Hogan Willig, PLLC v. Wrobel
DECISION AND ORDER DENYING HoganWillig's 1 Motion for Leave to Appeal from the March 28, 2014 Opinion and Order of Bankruptcy Court; DIRECTING the Clerk of the Court to close this case. Signed by William M. Skretny, Chief Judge on 5/25/2014. (MEAL) - CLERK TO FOLLOW UP -
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
a/k/a KRYSTYNA WAWRYNCZUK
f/d/b/a WHITE EAGLE SQUARE
f/k/a KRYSTYNA MINORCZKY
DECISION AND ORDER
Presently before this Court is creditor HoganWillig, PLLC’s motion for leave
to appeal to this Court pursuant to 28 U.S.C. § 158(a)(3) from an interlocutory order of the
Honorable Michael J. Kaplan, United States Bankruptcy Judge, entered March 28, 2014.
See In re Wrobel, – B.R. –, 2014 WL 1330182 (Bkrtcy. W.D.N.Y. 2014). For the reasons
that follow, HoganWillig’s motion is denied.
A district court has discretionary appellate jurisdiction over an interlocutory
order of a bankruptcy court. 28 U.S.C. § 158(a)(3); In re Kassover, 343 F.3d 91, 94 (2d
Cir. 2003). Because neither section 158 nor the Federal Rules of Bankruptcy Procedure
provide specific guidelines for determining whether leave should be granted, district courts
in this Circuit generally apply the analogous standard for certifying an interlocutory appeal
from a district court order to a court of appeals, 28 U.S.C. § 1292(b). See In re Futter
Lumber Corp., 473 B.R. 20, 26 (E.D.N.Y. 2012). Pursuant to this section, a discretionary
appeal is appropriate where the interlocutory “order involves a controlling question of law
as to which there is substantial ground for difference of opinion and that an immediate
appeal from the order may materially advance the ultimate termination of the litigation.” 28
U.S.C. § 1292(b). Even where these factors are present, however, granting an interlocutory
appeal should remain a rare exception to the basic tenet of federal law to delay appellate
review until a final judgment has been entered, such as where an intermediate appeal may
avoid protracted litigation. Koehler v. Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir.
1996); In re Futter Lumber Corp., 473 B.R. at 26. Indeed, leave may be denied for any
reason, including docket congestion. In re Enron Creditors Recovery Corp., 410 B.R. 374,
379 (S.D.N.Y. 2008) (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 98 S. Ct.
2454, 57 L. Ed. 2d 351 (1978)).
This Court finds the present motion premature. The bankruptcy court has not
ruled with finality on the issue now raised on appeal, but instead has permitted the
discovery of further information on an objection to the Debtor’s Chapter 13 plan.
Specifically, HoganWillig seeks leave to appeal an Opinion and Order in which Judge
Kaplan states that he is “prepared to reject Hogan Willig’s objection to the Court allowing
a homestead exemption to the Debtor in the amount of $75,000.” (Docket No. 1 at 33
(emphasis added).) The opinion continued:
However, the Court sees something significant in the fact that the Debtor
bought her condo from her now son-in-law. The badges of fraud . . . address
transfers to an insider while maintaining control over the transferred property,
work in tandem to bespeak the “parking” of the asset; sheltering it under the
ownership of the insider, but controlling it so that the Debtor later may
surreptitiously enjoy the value whether that property is later reconveyed to
the Debtor or not. Here, the record suggests that the now son-in-law had his
condominium on the market for several months through a broker, without
success because it is only a one-bedroom condominium. It is also possible
that the unit is worth far less than what she paid for it.
(Docket No. 1 at 33-34.) Accordingly, HoganWillig was afforded 30 days to have the
condominium unit appraised, if the firm wished, “to make sure that the Debtor did not
convey meaningful value to the daughter and son-in-law in excess of the fair market value
of the unit.” (Docket No. 1 at 22, 34.) The court, noting that the Debtor’s plan could not yet
be confirmed in any event in light of HoganWillig’s other objections, ordered that:
This and all other pending matters in this case are restored to the Chapter
13 calendar on May 12, 2014 at 12:00 p.m. If there is no dispute that the
condominium is worth something near $86,500, then (1) the firm’s claim will
be allowed as an unsecured claim only, (2) avoidance of the firm’s
judgment lien will be denied without prejudice to a new motion to be made
after the later of 1215 days after the acquisition of the condo and three years
from the date of this Decision.
(Docket No. 1 at 35, n. 18 (emphasis added).) Notably, the present motion for leave to
appeal was filed with bankruptcy court prior to the expiration of the 30-day period, and the
motion was briefed and transmitted to this Court prior to the scheduled May 12th
appearance. No reference is made in the motion for leave to this opportunity to develop
the factual record. Nor is there any discussion in the supplemental papers1 recently
transmitted to this Court, although this Court has been informed by the bankruptcy court
that the issue of the condominium appraisal will be before Judge Kaplan on June 23, 2014.
Thus, although Judge Kaplan may ultimately rely on the reasoning pronounced therein, the
Opinion and Order does not conclusively rule on the issue for which leave is sought. The
present motion is therefore premature and borderline frivolous. Finally, as noted above,
Judge Kaplan has yet to rule on HoganWillig’s other objections, resolution of which may
also affect the necessity of an interlocutory appeal in this matter.
IT HEREBY IS ORDERED, that HoganWillig’s motion for leave to appeal from the
March 28, 2014 Opinion and Order of Bankruptcy Court is DENIED.
Because leave to appeal is not warranted in any event, the procedural issues raised in the
supplemental papers are moot.
FURTHER, that the Clerk of the Court is directed to take the steps necessary to
close this case.
Dated: May 25, 2014
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Court
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