Ellis v. NBT Bank

U.S. DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
Bankruptcy

New York Law Journal

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Judge Mae D'Agostino

NBT Bank held mortgages to four parcels comprising Ellis' dairy farm. It foreclosed in 2009. Sale, granted in 2010, was stayed pending Ellis' 2011 petition for Chapter 12 reorganization. In 2012, Chapter 12 relief was denied confirmation. Ellis did not demonstrate her plan's feasibility. She did not appeal dismissal of her second 2012 bankruptcy case as an impermissible collateral challenge to prior orders from her first bankruptcy case. In addition to appealing the second case's dismissal, Ellis sought an order under Federal Rule of Bankruptcy Procedure 8005 staying foreclosure pending appeal. Applying the four-prong test set out in Hirschfield v. Bd. of Elections, district court denied stay. Both bankruptcy actions were properly dismissed. Moreover, the second's dismissal as an abuse of bankruptcy process and an impermissible collateral challenge to the predecessor action's dismissal was not improper. As in In re Kennedy and In re Beswick, the bankruptcy court properly found Ellis' second Chapter 12 petition an impermissible collateral attack to decisions rendered in her first case, and thus an abuse of the bankruptcy process. As a result, Ellis did not show a substantial possibility of success on the merits of her appeal.

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