In Re: Cilwa et al
ORDER Adopting 16 Report and Recommendation. It is ORDERED that the Bankruptcy Court's Order is AFFIRMED and this appeal is DISMISSED. Signed by Honorable Timothy M Cain on 2/9/18. (kmca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Anthony J. Cilwa,
John K. Fort, United States Trustee,
C/A No. 7:17-450-TMC
This matter is before the court on an appeal from an order of the bankruptcy court denying
Appellant Anthony Cilwa’s motion to withdraw his bankruptcy petition, which the bankruptcy court
treated as a request for a voluntary dismissal.1 In accordance with 28 U.S.C. § 636(b)(1) and Local
Civil Rule 73.02, D.S.C., this matter was referred to a magistrate judge for handling. The magistrate
judge filed a Report and Recommendation (“Report”) recommending that the court affirm the
bankruptcy court’s order. (ECF No. 16). Appellant timely filed objections. (ECF No. 20).
The Report has no presumptive weight and the responsibility to make a final determination
in this matter remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71 (1976). In the
absence of objections, this court is not required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo review, but instead must only satisfy itself that
there is no clear error on the face of the record in order to accept the recommendation.” Diamond
As the magistrate judge noted in her Report (Report at 1 n.1), although Christopher Cilwa has
been listed on the docket as an appellant, he did not appeal from the February 6, 2017 order of
the bankruptcy court. (ECF Nos. 1 and 4). Accordingly, Anthony Cilwa is the only proper
appellant in this action.
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72
advisory committee’s note).
In her Report, the magistrate judge sets out the procedural history and background of this
case. (Report at 2-4). Briefly, Appellant filed for bankruptcy under Chapter 7 on January 18, 2015.
In May 2015, Bruce P. Kriegman filed an unsecured claim for $376,781.02, which the bankruptcy
court allowed. On September 14, 2015, the Trustee initiated an adversary proceeding in which he
sought to avoid a transfer of property. Specifically, the Trustee alleged that Appellant sold property
of the estate located in South Carolina after filing for bankruptcy and without court authorization,
and he then used the proceeds to purchase property in Florida which he subsequently transferred to
his son. The bankruptcy court granted the Trustee’s summary judgment motion and found that the
transfer of the South Carolina property was an unauthorized post-petition transfer and the Trustee
was entitled to the proceeds from that sale. Further, the bankruptcy court avoided the transfer of the
Florida property from Appellant to his son, and held that the Trustee was entitled to a turnover of
any interest Appellant had in the Florida property. Appellant appealed the bankruptcy court’s order
and this court affirmed that order. Cilwa v. Fort, No. 7:16-cv-1301-TMC, 2016 WL 7403958
(D.S.C. Dec. 22, 2016). The Fourth Circuit Court of Appeals subsequently affirmed this court’s
order in Cilwa v. Fort, 687 Fed. App’x 280 (4th Cir. 2017), and the United States Supreme Court
denied Appellant’s petition for a writ of certiorari in Cilwa v. Fort, 138 S.Ct. 430 (2017).
While his appeal was pending, on January 30, 2017, Appellant filed a motion to withdraw
his bankruptcy petition which the bankruptcy court denied. (ECF Nos. 6-1, 6-2).2 Appellant filed
The court notes this was Appellant’s second motion to withdraw. (ECF No. 6-2 at 1).
a motion for reconsideration (ECF No. 6-3) which the bankruptcy court also denied (ECF No. 6-6).
Appellant is now appealing the denial of his motion to withdraw his bankruptcy petition.
Pursuant to 11 U.S.C. § 707(a), a court may dismiss a Chapter 7 bankruptcy case after notice
and a hearing for cause. Section 707(a) does not define “cause,” but provides three non-exhaustive
(1) unreasonable delay by the debtor that is prejudicial to creditors;
(2) nonpayment of any fees or charges required under chapter 123 of title 28; and
(3) failure of the debtor in a voluntary case to file, within fifteen days or such
additional time as the court may allow after the filing of the petition commencing
such case, the information required by paragraph (1) of section 521(a), but only on
a motion by the United States trustee.
11 U.S.C. § 707(a). The key decision is whether the dismissal is in the best interests of the creditors
and the debtor. See In re Williamsburg Suites, Ltd., 117 B.R. 216, 218 (Bankr. E.D. Va. 1990). A
voluntary dismissal will normally be denied when the dismissal will cause some plain legal prejudice
to the debtor’s creditors. See In re Carroll, 24 B.R. 83, 86 (Bankr. N.D. Oh. 1982). Legal prejudice
is found to exist where assets which would otherwise be available to the creditors are not available
because of the dismissal. See In re Cometh, 142 B.R. 755, 757 (Bankr. E.D. Va. 1992).
In his motion, Appellant alleged that he did not have any remaining creditors because his
creditors have either been repaid or dropped their claims. The bankruptcy court found that these
allegations were not supported by the record. (ECF No. 6-2 at 2). The magistrate judge concluded
that Appellant has failed to provide any factual grounds or legal authority to show that the
bankruptcy court abused its discretion in denying Appellant’s motion. (Report at 5-6). In his
objections, Appellant contends that the house was never in his estate; he did not sign the original or
amended bankruptcy filings; he has paid his creditors except for the false proof of claim; the
bankruptcy court erred in accepting the only claim filed; and the action filed in Washington upon
which he alleges the claim was based was dropped. (Objections at 1).
Upon review, the court finds that Appellant’s objections are nonspecific, unrelated to the
dispositive portions of the magistrate judge's Report, or merely restate his claims. See Gaines v.
South Carolina, No. 0:08-cv-0053-RBH, 2009 WL 3817287, at *3 (D.S.C. Nov. 12, 2009) (finding
that because petitioner’s objections merely restated the claims from his habeas petition, the district
court had no reason to engage in a second analysis of those claims, which magistrate judge had
already addressed in detail). Here, as the magistrate judge found, Appellant has failed to establish
that the bankruptcy court abused its discretion in denying Appellant’s motion to withdraw.
Appellant is, in essence, attempting to re-litigate the claim which the bankruptcy court allowed.
After a thorough review of the Report and the record in this case, the court adopts the
Magistrate Judge's Report (ECF No. 16) and incorporates it herein. It is therefore ORDERED that
the Bankruptcy Court’s Order is AFFIRMED and this appeal is DISMISSED.
IT IS SO ORDERED.
s/Timothy M. Cain
United States District Judge
February 9, 2018
Anderson, South Carolina
NOTICE OF RIGHT TO APPEAL
The parties are hereby notified of the right to appeal this order pursuant to Rules 3 and 4
of the Federal Rules of Appellate Procedure.
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