Troncone v. Troncone
DECISION AND ORDER. Based on 1 Recommendation, this Court ORDERS, ADJUDGES and DECREES, that Judgment by Default, pursuant to Rule 55 of the Federal Rules of Civil Procedure, be entered in favor of Plaintiff, and against Defendant, in the amount of $5,422.14. The Clerk shall enter judgment accordingly, and close this case. SO ORDERED. Copies of the Decision and Order and the NEF have been mailed to Marcello Troncone, Joseph Allen, Thomas Denny, counsel for Araceli Troncone, and Mark S. Wallach. Signed by Hon. Frank P. Geraci, Jr. on 9/18/2017. (SFR)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK S. WALLACH, TRUSTEE,
Case # 17-CV-6619-FPG
DECISION & ORDER
Plaintiff Mark S. Wallach, Trustee (“Plaintiff”) requested entry of judgment by default
against Defendant Marcello Troncone (“Defendant”) in a proceeding before Hon. Carl J. Bucki,
Chief United States Bankruptcy Judge for the Western District of New York. ECF No. 1. Judge
Bucki determined that the proceeding was a “non-core proceeding” and thus concluded that the
Bankruptcy Court was without authority to enter a final or dispositive order or judgment. Id. In
an August 4, 2017 Order, combined with findings of fact, conclusions of law and a
recommendation regarding Plaintiff’s request for entry of judgment by default (“Order and
Recommendation”), Judge Bucki directed the Clerk of Court to transmit Plaintiff’s request to this
Court for consideration pursuant to P.L. 98-353 (The Bankruptcy Amendments and Federal
Judgeship Act of 1984). Id. Specifically, Judge Bucki’s Order and Recommendation recommends
that this Court award Judgment by Default to Plaintiff and against Defendant in the total amount
Defendant has not filed any objections to Judge Bucki’s Order and
28 U.S.C. § 157(c) authorizes a bankruptcy court to hear “non-core proceedings—i.e.,
proceedings that are not . . . core but are otherwise related to a case under title 11”—and to “submit
proposed findings of fact and conclusions of law to the district court.” See Exec. Benefits Ins.
Agency v. Arkison, 134 S. Ct. 2165, 2167 (2014) (quoting 28 US.C. § 157(c)(1)) (internal quotation
marks omitted). In addition, § 157(c) prescribes that “any final order or judgment shall be entered
by the district judge after considering the bankruptcy judge’s proposed findings and conclusions
and after reviewing de novo those matters to which any party has timely and specifically objected.”
28 U.S.C. § 157(c).
Rule 9033(d) states that “the district judge shall make a de novo review upon the record,
or after additional evidence of any portion of the bankruptcy judge’s finding of facts or conclusions
of law to which specific written objection has been made in accordance with this rule” FED. R.
BANKR. P. 9033(d) (emphasis added). An objecting party must file such an objection within 14
days after he has been served with a copy of the proposed findings of fact and conclusions of law.1
Id. at 9033(b).
Thus, a party’s failure to timely file any objection under Rule 9033 is sufficient to support
a finding that the party has waived his objections and affirmation of the order at issue is
appropriate. See Messer, 510 B.R. 31, at 38 (citing In re Ionosphere Clubs, Inc. v. Shugrue (In re
Ionosphere Clubs, Inc.), No. 94 CIV 0659(MBM), 1996 WL 361531, at *1 (S.D.N.Y. June 28,
Since no objections have been filed, the Court accepts and adopts Judge Bucki’s Order and
Recommendation in its entirety.
These rules, and the procedures they prescribe, are similar to the rules and procedures governing objections to orders
or findings of magistrate judges and the case law that has developed in this area is analogous to the case law on
objections to a magistrate judge’s orders or findings. See Messer v. Peykar Int’l Co., Inc., 510 B.R. 31, 39 n. 1
(S.D.N.Y. 2014) (citing Fed. R. Civ. P. 72(b)).
Based on the annexed “Order and Recommendation” of Judge Bucki (ECF No. 1), and for
the reasons stated above, this Court ORDERS, ADJUDGES and DECREES, that Judgment by
Default, pursuant to Rule 55 of the Federal Rules of Civil Procedure, be entered in favor of
Plaintiff, and against Defendant, in the amount of $5,422.14.
The Clerk shall enter judgment accordingly, and close this case.
IT IS SO ORDERED.
Dated: September 18, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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