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Fadayiro v. Ameriquest Mortgage

January 17, 2007

PRINCE ADESEGUN FADAYIRO, PLAINTIFF-APPELLANT,
v.
AMERIQUEST MORTGAGE, CO. F/K/A LONG BEACH MORTGAGE CO., DEFENDANT-APPELLEE.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

This matter is before me on Plaintiff-appellant Fadayiro's appeal of the Bankruptcy Court's December 4, 2001 Order dismissing his adversary proceeding.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 20, 1998-during the course of Mr. Fadayiro's Chapter 7 Bankruptcy case-Ameriquest filed a motion to modify the automatic stay with respect to a piece of property owned by Plaintiff and located at 5400 S. Hyde Park Blvd. in Chicago ("Property"). On March 25, 1998, the Bankruptcy Court granted what appears to be a routine modification to the Automatic Stay.*fn1

Thereafter, the Property was foreclosed upon. This upset Mr. Fadayiro, who responded by filing an adversary proceeding against Ameriquest and a variety of other defendants. His complaint alleged that Ameriquest and the other defendants acted improperly in foreclosing on the Property.

When filing the adversary complaint, Plaintiff also filed a motion for appointment of counsel and a motion to direct the clerk to issue summons and serve process. Plaintiff-in what would become customary-took no action to prosecute either his adversary complaint or any of the motions that he had filed.

On December 4, 2001, the Bankruptcy Court dismissed Mr. Fadayiro's adversary complaint because he failed to serve the defendants with a copy of the summons and complaint within the time limits imposed by Federal Rule of Bankruptcy Procedure 7004.*fn2

On December 18, 2001, Mr. Fadayiro filed a motion asking the Bankruptcy Court to reconsider its ruling. In the motion, he argued that if he would have had notice of the Court's intent to dismiss his complaint, he would have been able to establish that he was entitled to more time to serve the complaint because of his "poverty" and the fact that he was in "Federal custody."

Though he filed the motion to reconsider, Plaintiff again took no further action to advance that motion. On February 4, 2002, the Bankruptcy Court struck Plaintiff's motion to reconsider "for failure to provide notice and present in the time prescribed by Local Bankruptcy Rule 402(b) and 402(E)(1)."

Plaintiff then appealed the dismissal of his action to this Court. His appeal to this Court has endured myriad procedural twists and turns, including my decision to dismiss his appeal-again, for failure to prosecute-and the Seventh Circuit Court of Appeals' decision to reinstate it.

It is noteworthy that we are still nowhere near a consideration of the substantive merits of Mr. Fadayiro's underlying complaint. The Bankruptcy Judge dismissed his original complaint for, in effect, failure to prosecute. The Bankruptcy Judge struck his motion for reconsideration for, in effect, failure to prosecute. And I dismissed his appeal for failure to prosecute. Mr. Fadayiro's ongoing recalcitrance has taken up years of the Bankruptcy Court's, this Court's, and the Seventh Circuit Court of Appeals' time. And now, though the Appeals Court has remanded the case here, the question before me still has nothing to do with the nature of Mr. Fadayiro's underlying complaint. The question, rather, is whether the Bankruptcy Court erred in dismissing his adversary complaint for, in effect, his failure to prosecute it.

II. STANDARD OF REVIEW

A federal district court has jurisdiction, pursuant to 28 U.S.C. ยง 158 (2006), to hear appeals from the bankruptcy court. On the appeal, the district court reviews the bankruptcy court's factual findings under the clearly erroneous standard and reviews the bankruptcy court's legal findings under the de novo ...


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