13-4402 Osborne v. Tulis 

## 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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO 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 19 th day of February, two thousand fifteen. PRESENT: BARRINGTON D. PARKER, PETER W. HALL, RAYMOND J. LOHIER, JR., Circuit Judges.

_____________________________________ Patrisha S. Osborne, George R. Osborne, Debtors-Appellants , v. 13-4402 Mark S. Tulis, Trustee-Appellee .

_____________________________________ FOR DEBTORS-APPELLANTS: Patrisha S. and George R. Osborne, pro se, Elizaville, NY FOR TRUSTEE-APPELLEE: Stuart E. Kahan, Oxman Tulis Kirkpatrick Whyatt & Geiger, LLP, White Plains, NY2 Appeal from a judgment of the United States District Court for the Southern District of New York (Briccetti, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Pro se appellants Patrisha and George Osborne appeal from the dist rict court’s judgment affirming bankruptcy court orders reopening proceedings 1 and denying the Osbornes’ motions for reconsideration and dismissal. Debtors centrally challenge the bankruptcy court’s order of December 13, 2012, granting the trustee’s motion to reopen the Chapter 7 bankr uptcy estate so as to administer debtors’ malpractice claim against their former attorneys. Debtors’ malpractice claim alleges they were harmed by their former attorneys’ failure to obta in an extension of the automatic stay of the foreclosure of their farm during a Chapter 11 proceeding which was initiated on August 8, 2011, and dismissed, upon the debtors’ motion, on December 16, 2011. The order denying the extension of the stay was ente red on September 20, 2011. The time to appeal that ruling expired on October 4, 2011. See Fed. R. Bankr. P. 8002(a)(1); Fed. R. Bankr. P. 8002(d)(2)(a). The Chapter 7 proceeding on appeal in this case was jointly commenced by the debtors on November 9, 2011. A foreclosure sale of debtor s’ farm took place on January 26, 2012. A debtor’s cause of action is “property” th at automatically becomes part of a Chapter 7 estate on the commencement of the Chapter 7 pr oceeding if that cause of action had already accrued at the time of filing. See Chartschlaa v. Nationwide Mut. Ins. Co. , 538 F.3d 116, 122 (2d Cir. 2008) (per curiam). Although debtors’ ho me was not sold until Ja nuary 26, 2012, New York

1 We agree with the parties that the c ourt has jurisdiction to hear an appeal from the order reopening the Chapter 7 bankruptcy estate on this record. See Fed. R. Bankr. P. 8002(b)(1)(D) (extending the time to appeal where a timely motion for reconsideration is filed).3 law governing legal malpractice makes clear that th e accrual of a legal malpractice claim occurs, at the latest, at the time the attorney’s mistakes become irrevocable, rather than when the first foreseeable consequence of the botched representation comes to fruition. See McCoy v. Feinman , 99 N.Y.2d 295, 305 (2002) (malpractice action for ne gligent drafting of a stipulation accrued “at the latest, on the day the judgmen t incorporating the st ipulation was filed in the county clerk’s office”); Zorn v. Gilbert , 8 N.Y.3d 933, 934 (2007) (mem.) (“Plain tiff’s cause of action accrued, at the latest . . . when a judgment of divor ce was entered in the underlying action.”); Americana Capital Corp. v. Nardella , 946 N.Y.S.2d 470, 470–71 (App. Div. 1st 2012) (malpractice in drafting security agreement accrued upon execution of agreement rather th an at time plaintiff sought to enforce the agreement); Landow v. Snow Becker Krauss , P.C. , 975 N.Y.S.2d 119, 120 (App. Div. 2d 2013) (malpractice action accrued on the da te of faulty tax advice rather than on date favorable tax status was lost); Chi. Title Ins. Co. v. Mazula , 849 N.Y.S.2d 333, 334 (App. Div. 3d 2008) (malpractice claim in adding a nonexistent right of way to deed accrued at the time of the deed’s execution rather than upon use of the right of way); 5 Awnings Plus, Inc. v. Moses Ins. Grp.,
Inc. , 970 N.Y.S.2d 158, 159–60 (App. Div. 4th 2013) (mal practice action accrued upon execution of agreement assigning plaintiff a debt rather than on date colle ction was sought). Because the Osbornes bring suit over neglig ent advice in connection with a motion that was denied in September 2011 (and which would have to have b een appealed in Octobe r 2011), their cause of action accrued prior to the filing of their Nove mber 2011 Chapter 7 petition, and the malpractice claim was an asset of the Chapter 7 estate. The trustee appropriately reopened the Chapter 7 proceeding to administer it. Debtors’ alternative argument that the trustee abandoned the malpractice cause of action is without merit. “[A] trustee’ s intent to abandon an asset mu st be clear and unequivocal.”4 Chartschlaa , 538 F.3d at 123. No such clear aba ndonment occurred he re. Indeed, the malpractice cause of action was not even listed by the debtors on the schedule of assets in the original Chapter 7 proceedings. Regarding the denial of their motion for rec onsideration, the Osbornes generally argue that the district court’s adverse ruling exhibited bias . However, “[a]dverse rulings, standing alone, do not establish judicial bias or prej udice . . . nor create a reasonable quest ion of judicial impartiality.” See United States v. Schwartz , 535 F.2d 160, 165 (2d Cir. 1976) (citation omitted). Because the Osbornes offer no other reason suppor ted by the record that the distri ct court erred in affirming the denial of their motion for reconsideration, we affirm. As to the district court’s affirmance of the bankruptcy court’s denial of the debtors’ motion for dismissal of the reopened Chapter 7 pro ceeding, the Osbornes argue on appeal that the bankruptcy petition should have been dismissed w ith respect to George because the malpractice claim belonged solely to Patrisha. Although the Osbornes raised this argument in the district court, we decline to address it because they di d not raise it during the bankruptcy proceedings. See In re Johns-Manville Corp. , 759 F.3d 206, 219 (2d Cir. 2014) (fa ilure to raise argument in the bankruptcy court waived the argumen t even if raised in the distri ct court). Indeed, the argument they offered in support of their motion for di smissal in the bankruptcy court was based on compliance with 11 U.S.C. § 109’s credit counseling requirements, an issue they do not raise on appeal to this Court. See Norton v. Sam’s Club , 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal.”).5 We have reviewed the Osbornes’ 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