IN RE: BENTIVEGNA

Filing 10

MEMORANDUM AND ORDER THAT THE ORDER OF THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA DATED 5/31/17 IS AFFIRMED; ETC.. SIGNED BY HONORABLE HARVEY BARTLE, III ON 10/20/17. 10/20/17 ENTERED AND COPIES MAILED, E-MAILED, COPY TO USBC, MAILED TO PRO SE.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: LOUISE BENTIVEGNA

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CIVIL ACTION

NO. 17-2727

MEMORANDUM
Bartle, J.

October

, 2017

Before the court is the appeal of Louise Bentivegna
(“Bentivegna”) from a May 31, 2017 order entered by the
Bankruptcy Court for the Eastern District of Pennsylvania.

That

order provided that Bentivegna could not occupy residential real
property located at 646 Stiles Hill Road, Sabinsville,
Pennsylvania and further ordered Bentivegna to remove all
personal belongings from that property by June 30, 2017.
I.
We exercise appellate review of final orders entered
by the Bankruptcy Court pursuant to 28 U.S.C. § 158(a).

We

review the legal determinations of the Bankruptcy Court de novo.
In re Prof’l Ins. Mgmt., 285 F.3d 268, 282 (3d Cir. 2002).
Bankruptcy Court’s findings of fact are reviewed for clear

The

error.

Id.

Bankruptcy Court decisions which involve the

exercise of discretion are reviewed for abuse of discretion.
Id.

II.
Bentivegna initially filed a Chapter 13 bankruptcy
petition on April 26, 2016.
(Bankr. E.D. Pa.).
August 19, 2016.

See In re Bentivegna, No. 16-12925

The petition was converted to Chapter 7 on
Bentivegna’s bankruptcy estate partially owns

two parcels of real property located in Potter County,
Pennsylvania, one of which includes the Stiles Hill Road
property.

According to the record in the Bankruptcy Court

matter, this real property was Bentivegna’s summer residence.
Bentivegna’s primary residence was sold at sheriff’s sale and,
as of the filing of this appeal, she resides with her daughter.
By order dated April 19, 2017, the Bankruptcy Court
authorized the trustee to employ a broker to market and sell the
Stiles Hill Road property.

The Bankruptcy Court also entered an

order that day approving a settlement agreement between the
trustee and a co-owner of the Stiles Hill Road property, whereby
the trustee was authorized to sell the property.

These orders

were filed after a hearing in which Bentivegna was present and
represented by counsel who made objections but offered no
evidence.

Bentivegna did not appeal either order.
Thereafter, in preparation for the marketing and sale

of the property, the trustee moved for an order prohibiting
Bentivegna from occupying the property and requiring her to
remove all personal belongings.

After a hearing, the Bankruptcy
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Court granted the trustee’s motion on May 31, 2017.

Bentivegna

filed her appeal of that order on June 14, 2017.
While the appeal was pending, Bentivegna failed to
make preparations to comply with the June 30th deadline to
remove personal property set by the Bankruptcy Court.

On July

5, 2017, after a telephone conference with counsel, the
Bankruptcy Court entered an order enforcing the terms of the May
31, 2017 order and authorizing the trustee to retain an estate
clean-out company to remove all personal property.
On July 10, 2017, the undersigned denied without
prejudice the motion of Bentivegna to stay the Bankruptcy
Court’s May 31, 2017 order on the ground that Bentivegna had
failed first to seek a stay in the Bankruptcy Court.
R. Bank. P. 8007.

See Fed.

Bentivegna then filed a motion for an

emergency stay in the Bankruptcy Court, and that motion was
denied on July 13, 2017.

Bentivegna did not refile a motion for

an emergency stay in this court.
On September 20, 2017, after a hearing, the Bankruptcy
Court entered an order approving the sale of the Stiles Hill
Road property.

Bentivegna has filed a separate appeal of that

order.

See In re Bentivegna, No. 17-4418 (E.D. Pa. Oct. 3,

2017).

The Bankruptcy Court denied the motion of Bentivegna to

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stay the sale order pending appeal, and Bentivegna has not
sought an emergency stay in this court. 1
III.
On appeal, Bentivegna contends that she has a right to
possess the Stiles Hill Road under state law and asserts that
the property should not be sold.

Because the property should

not be sold, Bentivegna contends that she should not be required
to vacate the property and to remove all personal belongings.
Pursuant to 11 U.S.C. § 521(a)(4), a debtor has a duty
to surrender to the trustee all property of the bankruptcy
estate.

The trustee, after notice and a hearing, may then use,

lease, or sell the property.

Id. § 363.

A debtor may exempt

certain property from the bankruptcy estate, including a portion
of the debtor’s interest in his or her primary residence.
§ 522(d)(1).

Id.

Absent such exemption, property of the estate

includes “all legal or equitable interests of the debtor in
property as of the commencement of the case.”

Id. § 541(a)(1).

The Bankruptcy Court denied Bentivegna’s claim to exempt the
Stiles Hill Road property, and she did not appeal that order. 2

1. The sale was initially scheduled to close on September 22,
2017 but was postponed.
2. The Bankruptcy Court entered its order denying an exemption
on the Stiles Hill Road property on November 16, 2016. That
order was a final judgment subject to immediate appeal. See,
e.g., Kollar v. Miller, 176 F.3d 175 (3d Cir. 1999); In re St.
Hill, No. 04-30919, 2005 WL 6522764, at *9 (Bankr. E.D. Pa.
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As such, the property belongs to the bankruptcy estate and
Bentivegna has no right to occupy the property or otherwise use
it to store her personal belongings.

Her assertions to the

contrary are without merit.
The Bankruptcy Court found that requiring the vacancy
of the property and removal of personal belongings would best
effectuate its prior orders authorizing the marketing and sale
of the property.

At the time, Bentivegna did not occupy the

property but instead resided with her daughter.

The Bankruptcy

Court concluded that having Bentivegna remain with her daughter
rather than reside alone at the Stiles Hill Road property was
the most expedient and logical course to follow given the
court’s prior authorization of the sale and Bentivegna’s current
state of health.

Based on our review of the record, we find the

Bankruptcy Court did not abuse its discretion or otherwise err
in its findings.
Accordingly, the order of the Bankruptcy Court dated
May 31, 2017 is affirmed.

Sept. 2, 2005). Bentivegna failed to appeal the order within
the time allowed by the Federal Rules of Bankruptcy Procedure
and therefore her assertion, at this late stage, that such
exemption should be allowed will not be considered. See In re
St. Hill, 2005 WL 6522764, at *10.
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