transferred $177 million of that cash to
various third-parties, including the Papas and Gatzaros Defendants, for no consideration in order to
satisfy pre-existing debts of the owners of Greektown Holdings, LLC.
In this action, the Papas and Gatzaros Defendants seek to appeal Judge Shapero’s denial of
one of three motions for summary judgment they have filed in the Bankruptcy Court; the other two
motions remain pending but unresolved in the Bankruptcy Court. In the underlying summary
judgment motion that is the subject of this appeal, the Papas and Gatzaros Defendants argued that
the Litigation Trustee’s action against them under MUFTA must be dismissed because the
underlying debt transaction challenged in the MUFTA proceeding was approved by the Michigan
Gaming Control Board (“MGCB”) in 2005:
Put simply, Plaintiff cannot use MUFTA to avoid and undo the very transaction that
the MGCB approved in 2005 under the [Michigan] Gaming [Control] Act [Mich.
Comp. Laws § 432.201, et seq.]. The Gaming Act preempts the use of MUFTA to
second guess and undermine the MGCB’s approval of the 2005 Debt Transaction,
an approval that was expressly and exclusively entrusted to the MGCB by the
Gaming Act.
ECF No. 1, Motion for Leave to Appeal 2, PgID 15 (alterations added).
Judge Shapero rejected the Papas and Gatzaros Defendants’ argument and concluded that
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the MGCB’s approval of the 2005 debt transaction under the Gaming Act does not preempt the
Litigation Trustee’s MUFTA claims and does not preclude the MUFTA action. Judge Shapero
denied the motion for summary judgment. The Papas and Gatzaros Defendants now seek to appeal
that ruling either as final order appealable as of right or alternatively seek leave to appeal from an
interlocutory order. For the reasons that follow, the Court concludes that the Order denying the
Motion for Summary Judgment is not a final Order appealable as of right and DENIES the Motion
for Leave to Appeal.
II.

ANALYSIS
A.

Judge Shapero’s Order Denying Summary Judgment is Not A Final Order and
Not Apppealable as of Right

This Court has jurisdiction to hear an appeal from a final order of the bankruptcy court under
28 U.S.C. § 158(1), which provides that district courts “shall have jurisdiction to hear appeals (1)
from final judgments, orders, and decrees” of the bankruptcy courts. “A final order ‘ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.’” In re
Wicheff, 215 B.R. 839, 840 (6th Cir. BAP 1998) (citing Belfance v. Bushey (In re Bushey), 210 B.R.
95, 98 (6th Cir. BAP 1997)). While the Sixth Circuit has recognized that the concept of finality is
to be applied more pragmatically in the context of an overall bankruptcy proceeding, allowing for
orders that dispose of “discrete issues” to be appealed immediately, see In re Dow Corning, 86 F.3d
482, 488 (6th Cir. 1996), the Papas and Gatzaros Defendants fail to demonstrate why this relaxed
approach should apply in the context of an order denying summary judgment within an adversary
proceeding which does not resolve any discrete issue and does not end the litigation on the merits:
The test for finality in the bankruptcy context has often been stated
as requiring a showing that the challenged order finally dispose[s] of
discrete disputes within the larger case. . . . [The] test has also been
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said to require a showing that the order ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.
In re Gray, 447 B.R. 524, 528 (E.D. Mich. 2011) (internal quotation marks and citations omitted)
(first alteration in original); In re Campbell, No. 10-12630, 2011 WL 768644, at *1 (E.D. Mich. Feb.
28, 2011) (noting that “interlocutory bankruptcy appeals should be the exception, rather than the
rule,” and holding that bankruptcy court’s order denying summary judgment was not a final order
and could only be appealed with leave of court) (alteration omitted). See also In re Saber, 264 F.3d
1317, 1324 (11th Cir. 2001) (“A final judgment gives one party what they want - the plaintiff the
relief sought or the defendant receives a judgment ending the controversy.”)
Judge Shapero’s Summary Judgment Order did not grant Plaintiff the relief it seeks in the
MUFTA Adversary Proceeding or award judgment to any of the Defendants, ending the controversy
and leaving “nothing for the bankruptcy to do but execute the judgment.” In re Gray, 447 B.R. at
528. The Summary Judgment Order does not declare a winner or a loser in this Adversary
Proceeding - it merely denies the Papas and Gatzaros Defendants an early victory on one of at least
three theories under which they are seeking to have the MUFTA claims against them dismissed.
Judge Shapero’s Summary Judgment Order, which Defendants do not dispute will be reviewable
on appeal, is a not a final order and is not appealable as of right to this Court.2

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The Court also rejects the Papas and Gatzaros Defendants’ argument that Judge Shapero’s Order
denying summary judgment is reviewable as a collateral order under Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541 (1949). Notwithstanding their efforts to compare themselves to an Indian
Tribe entitled to absolute immunity from suit, the Papas and Gatzaros Defendants have failed to
establish that Judge Shapero’s Order denying their motion for summary judgment conclusively
determines an important disputed question completely separate from the merits of the MUFTA
action that is also effectively unreviewable on appeal from a final judgment. “The Supreme Court
has expressly declined to find that the trouble and costs associated with unnecessary litigation satisfy
the third requirement of the collateral order test.” Beers Const. Co. v. Pikeville United Methodist
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B.

The Court Declines to Exercise its Discretion to Grant Leave to Appeal the
Interlocutory Summary Judgment Order

This Court may in its discretion permit an interlocutory appeal of an order of the bankruptcy
court but such discretion should be exercised sparingly:
District courts may hear appeals of interlocutory orders from the bankruptcy courts,
with leave of the court. 28 U.S.C. § 158(a)(3). The discretion of the district court
should be used sparingly, “since interlocutory bankruptcy appeals should be the
exception, rather than the rule.” United States Trustee v. PHM Credit Corp. (In re
PHM Credit Corp.), 99 B.R. 762, 767 (E.D. Mich. 1989). Since section 158(a)
“contains no criteria to guide the exercise of this discretion, district courts have
looked to circuit court standards governing interlocutory appeals in 28 U.S.C. §
1292(b).” Id. The Sixth Circuit has required [the following] elements in order for a
district court to permit an appeal of an interlocutory order:
This court in its discretion may permit an appeal to be taken from an
order certified for interlocutory appeal if (1) the order involves a
controlling question of law, (2) a substantial ground for difference of
opinion exists regarding the correctness of the decision, and (3) an
immediate appeal may materially advance the ultimate termination
of the litigation. Review under § 1292(b) is granted sparingly and
only in exceptional cases.
In re A.P. Liquidating Co., 350 B.R. 752, 755 (E.D. Mich. 2006) (quoting West Tenn. Chapter of
Associated Builders & Contractors, Inc. v. City of Memphis (In re City of Memphis), 293 F.3d 345,
350 (6th Cir. 2002)) (alteration added). “The burden is on the appellant to establish exceptional
circumstances that warrant review of an interlocutory order.” Id.
The Papas and Gatzaros Defendants have failed to establish that exceptional circumstances
exist here that warrant interlocutory review of Judge Shapero’s order denying their motion for
summary judgment. They have failed to demonstrate that substantial grounds for a difference of
opinion exist as to the correct legal standard to be applied in resolving their claim that the “decision

Hosp. of Kentucky, Inc., 129 F. App’x 266, 270 (6th Cir. 2005) (citing Lauro Lines S.R.L. v.
Chasser, 490 U.S. 495, 498-99 (1989)).
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by the MGCB affirming the 2005 Debt Transaction preempts a MUFTA claim.” (ECF No. 1, Mot.
for Lv. 18.) In support of their argument that there is “genuine doubt as to the correct legal standard”
to be applied in analyzing the issue, Defendants rely largely on the very cases that Judge Shapero
discussed (and distinguished) in his Summary Judgment Order. Compare Defs.’ Mot. for Lv. 15-16
with Summary Judgment Order at 14-15, discussing Kraft v. Detroit Entmt, LLC, 261 Mich. App.
534 (2004) and McEntee v. Incredible Technologies, Inc., No. 263818, 2006 WL 659347 (Mich. Ct.
App. March 16, 2006).
Beyond Kraft and McEntee, Defendants cite case law standing for the unremarkable
proposition that review of certain administrative decisions is limited by statute under Michigan law,
completely sidestepping Judge Shapero’s lengthy discussion regarding the administrative appeal
process as it relates to the MGCB’s 2005 approval of the Debt Transactions and his ultimate ruling
that an appeal to the MGCB was not Plaintiff’s sole remedy in this instance. (Summary Judgment
Order 25-27.) Thus, there appears to be no real controversy at all about the correct legal standard
to be applied. The controversy arises over the application of those legal standards, and not over the
correct legal standards to be applied. See In re ASC Inc., 386 B.R. 187, 197-98 (E.D. Mich. 2008)
(finding that the difference of opinion prong had not been met where the parties disagreed over
whether the controlling test had been satisfied); Moran v. Official Committee of Administrative
Claimants, No. 05CV2285, 2006 WL 3253128, at *4 (N.D. Ohio Nov. 8, 2006) (noting that the
substantial ground for difference of opinion standard “requires that there be a difference of opinion
regarding the law, not just a difference of opinion as to how the law is applied”).
Furthermore, the Court is unpersuaded by Defendants’ effort to manufacture a substantial
ground for difference of opinion through their assertion that Judge Shapero answered a larger

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question than the one they put before him and failed to address the issue they did present, thereby
somehow applying an “incorrect legal standard.” Defendants assert that:
The issue is not whether the Gaming Act constitutes a wholesale preemption of
MUFTA. The Papas and Gatzaros Defendants never argued for such a far-reaching
determination, nor did they need to make such an argument to prevail. Instead, the
Papas and Gatzaros Defendants only argued that the MGCB’s approval of a debt
transaction, under the exclusive authority of the Gaming Act, and following a
detailed review and analysis of the transaction, preempts a subsequent challenge of
the debt transaction under MUFTA. Instead, any challenge to the MGCB’s approval
of the debt transaction should have been made in accordance with the proper
procedure for review of administrative decisions, which Plaintiff did not do.
ECF No. 1, Mot. for Lv. 13. In fact, Judge Shapero addressed each of these “arguments” in his
holdings (1) that MUFTA is not “inconsistent with Gaming Act or with the MGCB’s Order, either
on their face or as-applied to this case,” (Summary Judgment Order at 25) and (2) that an
administrative appeal was not the sole appropriate avenue of relief for a challenge to the alleged
fraudulent transfers in 2005 to the Papas and Gatzaros Defendants (Summary Judgment Order 2628). The Papas and Gatzaros Defendants disagree with Judge Shapero’s resolution of these issues
but have not identified a single legal precedent that was considered by Judge Shapero that should
not have been or controlling legal authority that should have been considered by him, but was not.
Finally, the Papas and Gatzaros Defendants argue that, “at a minimum,” the Court should
grant leave to appeal to “correct and/or clarify the Bankruptcy Court’s misstatement of the law
regarding the insolvency analysis to be conducted under MUFTA.” (ECF No. 1, Mot. for Lv. 19.)
Judge Shapero’s statement regarding the significance of “subsequent events” to the analysis of
whether a MUFTA action would be inconsistent with the Gaming Act was mentioned in dicta as part
of his third ground in support of his ultimate conclusion that there was no inconsistency between the
two statutes and was not necessary to his holding. (Summary Judgment Order at 24-25.) See U.S.

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v. Stevenson, 676 F.3d 557, 561-62 (6th Cir. 2012) (suggesting that language in a judicial opinion
that is not necessary to the holding is dictum). Moreover, to the extent that the Papas and Gatzaros
Defendants fear that these statements portend the introduction of inadmissible evidence at trial, this
concern likely can be addressed through further motion practice prior to trial. It need not be
addressed by this Court at this time on interlocutory review.
III.

CONCLUSION
For the foregoing reasons, the Court concludes (1) that Judge Shapero’s Order denying the

Papas and Gatzaros Defendants’ Motion for Summary Judgment is not a final order and not
appealable as of right and (2) DENIES the Papas and Gatzaros Defendants Motion for Leave to
Appeal (ECF No. 1). Accordingly, this action is DISMISSED.
IT IS SO ORDERED.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: January 22, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on January 22, 2015.

s/Deborah Tofil
Case Manager

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