Samek v. First National Acceptance Company of North America, Inc.

Filing 17

DECISION and ORDERED, that Appellant Michael Sameks Appeal (Dkt. No. 1) is DENIED; and it is further ORDERED, that the March 19, 2014, Order of the Bankruptcy Court denying Appellants Motion for reconsideration of the Bankruptcy Courts February 28, 2014, Order is AFFIRMED. Signed by Senior Judge Lawrence E. Kahn on March 31, 2015. ***A copy of this order & subsequent judgment was served upon the pro se plaintiff by Certified US mail.(sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
MICHAEL SAMEK,
Appellant,
-against-

1:14-CV-0465 (LEK)

FIRST NATIONAL ACCEPTANCE
COMPANY OF NORTH AMERICA,
INC.,
Appellee.

DECISION and ORDER
I.

INTRODUCTION
Pro se Appellant Michael Samek (“Appellant” or “Debtor”) appeals a decision by U.S.

Bankruptcy Judge Robert E. Littlefield, Jr. denying Appellant’s Motion for reconsideration of the
Bankruptcy Court’s Order dated February 28, 2014. Dkt. Nos. 1; 1-1 (“Bankruptcy Order”) at 1112; 11 (“Appellant Brief”). Appellee First National Acceptance Company of North America, Inc.
(“Appellee”) has filed a Response, and Appellant filed a Reply. Dkt. Nos. 15 (“Response”); 16
(“Reply”). For the reasons that follow, the Bankruptcy Court’s Order is affirmed.
II.

BACKGROUND
In March 2000, Appellant, as the sole member of CPR Auto Sales, LLC, obtained a

commercial loan from Appellee, secured by a mortgage on the property on which the business was
located. See Resp. at 3. On February 7, 2013, Appellant filed a Chapter 13 bankruptcy petition and
Chapter 13 plan. Id. On or around that same day, Appellant attempted to convey the mortgaged
property from the LLC to himself. See id.

Appellee objected to the confirmation of Appellant’s Chapter 13 plan, and later filed a
Motion for relief from the automatic stay, which was granted by the Bankruptcy Court. Id. at 4. On
June 18, 2013, the parties, through their respective counsel,1 entered into a settlement agreement,
which was approved by Judge Littlefield. Id. Under the terms of the settlement agreement, Debtor
was required to deliver the deed and title to the mortgaged property to be held in escrow pending
Debtor’s attempt to sell the mortgaged premises at a reduced short pay off of the mortgage lien on or
before December 18, 2013. Id. at 4-5. Upon Appellant’s failure to execute this term of the
agreement, Appellee sought relief from the Bankruptcy Court, which ordered that the deed held in
escrow be released to Appellee. Id.
On March 10, 2014, Debtor filed a Motion for reconsideration of the Bankruptcy Order,
alleging that he had discovered new evidence subsequent to execution of the settlement. Id. at 5.
The Bankruptcy Court held a hearing on March 18, 2014, and later issued an order denying
Appellant’s Motion for reconsideration. See id.; see also B.R. Order.
On March 19, 2014, the mortgaged property at issue was conveyed to Appellee and the deed
was duly recorded. See Resp. at 5.
Appellant filed his Appeal on April 24, 2014. Dkt. No. 1. Appellant has since filed several
Emergency Motions to stay the Bankruptcy Court Order pending appeal. See Dkt. Nos. 9
(“Emergency Motion”); 12. In the Emergency Motion, Appellant argued that he had discovered
accounting errors that caused certain payments on his mortgage to be credited incorrectly, and that
but for the error, he would not be in default now. See generally Emergency Mot. In a Decision and

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Although Appellant is currently proceeding pro se, he was represented by counsel up until
his appeal. See Docket.
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Order dated May 13, 2014, the Court denied Plaintiff’s Motion for failure to show a substantial
possibility of success on appeal. Dkt. No. 7 (“May Order”) at 1. Specifically, the Court found that
Appellant had entered into a comprehensive settlement agreement with Appellee that covered the
mortgage and payments at issue, and “[b]ecause [Appellant] has provided no evidence that the
alleged payment-crediting error could not have been discovered through diligent investigation prior
to settlement, he has not shown a substantial possibility that he will succeed on his appeal.” Id. at 2.
III.

STANDARD OF REVIEW
On appeal, a district court reviews a bankruptcy court’s factual findings for clear error and

its legal conclusions de novo. Cnty. of Clinton v. Warehouse at Van Buren St., Inc., No. 12-CV1636, 2013 WL 2145656, at *1 (N.D.N.Y. May 15, 2013) (citing R2 Invs., LDC v. Charter
Commc’ns, Inc., 691 F.3d 476, 483 (2d Cir. 2012)). “A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948). Following review, a district court “may affirm, modify, or reverse a
bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings.”
FED. R. BANKR. P. 8013.
IV.

DISCUSSION
Although Appellant’s Brief does not specify grounds for relief, mindful of his status as a pro

se litigant, the Court has carefully reviewed Appellant’s Brief and Reply and construed them
liberally. However, Appellant’s submissions consist of: (1) a reiteration of the newly discovered
evidence previously considered in the Bankruptcy Order and in the Court’s May Order; and (2)
other irrelevant or conclusory remarks. See generally App. Br.; Reply.

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Appellee argues that the Appeal should be dismissed because: (1) the Appeal is moot in light
of the deed being recorded and no longer part of Appellant’s Bankruptcy estate; and (2) even if the
Appeal is not moot, Appellant has not provided sufficient facts or a legal basis to warrant relief
under Federal Rule of Civil Procedure 60. Resp. at 7.
As stated in the May Order, “[w]hen a party makes a deliberate, strategic choice to settle, she
cannot be relieved of such a choice merely because her assessment of the consequences was
incorrect.” May Order. at 2 (quoting United States v. Bank of N.Y., 14 F.3d 756, 759 (2d Cir.
1994)). Moreover, “a settlement agreement will be enforced when a party possessed the necessary
information to discover a mutual mistake of fact but ‘then, of his own accord, chose to settle rather
than investigate.’” Id. (quoting Waite v. Schoenbach, No. 10 Civ. 3439, 2011 WL 3425547, at *5
(S.D.N.Y. Aug. 5, 2011)). The record indicates that Appellant was represented by counsel when he
entered into the settlement agreement, and Appellant has not provided any facts that could not have
been discovered through diligent investigation prior to settlement. Accordingly, Appellant’s appeal
is dismissed, and the Bankruptcy Order is affirmed.
V.

CONCLUSION
Accordingly, it is hereby:
ORDERED, that Appellant Michael Samek’s Appeal (Dkt. No. 1) is DENIED; and it is

further
ORDERED, that the March 19, 2014, Order of the Bankruptcy Court denying Appellant’s
Motion for reconsideration of the Bankruptcy Court’s February 28, 2014, Order is AFFIRMED;
and it is further

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ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.

DATED:

March 31, 2015
Albany, NY

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