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In re Miller

United States District Court, C.D. California

April 10, 2017

IN RE LOREN MILLER AND SARAH MILLER

          Present: Honorable BEVERLY REID O'CONNELL, United States District Judge

          CIVIL MINUTES - GENERAL

         Proceedings: (IN CHAMBERS) ORDER RE APPEALS OF BANKRUPTCY COURT'S ORDERS [2, 6]

         I. INTRODUCTION

         This matter is on appeal from the United States Bankruptcy Court for the Central District of California (the "Bankruptcy Court"). Appellant-Debtor Loren Miller[1]("Appellant") appeals the following four decisions of the Bankruptcy Court: (1) Order denying Appellant's Motion for Enlargement; (2) Bankruptcy Court's failure to rule on Appellant's Request for a Hearing by Conferencing; (3) Order granting the Application for Interim Fees; and, (4) Order approving the Turnover Stipulation. (See Dkt.[2] Nos. 2, 6; see also Dkt. Nos. 25, 38.) After considering the papers filed in connection with the appeals, the Court finds these matters appropriate for resolution without oral argument of counsel. See Fed. R. Civ. P. 78; CD. Cal. L.R. 7-15. For the reasons discussed below, the Court DISMISSES Appellant's appeals of the Bankruptcy Court's decisions.

         II. BACKGROUND

         A. Bankruptcy Court Proceedings

         On February 7, 2013, Appellant filed a voluntary petition for Chapter 7 bankruptcy in the Central District of California. (Dkt. No. 27, Appellee's Opening Brief (hereinafter, "AB") at 1.) Jeremy W. Faith ("Trustee") was appointed as the creditors' trustee. (AB at 1-2.) On June 11, 2013, the Bankruptcy Court approved Trustee's Application to Employ Margulies Faith LLP ("MF") as Trustee's general counsel in this matter. (AB at 2.) After representing Trustee for three years, MF filed an Application for Interim Fees (the "Application") pursuant to 11 U.S.C. § 331 seeking to collect the accumulated attorneys' fees, noticing a hearing date of March 8, 2016. (See id.) The Notice of Hearing indicated that Appellant must file a written objection to MF's application by February 23, 2016 in order to preserve his right to object to MF's Application for interim Fees. (See id.)

         Appellant failed to oppose the Application by the February 23, 2016; instead, he filed an ex parte Motion for Enlargement of Time to File Objection on March 7, 2016-a day before the noticed hearing on March 8, 2016. (AB at 2-3.) On March 7, 2016, the Bankruptcy Court denied Appellant's Motion for Enlargement because: (1) the Application for Interim Fees and Notice of Hearing were properly served on Appellant on February 17, 2016; (2) Appellant admitted to receiving the Application for Interim Fees and Notice of Hearing by February 23, 2016; and, (3) Appellant did not show cause for the delay because he failed to explain the thirteen-day delay (between the February 23 deadline and filing the Motion for Enlargement on March 7) or why Appellant needed until April 4, 2016 to file an objection. (Dkt. No. 28, Ex. 5 at 1-2.) Appellant also requested to appear telephonically at the hearing because he lives and works in Houston, Texas, and appearing in person at the hearing would significantly burden him. (Dkt. No. 25, Appellant's Opening Brief ("AOB") at 10.) Appellant notes that the Bankruptcy Court did not rule on his request. (Id.)

         On March 8, 2016, the Bankruptcy Court approved MF's Application for Interim Fees. (Dkt. No. 28, Ex.6 at 1-2.) The Order approved $185, 173.50 of interim fees, but the Bankruptcy Court did not specify an amount on the form's section titled "[a]mount or percentage authorized for payment at this time." (See Dkt. No. 28, Ex. 6 at 2.) Below this section, the Bankruptcy Court included a note that reads:

Pursuant to an agreement with creditor, Andrew D. Geller, an individual, and Andrew D. Geller and Eileen B. Geller, Trustee of the Geller Trust dated September 2, 1987, the Trustee has agreed to limit any distribution on Applicant's interim fee request to no more than 75% of the total interim fees allowed ($138, 880.13) and 100% of the total interim expenses allowed ($5, 700.35). Each party reserves rights with respect to any objections, and responses thereto, which may be filed at a later date.

(Dkt. No. 28, Ex. 6 at 2.)

         Pursuant to two orders entered by the Bankruptcy Court, Appellant was required to turn over $114, 159.39 to the estate. (See Dkt. No. 28, Ex. 8 at 1.) On March 9, 2016, the Bankruptcy Court approved a turnover stipulation ("Turnover Stipulation") between Trustee and creditor Andrew D. Geller, an individual, and Andrew D. Geller and Eileen B. Geller, trustees of the Geller Trust dated September 2, 1987 (collectively, "Gellers"). (Dkt. No. 28, Ex. 8 at 1.) The Turnover Stipulation assigned to the Gellers $114, 159.39 in outstanding proceeds due under the two previous turnover orders. (Dkt. No. 28, Ex. 8 at 2.) In exchange, the Gellers agreed to an equivalent reduction in their claim against the estate. (Dkt. No. 28, Ex. 8 at 2.) The $114, 159.39 is a portion of the Gellers' total claim, which the Gellers filed on October 23, 2013 and amounts to $1, 852, 812.31. (See Dkt. No. 28, Ex. 7 at 3.)

         On March 22, 2016, Appellant filed a Notice of Appeal pursuant to 28 U.S.C. § 158 contesting the Bankruptcy Court's orders denying Appellant's Motion for Enlargement and granting MF's Application for Interim Fees. (See Dkt. No. 28, Ex. 9.) On March 29, 2016, Appellant filed a second Notice of Appeal challenging the court's order approving the Turnover Stipulation. (See Dkt. No. 28, Ex. 11.)

         B. District Court Proceedings

         Appellant failed to submit the appeal brief or a statement of issues on appeal to the Court; as a result, on April 20, 2016, the Court issued an order to show cause by May 11, 2016 why the appeal should not be dismissed for lack of prosecution. (See Dkt. No. 9.) Despite the May 11, 2016 deadline. Appellant filed a motion on May 12, 2016 to extend the deadline to file his appeal brief (See Dkt. No. 10.) The Court granted this motion on May 13, 2016 and set the deadline to file the appeal brief by June 13, 2016. (Dkt. No. 11.) On June 13, 2016, Appellant filed a second request for an extension, (Dkt. No. 12), and the Court granted Appellant's motion on June 16, 2016 and moved the deadline to July 11, 2016, (Dkt. No. 13). On July 12, 2016, Appellant filed a third request for an extension. (Dkt. No. 14.) The Court granted Appellant's motion on July 28, 2016 and required Appellant to file the appeal brief by no later than August 8, 2016. (Dkt. No. 16.) Appellant failed to abide by the Court's third deadline.

         On September 1, 2016, the Court issued an order to show cause why the Court should not affirm the Bankruptcy Court's orders given Appellant's failure to comply with the Court's orders. (See Dkt. No. 17.) Appellant failed to timely respond to the order to show cause, and the Court dismissed Appellant's appeal on September 21, 2016. (See Dkt. No. 19.) Appellant filed a motion for relief from the Court's dismissal order on October 17, 2016, (Dkt. No. 21), and the Court granted Appellant's motion on October 20, 2016 and reopened the case, (Dkt. No. 22). The Court ordered Appellant to file his opening brief and respond to the Court's order to show cause by November 2, 2016. (Dkt. No. 22.) In responding to the Court's order to show cause, Appellant satisfactorily explained his change of address and mailing ...


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