In Re Residential Capital, LLC ( 2016 )

15-595-bk
In re Residential Capital, LLC
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, 40 Foley Square, in the City of New
York, on the 22nd day of January, two thousand sixteen.
PRESENT: REENA RAGGI,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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IN RE RESIDENTIAL CAPITAL, LLC
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GREGORY C. MORSE,
Appellant,
v. 15-595-bk
RESCAP BORROWER CLAIMS TRUST,
Appellee.
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FOR APPELLANT: Gregory C. Morse, pro se,
Murphy, Texas.
FOR APPELLEE: Adam Aiken Lewis, Morrison &
Foerster LLP, San Francisco,
California.
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Appeal from a judgment of the United States District Court for the Southern District
of New York (Gregory H. Woods, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court entered on January 28, 2015, is
AFFIRMED.
Appellant Gregory C. Morse, proceeding pro se, appeals from the affirmance of a
decision of the United States Bankruptcy Court for the Southern District of New York that
disallowed and expunged his claims against Rescap Borrower Claims Trust (the “Trust”)
on the grounds that his proofs of claim failed to state a basis for liability against the subject
debtors. We conduct a plenary review of a decision of a district court functioning as an
intermediate appellate court in a bankruptcy case, assessing the bankruptcy court’s legal
conclusions de novo and its factual findings for clear error. See In re Lehman Bros.
Holdings Inc., 761 F.3d 303, 308 (2d Cir. 2014). “The bankruptcy court’s discretionary
rulings with regard to such matters as scheduling and continuances are reviewed for abuse
of discretion.” In re Dana Corp., 574 F.3d 129, 145 (2d Cir. 2009). In conducting this
review, we assume the parties’ familiarity with the underlying facts, the procedural history
of the case, and the issues on appeal, which we reference only as necessary to explain our
decision to affirm.
For the reasons stated by the bankruptcy court in its thorough and well-reasoned
opinion, we conclude that Morse failed to state claims for fraud under Texas common and
statutory law, or for violations of the Racketeer Influenced and Corrupt Organizations Act,
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18 U.S.C. § 1962; the Texas Mortgage Broker License Act, Tex. Fin. Code § 156.001, et
seq.; the Texas Mortgage Banker Registration and Residential Mortgage Loan Originator
License Act, Tex. Fin. Code § 157.001, et seq.; or the Texas Deceptive Trade Practices
Act, Tex. Bus. & Com. Code §§ 17.41–17.63.1
Morse also charges the bankruptcy court with procedural errors that deprived him of
due process. In particular, he complains of the court’s refusal to consider certain
evidence, refusal to adjourn a hearing on the Trust’s objections to his proofs of claim, and
ex parte communications with the Trust’s counsel. These contentions are meritless.
The court did not err in refusing to consider certain evidence because Morse
violated Fed. R. Bankr. P. 9014(b) by failing to serve these documents on the Trust in
accordance with Fed. R. Civ. P. 5(b). The court also acted within its discretion in denying
Morse an adjournment of the hearing on the Trust’s objections. See In re Dana Corp., 574
F.3d at 145. The court afforded Morse an opportunity to appear via telephone, which he
failed to do. While Morse argues that the order denying adjournment was issued too late
for him to set up a telephonic appearance he nowhere states that he actually attempted to do
so. In any event, Morse was not prejudiced by the challenged denial because, as a
consequence of his non-appearance at the hearing, the Trust was also prevented from orally
arguing its objections.
1
Morse has adopted Fed. R. Civ. P. 8(a) and 9(b) as the appropriate standards by which his
statutory and fraud claims, respectively, should be evaluated, see Appellant Br. 23, 26;
accordingly, we assume without deciding that the pleading standards set forth therein
properly apply to a contested proof of claim in bankruptcy.
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Finally, Morse’s ex parte communications complaint is based on an email exchange
in which the court instructed Trust counsel to request that Morse provide it with copies of
his (subsequently excluded) evidence, in an apparent effort to ensure that those documents
could be properly considered. The emails do not indicate that the court engaged counsel
in any substantive discussion of the case. Rather, the exchange was purely administrative
in attempting to cure Morse’s own service failure. Even if this limited scheduling
communication would fall within the prohibition on ex parte communications regarding
“matters affecting a particular case or proceeding,” Fed. R. Bankr. P. 9003(a) (emphasis
added), Morse has in any case failed to show prejudice from this exchange, see Fed. R. Civ.
P. 61 (“At every stage of the proceeding, the court must disregard all errors and defects that
do not affect any party’s substantial rights.”).
We have considered Morse’s remaining arguments and conclude that they are
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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