Albrecht v. Mergenthaler et al
MEMORANDUM & ORDER granting Motion to Dismiss for Failure to State a Claim. SO ORDERED that the motion to dismiss is GRANTED, and this appeal is DISMISSED. Appellees are directed to mail a copy of this Order to the pro se parties and file proof of s ervice on ECF promptly. The Clerk of the Court is directed to mark the case CLOSED. Should Appellant seek in forma pauperis status on appeal, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is DENIED for purposes of an appeal. Ordered by Judge Joanna Seybert on 2/14/2018. (US Bankruptcy Court EDNY, 8-15-72040-reg) (CM to pro appellant and appellee) (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
2/14/2018 4:42 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
ROSEMARY IDA MERGENTHALER, DEAN
OSEKAVAGE, R. KENNETH BARNARD, MARK
CUTHBERTSON, and UNITED STATES TRUSTEE,
SEYBERT, District Judge:
Currently pending before the Court is an appeal filed by
Ruediger Albrecht (”Appellant”), a creditor, from three orders
(See In re Mergenthaler, BR No. 15-72040.)
On November 28, 2016, Appellant filed a Notice of Appeal in this
Court seeking review of: (1) an order granting a motion to sell
the property at 3 Wood Edge Court, Water Mill, New York pursuant
to 11 U.S.C. § 363 (the ”Sale Order”) (see Sale Order, Barnard
Reply Ex. A, Docket Entry 5-1; In re Mergenthaler, BR No. 1572040,
Orders”)1 (see Dismissal Orders, Barnard Reply Exs. B-C, Docket
The Notice of Appeal was received by the Clerk of the
Bankruptcy Court on November 28, 2016 but was not docketed with
Entries 5-2 to 5-3; Albrecht v. Mergenthaler, BR No. 16-08015,
Docket Entries 16, 17).
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.2
The Court issued several
opinions addressing the appeals, each time finding the arguments
to be meritless.
See, e.g., Mergenthaler v. Osekavage, No. 16-
CV-2466, 2018 WL 451642 (E.D.N.Y. Jan. 17, 2018); Mergenthaler v.
Barnard, No. 15-CV-05078, 2016 WL 3080808 (E.D.N.Y. May 27, 2016);
Mergenthaler v. Thaler, No. 15-CV-2034 (E.D.N.Y Apr. 29, 2015).
On September 21, 2016, this Court barred Mergenthaler from “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,
Shortly thereafter, Appellant--a friend of Mergenthaler--
this Court until February 1, 2017.
(See Not. of Appeal, Docket
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.
filed this appeal challenging several orders, including the Sale
At a hearing on March 6, 2017, Appellees Dean Osekavage
(”Osekavage”) and R. Kenneth Barnard (”Barnard”) made an oral
Appellant filed his response on April 4, 2017 (Appellant’s Br.,
Docket Entry 4), and Barnard and Osekavage filed reply briefs in
further support of their motion on April 12, 2017 and April 13,
(Barnard Reply, Docket Entry 5; Osekavage
Reply, Docket Entry 7.)
Without Court leave, Appellant filed a
reply brief on May 31, 2017.3
(Appellant’s Reply, Docket Entry
On appeal, this Court reviews the Bankruptcy Court’s
“legal conclusions de novo and its factual findings for clear
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.’”
Thakur, 498 B.R. 410, 419 (S.D.N.Y. 2013) (quoting In re AMR Corp.,
Because the Court-Ordered briefing schedule did not provide for
a reply brief, the Court will disregard it. (See Minute Entry,
March 6, 2017, Docket Entry 3.)
490 B.R. 470, 475 (S.D.N.Y. 2013)).
The district court reviews
mixed questions of law and fact de novo.
Appeal of the Sale Order
On September 15, 2016, Barnard filed a motion to sell
Mergenthaler, BR No. 15-72040, Barnard Mot., Docket Entry 224.)
On November 13, 2016, Judge Grossman granted Barnard’s motion.
(See Sale Order.)
The sale closed on December 8, 2016, and
substantially all of the proceeds have been distributed.
Reply ¶ 23.)
Appellant had a lien on the Property, but because
the lien was determined to be junior to Osekavage’s lien, it does
not appear that Appellant received any proceeds from the sale.
(Barnard Reply ¶¶ 14-15; Appellant’s Br. at 4, ¶ 4.)
Barnard and Osekavage argue that the appeal of the Sale
Order must be dismissed because the appeal is statutorily moot
pursuant to 11 U.S.C. § 363(m) (“Section 363(m)”).
modification on appeal of an authorization under subsection (b) or
(c) of this section of a sale or lease of property does not affect
the validity of a sale or lease under such authorization to an
entity that purchased or leased such property in good faith,
whether or not such entity knew of the pendency of the appeal,
unless such authorization and such sale or lease were stayed
11 U.S.C. § 363(m).
The Second Circuit has held
that Section 363 “‘bars appellate review of any sale authorized by
11 U.S.C. § 363(b) or (c) so long as the sale was made to a goodfaith purchaser and was not stayed pending appeal.’”
Vaccaro, 566 B.R. 290, 300 (E.D.N.Y. 2017) (quoting In re WestPoint
Stevens, Inc., 600 F.3d 231, 247 (2d Cir. 2010)).
In other words,
Section 363(m) limits the reviewing court’s jurisdiction, and
“‘absent an entry of a stay of the Sale Order, [courts] only retain
authority to review challenges to the good faith aspect of the
(quoting WestPoint, 600 F.3d at 248) (internal
quotation marks omitted; alteration in original); see also 23
Jefferson St. LLC v. 636 Assets, Inc., Nos. 14-CV-7150, 14-CV7171, 2015 WL 5037343, at *3 (E.D.N.Y. Aug. 24, 2015) (“Section
363(m) . . . sharply curtails appellate review of an unstayed
bankruptcy court order approving a sale of property.”).
ensures that “the uniquely important interest in assuring the
finality of a sale” is protected.
Lynch, 566 B.R. at 300.
When no stay was sought and the reviewing court’s inquiry
is limited to whether the purchase was made in good faith, “‘good
faith is lost only by fraud, collusion between the purchaser and
other bidders or the trustee, or an attempt to take grossly unfair
advantage of other bidders.’”
23 Jefferson St., 2015 WL 5037343,
at *4 (quoting In re Gucci, 126 F.3d 380, 390 (2d Cir. 1997)).
Further, if the bankruptcy court found that the sale was made to
a good-faith purchaser, “the appeal is moot unless appellants can
establish that such a finding is clearly erroneous.”
As the sale was authorized pursuant to Section 363(b),
(See Sale Order at 7), and Appellant did not seek a stay of the
Sale Order, the only issue is whether the buyer purchased the
Property in good faith.
Moreover, because Judge Grossman found
that the purchase was made in good faith, (see Sale Order at 56), Appellant must show that Judge Grossman’s finding was clearly
erroneous to prevail.4
The Court finds that Appellant has failed
to show any bad faith on the part of the purchaser.
contrary, Appellant does not attack the sale, but instead focuses
on the distribution of the proceeds--an issue not before this
(See Appellant’s Br. at 3 (“[T]his appeal contests the
court order being appealed regarding its manner of distributing
Property . . . .”).)
As Barnard points out, Appellant appears to
challenge the allocation of the funds, which was approved in a
separate Order on July 25, 2016.
(See Approval Order, Barnard
Reply Ex. H, Docket Entry 5-8; In re Mergenthaler, BR No. 1572040, Docket Entry 201.)
Because Appellant has not shown that the bankruptcy
court’s good faith finding was clearly erroneous, the appeal of
In the Sale Order, Judge Grossman noted that Appellant did not
object to the sale at that time. (See Sale Order at 5.)
the Sale Order is statutorily moot.
order is DISMISSED.
Therefore, the appeal of that
See Lynch, 566 B.R. at 301; 23 Jefferson St.,
2015 WL 5037343, at *5; Sabatini Frozen Foods, LLC v. Jones, No.
11-CV-1294, 2013 WL 1345104, at *6 (E.D.N.Y. Mar. 29, 2013).
III. Appeal of the Dismissal Orders
Barnard argues that the appeal from the Dismissal Orders
should be dismissed as untimely.
(Barnard Reply ¶¶ 24-28.)
October 17, 2016, Judge Grossman issued two orders dismissing an
As discussed, the Notice of Appeal was filed on November
Federal Rule of Bankruptcy Procedure 8002(a) provides
that “a notice of appeal must be filed with the bankruptcy clerk
within 14 days after the entry of the judgment, order, or decree
FED. R. BANKR. P. 8002(a)(1).
Appellant failed to file the Notice of Appeal by October 31, 2016,
the appeal of the Dismissal Orders is DISMISSED.5
For the foregoing reasons, the motion to dismiss is
GRANTED, and this appeal is DISMISSED.
Appellees are directed to
mail a copy of this Order to the pro se parties and file proof of
Additionally, Appellant appears to have abandoned these
appeals. In his brief responding to the motion to dismiss, he
does not address the Dismissal Orders and identifies only the
Sale Order as the subject of the appeal. (See Appellant’s Br.
service on ECF promptly.
mark the case CLOSED.
The Clerk of the Court is directed to
Should Appellant seek in forma pauperis
status on appeal, the Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this Memorandum and Order would
not be taken in good faith and therefore in forma pauperis status
is DENIED for purposes of an appeal.
Coppedge v. United States,
369 U.S. 438, 444–45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
14 , 2018
Central Islip, New York
Ruediger Albrecht, pro se
3 Cordsstr 22609
Rosemary Ida Mergenthaler, pro se
32 Eastville Avenue
Sag Harbor, New York 11963
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