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Johnston v. Johnston

United States District Court, D. Vermont

August 27, 2015

KAMBERLEIGH JOHNSTON, Appellant,
v.
MARJORIE W. JOHNSTON, OCWEN LOAN SERVICING, LLC, WELLS FARGO BANK, N.A., and JAN M. SENSENICH, Appellees

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[Copyrighted Material Omitted]

Page 578

Kamberleigh Johnston, (creditor), Appellant, Pro se, Rutland, VT.

For Marjorie W. Johnston, Debtor, Appellee: Kathleen Walls, Glinka & Schwidde, Rutland, VT.

For Ocwen Loan Servicing, LLC, Creditor, Appellee: Sarah B. Gullon, Esq., Shechtman Halperin Savage, LLP, Pawtucket, RI.

For Wells Fargo Bank, N.A., Creditor, Appellee: Grant C. Rees, Esq., Lobe, Fortin & Rees, PLC, Burlington, VT.

Jan M. Sensenich, Chapter 13 Standing Trustee, Trustee, Pro se, White River Junction, VT.

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OPINION AND ORDER DENYING MOTION FOR EXTENSION OF TIME TO PERFECT RECORD AND FILE BRIEF BASED UPON PROSE EXCUSABLE NEGLECT AND/OR MOTION TO STAY CASE PENDING RESOLUTION OF VERMONT SUPREME COURT AND RUTLAND SUPERIOR COURT PROBATE REVIEW

Christina Reiss, Chief United States District Judge.

(Doc. 6)

Pending before the court is a motion for an extension of time to perfect the record on appeal and submit a brief, or for a stay, filed by Appellant Kamberleigh Johnston (" Appellant" ). Appellant is the son of Debtor Marjorie W. Johnston (" Debtor" ).

Debtor is represented by Kathleen Walls, Esq. Creditor Wells Fargo Bank, NA. (" Wells Fargo" ) is represented by Grant C. Rees, Esq. Creditor Ocwen Loan Servicing, LLC, is represented by Sarah B. Gullon, Esq. The Chapter 13 Standing Trustee is Jan M. Sensenich. Appellant is self-represented. None of Appellees submitted

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a response to Appellant's motion or have otherwise participated to date in this appeal.

I. Procedural History.

A. Proceedings Before the Bankruptcy Court.

On July 28, 2014, Debtor filed a Chapter 13 proceeding. On August 18, 2014, Debtor filed a notice of voluntary dismissal of her case, pursuant to 11 U.S.C. § 1307(b), on the grounds that her estranged husband had fallen ill and that she needed to travel to Florida to attend to him and other issues. (Docs. 2-2 & 2-4.) Wells Fargo objected to dismissal (Doc. 2-5), arguing that Debtor originally filed her Chapter 13 proceeding two days prior to a scheduled foreclosure sale of two commercial properties in order to delay those sales and thus Debtor had not filed in good faith. Wells Fargo also argued that Debtor had a practice of filing Chapter 13 proceedings to avoid foreclosure sales. On this basis, Wells Fargo requested that the Bankruptcy Court impose a one-year ban on Debtor's right to file a subsequent bankruptcy petition if Debtor's case was dismissed.

On September 16, 2014, Debtor filed a response to Wells Fargo's objection and request for a one-year filing ban. (Doc. 2-7.) Debtor maintained that she filed her Chapter 13 proceeding in good faith and that she sought voluntary dismissal based on post-petition factors that were beyond her control.

On September 29, 2014, Appellant objected to dismissal of Debtor's Chapter 13 case as a " non-hostile creditor/interested person" on the basis that he was a bona fide creditor. Appellant requested that the Bankruptcy Court deny Debtor's request and force Debtor to proceed with her Chapter 13 case and that any dismissal be deferred until the Bankruptcy Court resolved certain issues involving Debtor's creditors.[1] Wells Fargo objected to Appellant's opposition, arguing it was untimely filed and there was " no basis" for him to " successfully oppose Debtor's motion to dismiss her bankruptcy." (Doc. 2-9 at 2.)

On October 6, 2014, the Bankruptcy Court issued a written order, memorializing the court's earlier ruling at a hearing on Debtor's request for dismissal. (Doc. 2-11.) The Bankruptcy Court found " nothing in the record to indicate that this particular case was filed in bad faith or that the motion to dismiss was filed in bad faith" and thus Debtor had an " absolute right" to immediate dismissal of her Chapter 13 case. Id. at 2. The Bankruptcy Court overruled Appellant's objection to dismissal, denied Wells Fargo's request for a one-year filing ban, and granted Debtor's motion to dismiss.

Thereafter, Appellant moved for reconsideration of the Bankruptcy Court's order dismissing Debtor's case (Doc. 2-12), arguing ...


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