In Re Carmine P. Amelio

I
19-3131-bk (L)
In re Carmine P. Amelio

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of April, two thousand twenty-one.

PRESENT:           AMALYA L. KEARSE,
                   JOSÉ A. CABRANES,
                   JOSEPH F. BIANCO,
                                 Circuit Judges.


In re Carmine P. Amelio,

                           Debtor.


CARMINE P. AMELIO,

                           Debtor-Appellant,              19-3131-bk, 19-3132-bk, 19-3136-bk

                           v.

DEBORAH J. PIAZZA,

                           Trustee-Appellee.


FOR DEBTOR-APPELLANT:                                  Carmine Amelio, pro se, New Milford, CT

FOR TRUSTEE-APPELLEE:                                  Michael Z. Brownstein, Tarter, Krinsky &
                                                       Drogin LLP, New York, NY




                                                   1
       Appeal from the August 29, 2019 judgment of the United States District Court for the
Southern District of New York (George B. Daniels, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Appellant Carmine Amelio, proceeding pro se, appeals the district court’s judgment affirming
certain bankruptcy court orders. He challenges the bankruptcy court’s decision to convert his
Chapter 13 case to Chapter 7; its denial of his motions to vacate the conversion order, dismiss the
Chapter 7 proceedings, and stay the Chapter 7 proceedings pending appeal; and its denial of his
motions for the bankruptcy court judge’s recusal. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

          “A district court’s order in a bankruptcy case is subject to plenary review, meaning that this
Court undertakes an independent examination of the factual findings and legal conclusions of the
bankruptcy court.” D.A.N. Joint Venture v. Cacioli (In re Cacioli), 

463 F.3d 229

, 234 (2d Cir. 2006)
(internal quotation marks omitted). The bankruptcy court’s conclusions of law are reviewed de novo
and its findings of fact for clear error.

Id. This Court reviews

for abuse of discretion orders
converting a bankruptcy case for cause, denying relief from a judgment, denying a stay pending
appeal or temporary restraining order, and denying a motion for the bankruptcy judge’s recusal.
Blaise v. Wolinsky (In re Blaise), 

219 B.R. 946

, 950 (B.A.P. 2d Cir. 1998) (conversion); Transaero, Inc. v.
La Fuerza Aerea Boliviana, 

162 F.3d 724

, 729 (2d Cir. 1998) (reconsideration); Picard v. Fairfield
Greenwich Ltd., 

762 F.3d 199

, 206 (2d Cir. 2014) (preliminary injunction); Aguinda v. Texaco, Inc. (In re
Aguinda), 

241 F.3d 194

, 200 (2d Cir. 2001) (recusal). “A bankruptcy court abuses its discretion if it
bases its decision on an erroneous view of the law or clearly erroneous factual findings,” or if it
“commit[s] a clear error of judgment.” In re 

Blaise, 219 B.R. at 950

.

I.       Conversion Order and Motions to Vacate 1

        The bankruptcy court did not abuse its discretion when it converted the case to Chapter 7.
As a preliminary matter, the conversion was within the court’s authority. The Chapter 13 Trustee
moved to dismiss the Chapter 13 case pursuant to 11 U.S.C. § 1307. That statute provides:

         on request of a party in interest or the United States trustee and after notice and a
         hearing, the court may convert a case under this chapter to a case under chapter 7 of


     The district court held that it had jurisdiction to consider Amelio’s appeal from the conversion
     1

order because the filing of a successive Fed. R. Bankr. P. 9023 motion tolled the time to file a notice
of appeal. See Amelio v. Piazza, 

2019 WL 5199600

, at *4 (S.D.N.Y. Aug. 27, 2019). We disagree. See
National Loan Invs., L.P. v. Brewster (In re Brewster), 

243 B.R. 51

, 55 (B.A.P. 9th Cir. 1999); Stangel v.
United States (In re Stangel), 

68 F.3d 857

, 859 (5th Cir. 1995) (per curiam); see also Glinka v. Maytag
                                                     2
        this title, or may dismiss a case under this chapter, whichever is in the best interests of
        creditors and the estate, for cause, including . . . unreasonable delay by the debtor that
        is prejudicial to creditors[.]

11 U.S.C. § 1307(c)(1). The statute thus authorized the bankruptcy court to order either dismissal or
conversion in ruling on the Chapter 13 Trustee’s motion to dismiss. Notice of a motion for
dismissal under this section is sufficient to provide notice that the court may instead order
conversion. See, e.g., Froman v. Fein (In re Froman), 

566 B.R. 641

, 651 (S.D.N.Y. 2017). Indeed, the
bankruptcy court had the authority to convert the case to Chapter 7 on its own motion pursuant to
11 U.S.C. § 105(a). See 11 U.S.C. § 105(a) (bankruptcy court “may issue any order . . . that is
necessary or appropriate to carry out the provisions of this title,” and “[n]o provision of this title
providing for the raising of an issue by a party in interest shall be construed to preclude the court
from, sua sponte, taking any action . . . necessary or appropriate to enforce or implement court
orders or rules, or to prevent an abuse of process.”).

        The bankruptcy court erred with respect to Amelio’s statutory eligibility for Chapter 13
protection; it did not consider most of his objections to the proofs of claim because, due to a
docketing error not attributable to Amelio, it did not see the objections until after it had entered the
conversion order and decided Amelio’s two motions to vacate. If they had been sustained, the
objections could have brought Amelio within the secured debt limits required for Chapter 13
protection. See 11 U.S.C. § 109(e). But this error does not provide a basis for remand: the
bankruptcy court made clear, at the hearing on Amelio’s first motion to vacate, that it would have
reached the same result regardless of those objections to the proofs of claim. Amelio does not
challenge most of the remaining bases for the unreasonable-delay finding underlying the conversion
order—i.e., that he had not fully disclosed his properties, his proposed Chapter 13 plan addressed
only one claim (and, thus, failed to address a number of claims to which he never objected), and he
had not provided necessary documents to the Chapter 13 Trustee.

        None of Amelio’s remaining challenges to the conversion order are availing. Contrary to
Amelio’s suggestion, the bankruptcy court was not required to find that he acted in bad faith:
although bad-faith conduct can be the basis for a dismissal or conversion under § 1307, a bad-faith
finding is not required by the statute. See 11 U.S.C. § 1307(c); Marrama v. Citizens Bank of Mass., 

549
U.S. 365

, 373 (2007). Amelio also does not provide evidence for his claim that he had very little
equity—particularly in light of the bankruptcy court’s finding that he had failed to fully disclose



Corp., 

90 F.3d 72

, 74 (2d Cir. 1996) (subsequent Rule 59 and 60 motions do not toll the time to
appeal under Fed. R. App. P. 4(a)); In re 

Stangel, 68 F.3d at 859

(“Because [Rule] 4(a)(4) directly tracks
the language of [Fed. R. Bankr. P.] 8002(b), courts typically look to decisions applying [Rule] 4(a) as
a guide to applying Rule 8002.”). Accordingly, we discuss that decision only to the extent that it is
relevant to the bankruptcy court’s decisions denying Amelio’s other motions.

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assets—and he does not explain why, if this were the case, the bankruptcy court should have denied
the Chapter 13 Trustee’s § 1307 motion and allowed the case to proceed under Chapter 13. 2 The
bankruptcy court did not characterize Amelio as a serial filer until after the conversion order. And
the bankruptcy court was entitled to consider events predating the Chapter 13 petition—including
prior bankruptcies involving the properties that Amelio owned jointly with his brothers—in
reaching its decision. See 

Marrama, 549 U.S. at 373

.

         Nor has Amelio shown a basis to reverse the bankruptcy court’s decisions on his motions to
vacate. Amelio argues that the bankruptcy court erred in construing his motions as motions for
rehearing, rather than motions to vacate. The motions themselves cited Fed. R. Civ. P. 60, which is
incorporated into the Federal Rules of Bankruptcy Procedure by Fed. R. Bankr. P. 9024. See Fed. R.
Bankr. P. 9024; Fed. R. Civ. P. 60(b) (providing for relief from a judgment on grounds including
“mistake . . . or excusable neglect” and “newly discovered evidence”); see also Ruotolo v. City of New
York, 

514 F.3d 184

, 191 (2d Cir. 2008) (Rule 60(b) is “a mechanism for extraordinary judicial relief
invoked only if the moving party demonstrates exceptional circumstances.” (internal quotation
marks omitted)). Even if the bankruptcy court had improperly characterized the motion as arising
under Fed. R. Bankr. P. 9023 (incorporating Fed. R. Civ. P. 59), the bankruptcy court’s findings—
that Amelio had not identified new facts or an error of fact or law in the prior decision that would
affect the outcome below—established that Amelio had not satisfied the requirements for Rule
60(b) relief. In light of the discussion above, that decision was not an abuse of discretion. Moreover,
the district court sufficiently articulated the bases for its decisions “to permit meaningful appellate
review.” Mazzeo v. Lenhart (In re Mazzeo), 

167 F.3d 139

, 142 (2d Cir. 1999).

II.       Motions to Dismiss, for a Stay Pending Appeal, and for a Temporary Restraining
          Order

         Amelio repeatedly moved to dismiss under 11 U.S.C. § 1307(b) or § 707(a). However,
Amelio was not entitled to voluntary dismissal under 11 U.S.C. § 1307(b) because he filed these
motions after the bankruptcy court entered its conversion order. See 11 U.S.C. § 1307(b) (providing
that the bankruptcy court “shall dismiss” a Chapter 13 case “[o]n request of the debtor at any time,
if the case has not been converted under section 706, 1112, or 1208 of this title”); Barbieri v. RAJ
Acquisition Corp. (In re Barbieri), 

199 F.3d 616

, 622–23 (2d Cir. 1999) (holding that “debtor had the
right voluntarily to dismiss her Chapter 13 petition absent an actual order of conversion”). In
addition, Amelio did not show grounds for dismissal under 11 U.S.C. § 707. See 11 U.S.C. § 707(a)


     To the extent Amelio argues that the bankruptcy court should have granted the Chapter 13
      2

Trustee’s motion to dismiss pursuant to 11 U.S.C. § 1307(c), he has waived that argument by
opposing dismissal in the bankruptcy court. See United States v. Spruill, 

808 F.3d 585

, 597 (2d Cir.
2015) (“[T]his court . . . recognize[s] waiver where a party actively solicits or agrees to a course of
action that he later claims was error.”).

                                                    4
(providing that a bankruptcy court may dismiss a Chapter 7 case “only for cause”). His motions
were based on his argument that the conversion was improper; as discussed above, it was not.
Likewise, because the bankruptcy court did not abuse its discretion in entering the conversion order
or in denying Amelio’s motions to vacate and dismiss, it did not abuse its discretion in finding that
Amelio had failed to carry his burden to show a likelihood of success on the merits of his appeals of
those decisions, as was necessary for a stay pending appeal or a temporary restraining order pending
adjudication of the motion for a stay. See In re World Trade Ctr. Disaster Site Litig., 

503 F.3d 167

, 170
(2d Cir. 2007).

III.    Motions for Recusal

        Finally, the bankruptcy court did not abuse its discretion in denying Amelio’s repeated
motions for Chief Judge Morris’s recusal because they were based entirely on adverse rulings and
knowledge that the judge gained from the exercise of her judicial function. See 28 U.S.C. § 455; Chen
v. Chen Qualified Settlement Fund, 

552 F.3d 218

, 227–28 (2d Cir. 2009); Omega Eng’g, Inc. v. Omega, S.A.,

432 F.3d 437

, 447–48 (2d Cir. 2005). There is no evidence to support Amelio’s allegation on appeal
that Chief Judge Morris colluded with the Chapter 13 Trustee and the clerk to misplace his
objections to the proofs of claim. A review of the record reflects that Chief Judge Morris did not
exhibit any improper bias warranting recusal.


                                           CONCLUSION

        We have reviewed all of the arguments raised by Amelio on appeal and find them to be
without merit. For the foregoing reasons, we AFFIRM the August 29, 2019 judgment of the
District Court.


                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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