Appellant, Appeal from Bankruptcy Court Case No. 09 B 13083 Adversary No. 11 A 0595
The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
This case is on appeal from the Bankruptcy Court's Dismissal of an Adversary Complaint No. 11-A-595 filed under FED. R. BANKR. PRO. 7001(6) by appellant Anthony Stelmokas ("Stelmokas") against Audrius Cepronas ("Cepronas") in his Chapter 7 Bankruptcy, Case No. 09-B-13083. The Adversary Complaint was dismissed on June 3, 2011. Stelmokas moved to reconsider on June 17, 2011. Because the Motion to Reconsider was filed within fourteen (14) days from dismissal of the Adversary Complaint, the time for appeal ran from the date the Motion to Reconsider was denied, July 8, 2011. See, FED. R. BANKR. PRO. 8002(a), 8002(b)(4). Stelmokas filed a timely Notice of Appeal on July 22, 2011. For the reasons stated herein, this Court AFFIRMS the Judgment of Dismissal.
Stelmokas' Adversary Complaint sought to determine the dischargeability of debt under § 523(a)(2)(A) of the Bankruptcy Code. Stelmokas alleged that a $30,983 promissory note Cepronas signed was not dischargeable in bankruptcy because it was obtained under false pretenses.
Stelmokas first sought to avoid discharge of the debt in the timely filed Adversary Complaint No. 09-A-691 ("the First Case"). In that action, Stelmokas retained an attorney, Berton Ring, who failed to appear on Mr. Stelmokas' behalf on December 3, 2010. Transcripts from that day's court events indicate that the bankruptcy judge expressed unhappiness with the attorney's delays in prosecuting the case, noted that the hearing was at least the 10th in the matter, and observed that Ring and opposing counsel had also failed to file a joint pretrial statement in the case. As a sanction, he dismissed the adversary action without prejudice, an order that was entered on December 7, 2010. Ironically, the record indicates Mr. Stelmokas had also been unhappy with Mr. Ring and had directed him to seek permission to withdrawal on December 3, the very day Ring failed to appear.
After the dismissal, Mr. Stelmokas himself soon appeared in court on February 4, 2011 and noted he had been out of the country on December 3, 2010. He argued that equitable estoppel prohibited the dismissal of the case, in that his own attorney had misled him into believing the attorney would show for the December 3 hearing. Mr. Stelmokas argued that the debtor's attorney was somehow in collusion with attorney Ring, but gave no evidence of that, and the bankruptcy judge found no such evidence.
The bankruptcy judge was sympathetic to Mr. Stelmokas' plight, but noted litigants are bound by the actions of their attorneys, even poor ones, and would not reconsider. But all was not lost, the bankruptcy judge told Stelmokas.
THE COURT: When I dismissed this and the other cases, complaints, without prejudice, it was with your interest in mind because you've still got another shot at it if you want to refile.
MR. STELMOKAS: I didn't know that. I thought that was it. THE COURT: No. If I had dismissed them with prejudice, that would have been the end of it.
MR. STELMOKAS: So I can refile. And the window of opportunity for that?
THE COURT: Any time you want. It's up to you.