18 CV 31 FINAL
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The Ninth Judicial Circuit Court dismissed an appeal for failure to comply with procedural orders requiring the appellant to file an initial brief. The court found the appellant was not entitled to a bankruptcy stay because he was the plaintiff in the lower proceeding, and automatic bankruptcy stays protect debtors from actions against them, not actions initiated by them.
The court held that appellant was not entitled to a bankruptcy stay because he was the plaintiff in the lower proceeding and the automatic stay provision only protects debtors from actions against them, not from actions they initiate. The court dismissed the appeal due to appellant's failure to comply with two separate orders requiring him to file an initial brief within specified timeframes.
[1] The automatic stay under 11 U.S.C. …
[2] A court may dismiss an appeal sua sponte for failure to comply with court orders, including the timely filing of briefs.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362, does not extend to lawsuits initiated by the debtor.”
Establishes that appellant, as the original plaintiff, is not entitled to bankruptcy stay protection because the automatic stay only protects debtors from actions against them, not actions they initiate.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceAppellant filed an appeal in this case. The court issued an order on May 30, 2019, informing Appellant he was not entitled to a bankruptcy stay becaus…
The full statement of facts, procedural history, and disposition for this case are member content.
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IMH ASSETS CORP., a Florida corporation, and IMH ASSETS CORP., a California corporation,
Appellees.
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FINAL ORDER DISMISSING APPEAL AND DIRECTING CLERK TO CLOSE CASE
THIS MATTER came before the Court sua sponte. The Court finds as follows: On May 30, 2019, this Court’s Order informed Appellant that he is not entitled to a bankruptcy stay because he was the plaintiff below and 11 U.S.C. § 362(a)(1) provides that the automatic stay only prevents an “action or proceeding against the debtor.” See, e.g., Crosby v. Monroe County, 394 F. 3d 1328, 1331 n. 2 (11th Cir. 2004) (“The automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362, does not extend to lawsuits initiated by the debtor.”). This Court’s May 30, 2019 Order also directed Appellant to file and serve the initial brief within 30 days of the date of the Order. Appellant was warned that failure to comply with the Order would result in sua sponte dismissal of this case. However, Appellant failed to file the initial brief, or otherwise respond to the Court’s Order. Thus, on July 16, 2019, the Court entered its Order to Show Cause, ordering Appellant to file his initial brief within 10 days. Appellant was again warned that that failure to comply with the Order would result in sua sponte dismissal of this case. However, Appellant failed to file the initial brief, or otherwise respond to the Court’s Order to Show Cause within 10 days. Well after expiration of the 10 days contemplated in the Court’s July 16, 2019 Order to Show Cause, Appellant did file with the Court his Notice of Status of Bankruptcy Case on August 15, 2019, in which he asks that the Court reconsider its prior Orders, and his Notice of Filing Bankruptcy on August 20, 2019, which asserts that he is entitled to a bankruptcy stay. However, as already explained to Appellant in the Court’s May 30, 2019 Order, he is not entitled to a bankruptcy stay because he was the plaintiff below. See 11 U.S.C. § 362(a)(1); Crosby, 394 F. 3d at 1331 n. 2. In short, Appellant was given two opportunities to file an initial brief, and was twice warned that failure to do so would result in the sua sponte dismissal of this case, but he has still failed to file an initial brief. The time has now come to dismiss this appeal. Therefore, it is ORDERED AND ADJUDGED that this appeal is DISMISSED. The Clerk of the Court is directed to CLOSE this case forthwith. No further motions in this case will be accepted by the Court. DONE AND ORDERED in Chambers, at Orlando, Orange County, Florida, on this ______ day of __________, 2019.
DONALD A. MYERS, JR. Chief Judge
APTE and O’KANE, J.J., concur. CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Order was furnished on this _____ day of __________, 2019 to the following: Ivan Uribe, 2423 S. Orange Ave. #181, Orlando, FL 32806; Vitaliy Kats, Esquire, Greenberg Traurig, P.A., 101 E. Kennedy Blvd., Ste. 1900, Tampa, FL 33602.
Judicial Assistant