Johnson v. County of Chautauqua

Filing 7

-CLERK TO FOLLOW UP-DECISION AND ORDER affirming the Decision and Order of the Bankruptcy Court granting summary judgment dismissing the adversary proceeding, Dkt. No. 1-28 and the Decision and Order denying reconsideration of dismissal of the adversary proceeding, Dkt. No. 1-31. Clerk of Court to close the case. Signed by Hon. Richard J. Arcara on 12/20/2013. (JMB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

In Re:
DONALD JOHNSON

DONALD JOHNSON,
Plaintiff-Appellant,

DECISION AND ORDER
11-CV-710-A

v.
COUNTY OF CHAUTAUQUA,
Defendant-Appellee.

This bankruptcy appeal is of a grant of summary judgment dismissing an
adversary proceeding brought by a Chapter 13 debtor, Donald Johnson, to set aside
an in rem tax foreclosure as a fraudulent transfer and conveyance. Debtor brought
the proceeding to set aside the pre-petition tax foreclosure on his home by the
defendant, County of Chautauqua, based upon allegations under 11 U.S.C. §
548(a)(1)(B) and N.Y. Debtor Creditor Law § 273 that debtor received less than
reasonably equivalent value for exempt homestead property.
The Court has jurisdiction to hear appeals of final orders of the Bankruptcy
Court under 28 U.S.C. § 158(a). A grant of summary judgment pursuant to
Bankruptcy Rule 7056 — a determination that no genuine issues of material fact
preclude judgment as a matter of law — is a legal conclusion reviewed de novo. See
In re Bayou Grp., LLC, 439 B.R. 284, 296-97 (S.D.N.Y. 2010). The Court reviews

only those arguments presented to the Bankruptcy Court. Id. at 296.
The Court has carefully considered the rulings of the Bankruptcy Court, In re
Donald Johnson, 49 B.R. 7 (Bankr. W.D.N.Y. 2011), the record on appeal, the
appellate briefs, and oral argument. Upon de novo review, the Court finds debtor had
no interest in the homestead exempt from tax foreclosure under N.Y. Civil Practice
Law and Rules § 5206(a). Accordingly, the Decision and Order of the Bankruptcy
Court granting summary judgment dismissing the adversary proceeding, Dkt. No. 128, and the Decision and Order denying reconsideration of dismissal of the adversary
proceeding, Dkt. No. 1-31, are affirmed for the reasons stated by the Bankruptcy
Court in its Decisions and Orders.

SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
DATED: December 20, 2013

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