Mergenthaler v. Osekavage et al

Filing 13

MEMORANDUM AND ORDER - For the foregoing reasons, this appeal is DISMISSED. In light of the Court's determination that this appeal is without merit, the Clerk of the Court is directed to TERMINATE AS MOOT any pending motions. The Clerk of the Court is further directed to mail a copy of this Order to the pro se Appellant and mark the case CLOSED. U.S. Bankruptcy Court EDNY, 8-15-72040-reg. So Ordered by Judge Joanna Seybert on 1/17/2018. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
ROSEMARY IDA MERGENTHALER,
Appellant,

MEMORANDUM & ORDER
16-CV-2466(JS)

-against–
DEAN OSEKAVAGE, R. KENNETH BARNARD,
and UNITED STATES TRUSTEE,
Appellees.
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SEYBERT, District Judge:
Currently pending before the Court is an appeal filed by
Rosemary Ida Mergenthaler (”Appellant”) from two orders issued by
Judge Robert E. Grossman in her Chapter 7 bankruptcy proceeding,
which was commenced on May 11, 2015.
15-72040.)

(See In re Mergenthaler, No.

On May 13, 2016, Appellant filed a Notice of Appeal in

this Court seeking review of: (1) an order denying Appellant’s
motion seeking the return of a $180,000 asset, entered on May 3,
2016 (the ”May 3, 2016 Order”); and (2) an order granting creditor
and

Appellee

Dean

Osekavage’s

(”Osekavage”)

motion

to

enjoin

Appellant from filing additional motions or requests for relief
without written permission from the Bankruptcy Court, entered on
May 5, 2016 (the ”Filing Injunction”).
No.

15-72040,

May

3,

2016

Injunction, Docket Entry 165.)

Order,

(See In re Mergenthaler,

Docket

Entry

164;

Filing

Initially, Appellant failed to file a brief as required
by Federal Rule of Bankruptcy Procedure 8018; however, after she
was notified that the appeal would be dismissed, she filed her
brief on July 27, 2017.
Trustee

R.

Kenneth

(Appellant’s Br., Docket Entry 6.)

Barnard

(”Barnard”)

filed

his

brief

on

August 10, 2017, and Osekavage filed a brief adopting Barnard’s
arguments on August 22, 2017.

(Barnard Br., Docket Entry 7;

Osekavage Br., Docket Entry 8.)

Appellant filed a reply brief on

August 21, 2017.

(Appellant’s Reply, Docket Entry 9.)

The tactics employed by Appellant and her husband, Peter
Mergenthaler, are well known to this Court.

Over the last two

years, they filed ten bankruptcy appeals before this Court in an
effort to prevent their former residence, located at 3 Wood Edge
Court, Water Mill, New York (the “Property”) from being sold to
satisfy a lien held by Osekavage.1

The Court issued several

opinions addressing the appeals, each time finding the arguments
to be meritless.

See, e.g., Mergenthaler v. Barnard, No. 15-CV-

05078, 2016 WL 3080808, at *1 (E.D.N.Y. May 27, 2016); Mergenthaler
v. Thaler, No. 15-CV-2034, Docket Entries 9, 12, (E.D.N.Y April 29,
2015).

On September 21, 2016, this Court barred Appellant from

The actions filed by the Mergenthalers bear the following case
numbers: 15-CV-2031, 15-CV-2032, 15-CV-2033, 15-CV-2034, 15-CV5078, 15-CV-7301, 16-CV-1113, 16-CV-2466, 16-CV-4390, and 17-CV0615. Based on Barnard’s representations, it appears the sale
of the Property has closed. (Barnard Br. at 3.)
1

2

“filing any additional cases, motions, or appeals concerning the
assets in her bankruptcy estate before this Court without first
obtaining written permission from the Court.”

Mergenthaler v.

Barnard, Nos. 16-CV-4390, 15-CV-5078, 2016 WL 5173261, at *2
(E.D.N.Y. Sept. 21, 2016).
DISCUSSION
I.

Legal Standard
On appeal, this Court reviews the Bankruptcy Court’s

“legal conclusions de novo and its factual findings for clear
error.”

Townsend v. Ganci, 566 B.R. 129, 133 (E.D.N.Y. 2017).

Factual findings are clearly erroneous when, “after reviewing the
evidence as a whole, ‘the reviewing court is left with the definite
and firm conviction that a mistake has been committed.’”

In re

Thakur, 498 B.R. 410, 419 (S.D.N.Y. 2013) (quoting In re AMR Corp.,
490 B.R. 470, 475 (S.D.N.Y. 2013)).

The district court reviews

mixed questions of law and fact de novo.
II.

Id.

Appeal of the May 3, 2016 Order
On April 5, 2016, Appellant filed a motion seeking the

return of $180,000 she turned over to the Trustee on March 24,
2015.

(In re Mergenthaler, No. 15-72040, Appellant’s Mot., Docket

Entry 146.)

Judge Grossman denied the motion on May 3, 2016.

(See, Docket Entry 164.)
In her brief, Appellant fails to address the May 3, 2016
Order.

Instead, she focuses on why the Bankruptcy Court’s “order
3

enjoining appellant from making further motions or appeals should
be reversed” and why the Bankruptcy Court’s “order overruling
appellant’s opposition to any order of the court authorizing
Trustee Barnard to pay $2,096,976.36 to Dean Osekavage must be
reversed.”2

(Appellant’s Br. at 12, 13.)

Further, as Barnard

points out, she failed to attach a copy of the May 3, 2016 Order
to the Notice of Appeal as required by Federal Rule of Bankruptcy
Procedure 8003(3).

See FED. R. BANKR. P. 8003(3) (“The notice of

appeal must . . . be accompanied by the judgment, order, or decree,
or the part of it, being appealed.”).

In light of Appellant’s

failure to raise any ground for vacating the Order, the appeal as
to the May 3, 2016 Order is DISMISSED.
III. Appeal of the Filing Injunction
On April 14, 2016, Osekavage filed a motion to enjoin
Appellant from “making any further motions and/or filings and/or
proceedings

in

this

Court,

without

first

obtaining

written

permission from this Court . . . related to . . . 3 Wood Edge
Court, Water Mill, NY . . . and/or any and all attorneys and court
personnel connected to proceedings concerning the Premises.”

(In

re Mergenthaler, No. 15-72040, Not. of Mot., Docket Entry 149-1,
at 1-2.)

Judge Grossman granted the motion during a hearing on

She also alleges a “feloneous conspiracy and/or criminal
collusion of Trustee Barnard and Creditor Osekavage and Receiver
Cuthbertson and Judge Grossman to convert about $3,000,000.00 of
debtor’s assets.” (Appellant’s Br. at 9.)
2

4

May 2, 2016, and endorsed the Filing Injunction on May 5, 2016.
(See In re Mergenthaler, No. 15-72040, Electronic Entry, May 2,
2016; Filing Injunction.)

Appellant maintains that the Filing

Injunction should be vacated because it violates her “rights to
due process and to redress [her] grievances in a court of law.”
(Appellant’s Br. at 12.)
When deciding whether a filing injunction is warranted,
a court should consider “‘whether a litigant who has a history of
vexatious litigation is likely to continue to abuse the judicial
process and harass other parties.’”

In re Truong, No. 09-CV-

11047, 2009 WL 2929261, at *7 (S.D.N.Y. Sept. 3, 2009) (quoting
Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)).

The

Second Circuit has instructed district courts to consider: “‘(1)
the litigant’s history of litigation and in particular whether it
entailed vexatious, harassing or duplicative lawsuits; (2) the
litigant’s motive in pursuing the litigation, e.g., does the
litigant have an objective good faith expectation of prevailing?;
(3) whether the litigant is represented by counsel; (4) whether
the litigant has caused needless expense to other parties or has
posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts
and other parties.’”

Duran v. Kiley, 586 F. App’x 598, 600 (2d

Cir. 2013) (quoting Safir, 792 F.2d at 24).

5

As discussed, on September 21, 2016, this Court entered
an

injunction

motions,

or

barring
appeals

Appellant
without

from

this

filing

Court’s

Mergenthaler, 2016 WL 5173261, at *1-2.

further

permission.

cases,
See

This Court found that

“the Mergenthalers have filed numerous vexatious cases in this
Court in an effort to delay the sale of [the] Property” and that
of the ten bankruptcy appeals filed by the Mergenthalers, none
were meritorious.

Id. at *2.

In light of this Court’s finding

that a filing injunction was appropriate based on Appellant’s
conduct, the Court finds no error in Judge Grossman’s entry of a
similar

injunction.3

Therefore,

the

appeal

of

the

Filing

Injunction is DISMISSED.4

In a bankruptcy appeal filed by Appellant’s husband, Peter,
this Court denied Osekavage’s motion for a filing injunction
against Peter Mergenthaler without prejudice. In re
Mergenthaler, No. 15-CV-2034, 2017 WL 979031, at *3-4 (E.D.N.Y.
Mar. 13, 2017). Appellant argues the Bankruptcy Court’s Filing
Injunction should be vacated for the same reasons that this
Court denied Osekavage’s motion in that case. (Appellant’s Br.
at 12.) However, the Court made no findings in that proceeding
that would support vacating the Filing Injunction entered by
Judge Grossman. As a result, this argument fails.
3

Additionally, Appellant requests that this Court sua sponte
reconsider its May 12, 2017 Electronic Order in another matter
filed by Appellant, Mergenthaler v. Barnard, 17-MC-1306, in
which this Court denied Appellant leave to file another
bankruptcy appeal. As there is no basis for the relief
requested, that request is DENIED. Similarly, her request for
Rule 11 sanctions against Osekavage and/or his attorneys is also
DENIED. (See Appellant’s Reply at 12.)
4

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CONCLUSION
For the foregoing reasons, this appeal is DISMISSED.

In

light of the Court’s determination that this appeal is without
merit, the Clerk of the Court is directed to TERMINATE AS MOOT any
pending motions.

The Clerk of the Court is further directed to

mail a copy of this Order to the pro se Appellant and mark the
case CLOSED.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

Cc:

January
17 , 2018
Central Islip, New York

Rosemary Ida Mergenthaler
c/o Homewood
70 Miles Drive
Wallingford, CA 06492

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