White v. Gordon

Filing 43

///ORDER ON APPEAL: The order of the Bankruptcy Court is AFFIRMED and orders further proceedings consistent with this opinion. The clerk shall enter judgment accordingly and close the case. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
June White
v.

Civil No. 15-cv-523-JL
Opinion No. 2016 DNH 174

Olga Gordon
ORDER ON APPEAL
This appeal from an order of the Bankruptcy Court in a
Chapter 7 proceeding delves into the question of when and
whether property held by a trust becomes part of a debtor’s
bankruptcy estate.

June White, the appellant, argues that the

Bankruptcy Court erred in concluding that a certain parcel of
property, which the debtor, Thomas L. Morgenstern, had conveyed
to a trust, and upon which White held a mortgage lien, should be
treated as property of Morgenstern’s bankruptcy estate.

White

argues that the Bankruptcy Court further erred in concluding
that White’s attempts to foreclose on the mortgaged property
after Morgenstern petitioned for bankruptcy violated the
automatic stay imposed by 11 U.S.C. § 362 and awarding
attorneys’ fees to Olga Gordon, the trustee of the Morgenstern’s
bankruptcy estate, under 11 U.S.C. § 105(a).
This court has jurisdiction to hear appeals from “final
judgments, orders, and decrees” of the Bankruptcy Court under
28 U.S.C. § 158(a)(1).

See also L.R. 77.4.

Finding no error in

the Bankruptcy Court’s treatment of the property in question or
its determination that White violated the statutory stay, the
court affirms the Bankruptcy Court’s decision.1
Standard of review
When hearing an appeal from the Bankruptcy Court, this
court applies the same standards of review governing appeals of
civil cases to the appellate courts.

Cf. Groman v. Watman (In

re Watman), 301 F.3d 3, 7 (1st Cir. 2002).

As such, this court

reviews the Bankruptcy Court’s “findings of fact for clear error
and conclusions of law de novo.”

Old Republic Nat’l Title Ins.

Co. v. Levasseur (In re Levasseur), 737 F.3d 814, 817 (1st Cir.
2013).

The Bankruptcy Court’s decision to award damages, costs,

and fees is reviewed for abuse of discretion.

See Prebor v.

Collins (In re I Don't Trust), 143 F.3d 1, 3 (1st Cir. 1998).
Background
Morgenstern acquired title to real property located at
8 Maple Avenue in Rye, New Hampshire, in September 1992.

In

2009, he transferred the property to the Carlear Realty
Revocable Trust (the “Carlear Trust”), and recorded the trust
the same day.

Morgenstern was a 25% beneficiary of the Carlear

Though the court finds no error in the Bankruptcy Court’s award
of sanctions, in light of supplemental filings by White and for
the reasons discussed infra Part III.C, the court also orders
further review of that award.
1

2

Trust and Alexander Sekulic was appointed the trustee.

At the

time the bankruptcy petition was filed, the Carlear Trust
contained only the Maple Avenue property.
In November 2009, the Carlear Trust mortgaged the property
to the appellant, June White, to secure a $40,000 loan.
trust then defaulted on the loan.

The

White sued the Carlear Trust,

Sekulic, and Morgenstern in Rockingham County Superior Court and
obtained authority from that court to conduct a foreclosure sale
of the Maple Avenue property.
Before White could foreclose, Morgenstern filed for
bankruptcy protection on July 8, 2013.2

White then began

attempting to secure title to the Maple Avenue property.
Appearing pro se, she moved the Bankruptcy Court to dismiss
Morgenstern’s bankruptcy petition in December 2013.

She also

engaged in efforts to foreclose on the Maple Avenue property by
recording a series of affidavits in the Rockingham County
Registry of Deeds on February 10, 2014, attempting to show her
possession of the property.3

Then, on March 29, 2014, White

Morgenstern converted his petition for bankruptcy under
Chapter 13 of the Bankruptcy Code to one under Chapter 7 shortly
thereafter.
2

New Hampshire law provides that a mortgagee may foreclose on
mortgaged property by, among other means not implicated here,
“entry into the mortgaged premises under process of law and
continued actual possession thereof for one year.” N.H. Rev.
Stat. Ann. § 479:19, I.
3

3

obtained Sekulic’s signature, as trustee of the Carlear Trust,
on a deed conveying that property to White in exchange for
$50,000.

White also recorded this deed.

attempting to auction the property.

White then began

Sekulic, contesting the

authenticity and validity of that deed and asserting that
Morgenstern’s bankruptcy estate had a continuing interest in the
property, moved the Rockingham County Superior Court to enjoin
the sale, which it did.
Gordon, the trustee of Morgenstern’s bankruptcy estate,
then sought the Bankruptcy Court’s permission to revoke the
Carlear Trust pursuant to New Hampshire law, see N.H. Rev. Stat.
Ann. § 564-B:6-602, which the court granted on July 28, 2014.
Several months afterward, Gordon filed an adversary proceeding
against White in the Bankruptcy Court, seeking a declaratory
judgment that the deed transferring the Maple Avenue property to
White was void and requesting compensatory and punitive damages,
see 11 U.S.C. § 362(k), as well as damages pursuant to 11 U.S.C.
§ 105(a).

After a trial, the Bankruptcy Court found that the

Maple Avenue property constituted “property of the estate,” and
thus that White violated the automatic stay through her several
actions taken in an effort to gain control of that property.
See 11 U.S.C. § 362(a).

The Bankruptcy Court awarded Gordon her

attorneys’ fees and costs in the amount of $29,627.29, see id.
§ 105(a), but rejected her request for damages pursuant to

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§ 362(k).

White, proceeding pro se, has timely appealed the

Bankruptcy Court’s decision of December 24, 2015, and the
subsequent entry of judgment against her.
Analysis
A bankruptcy petition triggers “a stay, applicable to all
entities, of,” among other actions:
the enforcement, against the debtor or against
property of the estate, of a judgment obtained before
the commencement of the [bankruptcy proceeding]; any
act to obtain possession of property of the estate or
of property from the estate or to exercise control
over property of the estate; [and] any act to create,
perfect, or enforce any lien against property of the
estate . . . .
11 U.S.C. § 362(a)(2)-(4).

There is no dispute here that

Morgenstern’s bankruptcy petition, filed under chapter 13 of the
Bankruptcy Code, see 11 U.S.C. § 1301 et seq., triggered the
stay contemplated by § 362(a).

White challenges, instead, three

determinations by the Bankruptcy Court:

(1) that the Maple

Avenue property was property of the estate and, therefore,
subject to the stay’s provisions; (2) that White violated the
stay through non-ministerial attempts to enforce the Superior
Court judgment against and take possession of the Maple Avenue
property; and (3) that those actions warranted sanctions, in the
form of attorneys’ fees, under 11 U.S.C. § 105(a).4
The court need not address in detail the other issues White
raises on appeal. As to her arguments that the Bankruptcy Court
erred in its July 28, 2014 order allowing Gordon to revoke the
4

5

These issues call into question “[t]he bankruptcy court's
interpretation of the relevant statutes,” which “presents a
question of law,” as well as “its application of those statutes
to the facts of this case,” which “presents a mixed question of
law and fact that [this court] review[s] for clear error unless
its analysis was ‘infected by legal error.’”

Prudential Ins.

Co. of Am. v. SW Boston Hotel Venture, LLC (In re SW Boston
Hotel Venture, LLC), 748 F.3d 393, 402 (1st Cir. 2014) (quoting
Winthrop Old Farm Nurseries, Inc. v. New Bedford Inst. for Sav.
(In re Winthrop Old Farm Nurseries, Inc.), 50 F.3d 72, 73 (1st
Cir. 1995)).

The court addresses each of White’s allegations of

error in turn.
A.

Property of the bankruptcy estate

“The commencement of a bankruptcy case creates a debtor's
estate, which is comprised of ‘all legal or equitable interests
of the debtor in property as of the commencement of the case.’”5
Carlear Trust to bring the property into the bankruptcy estate,
White has waived them in light of her failure to timely appeal
that order. See Fed. R. Bankr. 8002(a)(1); In re Abdallah, 778
F.2d 75, 77 (1st Cir. 1985) (“Untimely notice of appeal deprives
the district court of jurisdiction to review the bankruptcy
court’s order.”). Even were White’s appeal timely, it appears
to the court that any error in allowing Gordon to revoke the
Carlear Trust would be harmless because, for the reasons
discussed infra Part III.A.1, the trust need not have actually
been revoked for the Maple Avenue property to be considered
property of the bankruptcy estate.
White takes aim at the Bankruptcy Court’s reliance on Black’s
Law Dictionary to define the term “equitable interest” as used
5

6

NTA, LLC v. Concourse Holding Co., LLC (In re NTA, LLC), 380
F.3d 523, 527–28 (1st Cir. 2004) (quoting 11 U.S.C.
§ 541(a)(1)).

State law defines the contours of a debtor’s

interest in a given property.

See Butner v. United States, 440

U.S. 48, 55 (1979) (“Property interests are created and defined
by state law.”).

“A bankruptcy estate cannot succeed to a

greater interest in property than the debtor held prior to
bankruptcy.”

In re NTA, 380 F.3d at 528.

White’s argument that the Maple Avenue property was not
properly part of Morgenstern’s bankruptcy estate has two facets.
First, she argues that the Maple Avenue property belonged to the
Carlear Trust, not Morgenstern.

Second, White argues that she

possessed the Maple Avenue property because she had power to
foreclose on the property and received a deed to the property
from Sekulic.
1.

Neither argument prevails.
The Carlear Trust

White’s first argument -- that ownership by the Carlear
Trust removed the Maple Avenue property from Morgenstern’s
in the Bankruptcy Code. See Appellant Brief at 15-16; Gordon v.
White (In re Morgenstern), 542 B.R. 650, 655. White conflates
equity in property, which -- as she correctly observes -amounts to “the value of the estate minus any secured claims and
exemptions,” In re Traverse, 753 F.3d 19, 25 (1st Cir. 2014),
with an equitable interest, which is a variety of ownership
right that a person may have in property, cf. Hopkinson v.
Dumas, 42 N.H. 296, 302 (1861) (interest in trust creates
equitable interest in land).

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bankruptcy estate -- fails primarily because of the power that
Morgenstern, as settlor, could exercise over the Carlear Trust.
Under the New Hampshire Trust Code, “[u]nless the terms of a
trust expressly provide that the trust is irrevocable, the
settlor may revoke or amend the trust.”
§ 564-B:6-602.

N.H. Rev. Stat. Ann.

Morgenstern settled the Maple Avenue property on

the Carlear Trust.6

There is no dispute that the Carlear Trust

was revocable and that its provisions were “silent as to the
extent of the settlor’s powers” to revoke the trust.
Morgenstern, 542 B.R. at 656 (emphasis added).

In re

Accordingly,

Morgenstern retained the power to revoke or amend the Carlear
Trust.
White suggests that Morgenstern lacked this power because
the Carlear Trust’s provisions allowed the beneficiaries to
revoke it “at any time by delivering to the Trustee(s) a written
document signed by all the Beneficiaries.”
Brief at 17-18, 22.

See Appellant’s

In doing so, she ignores the following

provision of the New Hampshire Trust Code:
The settlor may revoke or amend a revocable trust[] by
substantial compliance with a method provided in the
terms of the trust[] or by any other method
manifesting clear and convincing evidence of the
Though Sekulic was also a settlor of the Carlear Trust, the
Bankruptcy Court observed no evidence that he contributed to the
Trust and treated Mortgenstern as the sole settlor as a result.
See In re Morgenstern, 542 B.R. at 656 n. 7. White does not
challenge this conclusion.
6

8

settlor’s intent if the terms of the trust do not
provide a method or do not expressly prohibit methods
other than methods provided in the terms of the trust.
N.H. Rev. Stat. Ann. § 564-B:6-602(c).

Here, the trust does

“not expressly prohibit methods other than” the method available
to the beneficiaries and identified by White.

Nor does it

satisfy the condition precedent for disempowering the settlor to
revoke the trust under N.H. Rev. Stat. Ann. § 564-B:6-602 -that is, expressly providing that the trust is irrevocable.

The

provision permitting the beneficiaries to revoke the trust does
not, therefore, abrogate the default rule allowing the settlor
to revoke the trust.
As the Bankruptcy Court observed, when, as here, the debtor
retains broad powers to revoke or amend the trust, bankruptcy
courts in this circuit have held that the trust property becomes
property of the bankruptcy estate.

See, e.g., Marrama v.

Degiacomo (In re Marrama), 316 B.R. 418, 422-23 (B.A.P. 1st Cir.
2004); Beatrice v. Braunstein (In re Beatrice), 296 B.R. 576,
581 (B.A.P. 1st Cir. 2003); Riley v. Tougas (In re Tougas), 338
B.R. 164, 175 (Bankr. D. Mass. 2006); see also 5 Collier on
Bankruptcy § 541.27 (A. Resnick & H. Sommer eds., 16th ed. 2015)
(“If the trust does not have a spendthrift clause . . . every
right of the debtor under the trust becomes property of the
estate.

The same result is reached if, despite the inclusion of

a valid spendthrift clause, the debtor has the power to amend or

9

terminate the trust.”); cf. Marrama v. Citizens Bank of Mass.
(In re Marrama), 430 F.3d 474, 483 (1st Cir. 2005), aff'd sub
nom. Marrama v. Citizens Bank of Mass., 549 U.S. 365 (2007)
(argument that property never became part of bankruptcy estate
where Maine law granted settlor power to revoke trust at any
time was “highly questionable”); Markham v. Fay, 74 F.3d 1347,
1359-60 (1st Cir. 1996) (concluding, by analogy to bankruptcy
law, that federal tax lien against settlor reached trust
property where settlor had power to “alter, amend, or revoke”
the trust, and was also a trustee and beneficiary).

But see

George v. Kitchens by Rice Bros., 665 F.2d 7, 8 (1st Cir. 1981)
(property of revocable trust not subject to settlor’s bankruptcy
estate where Massachusetts law did not recognize power of
revocation as property).
New Hampshire law does not compel a contrary conclusion.
As the Bankruptcy Court further observed, the fact that the
Carlear Trust held the Maple Avenue property would not have
prevented Morgenstern’s creditors from reaching it absent a
bankruptcy filing.

Under the New Hampshire Trust Code,

“[w]hether or not the terms of a trust contain a spendthrift
provision, . . . during the lifetime of the settlor, the
property of a revocable trust is subject to claims of the
settlor’s creditor.”

N.H. Rev. Stat. Ann. § 564-B:5-505(a)(1).

Morgenstern, as settlor of the trust, thus had the power to

10

revoke the trust.

After he petitioned for bankruptcy, the

bankruptcy estate assumed that power.

See 11 U.S.C. § 541(a)(1)

(bankruptcy estate obtains “all legal or equitable interests of
the debtor in property as of the commencement of the case.”); In
re Marrama, 316 B.R. at 422-23.
In light of this, and the suggestion that courts “construe
§ 541 broadly to bring any and all of the debtor’s property
rights within the bankruptcy court’s jurisdiction,” In re
Marrama, 316 B.R. at 422 (citing United States v. Whiting Pools,
Inc., 462 U.S. 198, 205 n. 9 (1983)), this court cannot conclude
that the Bankruptcy Court erred in finding that the Maple Avenue
property, although held by the Carlear Trust, was properly
within the bounds of Morgenstern’s bankruptcy estate.
2.

White’s property

In the alternative, White argues that the Bankruptcy Court
erred in considering the Maple Avenue property as part of the
bankruptcy estate because it belonged to White, not Morgenstern
or the Carlear Trust.

See Appellant’s Brief at 21-22.

She

offers two theories to support her ownership of the property at
the relevant time.

The Bankruptcy Court did not err in finding

neither theory persuasive.
White first contends that she, rather than the Carlear
Trust or Morgenstern, held legal title to the Maple Avenue

11

property during the bankruptcy proceedings because she had
foreclosed on the property.

Under the relevant statutory

provisions, White as mortgagor could take title to the property
“[b]y entry into the mortgaged premises under process of law and
continued actual possession thereof for one year.”
Stat. Ann. § 479:19, I.

N.H. Rev.

White obtained a judgment authorizing

her to foreclose on the mortgaged property on March 1, 2013.

As

the Bankruptcy Court points out, and as White does not dispute,
White could not have taken possession of the property before
that date.

And that judgment alone, without engagement in the

repossession process, did not give White title to the property.
See Walker v. Chessman, 75 N.H. 20, 20 (1908) (“The mortgage
subsisted after the judgment as before, and could only be
foreclosed by the [mortgagor’s] possession continued for a
year.”).

Moreover, even if White had taken possession on

March 1, 2013, she simply could not have had “continued actual
possession” of the property “for one year” before Morgenstern
petitioned for bankruptcy four months later, on July 8, 2013.
Accordingly, White did not hold title to the Maple Avenue
property through foreclosure at the time Morgenstern petitioned
for bankruptcy.
White next argues that she held title to the Maple Avenue
property because Sekulic, the trustee of the Carlear Trust,
conveyed to her a deed to the property.

12

Notably, White obtained

that deed in March 2014, several months after Morgenstern
petitioned for bankruptcy and the automatic stay as to his
estate’s property took effect.

For the reasons discussed more

fully below, the Bankruptcy Court did not err in finding that
White obtained the deed in violation of the stay.
deed was void.

As such, the

Soares v. Brockton Credit Union (In re Soares),

107 F.3d 969, 976 (1st Cir. 1997) (holding that actions taken in
violation of automatic stay are void, not merely voidable).
Thus, White did not hold legal title to the Maple Avenue
property through conveyance from Sekulic.
The Bankruptcy court therefore did not err in considering
the Maple Avenue property as part of Morgenstern’s bankruptcy
estate.
B.

Stay violations

Having concluded that the Bankruptcy Court did not err in
its determinations that the Maple Avenue property constituted
bankruptcy estate property, the court now turns to White’s
contention that her actions with respect to that property did
not violate the automatic stay invoked by 11 U.S.C. § 362(a).
As discussed supra, that stay prohibits “all entities” from:
the enforcement, against the debtor or against
property of the estate, of a judgment obtained before
the commencement of the [bankruptcy proceeding]; any
act to obtain possession of property of the estate or
of property from the estate or to exercise control
over property of the estate; [and] any act to create,

13

perfect, or enforce any lien against property of the
estate . . . .
11 U.S.C. § 362(a)(2)-(4).

Among other actions, the Bankruptcy

Court found that White (1) obtained a deed to the Maple Avenue
property from Sekulic, (2) recorded that deed, and (3) recorded
affidavits “that were presumably aimed at furthering her attempt
to foreclose” on the Maple Avenue property.
542 B.R. at 658.

In re Morgenstern,

The Bankruptcy Court concluded that White

violated the automatic stay through each of these activities.
Id.
White offers four arguments, none more persuasive than the
rest, as to why her actions during the stay did not violate that
stay.

The court addresses each in turn, reviewing the

Bankruptcy Court’s application of the Bankruptcy Code to the
facts for “clear error.”

In re SW Boston Hotel Venture, LLC,

748 F.3d at 402.
First, White leans on her argument, discussed supra Part
III.A.1, that the Maple Avenue property belonged to the Carlear
Trust, and thus White’s actions did not violate the stay as to
actions affecting the debtor’s property.

For the reasons

discussed above, however, the structure of the trust and
Morgenstern’s control thereof led the Bankruptcy Court to
conclude, correctly, that the Maple Avenue property was part of
the bankruptcy estate.

While, as White observes, the automatic

14

stay generally does not protect the property of non-debtors, cf.
Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 979 (1st
Cir. 1995), this is not such a case because Morgenstern, the
debtor, retained an interest in the property of the trust -both as settlor and beneficiary.
Second, White argues that because Sekulic conveyed the deed
to her, White did not violate the stay by receiving it.

On its

face, however, the statute prohibits “any act to obtain
possession of property of the estate or of property from the
estate or to exercise control over property of the estate.”
U.S.C. § 362(a)(3).

11

The court cannot conclude that the

Bankruptcy Court clearly erred in determining that obtaining a
deed to property that is part of the bankruptcy estate
constituted such an act.
White then argues that her actions following receipt of the
deed -- that is, recording the deed and her affidavits with the
Registrar of Deeds -- were ministerial in nature, and thus not
prohibited by the stay.

“Ministerial acts . . . do not fall

within the proscription of the automatic stay.”
107 F.3d at 973–74.

In re Soares,

“A ministerial act is one that is

essentially clerical in nature.”

Id. at 974.

An act is

ministerial when, for example, “an official’s duty is delineated
by, say, a law or a judicial decree with such crystalline
clarity that nothing is left to the exercise of the official’s

15

discretion or judgment, the resultant act is ministerial.”

Id.

White obtained a deed to the Maple Avenue property from Sekulic.
She recorded that deed.

She signed and recorded affidavits

detailing her control of the Maple Avenue Property and collected
affidavits on the same subject from three other individuals
concerning the same.

Even if the act of recording of the deed

and affidavits was merely ministerial, and the court is not
convinced that it was, White made a decision to take those
actions.

“[T]he decision which animated” them “occurred after

the stay was in force,” and accordingly violated the stay’s
provisions.

Id. at 975.

The court cannot conclude that the

Bankruptcy Court clearly erred in deciding as much.
Finally, White appeals to statutory provisions shielding
those who interact with the trustee of a trust in good faith
from liability, see N.H. Rev. Stat. Ann. § 564-A:7.

The

question at issue here is not whether White has exposed herself
to liability in her dealings with Sekulic, but whether she
violated the statutory stay thereby.

This argument is,

therefore, inapposite and unavailing.
C.

Damages under § 105(a)

White also charges the Bankruptcy Court with error in
awarding damages to the Trustee under 11 U.S.C. § 105(a) and the
order permitting the Trustee to set that award off against

16

White’s secured claim.
abuse of discretion.

The court reviews this decision for
See In re I Don't Trust, 143 F.3d at 3.

“A bankruptcy court abuses its discretion if it ignores a
material factor deserving of significant weight, relies upon an
improper factor or makes a serious mistake in weighing proper
factors.”

Howard v. Lexington Invs., Inc., 284 F.3d 320, 323

(1st Cir. 2002) (internal quotations omitted).

The court finds

no such abuse here.
Section 105(a) of the Bankruptcy Code allows the Bankruptcy
Court to “issue any order, process, or judgment that is
necessary or appropriate to carry out the provisions of” the
Bankruptcy Code.

11 U.S.C. § 105(a).

The Bankruptcy Court has

broad discretion under this provision to award fees for civil
contempt of the Bankruptcy Code’s automatic stay.

See

Ameriquest Mortg. Co. v. Nosek (In re Nosek), 544 F.3d 34, 43
(1st Cir. 2008) (Section 105(a) “provides the bankruptcy court
broad authority to exercise its equitable powers -- where
necessary or appropriate -- to facilitate the implementation of
other Bankruptcy Code provisions”); Spookyworld, Inc. v. Town of
Berlin (In re Spookyworld), 346 F.3d 1, 8 (1st Cir. 2003)
(“Prior to the enactment of section 362(h) in 1984, contempt
orders issued under section 105(a), including awards of damages,
were routinely used to punish violations of the automatic
stay.”).

17

This court cannot conclude that the Bankruptcy Court’s
invocation of its broad discretion under § 105(a) to sanction
White amounts to abuse of that discretion.

The Bankruptcy Court

found, as it must, that White had notice of the automatic stay
and intended the actions which constituted the violation
thereof.

Lumb v. Cimenian (In re Lumb), 401 B.R. 1, 6 (B.A.P.

1st Cir. 2009) (citing Pratt v. Gen. Motors Acceptance Corp. (In
re Pratt), 462 F.3d 14, 17 (1st Cir. 2006)).

It ordered White

to pay Gordon’s attorneys’ fees, in the amount of $29,627.29,
and allowed that award to be set off against the value of
White’s secured claim.

White’s undeveloped and unsupported

assertion that the Trustee litigated this action in “bad faith”
by failing to settle it sooner, and thus is undeserving of such
fees, see Appellant Brief at 28, in no way undermines the
Bankruptcy Court’s decision.

To the contrary, the Bankruptcy

Court judiciously analyzed amount of fees requested by the
Trustee and discounted the award by two-thirds upon finding the
requested award not entirely justified.7
In the time since White filed this appeal, however, she has
notified this court that Gordon has abandoned the Maple Avenue

White also argues that the Bankruptcy Court erred in granting
the Trustee’s request to set this award off against White’s
claims against the estate, on the grounds that she owes no money
to the estate. The court’s affirmance of the Bankruptcy Court’s
sanctions decision likewise resolves that issue.
7

18

property as part of the bankruptcy estate, leaving White to
recover the value of her mortgage interest in the property
through foreclosure proceedings.

See Notice of Abandonment of

Property (document no. 41).

Gordon responded.

See Appellee’s

Response (document no. 42).

If true, White’s allegations may

raise questions as to Gordon’s handling of the bankruptcy estate
and the litigation below in light of White’s argument that
Gordon ought have abandoned the property at the outset.
Appellant’s Brief at 22-23.

See

It also raises questions about the

propriety of offsetting the sanctions award against White’s
claims against the estate in a situation wherein White may no
longer have such claims.
This court concludes that these issues would benefit from
an evaluation by the Bankruptcy Court, with its greater
familiarity with the parties and their course of dealing, and
accordingly orders further review of whether an offset award of
sanctions remains appropriate.

The Bankruptcy Court is free to

take more evidence if deemed necessary to carry out this
mandate.
Conclusion
For the reasons set forth above, this court AFFIRMS the
order of the Bankruptcy Court and orders further proceedings

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consistent with this opinion.

The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: September 27, 2016
cc:

June White, pro se
James F. Radke, Esq
Olga L. Gordon, Esq.
Geraldine L. Karonis, US Trustee

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