Filed: Jun. 10, 2005
Latest Update: Mar. 02, 2020
Summary: File Name: 05a0489n.06 Filed: June 10, 2005 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION Nos. 03-2620 and 04-1017 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT In re: J. EDWARD KLOIAN, ) ) Debtor, ) - ) ) J. EDWARD KLOIAN, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN BASIL T. SIMON; ) ) Defendant-Appellee, ) ) and ) ) RONALD L. ROSE, Guardian ad litem of ) debtor J. Edward Kloian, ) ) Movant-Appellee. ) Before: BOGGS
Summary: File Name: 05a0489n.06 Filed: June 10, 2005 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION Nos. 03-2620 and 04-1017 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT In re: J. EDWARD KLOIAN, ) ) Debtor, ) - ) ) J. EDWARD KLOIAN, ) ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR THE ) EASTERN DISTRICT OF MICHIGAN BASIL T. SIMON; ) ) Defendant-Appellee, ) ) and ) ) RONALD L. ROSE, Guardian ad litem of ) debtor J. Edward Kloian, ) ) Movant-Appellee. ) Before: BOGGS,..
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File Name: 05a0489n.06
Filed: June 10, 2005
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
Nos. 03-2620 and 04-1017
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
In re: J. EDWARD KLOIAN, )
)
Debtor, )
------------------------------------- )
)
J. EDWARD KLOIAN, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
BASIL T. SIMON; )
)
Defendant-Appellee, )
)
and )
)
RONALD L. ROSE, Guardian ad litem of )
debtor J. Edward Kloian, )
)
Movant-Appellee. )
Before: BOGGS, Chief Judge; COOK, Circuit Judge; BEER, District Judge.*
*
The Honorable Peter Beer, United States District Judge for the Eastern District of Louisiana,
sitting by designation.
Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
COOK, Circuit Judge. Chapter 7 bankruptcy debtor, J. Edward Kloian, appeals the district
court’s dismissal of his appeal from the bankruptcy court’s order appointing a guardian ad litem.
Kloian also appeals the district court’s order denying his motion for reconsideration and
reinstatement of appeal. Financial Associates of America, Ltd. (“FAA”) appeals the district court’s
order denying its motion to reconsider the court’s dismissal of its appeal from the bankruptcy court’s
denial of FAA’s motion to remand its eviction action to state court. We affirm the district court’s
dismissal of Kloian’s appeal and denial of Kloian’s motion to reconsider, and we affirm the district
court’s denial of FAA’s motion to reconsider the dismissal of FAA’s appeal.
I. Kloian’s Appeal
The bankruptcy court below appointed Ronald L. Rose to serve as Kloian’s guardian ad litem
(“GAL”) in Kloian’s bankruptcy proceedings. Kloian appealed to the United States District Court
for the Eastern District of Michigan, seeking to reverse the GAL’s appointment. Kloian failed to
file a statement of the issues on appeal until more than a month after he filed his notice of appeal.
After Kloian filed his statement of issues, the Chapter 7 trustee moved to dismiss Kloian’s appeal
for failure to comply with Federal Rule of Bankruptcy Procedure 8006, which mandates filing a
statement of the issues within ten days of filing the notice of appeal. The district court granted the
trustee’s motion and denied Kloian’s motion for reconsideration.
A. Kloian’s Challenge to Trustee’s Standing
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
Kloian argues that the district court erroneously acted on the trustee’s motion to dismiss
Kloian’s appeal because the trustee lacked standing. Issues of standing pose questions of law that
we review de novo. Morgenstern v. Revco D.S., Inc. (In re Revco D.S., Inc.), 898 F.2d 498, 499 (6th
Cir. 1990).
According to Kloian, the Chapter 7 trustee lacked standing in the absence of a pecuniary
interest in the outcome of Kloian’s appeal. As we held in Revco, however, a United States trustee
has standing to appeal in a Chapter 7 case—even if he lacks a pecuniary interest in the
outcome—because the trustee represents a public interest in the outcome of bankruptcy proceedings.
Id. at 499–500. Kloian contends that Revco applies only to United States trustees, not to Chapter
7 trustees, but he cites no authority for that proposition. What authority exists supports treating the
two as equivalent in this context. For one, United States trustees appoint and supervise Chapter 7
trustees. 28 U.S.C. § 586(a). And one circuit court specifically has held that Chapter 7 trustees have
standing to prosecute appeals. Richman v. First Woman’s Bank (In re Richman),
104 F.3d 654, 657
(4th Cir. 1997).
Here, the trustee did not even bring an appeal; rather he sought dismissal of debtor’s appeal
due to rule-noncompliance. Trustees act on behalf of the bankruptcy estates and appropriately
concern themselves with orderly estate administration, including delays precipitated by out-of-rule
filings. We conclude that the public interest that supports a trustee’s standing to prosecute an appeal
also supports a trustee’s standing to respond to a debtor’s appeal.
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
B. Dismissal of Kloian’s Appeal
Having resolved the preliminary debate regarding the Chapter 7 trustee’s standing to move
for dismissal of Kloian’s appeal, we now turn to the question of whether the granting of that
motion—dismissing Kloian’s appeal of the GAL-appointment order for failure to comply with
nonjurisidictional bankruptcy rules—amounted to an abuse of discretion. Joelson v. Brown (In re
Brown Family Farms, Inc.), 872 F.2d 139, 141–42 (6th Cir. 1989). We review the district court’s
denial of Kloian’s 60(b) motion for relief from that dismissal under the same deferential standard.
Hood v. Hood,
59 F.3d 40, 42 (6th Cir. 1995).
The district court’s authority to dismiss Kloian’s appeal here comes partly from Federal Rule
of Bankruptcy Procedure 8006, which provides: “Within 10 days after filing the notice of appeal
as provided by Rule 8001(a) . . . the appellant shall file with the clerk and serve on the appellee . .
. a statement of the issues to be presented.” And Rule 8001(a) authorizes dismissal as a sanction:
“appellant’s failure to take any step other than timely filing a notice of appeal does not affect the
validity of the appeal, but is ground only for such action as the district court or bankruptcy appellate
panel deems appropriate, which may include dismissal of the appeal.” A district court may in
particular exercise its discretion to dismiss an appeal for a violation of Rule 8006 where there is a
showing of bad faith, negligence, or indifference. See Third Nat’l Bank v. Winner Corp. (In re
Winner Corp.), 632 F.2d 658, 661 (6th Cir. 1980).
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
Kloian filed his notice of appeal on August 25, 2003, but failed to file his statement of issues
until September 29, 2003. The district court found this failure resulted from negligence or
indifference: “Debtor’s most recent violation is a result of Debtor’s persistent neglect of or
indifference toward the procedural rules involved in a bankruptcy proceeding.” That assessment
hinged on Kloian’s bankruptcy-court reputation as gleaned from the bankruptcy court’s Opinion on
the Appointment of a Guardian Ad Litem for Debtor detailing that Kloian persistently neglected to
produce records and to adequately prepare for and participate in hearings. This court made a similar
assessment when it affirmed the dismissal of one of Kloian’s earlier appeals for failure to comply
with Rule 8006. Kloian v. Lawrence J. Acker, P.C. (In re Kloian), 72 Fed. Appx. 364 (6th Cir.
2003).
Kloian argues that his failure to timely file a statement of issues was not the result of bad
faith, negligence, or indifference, but rather the result of his having to simultaneously file numerous
pleadings in related litigation. We agree with the district court’s response to this argument:
“Appellant cannot file what the bankruptcy court describes as ‘countless, often meritless objections’
and then claim that his extensive handling of his litigation efforts excuses his procedural errors on
appeal.”
Kloian further contends that the district court abused its discretion because the trustee waited
until eleven days after Kloian filed his statement of issues to move to dismiss Kloian’s appeal, and
thus, the trustee suffered no prejudice from Kloian’s late filing. But the district court need not find
prejudice to dismiss an appeal; a finding that the appellant’s actions showed bad faith, negligence
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
or indifference will support the exercise of the district court’s discretion. In re Winner Corp., 632
F.2d at 661.
In light of Kloian’s repeated failures to follow bankruptcy rules, the district court did not
abuse its discretion when it dismissed Kloian’s appeal. And thus, the district court did not abuse its
discretion when it refused to vacate that dismissal.
II. Dismissal of FAA’s Appeal
In a separate proceeding in Michigan state court, FAA—a corporation controlled by Kloian
as its majority shareholder and sole director and officer—sued to evict Peter and Catherine Kelley
from its property. The Kelleys removed the case to the bankruptcy court, which docketed it as an
adversary proceeding in Kloian’s Chapter 7 bankruptcy. The bankruptcy court denied FAA’s
motion to remand the case to state court. FAA then filed a notice of appeal of that remand-denying
order. The district court dismissed this appeal because Kloian, who is not a lawyer, signed the
notice on behalf of FAA. The district court later denied FAA’s motion to set aside the dismissal.
No party to this appeal disputes that the notice of appeal signed by Kloian was defective.
Doherty v. Am. Motors Corp., 728 F.2d 334, 340 (6th Cir. 1984) (“[A] corporation cannot appear
in federal court except through an attorney.”) The debate concerns whether that defect was cured—
so as to render the refusal to reinstate the appeal an abuse of discretion—when FAA later retained
an attorney to prosecute its appeal and moved the district court to set aside its dismissal.
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
FAA pointed the district court to our opinion that holds courts should not dismiss a
corporation’s appeal when the corporate-officer-filed notice of appeal is rehabilitated by the
corporation promptly retaining counsel to prosecute the appeal. AAA Venetian Blind Sales, Inc. v.
Beaulieu of Am., Inc., Nos. 96-1108, 96-1844, 1997 U.S. App. LEXIS 22461, at *5 (6th Cir. Aug.
19, 1997). The district court nevertheless refused to set aside its dismissal, finding a different
impediment argued against reinstating the appeal: a GAL having been appointed to handle Kloian’s
bankruptcy affairs, Kloian lacked authority to retain an attorney for FAA. And absent retention of
counsel to “cure” the defectively filed notice of appeal, AAA Venetian Blind lacked any applicability
to Kloian’s case.
We note that the order appointing the guardian ad litem authorized the GAL to represent
Kloian with respect to any of Kloian’s claims that represented assets of the bankruptcy estate.
Kloian argues that the claim at issue here belonged to FAA, rather than to him, and is therefore not
subject to the GAL order. But the bankruptcy court ordered that all rent due to FAA be paid to the
Chapter 7 trustee, thus treating FAA’s assets as property of the bankruptcy estate. The court also
stayed all state court proceedings concerning FAA. Both of these orders went unchallenged by
Kloian (some of the very few that did) and thus FAA could not pursue an eviction action outside
the bankruptcy proceedings and Kloian could not act in the bankruptcy proceedings except through
his GAL.
Because Kloian lacked the authority to hire an attorney for FAA, his retaining an attorney
did not cure the defect in the notice of appeal, and the district court properly dismissed FAA’s
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Nos. 04-1017 and 03-2620
In re: J. Edward Kloian
appeal. Thus, the district court did not abuse its discretion when it denied FAA’s motion to set aside
the dismissal of the appeal.
III. Conclusion
We affirm both the district court’s orders dismissing Kloian’s appeal and denying his motion
for reconsideration, and the district court’s order denying FAA’s motion to reconsider the order
dismissing FAA’s appeal.
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