In Re: Celeste Wenegieme

Filing 22

MEMORANDUM AND OPINION re: 14 MOTION to Dismiss Notice of Appeal as Untimely - Refiled due to Docket Entry Error (Prior Filing Doc. 11). filed by Goldstein Group Holding, 9 MOTION for Extension of Time to File. filed by Celest ine Wenegieme. For the reasons set forth above, Goldstein's motion to dismiss the appeal, (Doc. 14), is GRANTED. The Clerk's Office is respectfully directed to terminate the motions at Document 9 and Document 14 and mail a copy of this Memorandum & Opinion to the pro se Appellant. (Signed by Judge Vernon S. Broderick on 9/26/2017) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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IN RE:
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CELESTE WENEGIEME,
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Debtor.
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CELESTINE WENEGIEME,
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Appellant, :
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- against :
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GOLDSTEIN GROUP HOLDING,
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Appellee.
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9/26/2017

16-CV-8107 (VSB)
MEMORANDUM & OPINION

Appearances:
Celestine Wenegieme
Pro se Appellant
Elizabeth Anne Haas
Elizabeth A. Haas, Attorney at Law
New City, New York
Counsel for Appellee
VERNON S. BRODERICK, United States District Judge:
Before me is the motion of Appellee Goldstein Group Holding (“Goldstein”) to dismiss
the appeal of Appellant Celestine Wenegieme (“Celestine”). Goldstein argues that the appeal
must be dismissed pursuant to Federal Rule of Bankruptcy Procedure 8002(a) because it is
untimely. Celestine argues that his untimely appeal should be disregarded because of his
excusable neglect. For the reasons set forth herein and for those stated on the record at the
December 23 conference, Goldstein’s motion to dismiss the appeal, (Doc. 14), is GRANTED.

Background
Celestine is the brother of Celeste Wenegieme (“Celeste”), and Celeste is the debtor in
the underlying bankruptcy case related to this appeal. Celeste filed her voluntary Chapter 13
bankruptcy petition on August 15, 2016 in the United States Bankruptcy Court for the Southern
District of New York (“Bankruptcy Court”); that case is styled: In re Celeste Wenegieme, No.
16-12354 (LJG) (the “Bankruptcy Action”).
At the time Celeste filed her Chapter 13 bankruptcy petition, Goldstein was the holder of
a note and mortgage relating to the property located at 215 West 134th Street, New York, New
York 10030 (“Property”). (Haas Decl. ¶ 2.)1 Although Goldstein held the ownership interest in
the Property, in an abundance of caution, (see id. ¶ 7), Goldstein filed a motion in the
Bankruptcy Action to terminate the automatic stay pursuant to 11 U.S.C. §§ 362(d)(1) and (d)(4)
so that Goldstein could proceed with a foreclosure sale on the Property (“Lift Stay Motion”).
Goldstein served the Lift Stay Motion on Celestine at several addresses including the publicly
available address: 1037 Elder Avenue, Suite 1R, Bronx, New York 10472. (Haas Decl. Ex. D.)
In addition, Goldstein served the Lift Stay Motion on Celeste and Alleyne Sylvester, a former
owner of the Property and a person believed to conduct business with Celeste, Celestine, and
their mother, Tina Maresca. (Id.)
On September 1, 2016, the Bankruptcy Court held an evidentiary hearing on the Lift Stay
Motion (“September 1 Hearing”), and Celeste attended that hearing. (Id. ¶ 8.) The principal of
Goldstein testified at the September 1 Hearing regarding the note and mortgage relating to the

1

“Haas Decl.” refers to the Application in Support of Motion for an Order Dismissing Notice of Appeal as
Untimely, Pursuant to Federal Rules of Bankruptcy Procedure 8002(a) which was originally filed on November 18,
2016, (Doc. 11-1), and refiled on December 9 to correct a filing error, (Doc. 15) (“Application”).

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Property. (9/1/16 Hr’g Tr. 16:12-22.)2 At the conclusion of testimony, the Bankruptcy Court
found that Goldstein was the holder of the note and mortgage relating to the Property and had
standing to file the Lift Stay Motion. (Id.) On September 6, 2016, upon consideration of the
papers submitted in support of the Lift Stay Motion and the testimony provided at the September
1 Hearing, the Bankruptcy Court granted the Lift Stay Motion and issued an order terminating
the automatic stay pursuant to 11 U.S.C. § 362(d)(1) as to Goldstein’s interest in the Property.
(Lift Stay Order.)3 The Lift Stay Order stated, in pertinent part, that “the automatic stay imposed
in this case by § 362(a) of the Bankruptcy Code is vacated under § 362(d)(1) of the Bankruptcy
Code for cause as to Goldstein Group’s interests in the Property to allow Goldstein Group’s
enforcement of its rights in, and remedies in and to, the Property.” (Id.) The foreclosure sale on
the Property proceeded as scheduled on September 7, 2016, there was competitive bidding, and
the Property was sold to a third party. (Haas Decl. ¶ 25.)
Procedural History
On October 6, 2016, Celestine filed his notice of appeal of the Lift Stay Order. (Doc. 1.)
On October 20, 2016, Goldstein filed a pre-motion letter regarding its anticipated motion to
dismiss the appeal as untimely, (Doc. 3), and Celestine filed his response letter on October 28,
2016, (Doc. 6). Goldstein and Celestine appeared before me on November 7, 2016, for a premotion conference regarding Goldstein’s anticipated motion to dismiss, and, on November 9,
2016, I issued an order setting a briefing schedule for Goldstein’s motion to dismiss the appeal.
(Doc. 10.)
Pursuant to my November 9 scheduling order, Goldstein filed its motion to dismiss the

2

“9/1/16 Hr’g Tr.” refers to the transcript of the September 1 Hearing. (Haas Decl. Ex. A.)

3
“Lift Stay Order” refers to Exhibit B to the Order Terminating the Automatic Stay Pursuant to 11 U.S.C.
§ 362(d)(1), which is annexed to the Application.

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appeal on November 18, (Doc. 11), along with a supporting memorandum of law, application,
and exhibits, (Docs. 11-1–11-15).4 On December 5, Celestine filed his memorandum of law in
opposition to the motion along with supporting exhibits. (Doc. 13.) On December 12, Goldstein
filed its reply and supporting affirmation. (Docs. 17, 18.) On December 23, 2016, the parties
appeared for a conference regarding Goldstein’s motion to dismiss.
On April 3, 2017 I issued an Order: (1) noting that the underlying bankruptcy proceeding
has been dismissed pursuant to 11 U.S.C. § 1307(c); (2) noting that the debtor Celeste
Wenegieme had filed a notice of appeal; and (3) directing the parties to “submit a letter by April
14, 2017 setting forth how the dismissal and pending appeal informs Appellee’s motion to
dismiss.” (Doc. 14.) Goldstein submitted a letter on April 7, 2017 arguing that the instant
appeal is moot and that the status of the underlying bankruptcy does not alter its view that the
appeal is moot. (Doc. 21.)
Legal Standard
This court has jurisdiction pursuant to 28 U.S.C. § 158(a)(1) to hear appeals from final
judgments, orders, and decrees of a bankruptcy court. Federal Rule of Bankruptcy Procedure
(“FRBP”) 8013 provides that, on such an appeal, a district court reviews the bankruptcy court’s
findings of fact for clear error, and any conclusions of law are reviewed de novo. In re
Momentum Mfg. Corp., 25 F.3d 1132, 1136 (2d Cir. 1994).
In addition, pleadings submitted by a pro se litigant “must be construed liberally,” and
must be read “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of
Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also In re Motor Liquidation Co., No. 11 Civ.

4
To correct a filing error, which was docketed on December 9, Goldstein re-filed, that same day, the documents that
were originally filed on November 18. (Docs. 14–16.)

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7893(DLC), 2012 WL 398640, at *2 (S.D.N.Y. Feb. 7, 2012) (construing submissions of pro se
bankruptcy appellant liberally). Further, while pro se litigants in bankruptcy proceedings “are
generally afforded some latitude, they are nonetheless required to learn and comply with
procedural rules.” In re Truong, 388 B.R. 43, 45 (S.D.N.Y. 2008).
Discussion
In the motion to dismiss, Goldstein argues that Celestine’s appeal must be dismissed
pursuant to FRBP 8002(a) because it is untimely. (Goldstein Mem. 2.)5 Celestine does not
dispute that his appeal is untimely; however, he opposes the motion on grounds that: (i) he was
not served with the Lift Stay Motion; and (ii) his untimely filing constitutes excusable neglect.
(Opp. Mem. ¶¶ 3, 8, 21.)6
A.

Notice of the September 1 Hearing

Celestine argues that he was “not present at the hearing on September 1st, 2016 [in the
Bankruptcy Court]; because [he] was not formally or informally notified by any mode of service
as [the August 24 Bankruptcy Court Order7] has shown that my name or address was not
included as one of the persons’ [sic] to be notified with reference to the proposed hearing set for
September 1st, 2016.” (Id. ¶ 8 (citing August 24 Bankruptcy Court Order) (emphasis in
original).) I construe Celestine to be arguing that (1) he was not provided with notice of the
September 1 Hearing and (2) his purported lack of notice is supported by the fact that the August

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“Goldstein Mem.” refers to Goldstein’s Memorandum of Law in Support of the Motion for an Order Dismissing
Notice of Appeal as Untimely, Pursuant to Federal Rule of Bankruptcy Procedure 8002(a) which was filed on
November 18, 2016, (Doc. 11-13), and refiled on December 9, 2016, (Doc. 16).
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“Opp. Mem.” refers to the Appellant’s Memorandum of Law in Opposition of Appellee’s Motion to Dismiss the
Notice of Appeal as Untimely Pursuant to Federal Rule of Bankruptcy Procedure 8002(a) which was filed on
December 5, 2016. (Doc. 13.)
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“August 24 Bankruptcy Court Order” refers to the Order, Pursuant to Bankruptcy Rule 9006(c)(1), Shortening
Time in Which to Serve the Lift Stay Motion which is annexed as Exhibit B to Celestine’s Opposition
Memorandum. (Doc. 13.)

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24 Bankruptcy Court Order does not identify him as a party that must be served.
In response, Goldstein asserts that (1) Celestine was served on three separate instances
with documents providing notice of the September 1 Hearing, (2) notwithstanding whether he
received service, Celestine had actual knowledge and notice of the September 1 Hearing, and
(3) Goldstein exercised reasonable diligence in attempting to provide Celestine with notice of the
September 1 Hearing. It is true that Celestine is not listed on the August 24 Bankruptcy Court
Order as a party upon which Goldstein was directed to serve that order. (Reply ¶ 12.) However,
despite not being required to serve Celestine, in an abundance of caution, Goldstein did in fact
serve the August 24 Bankruptcy Court Order on Celestine. In support, Goldstein points to the
affidavit of service documenting service of the August 24 Bankruptcy Court Order on Celestine.
(Application Ex. D; see Reply ¶ 12.) Moreover, the August 24 Bankruptcy Court Order is just
one of three documents Goldstein served on Celestine in support of the Lift Stay Motion, (Reply
¶ 12, Ex. D), and Goldstein submitted a delivery confirmation for at least one such service
package, (id. at Ex. E).
Goldstein also argues that Celestine had actual knowledge of the September 1 Hearing
and the Lift Stay Order regardless of whether or not he received any of the service packages
Goldstein served. As family members, Celestine’s mother and/or sister likely informed him of
the September 1 Hearing and Lift Stay Order because it appears based upon the following that
they were all in contact with one another on issues related to the Property: (i) his mother and
sister were filing papers in several fora in an apparent coordinated effort to prevent the
foreclosure sale on the Property, (id. ¶¶ 5, 8); (ii) Celeste appeared at the September 1 Hearing,
(Haas Decl. ¶ 8); (iii) Celestine filed his own bankruptcy petition in the United States
Bankruptcy Court for the Eastern District of New York the day before the scheduled foreclosure

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sale, (Reply ¶ 8); and (iv) his mother appeared at the foreclosure sale on September 7, see In re
Celestine Wenegieme, No. 8–16–74079 (REG).
Although it seems likely that Celestine had actual knowledge of the September 1
Hearing, I need not resolve the issue of whether or not Celestine received actual notice because I
find that Goldstein exercised reasonable diligence in attempting to provide notice of the
September 1 Hearing to Celestine. Goldstein served Celestine at 1037 Elder Avenue, Suite 1R,
Bronx, New York 10472 (the “Elder Avenue Address”). The Elder Avenue Address is listed as
Celestine’s address on the deed related to the Property. (Reply ¶ 9.) In addition, Celestine used
the Elder Avenue Address as his address in his prior bankruptcy petition. (Id. ¶ 10.)
The affidavits of service for the three separate documents submitted in connection with
the Lift Stay Motion, (see id. at Ex. E), each create a rebuttable presumption that Celestine had
notice of the September 1 Hearing, see In re AMR Corp., 492 B.R. 660, 663 (Bankr. S.D.N.Y.
2013) (“It is well settled that proof that a letter was properly addressed and placed in the mail
system creates a presumption that the letter was received in the usual time by the addressee.”).
Celestine fails to rebut the presumption that service of even one of the documents, let alone all
three documents, was ineffective. Id. at 663–64 (holding that an “affidavit of non-receipt is
insufficient to rebut the presumption of receipt created by proof of mailing.”). The fact that
Goldstein also served Celestine’s sister Celeste with all three documents supporting the Lift Stay
Motion raises the inference that she informed Celestine of the September 1 Hearing. In addition,
the fact that Maresca appeared at the foreclosure sale on September 7 and Celestine filed for
bankruptcy protection one day before, see Petition, In re Celestine Wenegieme, No. 8–16–74079
(REG) (Bankr. E.D.N.Y. Sept. 6, 2016), ECF No. 1, also supports the inference that the family
members were in communication regarding the September 1 Hearing.

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B.

Untimely Filing of the Notice of Appeal

FRBP 8002(a)(1) states, in relevant part, that “a notice of appeal must be filed with the
bankruptcy clerk within 14 days after entry of the judgment, order, or decree being appealed.”
The Second Circuit has held that the “time limit contained in Rule 8002(a) is jurisdictional, and
that, in the absence of a timely notice of appeal in the district court, the district court is without
jurisdiction to consider the appeal, regardless of whether the appellant can demonstrate
excusable neglect.” Siemon v. Emigrant Savings Bank (In re Siemon), 421 F.3d 167, 169 (2d
Cir. 2005) (per curiam); see also In re Indu Craft, Inc., 749 F.3d 107, 115 (2d Cir. 2014)
(distinguishing In re Siemon but affirming its holding that the “time limits [ ] prescribed by
statute for appeals to district courts acting as appellate courts over bankruptcy matters” are
jurisdictional). An exception to FRBP 8002 provides that “the bankruptcy court may extend the
time to file a notice of appeal upon a party’s motion that is filed . . . within 21 days after [the 14day deadline], if the party shows excusable neglect.” Fed. R. Bankr. P. 8002(d)(1); see also In re
Soundview Elite Ltd., 512 B.R. 155, 157 (S.D.N.Y. 2014) (relying on In re Siemon and In re Indu
Craft and noting that where an appellant files an untimely appeal beyond the 14-day default
deadline, “the analysis does not end there” because FRBP 8002(d)(1)(B) “empowers district
courts to extend the filing period beyond the 14–day baseline”), aff’d, 597 F. App’x 663 (2d Cir.
Mar. 13, 2015). FRBP 8002(d)(2), however, precludes courts from granting such an extension if
the “judgment, order, or decree appealed from . . . grants relief from an automatic stay under
§ 362 . . . of the [Bankruptcy] Code.” Fed. R. Bankr. P. 8002(d)(2)(A).
Here, the Lift Stay Order was issued and entered on September 6, 2016. (See Lift Stay
Order.) Thus, in accordance with FRBP 8002(a), Celestine had fourteen days, or until
September 20, to timely file a notice of appeal of the Lift Stay Order. It is undisputed that

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Celestine filed his notice of appeal on October 6, 2016. (Doc. 1.) In light of the fact that the Lift
Stay Motion expressly granted relief from the automatic stay under Section 362 of the
Bankruptcy Code, (see Lift Stay Order), the fourteen day deadline cannot be extended even if
Celestine could establish excusable neglect, see Fed. R. Bankr. P. 8002(d)(2)(A). Accordingly,
Celestine was required to file his notice of appeal within the fourteen day deadline. Even if this
were not the case, I find that the facts here do not support excusable neglect warranting my
granting leave to file an untimely appeal. Specifically, Celestine states that he was seriously ill
for a period of time from mid-September until late-September and that his illness prevented him
from timely filing the notice of appeal. However, citing his illness, Celestine filed a request for
an adjournment of a hearing in his bankruptcy case on September 19, 2017, see Objection &
Request for Adjournment, In re Celestine Wenegieme, No. 8–16–74079 (REG) (Bankr.
E.D.N.Y.), ECF No. 17; thus, Celestine was well enough to seek an extension of time to file his
notice of appeal here.
C.

The Appeal is Moot

Finally, even if the appeal were not untimely, the appeal must also be dismissed because
the Property was sold at the Foreclosure Sale on September 7, 2016, (Haas Decl .¶ 25), and thus I
cannot fashion effective relief rendering the appeal moot. Where, as here, there was no stay
pending appeal, “[t]he law is clear that once a foreclosure sale has taken place, the appeal is
moot.” In re Young, No. 00-5033, 2000 WL 1737810, at *1 (2d Cir. Nov. 22, 2000); see
Wenegieme v. Goldstein Grp. Holding, No. 16-CV-5368 (JFB), 2017 WL 1422629, at *2–3
(E.D.N.Y. Apr. 21, 2017) (dismissing appeal as moot where property was sold at foreclosure
sale); NKL Enters., LLC v. Oyster Bay Mgmt. Co., LLC, No. 12-CV-5091 (ADS), 2013 WL
1775051, at *5 (E.D.N.Y. Apr. 25, 2013) (dismissing bankruptcy appeal where bankruptcy court

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granted relief from the automatic stay nunc pro tunc and appellant failed to seek stay of that
order to preclude foreclosure sale); Squires Motel, LLC v. Gance, 426 B.R. 29, 33 (N.D.N.Y.
2010) (holding that “where an appellant does not obtain a stay pending appeal of an order of
dismissal, a subsequent foreclosure of the property at issue leaves the court unable to grant
effective relief and consequently renders the appeal moot and subject to dismissal”). Here, there
was no stay of the Lift Stay Order and the Property was sold to a third party at the Foreclosure
Sale on September 7, 2016. Accordingly, the appeal is moot.
Conclusion
For the reasons set forth above, Goldstein’s motion to dismiss the appeal, (Doc. 14), is
GRANTED.
The Clerk’s Office is respectfully directed to terminate the motions at Document 9 and
Document 14 and mail a copy of this Memorandum & Opinion to the pro se Appellant.
SO ORDERED.
Dated: September 26, 2017
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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