Uppal et al v. Wilkinson et al

Filing 32

OPINION AND ORDER re: 18 FIRST MOTION for Sanctions against Appellant. filed by Charlene Rodriguez. For the foregoing reasons, the decisions of the Bankruptcy Judge are AFFIRMED and Creditors' motion for sanctions is GRANTED. The Clerk of Court is respectfully directed to terminate all pending motions, mail a copy of this Opinion & Order to the pro se Appellant. In addition, Uppal is ordered to show cause by affirmation why she should not be barred from filing any further ac tions in this Court without first obtaining permission from this Court to file her complaint. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) ("The unequivocal rule in this circuit is that the district court may not impose a filing injunction on a litigant... without providing the litigant with notice and an opportunity to be heard."). Uppal shall submit to this Court within forty-five (45) days of the date of this Order, a written affirmation setting forth good cause why this injunction should not be imposed upon her by this Court. Should Uppal fail to submit an affirmation within the time directed, or should Uppal's affirmation fail to set forth good cause, she may be barred from filing any further a ctions in this Court without first obtaining permission from this Court to do so. The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denie d for the purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/20/2018) (rro) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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In re
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NEELAM UPPAL,
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Debtor.
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:
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NEELAM UPPAL,
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Appellant, :
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- against :
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BARRY WILKINSON AND CHARLENE
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RODRIGUEZ,
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Appellees. :
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9/20/2018

Adv. Pro. No. 17-AP-01026 (CGM)

17-CV-08510 (VSB)
OPINION & ORDER

VERNON S. BRODERICK, United States District Judge:
Pro se Appellant Neelam Uppal (“Uppal” or “Debtor”) brings this appeal from two orders
of Chief Bankruptcy Judge Cecelia Morris in the underlying adversary proceeding: (1) the
September 15, 2017 order dismissing the adversary proceeding and (2) the September 22, 2017
order granting sanctions. On January 3, 2018, Appellees Charlene Rodriguez (“Rodriguez”), G.
Barry Wilkinson, P.A. (“Law Firm”), and G. Barry Wilkinson (“Wilkinson” and collectively
with Rodriguez and the Law Firm, “Creditors”) moved for sanctions against Uppal. For the
following reasons, the orders of the Chief Bankruptcy Judge Morris are AFFIRMED and
Creditors’ motion for sanctions is GRANTED.

Factual Background and Procedural History
This appeal stems from an adversary proceeding that Uppal filed against Creditors
(“Adversary Proceeding”) in the bankruptcy proceeding below. In the Adversary Proceeding,
Uppal alleged a violation of the automatic stay in her Chapter 13 bankruptcy case. The
underlying controversy between Uppal and Rodriguez originated in small claims court in
Pinellas County, Florida—Rodriguez v. Uppal, Case No. 10-0044509-SC—in which Rodriguez
retained the Law Firm to represent her in connection with a claim against Uppal (“Underlying
Tenant Dispute”). Rodriguez sought to recover a $900 security deposit that she paid to Uppal,
her landlord at the time. Uppal refused to return the security deposit and filed a counter-claim
for unpaid rent and physical damages. (See A.P. Doc. 12, ¶¶ 23–24.)1 The trial court ruled for
Rodriguez and entered three separate final judgments in favor of Rodriguez against Uppal in the
Underlying Tenant Dispute. (See Bankr. Doc. 130.)2
On August 15, 2016, Uppal filed a bankruptcy petition in the Southern District of New
York. (Bankr. Doc. 1.) She filed a complaint against Rodriguez, Law Firm, and Wilkinson on
February 16, 2017, which alleged that Creditors had violated the automatic stay and initiated the
Adversary Proceeding. (A.P. Doc. 1.) On July 26, 2017, Creditors moved for summary
judgment, or in the alternative, to dismiss the Adversary Proceeding. (A.P. Docs. 12, 12-3.) In
response, Uppal maintained that Creditors violated the automatic stay.
On September 15, 2017, Chief Judge Morris (“Bankruptcy Judge”) heard arguments
related to Creditors’ motions for (1) summary judgment, or in the alternative to dismiss the
Adversary Proceeding, and (2) sanctions and attorney’s fees (“September 15 Hearing”). Uppal

1

“A.P. Doc.” refers to the docket in the adversary proceeding, No. 17 A.P. 1026.

2

“Bankr. Doc.” refers to docket in Uppal’s Chapter 13 bankruptcy proceeding, No. 16-12356-JLG.

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attended, and participated in, the September 15 Hearing. (See A.P. Docs. 62, 71.) That same
day, the Bankruptcy Judge dismissed the Adversary Proceeding. (See A.P. Doc. 65.)
Prior to the September 15 Hearing, on June 7, 2017, Creditors served Uppal an initial,
“safe harbor” copy of their motion for attorney’s fees and sanctions pursuant to Rule 11 of the
Federal Rules of Civil Procedure and Rule 9011 of the Federal Rules of Bankruptcy Procedure,
warning Uppal of the remedies they would pursue and the potential consequences if Uppal failed
to dismiss or withdraw the Adversary Proceeding against them. (See A.P. Doc. 31-1.) This
notice occurred 36 days prior to Creditors filing the motion on July 13, 2017. Nevertheless,
Uppal failed to dismiss or withdraw the Adversary Proceeding. On July 13, 2017, Creditors filed
their Rule 9011 motion for attorney’s fees and sanctions against Uppal, (A.P. Doc. 9), and on
August 16, 2017, Creditors made supplemental filings to show compliance with the service and
safe harbor requirements of Rule 9011, (A.P. Docs. 31, 46). On August 31, 2017, Creditors
made two further supplemental filings containing affidavits of other attorneys opining as to the
reasonableness of their motion for sanctions and attorney’s fees. (A.P. Docs. 57, 57-1, 57-2.)
On September 8, 2017, Uppal filed her objection to Creditors’ motion for sanctions and
attorney’s fees. (A.P. Doc. 60.)
During the September 15 Hearing, the Bankruptcy Judge also heard arguments related to
Creditors’ motion for sanctions and attorney’s fees, and ultimately granted Creditors’ motion.
(See A.P. Doc. 66). The Bankruptcy Judge concluded that Uppal’s complaint in the Adversary
Proceeding “was filed in bad faith, for improper purpose, and solely for the purpose of harassing
and delaying these Defendants/Creditors, in violation of Rule 9011” and “contained false
statements and was frivolous, having no basis in fact or in law.” (Id.)
Uppal now appeals the Bankruptcy Court’s dismissal of the Adversary Proceeding and its

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grant of sanctions. (Docs. 1, 23.) In response to Uppal’s appeal, Creditors have moved for
sanctions in this action. (Doc. 18.)
Legal Standards
A.

Bankruptcy Appeal

A district 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. 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. See In re Momentum Mfg. Corp., 25 F.3d 1132, 1136 (2d Cir. 1994). A
bankruptcy court’s discretionary decisions are reviewed for abuse of discretion. See, e.g., In re
Boodrow, 126 F.3d 43, 47 (2d Cir. 1997). A bankruptcy court’s “rulings on the credibility of
witnesses . . . are [also] reviewed under an abuse of discretion standard.” In re CBI Holding Co.,
419 B.R. 553, 563 (S.D.N.Y. 2009) (citing Universal Church v. Geltzer, 463 F.3d 218, 226 (2d
Cir. 2006); BIC Corp. v. Far E. Source Corp., 23 F. App’x 36, 38–39 (2d Cir. 2001) (summary
order)).
In reviewing a decision of a bankruptcy court, the district court “may affirm on any
ground that finds support in the record, and need not limit its review to the bases raised or relied
upon in the decisions below.” Freeman v. Journal Register Co., 452 B.R. 367, 369 (S.D.N.Y.
2010). The district court may not consider evidence outside the record. See In re Bear Stearns
High-Grade Structured Credit Strategies Master Fund, Ltd., 389 B.R. 325, 339 (S.D.N.Y. 2008).
Any arguments not raised in the bankruptcy court are considered waived; unless such a waiver
results in manifest injustice, the new arguments will not be considered on appeal. See In re
Barquet Grp., Inc., 486 B.R. 68, 73 n.3 (S.D.N.Y. 2012) (citing In re Enron Corp., 419 F.3d 115,
126 (2d Cir. 2005)); In re Lionel Corp., 29 F.3d 88, 92 (2d Cir. 1994).

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B.

Motion for Sanctions

Rule 11 of the Federal Rules of Civil Procedure states that the court may impose
sanctions “[i]f, after notice and a reasonable opportunity to respond, the court determines that
Rule 11(b) has been violated.” Fed. R. Civ. P. 11(c)(1); see also Ipcon Collections LLC v.
Costco Wholesale Corp., 698 F.3d 58, 63 (2d Cir. 2012) (stating that “sanctions under Rule 11
are discretionary, not mandatory”). Rule 9011 of the Federal Rules of Bankruptcy Procedure
parallels Rule 11, “containing only such modifications as are appropriate in bankruptcy matters.”
In re Cohoes Indus. Terminal, Inc., 931 F.2d 222, 227 (2d Cir. 1991) (internal quotation marks
omitted). “A pleading, motion or other paper violates Rule 11 either when it has been interposed
for any improper purpose, or where, after reasonable inquiry, a competent attorney could not
form a reasonable belief that the pleading is well grounded in fact and is warranted by existing
law or good faith argument for the extension, modification or reversal of existing law.” Robledo
v. Bond No. 9, 965 F. Supp. 2d 470, 477–78 (S.D.N.Y. 2013) (quoting Kropelnicki v. Siegel, 290
F.3d 118, 131 (2d Cir. 2002)).
Under Rule 38 of the Federal Rules of Appellate Procedure, a court of appeals may, after
a motion is filed separately and the appellant is given a reasonable opportunity to respond,
sanction an appellant for bringing a frivolous appeal. See Fed. R. App. P. 38. Rule 8020 of the
Federal Rules of Bankruptcy Procedure “adopts the provisions of Rule 38.” See In re Carlton
Concrete Corp., No. 08-CV-242 (JFB), 2008 WL 4443233, at *11 n.9 (E.D.N.Y. Sep. 26, 2008)
(internal quotation marks omitted); see also Fed. R. Bankr. P. 8020(a) (providing that a district
court may award damages and “single or double costs” to the appellee if it determines that an
appeal was frivolous). Sanctions under these rules may be imposed where an appeal is “totally
lacking in merit, framed with no relevant supporting law, conclusory in nature, and utterly

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unsupported by the evidence.” StreetEasy, Inc. v. Chertok, 730 F. App’x 4, 7 (2d Cir. 2018)
(summary order) (quoting In re Drexel Burnham Lambert Grp. Inc., 995 F.2d 1138, 1147 (2d
Cir. 1993)); see also Carlton Concrete Corp., 2008 WL 4443233, at *11 n.9.
Discussion
A.

Bankruptcy Appeal

Uppal’s appeal briefs are not a model of clarity. She offers a number of arguments, many
of which are raised improperly for the first time on appeal. Specifically, Uppal raises the
following issues on appeal: (1) Creditors violated the automatic stay, (2) Wilkinson committed
perjury, (3) the Bankruptcy Judge erred by imposing sanctions on Uppal, (4) Uppal was denied
due process, (5) the Bankruptcy Judge was prejudiced and abused her discretion in entering a
judgment that was arbitrary and capricious, and (6) Creditors “conspired.” For the reasons stated
below, these arguments are entirely without merit and the Bankruptcy Judge’s orders granting
Creditors’ motion for sanctions and dismissing the adversary proceeding are affirmed.
1. Automatic Stay
Uppal argues that the Bankruptcy Judge erred in determining that Creditors did not
violate the automatic stay. (Appellant Br. 7, 21, 23–26.)3 The Bankruptcy Judge considered
Uppal’s accusations that Creditors violated the automatic stay at the September 15 Hearing. (See
A.P. Doc. 71 at 37–56.) She questioned both Wilkinson and Uppal and urged both parties to
submit evidence in support of their positions. After hearing from the parties, as well as
considering the motions, responses, and documents filed over a nearly seven-month period, the
Bankruptcy Judge determined that there was no genuine dispute as to any material fact and that
the Adversary Proceeding should be dismissed. Simply put, the record contains reliable and

3

“Appellant Br.” refers to the Initial Brief of the Appellant, filed February 6, 2018. (Doc. 23.)

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unrefuted evidence that supports the Bankruptcy Judge’s determination that Creditors did not
violate the automatic stay. I find no reason to disturb the Bankruptcy Judge’s factual findings or
conclusions of law as to that determination.
2. Perjury
Uppal also argues that Wilkinson committed perjury. (See Appellant Br. 7, 12–17, 27–
29.) Although she cites various federal statutes concerning perjury, many of which are
inapplicable to the proceedings before the Bankruptcy Judge, Uppal does not cite any relevant
facts or documents to support her allegation that Wilkinson “lied to the [B]ankruptcy Judge.”
(Id. at 57.) Uppal fails to provide any details from the evidentiary record that would support a
perjury claim, and I discern no purpose in her allegations other than to disparage Creditors and to
prolong this litigation.
3. Sanctions
Uppal also argues that the Bankruptcy Judge erred in imposing sanctions on Uppal under
Rule 9011 of the Federal Rules of Bankruptcy Procedure. (See id. at 7, 18–20, 28.) However,
there is nothing in the evidentiary record to suggest that Creditors failed to comply with the
requirements of Rule 9011 or that the Bankruptcy Judge erred in her determination. Creditors
made their Rule 9011 motion separately from their other motions, the motion described the
specific conduct in violation of Rule 9011(b), and the motion was properly served and filed.
Moreover, the Bankruptcy Judge determined at the September 15 Hearing that Uppal’s
“conduct [was] part of a pattern of activities [of Uppal] having filed multiple papers without any
merit.” (A.P. Doc. 71 at 58.) Uppal has set forth no argument on appeal to refute this
determination. In her order granting sanctions, the Bankruptcy Judge found that Creditors had
complied with the service requirements of Rule 9011 and that Wilkinson’s bills were “fair,

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reasonable and necessary,” thereby rejecting Uppal’s argument that Wilkinson fabricated his
bills. (A.P. Doc. 66.) I find no abuse of discretion in the Bankruptcy Judge’s credibility
determinations. See CBI Holding Co., 419 B.R. at 563.
4. Remaining Arguments
Uppal’s remaining arguments—many of which are made in passing and without any
factual or legal support—are also without merit. Specifically, Uppal argues that she was denied
due process, the Bankruptcy Judge was prejudiced and abused her discretion in entering a
judgment that was arbitrary and capricious, and Creditors “conspired.” As with many of Uppal’s
arguments, these unsupported allegations are frivolous, serving only as a vehicle to attack the
characters of the Bankruptcy Judge and Creditors.
Similarly, Uppal points to a number of exhibits and documents that are not part of the
evidentiary record before me. (See, e.g., Appellant Br. App. 2–3, 4–8, 8–9, 10–11, 12–27, 28–
33, 34–38, 39–41.)4 For example, Uppal includes a screenshot of her bank accounts, which was
not introduced, referred to, or relied upon in the Adversary Proceeding below. (See id. at 2–3.)
As I am unable to make my own factual findings, see Bear Stearns, 389 B.R. at 339, I do not
consider any of these documents on appeal.
Accordingly, the Bankruptcy Judge’s orders granting Creditors’ motion for sanctions and
dismissing the adversary proceeding are affirmed.5

4

“Appellant Br. App.” refers to the Appendix to Initial Brief of the Appellant (“Appendix”), filed February 6, 2018.
(Doc. 24.) The cited page numbers correspond to the page numbers assigned to the Appendix by the Electronic
Court Filing system.

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On March 29, 2018, Uppal filed an “Emergency Motion for Stay.” (Doc. 28.) To the extent Uppal’s motion for
stay is directed at this Court, it is denied as moot. In addition, district courts are vested with appellate jurisdiction
over bankruptcy court rulings, and may only consider appeals from final bankruptcy court orders. See 28 U.S.C. §
158(a). Thus, to the extent Uppal’s motion is directed at the bankruptcy court, this Court does not have jurisdiction
to rule on Uppal’s motion.

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B.

Motion for Sanctions

Creditors urge that Uppal should be sanctioned for bringing this appeal because the
appeal is spurious and lacks any cognizable basis in fact or law. (Sanctions Mot. 2, 12.)6 They
argue that Uppal’s pleading, which appears to be a form complaint that was used for another
matter, contains a number of brazen lies that are unsupported by the evidentiary record. (See id.
at 12–14.) Creditors seek various forms of relief, including, among other things, (1) double
attorney’s fees and costs; (2) any damages Creditors have incurred; (3) a prohibition on Uppal
from filing any further bankruptcy actions or actions in this Court for three years; (4) a fine of
$25,000 as sanctions to be paid to the Clerk of Court for the benefit of the New York Legal Aid
Society, or any such other organization as the Court deems appropriate; (5) an additional civil
fine of $1,000 per day for every day she fails to pay the amounts assessed by the Court and by
courts below; and (6) a public reprimand of further sanctions. (See id. at 26–27.)
This matter is one in a long line of cases that Uppal has commenced in federal court.
Uppal has filed for bankruptcy six times7 and filed at least twenty-five federal proceedings. See
In re Taneja, No. 17 Civ. 5618 (ER), 2018 WL 1831853, at *5 (S.D.N.Y. Apr. 16, 2018), appeal
docketed, No. 18-1225 (2d Cir. Apr. 26, 2018). Although I am cognizant of her pro se status,
Uppal is no stranger to the court system. Furthermore, she has been repeatedly warned about
making conclusory and unsupported allegations in court filings. See id. (collecting cases). She
has been explicitly cautioned that continuing to raise frivolous issues will result in sanctions.

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“Sanctions Mot.” refers to Appellees, Charlene Rodriguez, G. Barry Wilkinson P.A., and G. Barry Wilkson’s
Motion for Sanctions, Damages, and Attorney’s Fees and Costs and Supporting Memorandum of Law, filed January
3, 2018. (Doc. 18.)
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See In re Neelam Uppal, No. 8:00 Bk. 9734 (TEB) (M D. Fla. Bankr. 2000); In re Neelam T. Uppal, No. 8:12 Bk.
18946 (CPM) (M.D. Fla. Bankr. 2012); In re Neelam T. Uppal, No. 8:13 Bk. 5601 (CPM) (M.D. Fla. Bankr.
2013); In re Neelam Taneja a/k/a Neelam Uppal, No. 8:15 Bk. 594 (CPM) (M.D. Fla. Bankr. 2015); In re Neelam
Taneja a/k/a Neelam Uppal, No. 16 Bk. 12356 (CGM) (S.D.N.Y. Bankr. 2016); In re Neelam Taneja a/k/a Neelam
Uppal, 17 Bk. 10140 (CPM) (M.D. Fla. Bankr. 2017).

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See, e.g., Uppal v. Indest, No. 17-CV-7072 (CM), 2017 WL 6405660, at *4 (S.D.N.Y. Oct. 12,
2017) (“Plaintiff is warned that further frivolous or duplicative litigation in this Court will result
in an order barring her from filing new actions in this Court, regardless of whether she pays the
filing fee or seeks leave to proceed in forma pauperis, without prior permission.”); Uppal v.
Uppal, No. 8:10-cv-2566-T-23AEP, 2011 WL 2516676, at *1 (M.D. Fla. June 23, 2011)
(dismissing action, noting that it was “repetitive, vexatious, and frivolous,” and warning Plaintiff
against pursuing another frivolous litigation). Even during the pendency of this appeal, she was
sanctioned by Judge Edgardo Ramos in a similar case in the Southern District of New York.
Taneja, 2018 WL 1831853, at *5 (“[T]he Court admonishes [Uppal] to refrain from making
further frivolous filings and sanctions her in the form of a $5,000.00 fee to be paid to
Appellees.”).
The Bankruptcy Judge in this matter dismissed the Adversary Proceeding and imposed
sanctions on Uppal for bringing the Proceeding in bad faith. (See A.P. Docs. 65, 66.) In so
doing, she reasoned that Uppal’s conduct was “part of a pattern of . . . fil[ing] multiple papers
without any merit.” (A.P. Doc. 71 at 58.) Nonetheless, Uppal persisted in filing this appeal. As
discussed above, this appeal rests on the same unsupported allegations of wrongdoing that Uppal
previously raised before the Bankruptcy Judge. I find that this appeal was similarly brought in
bad faith. However, I decline to impose the sanctions proposed by Creditors. Instead, Uppal is
directed to pay $5,000 to Creditors. Uppal is advised, once again, that any frivolous filings
brought in the future will almost certainly result in further sanctions. In addition, I find that
Uppal must show cause for why she should not be barred from filing any further actions in this
Court without first obtaining permission from this Court to file her complaint. See 28 U.S.C. §
1651.

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Conclusion
For the foregoing reasons, the decisions of the Bankruptcy Judge are AFFIRMED and
Creditors’ motion for sanctions is GRANTED. The Clerk of Court is respectfully directed to
terminate all pending motions, mail a copy of this Opinion & Order to the pro se Appellant.
In addition, Uppal is ordered to show cause by affirmation why she should not be barred
from filing any further actions in this Court without first obtaining permission from this Court to
file her complaint. See Moates v. Barkley, 147 F.3d 207, 208 (2d Cir. 1998) (per curiam) (“The
unequivocal rule in this circuit is that the district court may not impose a filing injunction on a
litigant . . . without providing the litigant with notice and an opportunity to be heard.”). Uppal
shall submit to this Court within forty-five (45) days of the date of this Order, a written
affirmation setting forth good cause why this injunction should not be imposed upon her by this
Court. Should Uppal fail to submit an affirmation within the time directed, or should Uppal’s
affirmation fail to set forth good cause, she may be barred from filing any further actions in this
Court without first obtaining permission from this Court to do so.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: September 20, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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