In Re Sterling ( 2018 )

17-949
In re Sterling
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New
York, on the 12th day of September, two thousand eighteen.
PRESENT: RALPH K. WINTER,
JOHN M. WALKER, JR.
CHRISTOPHER F. DRONEY,
Circuit Judges.
_________________________________________________
IN RE EVERTON ALOYSIUS STERLING
_____________________________________________
EVERTON ALOYSIUS STERLING,
Debtor-Appellant
v. No. 17-949
1279 ST. JOHN’S PLACE, LLC,
Creditor-Appellee.
_________________________________________________
FOR DEBTOR-APPELLANT: Everton Aloysius Sterling, pro se, Bronx, NY.
FOR CREDITOR-APPELLEE: Jerold C. Feuerstein, Jason S. Leibowitz, Daniel
N. Zinman, Kriss & Feuerstein LLP, New York,
NY.
Appeal from a March 3, 2017, judgment of the United States District Court for the
Southern District of New York (Failla, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Appellant Everton Aloysius Sterling, proceeding pro se, appeals from the district
court’s judgment affirming a bankruptcy court order (the “2016 order”) denying his motion
to (1) set aside its earlier ruling granting 1279 St. John’s Place, LLC (the “creditor”) relief
from an automatic bankruptcy stay (the “2015 order”) and (2) hold an additional
evidentiary hearing. Sterling had opposed the creditor’s motion to lift the automatic stay,
arguing that it did not have standing to so move. The bankruptcy court ruled that the
creditor established standing by virtue of its possession of the note and allonge for
properties in which Sterling had an interest, and lifted the stay. Sterling then filed a motion
to set aside the 2015 order and for an additional evidentiary hearing about the creditor’s
standing; the bankruptcy court denied the motion. We assume the parties’ familiarity with
the underlying facts, the procedural history of the case, and the issues on appeal.
We conduct a plenary review of bankruptcy appeals, assessing the bankruptcy
court’s legal conclusions de novo and its factual findings for clear error. In re N. New
England Tel. Operations LLC, 795 F.3d 343, 346 (2d Cir. 2015). Discretionary rulings of
a bankruptcy court are reviewed for abuse of discretion. Ball v. A.O. Smith Corp., 451 F.3d
66, 71 (2d Cir. 2006) (evidentiary decisions); In re 310 Assocs., 346 F.3d 31, 34 (2d Cir.
2003) (reconsideration); In re Mazzeo, 167 F.3d 139, 142 (2d Cir. 1999) (lift stay).
Sterling’s arguments on appeal are without merit. The creditor is a proper party to
the action to lift the automatic stay because, as holder of the note and allonge, it could seek
foreclosure in state court, and is therefore a “party in interest.” See 11 U.S.C. § 362(d); In
re Comcoach Corp., 698 F.2d 571, 573–74 (2d Cir. 1983).
Nor was Sterling entitled to an evidentiary hearing under Federal Rule of
Bankruptcy Procedure 9014 regarding the creditor’s standing. The creditor’s production
of the original note and allonge to the bankruptcy court was sufficient to establish its
standing. Sterling’s challenge to the validity of the assignment may be fully litigated in
the state court foreclosure action.
We have considered Sterling’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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