17-949 In re Sterling

UNITED STATES COURT OF APPEALS
FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (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 St ates Courthouse, at 40 Foley Square, in the City of New York, on the 12 th day of September, two thousand eighteen.

PRESENT: R ALPH K. W INTER
, J OHN M. W ALKER

, J R

. C HRISTOPHER F. D RONEY

, Circuit Judges

.

_________________________________________________

I N RE E VERTON A LOYSIUS S TERLING

________________ _______________ ______________

E VERTON A LOYSIUS S TERLING

,

Debtor-Appellant
v. No. 17-949

1279 S T

. J OHN ’ S P LACE

, LLC,

Creditor-Appellee.

_________________________________________________
FOR DEBTOR-APPELLANT: Everton Aloys ius Sterling, pro se, Bronx, NY.

FOR CREDITOR-APPELLEE: Jerold C. Feue rstein, Jason S. Leibowitz, Daniel N. Zinman, Kriss & Feue rstein LLP, New York,
NY.2 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, procee ding pro se, appeals from the district court’s judgment affirming a bankruptcy cour t order (the “2016 order”) denying his motion to (1) set aside its earlier ru ling granting 1279 St. John’s Pla ce, LLC (the “creditor”) relief from an automatic bankruptcy stay (the “2015 order”) and (2) hold an additional evidentiary hearing. Sterling had opposed th e creditor’s motion to lif t 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, a nd lifted the stay. Ster ling then filed a motion
to set aside the 2015 order and for an add itional evidentiary hearing about the creditor’s standing; the bankruptcy court denied the motion. We assume the par ties’ familiarity with the underlying facts, the procedural histor y of the case, and the issues on appeal.

We conduct a plenary review of bankrup tcy 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 cr editor’s standing. Th e creditor’s production of the original note and allong e 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