United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge.
Minh Vu Hoang (“Ms. Hoang” or
“Appellant”), a debtor in the underlying
bankruptcy case, appeals from an order entered by United
States Bankruptcy Judge Thomas J. Catliota on January 29,
2018, dismissing Adversary No. 17-284. Ms. Hoang also seeks
to proceed in forma pauperis on her bankruptcy
appeal. (ECF No. 7). Because the facts and legal arguments
are adequately presented in the briefs and record, oral
argument is deemed unnecessary. See Fed.R.Bankr.P. 8019;
Local Rule 105.6. For the reasons that follow, the in
forma pauperis application will be granted, and the
order of the bankruptcy court will be affirmed.
thorny factual background underlying this bankruptcy case was
set forth in numerous prior opinions, thus only the facts
relevant to the instant appeal will be included. See In
re Minh Vu Hoang, No. CIV.A. DKC 14-3128, 2015 WL
2345588, at *1 (D.Md. May 14, 2015); In re Hoang,
469 B.R. 606 (D.Md. 2012).
Minh Vu Hoang and her husband Thanh Hoang began bankruptcy
proceedings in 2005 and, since that time, have frequently
come before this court in matters related to that bankruptcy.
See, e.g., In re Minh Vu Hoang, DKC-13-2637, 2014 WL
1125371 (D.Md. Mar. 19, 2014); Hoang v. Rosen,
DKC-12-1393, 2013 WL 6388611 (D.Md. Dec. 5, 2013); Hoang
v. Rosen, DKC-12-1393, 2012 WL 1664071 (D.Md. May 10,
2012). As relevant to this case, after the
bankruptcy proceedings began, Appellant and her husband
entered into a contract for sale of their then-residence at
9101 Clewerwall Drive, Bethesda, Maryland (the
“property”) to Ms. Hoang's brother Trung Vu
and sister-in-law Ha Vu (the “Vus”). The sale to
the Vus did not close, and the property was foreclosed on in
2012. (ECF No. 1-1, at 2-3).
10, 2017, Appellant filed Civil Action No. DKC 17-1909
against Citibank, N.A., Cindy R. Diamond, and Fay Servicing,
LLC (collectively “Appellees”) seeking a
declaration that Appellant and her husband's sale
contract with the Vus is valid and enforceable. Complaint,
In re Hoang, No. DKC-17-1909 (D.Md. July 10, 2017),
ECF No. 1. The complaint was referred to the United States
Bankruptcy Court for the District of Maryland. Order
referring Case to United States Bankruptcy Court for the
District of Maryland, In re Hoang, No. DKC-17-1909
(D.Md. July 26, 2017), ECF No. 3. The bankruptcy court opened
Adversary No. 17-00284. The Bankruptcy Court determined that
Appellant and her husband's complaint was barred by
res judicata and barred by the statute of
limitations and entered an order dismissing the proceeding.
(ECF No. 1-1). Appellant filed a notice of appeal in this
court (ECF No. 1), and Appellant moved to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a)(1)
(ECF No. 7).
Standard of Review
district court reviews a bankruptcy court's findings of
fact for clear error and conclusions of law de novo. In
re Official Comm. of Unsecured Creditors for Dornier Aviation
(N. Am.), Inc., 453 F.3d 225, 231 (4th Cir.
2006); Fed.R.Bankr.P. 8013. “A finding is
‘clearly erroneous' when although there is evidence
to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has
been committed.” United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948); In re
Broyles, 55 F.3d 980, 983 (4th Cir. 1995).
“On legal issues, this [c]ourt ‘must make an
independent determination of the applicable law.'”
In re Fabian, 475 B.R. 463, 467 (D.Md. 2012)
(quoting In re Jeffrey Bigelow Design Group, Inc.,
127 B.R. 580, 582 (D.Md. 1991)). With respect to the
bankruptcy court's application of law to the facts, the
district court reviews for abuse of discretion. Id.
at 467 (citing In re Robbins, 964 F.2d 342, 345 (4th
Cir. 1992)). “[T]he decision of a bankruptcy court
‘must be affirmed if the result is correct' even if
the lower court relied upon ‘a wrong ground or gave a
wrong reason.'” Okoro v. Wells Fargo Bank,
N.A., 567 B.R. 267, 271 (D.Md. 2017) (quoting SEC v.
Chenery Corp., 318 U.S. 80, 88 (1943)). “Thus,
this [c]ourt may ‘affirm the bankruptcy court on any
ground supported by the record.'” Bellinger v.
Buckley, 577 B.R. 193, 195 (D.Md. 2017) (quoting
LeCann v. Cobham (In re Cobham), 551 B.R. 181, 189
(E.D. N.C. ), aff'd, 669 Fed.Appx. 171 (4th
Cir. 2016), reh'g denied (Nov. 29, 2016)).
documents are rife with conclusory allegations unsupported by
any facts or record citations, see Fed.R.Bankr.P.
8010(1)(E) (requiring, inter alia, that an appellate brief
contain “citations to the authorities, statutes and
parts of the record relied on”), and they advance a
number of arguments that were never presented before the
bankruptcy court, see Levy v. Kindred, 854 F.2d 682,
685 (4th Cir. 1988) (“[a]bsent exceptional
circumstances, an appellate court will not consider an issue
raised for the first time on appeal”). In distilling
the cognizable appellate arguments with respect to the order
denying Appellant's declaratory judgment motion (ECF No.
1-1), the court focuses on the arguments specifically
addressed by the bankruptcy court.
threshold matter, Appellant's form application for leave
to proceed in forma pauperis (ECF No. 7)
demonstrates that she is impecunious. Accordingly, the
application will be granted. Appellant's motion to allow
for late filing due to financial concerns will thus be
granted. (ECF No. 8).
contention that it is an “error to dismiss an adversary
proceeding by treating a motion to dismiss as a summary
judgment [motion] without giving appellant an opportunity to
present the case” is misguided. (ECF No. 9, at 2-3).
Judge Catliota did not convert the motion to dismiss into a
motion for summary judgment. Instead, it appears that
Appellant is referring to Judge Catliota taking judicial
notice of Appellant's prior foreclosure cases. (ECF No.
1-1, at 4). “[C]ourts must consider the complaint in
its entirety, as well as other sources courts ordinarily
examine when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated into the complaint by
reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322 (2007). A court may take
judicial notice of a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot be reasonably questioned. Fed.R.Ev. 201; Md. Rule
5-201(b). Judge Catliota took judicial notice of prior
proceedings found within the public record. The accuracy of
these judicial records cannot be reasonably questioned.
See Andrews v. Daw, 201 F.3d 521, 524 n.1
(4th Cir. 2000) (“when entertaining a motion
to dismiss on the ground of res judicata, a court
may take judicial notice of facts from a prior judicial
proceeding when the res judicata defense raises no
disputed issue of fact”).
be remembered that the action filed by Appellant was a
declaratory judgment action, in which she sought to have the
court declare that a contract of sale was valid. The contract
issue was relevant only as it might affect the foreclosure
sale of the home. The foreclosure sale had been the subject
of numerous prior proceedings and its validity long upheld.
Under the circumstances, it was entirely appropriate for the
bankruptcy court to dismiss the action:
“[D]istrict courts possess discretion in determining
whether and when to entertain an action under the Declaratory
Judgment Act, even when the suit otherwise satisfies subject
matter jurisdictional prerequisites.” Wilton v.
Seven Falls Co., 515 U.S. 277, 282 . . . (1995). The
Declaratory Judgment Act expressly states that district
courts “may declare the rights and other legal
relations of any interested party seeking such
declaration.” 28 U.S.C. § 2201(a). In light of
this “nonobligatory” language, the Supreme Court
has explained that “[i]n the declaratory judgment
context, the normal principle that federal ...