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Smith-Scott v. Liebmann

United States District Court, D. Maryland

March 18, 2016

ARLENE A. SMITH-SCOTT, Appellant,
v.
GEORGE W. LIEBMANN, TRUSTEE Appellee. Bankruptcy No. 14-25022

MEMORANDUM OPINION

RICHARD D. BENNETT, District Judge.

Debtor Arlene A. Smith-Scott appeals from two orders of United States Bankruptcy Judge James F. Schneider: (1) the November 25, 2015 Order Denying Debtor's Motion to Remove Trustee ("Order Denying Motion to Remove Trustee") (ECF No. 1-2, B.R. Doc. 296); and (2) the November 23, 2015 Order Striking Debtor's Motion to Reconsider (PL. 286) ("Order Striking Motion to Reconsider") (ECF No. 1-1, B.R. Doc. 291).

Currently pending before this Court are: Appellant's Motion for Stay Pending Appeal ("Motion for Stay") (ECF No. 5); and Appellee George W. Liebmann, Chapter 7 Trustee's Motion to Dismiss Appeal ("Motion to Dismiss Appeal") (ECF No. 10).[1]

This Court has jurisdiction over this matter pursuant to 28 U.S.C. ยง 158(a), as Smith-Scott's appeal arises from a final order entered by the United States Bankruptcy Court for the District of Maryland and is brought pursuant to Local Rule 404(1)(a) (D. Md. 2014).[2] Oral argument is deemed unnecessary because the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. See Fed.R.Bankr.P. 8019(b)(3); see also Local Rule 105.6 (D. Md. 2014). For the reasons stated below, Appellee's Motion to Dismiss (ECF No. 10) is GRANTED, Appellant's Motion to Stay (ECF No. 5) is MOOT, and the Order of Bankruptcy Judge James F. Schneider (ECF No. 1-1, B.R. Doc. 291) is AFFIRMED.

BACKGROUND

I. Appeal of Order Denying Motion to Remove Trustee

On November 22, 2015, Appellant filed a Motion to Remove George W. Liebmann as Chapter 7 Trustee from her bankruptcy case. (ECF No. 6-2, B.R. Doc. 290.) Judge Schneider denied the Motion to Remove Trustee on November 22, 2015. (B.R. Doc. 296.) Appellant now challenges the Order Denying Motion to Remove Trustee.

II. Appeal of Order Striking Motion to Reconsider

The background of the second basis for this Appeal is set forth in this Court's Memorandum Opinion dated March 18, 2016 ("Memorandum Opinion"). Smith-Scott v. Howard Bank, Civ. No. RDB-15-3423, ECF No. 15. In the Memorandum Opinion and accompanying Order, this Court affirmed Judge Schneider's Order Approving Trustee's Motion for Sale of 10 Stanley Drive, Catonsville, Free and Clear of Liens and Encumbrances. Id . The Appeal in Smith-Scott v. Howard Bank was filed on November 9, 2015. (B.R. Doc. 279.) The pending Appeal is based on Appellant's November 17, 2015 Motion to Reconsider the Order approving the sale of the property (B.R. Doc. 286) and the court's November 23, 2015 Order Striking Debtor's Motion to Reconsider (B.R. Doc. 291).

STANDARD OF REVIEW

This appeal is brought pursuant to Rule 8001 of the Federal Rules of Bankruptcy Procedure. On appeal from the United States Bankruptcy Court, this Court acts as an appellate court and reviews the Bankruptcy Court's findings of fact for clear error and conclusions of law de novo . In re Merry-Go-Round Enterprises, Inc., 400 F.3d 219, 224 (4th Cir. 2005); In re Kielisch, 258 F.3d 315, 319 (4th Cir. 2001). A factual finding is clearly erroneous "when although there is evidence to support it, the reviewing court on the entire evidence is left with a firm and definite conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). "Under the clearly erroneous standard, if the bankruptcy court's factual findings are plausible in light of the record viewed in its entirety, a reviewing court may not reverse even if it would have weighed the evidence differently." In re Frushour, 433 F.3d 393, 406 (4th Cir. 2005) (internal citation omitted).

ANALYSIS

I. Order Denying Motion to Remove Trustee

Appellee argues that the Order Denying Motion to Remove Trustee is a "non-final interlocutory order, " and, accordingly, not properly before this Court. (ECF No. 10 at ...


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