Sun v. Erickson

Filing 42

ORDER RULING ON REPORT AND RECOMMENDATION 36 Report and Recommendation AFFIRMING the final orders entered by the United States Bankruptcy Court for the District of South Carolina on July 20, 2012 and August 14, 2012 Signed by Honorable Richard M Gergel on 6/17/2013. (sshe, )

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

CHARLESTON DIVISION

Joseph C. Sun,
Appellant,

v.
Eric Jonathan Erickson,
Appellee.

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2: 12-cv-3582-RMG

ORDER

This matter is before the Court on the Report and Recommendation ("R&R") of the
Magistrate Judge recommending that the Court affirm the final orders entered by the United
States Bankruptcy Court for the District of South Carolina on July 20, 2012, and August 14,
2012. (Dkt. No. 36). For the reasons set forth below, the Court agrees with and adopts the R&R
as the order of the Court.
Background

The Bankruptcy Court entered an order denying Appellant Joseph C. Sun's ("Sun")
motion to reopen Appellee Eric Jonathan Erickson's ("Erickson") bankruptcy proceedings on
July 20, 2012, finding Sun's adversary complaint was not timely filed. (Dkt. No. 20-4). On
August 6, 2012, Sun filed a motion to reconsider and the Bankruptcy Court denied this motion
on August 14, 2012. (Dkt. No. 20-8). Sun then filed a notice of appeal regarding these two
orders. (Dkt. No.1). Because Sun is proceeding pro se, this appeal was automatically referred
to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(B)(2)(e) DSC. Sun filed a brief in support of his appeal (Dkt. No. 29), Erickson filed a
brief in response (Dkt. No. 30), and Sun filed a reply (Dkt. No. 34). The Magistrate Judge then

issued an R&R recommending the Court affirm the orders of the Bankruptcy Court. (Dkt. No.
36). Sun then filed timely objections to the R&R. (Dkt. No. 40).
Legal Standard

The Magistrate Judge makes only a recommendation to this Court. The recommendation
has no presumptive weight, and the responsibility for making a final determination remains with
this Court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). This Court is charged with making
a de novo determination of those portions of the R&R to which specific objection is made.
Additionally, the Court may "accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). This Court may also
"receive further evidence or recommit the matter to the magistrate judge with instructions." Id
On appeal from the Bankruptcy Court, the district court acts as an appellate court and
reviews the Bankruptcy Court's findings of fact for clear error, while it reviews the conclusions
of law de novo. Devan v. Phoenix Am. Life Ins. Co. (In re Merry-Go-Round Enters., Inc.), 400
F.3d 219,224 (4th Cir. 2005); Kielisch v. Educ. Credit Mgmt. Corp. (In re Kielisch), 258 F.3d
315, 319 (4th Cir. 2001). The district court may affirm, modify, or reverse a Bankruptcy Judge's
order, or remand with instructions for further proceedings. See Fed. R. Bankr. P. 8013.
Discussion

After review of the record, the R&R, and Sun's objections, the Court finds the Magistrate
Judge applied sound legal principles to the facts of this case and therefore agrees with and adopts
the R&R as the order of the Court. Sun objects to the R&R by arguing that he never received a
notice of the deadline to object to Erickson's discharge as required by Rule 4004 of the Federal
Rules of Bankruptcy Procedure. (Dkt. No. 40 at 2). However, the Bankruptcy Court found, after
a hearing, that the documents filed in Erickson's bankruptcy case were served on Sun at his then­

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current address on March 21, 2012. (Dkt. Nos. 16-2; 20-4 at 2, 4). The deadline for filing
objections was April 30, 2012. (Dkt. No. 20-4 at 1). Thus, Sun was on notice of the bankruptcy
proceedings against Erickson approximately one month prior to the objection deadline. Further,
Sun acknowledges he received actual notice of the bankruptcy on April 30, 2012. (Dkt. No. 29
at 2). Even if a formal notice of the deadline was not provided, Sun was required to inform
himself as to such deadlines upon notice of the bankruptcy. See In re Tucker, 235 B.R. 575, 578­
79 (M.D.N.C. 1998). In conclusion, the Court agrees with the Magistrate Judge that Sun has
failed to establish clear error in the factual findings of the Bankruptcy Judge or a flaw in his
application of the law.
Conclusion

For the reasons set forth above, the Court agrees with and adopts the R&R of the
Magistrate Judge as the order of the Court. (Dkt. No. 36). Accordingly, the Court AFFIRMS the
final orders entered by the United States Bankruptcy Court for the District of South Carolina on
July 20, 2012, and August 14,2012.
AND IT IS SO ORDERED.

Richard Mark G rg
United States Di 'ct Court Judge

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June 1 ,2013
Charleston, South Carolina

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