22-944-bk

In re Vivenzio

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 February, two thousand twenty-three.

PRESENT:

DEBRA ANN LIVINGSTON,

Chief Judge,

SUSAN L. CARNEY,

JOSEPH F. BIANCO,

Circuit Judges.

_____________________________________

In Re: John Francis Vivenzio

*************************************

John Francis Vivenzio, Debtor, DBA Vivenzio 

Associates, LLC, DBA Intelintix Software,

Appellant,

v. 22-944

Office of the Standing Chapter 13 Trustee, 

Krista M. Preuss, Trustee,

Appellees,

United States Trustee, 

Trustee.

_____________________________________
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FOR APPELLANT: JOHN FRANCIS VIVENZIO, pro se,

Setauket, NY.

FOR APPELLEES: Nathan Kaufman, Office of the Standing 

Chapter 13 Trustee Krista M. Preuss, 

Jericho, NY.

Appeal from a judgment of the United States District Court for the Eastern District of 

New York (Azrack, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Appellant John Vivenzio, proceeding pro se, filed a Chapter 13 bankruptcy petition in 

March 2019.1

 The Chapter 13 trustee moved to dismiss the petition and the bankruptcy court 

granted the motion, ordering the trustee to settle an order of dismissal. Before that order could 

be settled, Vivenzio filed a third amended bankruptcy plan (“Third Amended Plan”). A year 

later, the bankruptcy court scheduled an evidentiary hearing on the motion to dismiss and other 

pending issues and instructed the parties to submit evidence. Vivenzio submitted no evidence 

concerning the feasibility of the Third Amended Plan. After the hearing, the bankruptcy court 

dismissed Vivenzio’s petition, reasoning that he had failed to show that the Third Amended Plan 

was feasible. Vivenzio appealed to the district court, which affirmed the dismissal. We 

1 Chapter 13 “provides bankruptcy protection to individuals with regular income whose debts 

fall within statutory limits”; they are “permitted to keep their property, but they must agree to a 

court-approved plan under which they pay creditors out of their future income,” a process 

overseen by the bankruptcy trustee. Hamilton v. Lanning, 560 U.S. 505, 508 (2010) (alteration 

adopted) (internal quotation marks and citations omitted). A Chapter 13 proceeding therefore 

“affords individuals receiving regular income an opportunity to obtain some relief from their 

debts while retaining their property.” Bullard v. Blue Hills Bank, 575 U.S. 496, 498 (2015).
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assume the parties’ familiarity with the underlying facts, the procedural history of the case, and 

the issues on appeal.

We conduct a plenary review of orders by district courts acting as appellate courts in 

bankruptcy cases, reviewing conclusions of law de novo and factual findings for clear error. 

Superintendent of Ins. for the State of N.Y., as Liquidator of First Cent. Ins. Co. v. Ochs (In re 

First Cent. Fin. Corp.), 377 F.3d 209, 212 (2d Cir. 2004). The evidentiary decisions of the 

bankruptcy court are reviewed for abuse of discretion. Ball v. A.O. Smith Corp., 451 F.3d 66, 

69 (2d Cir. 2006). To the extent that a decision to dismiss for cause is guided by equitable 

considerations, we review that dismissal for abuse of discretion. See Schwartz v. Geltzer (In re

Smith), 507 F.3d 64, 72–73 (2d Cir. 2007). 

Under 11 U.S.C. § 1307(c)(5), a bankruptcy court may dismiss a Chapter 13 petition after 

notice and a hearing where confirmation of the plan has been denied. Vivenzio did not offer 

any evidence to show that the Third Amended Plan was feasible. Although the plan included 

statements that claimed Vivenzio (and others of his household) would earn certain income 

amounts over a five-year period, he did not offer any evidence supporting these assertions. 

Therefore, the bankruptcy court did not abuse its discretion by concluding that the plan lacked 

feasibility. 

In addition to the fact that Vivenzio’s Third Amended Plan was not feasible, the plan was 

likely not confirmable because Vivenzio was approximately $10,000 in arrears at the time of the 

August 2020 hearing. A prerequisite to confirmation of a bankruptcy plan is that “the debtor 

will be able to make all payments under the plan and to comply with the plan.” 11 U.S.C. 

§ 1325(a)(6). Vivenzio failed to make all required pre-confirmation payments, which suggested 
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that he would not be able to maintain those payments post-confirmation. 

Vivenzio argues that his payments were current. But a simple accounting of his 

payments demonstrates that he was in arrears. Under his Third Amended Plan, Vivenzio was 

to make 12 payments of $2,552 from April 8, 2019 to March 8, 2020 and then 18 payments of 

$3,152 beginning April 8, 2020. At the time of the August 2020 hearing, Vivenzio was required 

to have made $46,384 in payments. Although Vivenzio had made payments to the trustee 

totaling approximately $35,000, he had failed to make all the required payments under the 

bankruptcy plan. 

Vivenzio next argues that he did not receive timely notice of the August 2020 hearing. 

Although no rule speaks to what notice is required for an evidentiary hearing scheduled sua 

sponte, pursuant to Rule 9014 of the Federal Rules of Bankruptcy Procedure “reasonable notice 

and opportunity for [a] hearing” regarding any “contested matter” must be “afforded [to] the 

party against whom relief is sought.” Fed. R. Bankr. P. 9014(a). Here, the bankruptcy court’s 

scheduling order directed service no later than July 30, 2020, which was 18 days prior to the 

August 17 evidentiary hearing. Vivenzio offers no grounds on which to conclude that this was 

unreasonable under the circumstances. Indeed, though Vivenzio filed an objection to both the 

method of service and the admissibility of certain evidence to the bankruptcy court prior to the 

evidentiary hearing, at no point did he seek additional time to help him better prepare. Nor did 

he indicate in his objection or during oral argument at the hearing that his failure to present 

evidence on feasibility was the result of the purported lack of notice.2

2 On appeal, Vivenzio argues that the August 2020 hearing was subject to Rule 2002(b), which 

requires 28 days’ notice before a plan confirmation hearing, or, in the alternative, Rule 2002(a), 
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Vivenzio next argues that there was no pending motion to dismiss because the trustee 

abandoned her previously-filed motion. Under E.D.N.Y. Local Bankruptcy Rule 9072-1(a), a 

settlement order shall be filed within 14 days of the bankruptcy court’s direction or “such other 

time period as the Court may direct.” “If the order is not timely submitted or settled, the matter 

may be deemed abandoned.” E.D.N.Y. Local Bankr. R. 9072-1(d) (emphasis added). 

However, the bankruptcy court “may modify or suspend the requirements” set forth in the local 

rules. E.D.N.Y. Local Bankr. R. 1001-1(d); see also Somlyo v. J. Lu-Rob Enters., Inc., 932 F.2d 

1043, 1048 (2d Cir. 1991) (“[T]he district court has the inherent power to decide when a 

departure from its Local Rules should be excused or overlooked.”), superseded by rule on other 

grounds, Fed. R. Civ. P. 5(d)(4) & 83 (a)(2). 

Here, the bankruptcy court directed the trustee to file the settlement order within 21 days 

of the June 13, 2019 hearing. The trustee filed the settlement order on July 8, 2019. Vivenzio 

is correct that the trustee filed the settlement order outside of the 21-day period but, as the district 

court reasoned, the bankruptcy court was free to disregard the untimeliness of the filing. In 

addition, Vivenzio did not object to the invocation of the trustee’s motion to dismiss in his written 

objection filed before the evidentiary hearing or orally at the hearing itself. 

Vivenzio asserts that the bankruptcy court should have addressed creditor Selene 

Finance’s standing and his objection to its proof of claim. But because the bankruptcy court 

which requires 21 days’ notice before certain other specified types of proceedings. Fed. R. 

Bankr. P. 2002(a), (b). Because this argument was not raised before the bankruptcy court, we 

deem it to have been waived. See In re Johns-Manville Corp., 759 F.3d 206, 219 (2d Cir. 2014) 

(failure to raise argument in the bankruptcy court waives an argument even if it is raised in the 

district court).
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dismissed Vivenzio’s Chapter 13 petition, any challenge to Selene Finance’s standing or proof 

of claim was moot and need not have been adjudicated. 

We have considered all of Vivenzio’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