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In re Myers

United States District Court, D. Maryland

June 30, 2017



          Ellen L. Hollander, United States District Judge

         Douglas Myers, the self-represented debtor/appellant, appeals two orders issued by the United States Bankruptcy Court for the District of Maryland in bankruptcy case RAG-10-28695. See ECF 1 (Notice of Appeal); ECF 2 (Record on Appeal); ECF 4 (Appellant's Brief); see also ECF 2-15 (Amended Order dismissing bankruptcy case).[1] In particular, Myers appeals the bankruptcy court's orders with respect to two motions that he filed in 2016, more than five years after his bankruptcy case was dismissed. They are: “Order Denying Motion to Reconsider” (ECF 2-27) and “Order Denying Motion to Vacate Order Dismissing Case.” ECF 2-28.

         Gerard Vetter, who was then the Interim Chapter 13 Trustee, opposed Myers's attempt to reopen bankruptcy case. See ECF 2-22 (Trustee's Opposition to Motion to Reopen Case) (“Opposition”). But, no brief has been filed by the trustee in this Court, and the time to do so has expired. See Fed. R. Bankr. P. 8018 (providing appellee thirty days to file an appeal after service of appellant's brief).

         Pursuant to Fed.R.Bankr.P. 8019, Myers has asked the Court to hold a hearing on his appeal. ECF 5. However, no hearing is necessary because the facts and legal contentions are adequately presented in appellant's brief and on review of the record on appeal, and a hearing would not aid the decisional process. See Fed. R. Bankr. P. 8019(b)(3); see also Local Rule 105.6.

         For the reasons that follow, I shall affirm the orders of the bankruptcy court.

         I. Factual and Procedural Background[2]

         On August 16, 2010, Myers filed a voluntary petition under Chapter 13 of the United States Bankruptcy Code. ECF 2-1 (“Petition”). In the Petition, Myers estimated that he had between one and forty-nine creditors and that he had between $1, 000, 001 and $10 million in liabilities. Id. at 1. Moreover, Myers indicated that he had filed two bankruptcy cases within the past ten years, i.e., cases NVA-08-18255 and RAG-08-20990. ECF 2-1 at 2. But, the Clerk of the Bankruptcy Court made an entry on the docket of the case clarifying that, since 1987, Myers had filed seven bankruptcy cases in this District. See docket, RAG-10-28695.

         Pursuant to 11 U.S.C. § 341, on August 17, 2010, the Clerk of the Bankruptcy Court set the meeting of creditors for September 30, 2010. Thereafter, on October 5, 2010, Ellen Cosby, who was then the Chapter 13 Trustee, moved to dismiss the case (ECF 2-5), stating that Myers had failed to appear at the § 341 meeting on September 30, 2010. Id. Myers did not respond to the motion to dismiss. See docket, RAG-10-28695. Judge Gordon dismissed the case by Order of November 1, 2010. ECF 2-6.

         On November 8, 2010, Myers filed a motion for reconsideration in the bankruptcy court, stating that he “did not receive notice” of the § 341 meeting “due to [his] failure to provide the court with [his] new mailing address.” ECF 2-8. Myers also stated that he did not know that the meeting had been set until he attempted to attend a hearing on October 22, 2010, which had been cancelled. Id.; see RAG-10-28695, ECF 18. Notably, the notice of the hearing on October 22, 2010, was sent to the same address as the notice of the meeting of creditors, about one month after the notice of the meeting with creditors was supposedly sent to the wrong address. Compare id., ECF 8 at 5 (certificate of notice) with id., ECF 18-9 (certificate of service).

         Myers filed an amended motion for reconsideration on November 23, 2010. ECF 2-10 (“First Motion to Reconsider”). It appears that the only modification made to ECF 2-8 was the addition of a certificate of service. See ECF 2-10.

         Judge Gordon scheduled a hearing on the First Motion to Reconsider for January 5, 2011. RAG-10-28695, ECF 45. On January 2, 2011, the Chapter 13 Trustee opposed the First Motion to Reconsider, arguing that Myers was in default under the Chapter 13 Plan that he had filed; Myers had failed to attend the meeting of creditors; and Myers had failed to file “the required Chapter 13 filings.” See id., ECF 47.

         On January 5, 2011, the bankruptcy court proceeded with the hearing on the Motion to Reconsider. See ECF 2-15. Myers failed to appear at the hearing. See Id. Judge Gordon issued an amended order dismissing the case on January 31, 2011, “with prejudice against a new case being filed in bankruptcy by this Debtor for a period of 365 days . . . .” Id.

         The bankruptcy court scheduled another hearing on February 8, 2011, with respect to an ancillary matter. See RAG-10-28695, ECF 58. At the hearing, pursuant to Fed.R.Bankr.P. 9023 and Fed.R.Civ.P. 59, Myers orally moved for the bankruptcy court to reconsider its amended order dismissing the case. See ECF 2-18. The bankruptcy court denied the motion by Order of February 13, 2011. Id.

         At about the same time, on February 23, 2011, Myers's properties at 5734 and 5800 Emory Road in Upperco, Maryland sold at foreclosure for $225, 000. The foreclosure actions were the subject of two appeals filed by Myers in the Maryland Court of Special Appeals, both of which upheld the foreclosures. See Myers v. Katz, No. 1058 and No. 2637, Sept. Term 2011 (Md. Ct. Spec. App. June 4, 2013) (“First Appeal”); Myers v. Katz, No. 1091, Sept. Term 2014, 2015 WL 6157305, at *1, 2 (Md. Ct. Spec. App. Oct. 19, 2015) (“Second Appeal”), cert. denied, 446 Md. 292, 132 A.3d 195 (2016).

         In the Second Appeal, the Court of Special Appeals explained the history that led to the foreclosures and the conduct of Myers with respect to those proceedings. The court recounted that the Circuit Court for Baltimore County ratified the foreclosure sales on June 27, 2011. 2015 WL 6157305, at *1, 2. Myers then filed the First Appeal. The Maryland Court of Special Appeals affirmed, in an unreported, consolidated opinion issued on June 4, 2013. Id. In particular, the court “affirmed the circuit court's orders in both cases, holding that the court did not err in (1) ratifying the foreclosure sale, and (2) denying Myers's motion to vacate under Rule 2-535(b).” Id.

         Thereafter, on April 7, 2014, Myers filed a second motion to vacate the judgment, which he later amended and supplemented. Id. And, on May 19, 2014, Myers filed a motion to alter or amend judgment, which related to the Auditor's Report and Account, which he also later supplemented. Myers, 2015 WL 6157305, at 2. The substitute foreclosure trustee opposed all of the motions. Id.

         In an order dated July 8, 2014, the Circuit Court for Baltimore County denied the motions. Id. That court noted that the motions were “‘fraught with a rambling dissertation of bald allegations and conclusory statement[s] not indicative of any fact support.'” Id. Myers filed a motion to alter or amend the order, which the circuit court denied. Id.

         On July 29, 2014, Myers noted the Second Appeal. Again, the Maryland Court of Special Appeals affirmed, concluding: “[T]he law of the case doctrine precludes further litigation of the issues that could have been raised in Myers's first appeal.” Id. at 6. The court added, id.: “If Myers continues to attack a judgment that is clearly valid and final by imagining new reasons why he should win, [] Myers runs the risk of incurring sanctions in the form of attorneys' fees pursuant to Rule 1-341.” Thereafter, Myers filed a petition for writ of certiorari to the Maryland Court of Appeals. The petition was denied on February 22, 2016. Myers v. Katz, 446 Md. 292, 132 A.3d 195 (2016).

         On July 1, 2016, after Myers was unsuccessful in State court, and more than five years after Judge Gordon issued his amended order dismissing the bankruptcy case, Myers filed a “Motion to Reopen Chapter 13 Case, ” pursuant to 11 U.S.C. § 350(b) and Fed.R.Bankr.P. 5010. ECF 2-19. The motion was supported by a memorandum of law. ECF 2-21 (collectively, “Motion to Reopen”). In the Motion to Reopen (ECF 2-19), Myers claimed, inter alia, that the bankruptcy court's order dismissing the case was void as inconsistent with due process because “all Notices and Orders, other than the one (1) Notice, sent November 11, 2010 (Doc 42), were sent to the wrong address . . . .” Id. ¶ 12. He also argued that the bankruptcy court should reopen the case so as to “unwind the foreclosure sale” of his properties because, in his view, the Circuit Court for Baltimore County and the Maryland Court of Special Appeals improperly permitted the foreclosure sale to proceed. ECF 2-21 at 5, 6.

         As indicated, the Interim Chapter 13 Trustee responded in opposition to the Motion to Reopen on July 18, 2016. ECF 2-22. In his Opposition, Vetter argued that the claims in Myers's Motion to Reopen were not cognizable under Rules 60(b)(3) and 60(b)(4). Id. ¶¶ 5-6. In addition, Vetter asserted that the Motion to Reopen was untimely. Id. ¶ 7.

         On July 19, 2016, Myers submitted a “Motion to Supplement” his Motion to Reopen. RAG-10-28695, ECF 73. In the Motion to Supplement, Myers pointed out that the address to which the Clerk of the Bankruptcy Court mailed copies of notices in 2010 and 2011 was not the mailing address that Myers listed on the Petition. Id. Myers filed a reply in support of his Motion to Reopen on July 22, 2016. ECF 2-23. By Order of August 10, 2016, Judge Gordon denied the Motion to Reopen, without explanation. ECF 2-24.

         While the Motion to Reopen was pending in the bankruptcy court, Myers filed two actions in this Court. In the first action, Myers v. CFG Cmty. Bank, CCB-16-3098, Myers claimed that the bankruptcy court violated his due process rights by mailing critical notices to the wrong address. See id., ECF 1, ¶ 11. Further, Myers claimed that the case concerned a “wrongful foreclosure” because, in his view, the foreclosure of his properties was executed in violation of the bankruptcy court's automatic stay. Id. at 1. By Memorandum (id., ECF 2) and Order (id., ECF 3) of September 16, 2016, Judge Blake dismissed the case for lack of subject matter jurisdiction, finding that the claims pertained to foreclosure and that federal courts lack jurisdiction over foreclosure actions. Id., ECF 2 at 4.[3]

         Shortly thereafter, on September 22, 2016, Myers filed the second case. See Myers v. CFG Community Bank, ELH-16-3220. In that case, Myers asserted claims similar to those in his first case. See id., ECF 2. By Memorandum (id., ECF 3) and Order (id., ECF 4) of October 5, 2016, I dismissed the case for lack of subject matter jurisdiction. In my Memorandum, I explained that Myers's due process concerns failed to establish subject matter jurisdiction in this Court. Id., ECF 3 at 5. And, I observed that his claims appeared to be barred by the doctrine of res judicata, based on Judge Blake's prior ruling. Id. at 6-8.

         Myers then moved for reconsideration in this Court on October 12, 2016. Id., ECF 5. He filed an amended motion for reconsideration on October 17, 2016. Id., ECF 6. In essence, he claimed that the Court “misapprehended [his] position in this matter” and that his complaint actually turned on the bankruptcy court's “numerous violations of the due process clause of the Fifth Amendment . . . .” ECF 6 at 2.

         By Memorandum (id., ECF 8) and Order (id., ECF 9) of November 29, 2016, I denied the motion for reconsideration. I explained that the relief sought by Myers in his amended complaint pertained to the foreclosure of his properties, and that federal courts lack subject matter jurisdiction over foreclosure matters, even where due process arguments are invoked. Id., ECF 8 at 7-8. Moreover, I indicated that, to the extent Myers challenged the ...

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