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Guiuan v. Wells Fargo Bank, N.A.

United States District Court, D. New Jersey

January 15, 2020

Demetria Padua Guiuan
v.
Wells Fargo Bank, N.A., et al.

          LETTER OPINION

          ESTHER SALAS, U.S.D.J.

         Dear Parties:

         Before the Court is appellees Wells Fargo Bank, N.A., Wells Fargo Home Mortgage (together, “Wells Fargo”), and HMC Assets, LLC's (“HMC”) (collectively, “Appellees”) motion to dismiss pro se appellant Demetria Padua Guiuan's (“Appellant”) bankruptcy appeal. (D.E. No. 9). The Court has considered the relevant submissions and decides this matter without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1(b). For the reasons that follow, the Court grants Appellees' motion.

         Background.

         The history between these parties goes back more than a decade, starting in April of 2006 when Appellant defaulted on the mortgage to her home. Wells Fargo Bank, N.A. v. Guiuan, No. A-3889-14T2, 2016 WL 5400473, at *1 ( N.J.Super.Ct.App.Div. Sept. 28, 2016). This matter appears to be the latest attempt by Appellant to stall the foreclosure of her residence. On May 5, 2017, Appellant filed a Chapter 13 voluntary petition with the Bankruptcy Court. In re Demetria Padua Guiuan, Bankruptcy Petition No. 17-19453, D.E. No. 1 (Bankr. D.N.J.) (hereinafter (“Bankruptcy Petition No. 17-19453”)). After Wells Fargo filed a proof of claim for $613, 337.23 secured by a lien on Appellant's residence, Appellant filed an Adversary Complaint against Appellees. (Id. at D.E. No. 196; Demetria Padua Guiuan v. Wells Fargo Bank, N.A., et al., Adversary Proceeding No. 17-1711, D.E. No. 1 (Bankr. D.N.J.) (hereinafter (“Adversary Proceeding No. 17-1711”)). Thereafter, Appellees moved to dismiss the Adversary Proceeding, and the Bankruptcy Court granted the motion on April 30, 2018. (Adversary Proceeding No. 17-1711, D.E. Nos. 16-18). The Bankruptcy Court subsequently denied Appellant's motion for reconsideration on June 13, 2018. (Id., D.E. No. 22).

         On June 22, 2018, Appellant filed a Notice of Appeal initiating this action. (D.E. No. 1; see also Adversary Proceeding No. 17-1711, D.E. No. 25). Notably, the Notice of Appeal challenges only the June 13, 2018 Order denying her motion for reconsideration; it does not challenge the April 30, 2018 Order dismissing the Adversary Proceeding. (D.E. No. 1). On July 6, 2018, Appellant filed a statement of issues and designation of record on appeal. (D.E. No. 2).[1]Relevant here, the designation of record specifically notified the parties that pursuant to Federal Rule of Bankruptcy Procedure 8018(a), “[A]ppellant must serve and file a brief within 30 days” of the docketing of the designation of record. (See id.). Appellant missed that deadline, and in fact never submitted her brief in support of her appeal.

         On or about August 27, 2018, Appellant mailed to Appellees a “Motion to Withdraw Notice of Appeal, ” which requested that the Court dismiss her appeal. (D.E. No. 6-1). Appellant did not, however, file this motion with the Court. On November 18, 2018, Appellees filed a letter requesting that the Court close this appeal in light of Appellant's August 27th request. (D.E. No. 6). Seeking clarification, the Court then ordered Appellant to file a letter by December 27, 2018 “indicating the status of this matter and whether she desire[d] to withdraw her appeal.” (D.E. No. 7). Thereafter, Appellant filed a letter explaining that she had mailed the motion to withdraw because this appeal was “pushing back the confirmation of [her] Chapter 13 Plan.” (D.E. No. 8). Nevertheless, Appellant reneged on her motion and instead requested that the Court not dismiss her appeal. (Id.).

         Up until that point, over six months since the filing of the Notice of Appeal, Appellant had done nothing to prosecute her appeal and had missed the deadline to file her moving brief in support of the appeal. Following Appellant's letter, four months passed and Appellant, again, did nothing to prosecute her appeal. Thus, Appellees filed the instant motion to dismiss for lack of prosecution. (D.E. No. 9). A week after the deadline to file her opposition had passed, Appellant filed a motion seeking an extension of time to file her response. (D.E. No. 10). On June 3, 2019, Appellant filed an opposition without permission. (D.E. No. 12).[2] Although she labels her brief as an “Objection to Dismiss Appeal and Cross-Motions to Vacate Adversary Complaint Dismissal with Prejudice and to Stay Defendant's Motion for Relief from Automatic Stay Pending Appeal, ” the brief is at times confusing and incoherent, and appears to only address Appellee's motion to dismiss. (See generally id.). Thus, as of the date of this decision, Appellant has not filed anything in support of the merits of her appeal.

         Legal Standard.

         An appellee may move to dismiss a bankruptcy appeal where the appellant fails to file and serve a brief within the time limits set forth in Rule 8018 or otherwise set by the Court. Fed.R.Bankr.P. 8018(a)(4). The Court, in its discretion, may dismiss a bankruptcy appeal for lack of prosecution. In re New Century TRS Holdings, Inc., 619 Fed.Appx. 46, 48 (3d Cir. 2015) (citing Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002); In re Jewelcor, Inc., 11 F.3d 394, 397 (3d Cir. 1993); Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863 (3d Cir. 1984)).

         To dismiss a bankruptcy appeal for lack of prosecution, the Court must consider six factors: (i) “the extent of the party's personal responsibility;” (ii) the prejudice caused to adversaries caused by appellant's failure to prosecute; (iii) the party's “history of dilatoriness”; (iv) “whether the conduct of the party or the attorney was willful or in bad faith;” (v) effectiveness of other sanctions; and (vi) “meritoriousness of the claim or defense.” Emerson, 296 F.3d at 190 (citing Poulis, 747 F.2d at 868). It is not necessary that all six factors weigh in favor of dismissal for the Court to dismiss the action. See In re New Century TRS Holdings, Inc., 619 Fed.Appx. at 49 (citing Curtis T. Bedwell & Sons, Inc. v. Int'l Fid. Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988)).

         Analysis.

         Having reviewed the parties' submissions, the Court finds that the Poulis factors favor dismissal. First, the record demonstrates that Appellant is personally responsible for her failure to prosecute this action. In particular, an appellant proceeding pro se is personally responsible for delays in her case and is solely responsible for the progress of her case. See In re New Century TRS Holdings, Inc., 619 Fed.Appx. at 48; Emerson, 296 F.3d at 190. Thus, Appellant has the sole duty to prosecute this appeal, and she is personally responsible for the failure to timely file the required briefs and otherwise prosecute this action. Appellant, however, offer no valid excuse for her failure to prosecute this appeal. (See D.E. No. 12 at 20-21). Moreover, Appellant is an experienced litigator and is well-aware of the requirements and deadlines set out by the Federal Rules of Civil and Bankruptcy Procedure. (See infra note 3). Accordingly, this factor weighs in favor of dismissal. See, e.g., In re 40 Lakeview Drive, LLC, No. 15-14692, 2018 WL 10150481, at *2 (D.N.J. June 28, 2018) (“The Appellant is well-aware of the requirements and deadlines set forth in the Federal Rules of Bankruptcy Procedure, in view of this past experience. Thus, the Appellant is personally responsible for the failure to timely proceed with the prosecution of her appeal.”); Bembry-Muhammad v. Greenberg, No. 15-8829, 2016 WL 4744139, at *2 (D.N.J. Sept. 12, 2016) (dismissing appeal where “the Appellant is proceeding pro se, the duty to properly prosecute the appeal fell on her, and thus she is personally responsible for the failure to timely perfect this appeal and to properly serve the Appellee”).

         Second, Appellees are suffering prejudice as a result of Appellant's failure to prosecute. Dismissal is warranted when “delays in the case, [cause creditors] to expend resources to address the delay and [the appellant's] failures in meeting deadlines instead of defending the appeal on the merits.” In re New Century TRS Holdings, Inc., 619 Fed.Appx. at 48; see also Bembry-Muhammad, 2016 WL 4744139 at *2 (“[C]reditors would be prejudiced at this juncture if this Court were to allow the appeal to proceed several months after it was supposed to be perfected.”). Here, the prejudice to HMC in particular is tangible. HMC has moved for relief from the automatic stay in the underlying bankruptcy action in order to pursue state court remedies, such as taking the property at issue to sheriff's sale. (See Bankruptcy Petition No. 17-19453, D.E. No. 85). However, the divestiture rule has divested the Bankruptcy Court of jurisdiction to grant such relief since this action is directly related to the requested stay relief. (See ...


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