21-2321-bk

Pierre v. Aurora Loan Services, LLC

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. 

1 At a stated term of the United States Court of Appeals for the Second Circuit, 

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 8 3 th day of February, two thousand twenty-three.

4

5 PRESENT: RAYMOND J. LOHIER, JR.,

6 STEVEN J. MENASHI,

7 BETH ROBINSON,

8 Circuit Judges.

9 ------------------------------------------------------------------

10 IN RE: AURORA COMMERICAL CORP., 

11

12 Debtor.

13 ------------------------------------------------------------------

14 GERARD M. PIERRE,

15

16 Appellant,

17

18 v.

19 No. 21-2321-bk

20 AURORA LOAN SERVICES, LLC.,
2

1 Appellee, 

2

3 AURORA COMMERICAL CORP.,

4

5 Debtor-Appellee.

6 ------------------------------------------------------------------

7

8 FOR APPELLANT: Gerard M. Pierre, pro se, 

9 Denver, CO

10

11 FOR DEBTOR-APPELLEE: Kyle J. Ortiz and Eitan 

12 Blander, Togut, Segal & Segal 

13 LLP, New York NY

14

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

16 Southern District of New York (Edgardo Ramos, Judge).

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

18 AND DECREED that the judgment of the District Court is AFFIRMED.

19 Gerard M. Pierre, proceeding pro se, appeals from an August 13, 2021

20 judgment of the United States District Court for the Southern District of New 

21 York (Ramos, J.) affirming an order of the Bankruptcy Court for the Southern 

22 District of New York (Chapman, B.J.) that disallowed and expunged his proof of 

23 claim. We assume the parties’ familiarity with the underlying facts and the 

24 record of prior proceedings, to which we refer only as necessary to explain our 

25 decision to affirm.
3

1 Aurora Loan Services, LLC (“ALS”) filed for Chapter 11 bankruptcy in the 

2 United States Bankruptcy Court for the Southern District of New York in March 

3 2019. On June 9, 2019, Pierre filed his first proof of claim (the “First Claim”) 

4 based on claims he had previously raised in a 2009 bankruptcy proceeding in the 

5 United States Bankruptcy Court for the District of Colorado against ALS, which 

6 was the servicer of a loan secured by a mortgage on Pierre’s former property in 

7 Colorado. Appellee’s App’x 1–40. The First Claim was disallowed and 

8 expunged by the Bankruptcy Court because, among other things, it was barred 

9 by applicable statutes of limitations. See Appellee’s App’x 548–52. Pierre 

10 appealed the decision to the District Court, which affirmed the Bankruptcy 

11 Court. See Pierre v. Aurora Com. Corp., 620 B.R. 210, 221 (S.D.N.Y. 2020). He 

12 did not appeal the District Court’s order to this Court.

13 On October 24, 2019, before the Bankruptcy Court disallowed Pierre’s First 

14 Claim, Pierre filed a second proof of claim (the “Second Claim”), which 

15 duplicated the First Claim but sought a larger damages award. Appellee’s 

16 App’x 568–71. After a hearing, the Bankruptcy Court disallowed the Second 

17 Claim, concluding that it “merely restate[d] the arguments raised” in the First 

18 Claim and was therefore expungable on the same basis. Appellee’s App’x 722–
4

1 33, 878–81. Pierre appealed that disallowance, and the District Court affirmed. 

2 See In re Aurora Com. Corp., No. 20-CV-8282 (ER), 2021 WL 3595716 (S.D.N.Y. 

3 Aug. 13, 2021). Pierre now appeals the District Court’s affirmance of the

4 disallowance of the Second Claim.

5 “In an appeal from a district court’s review of a decision of a bankruptcy 

6 court, we conduct an independent and plenary review of the bankruptcy court’s 

7 decision, accepting the bankruptcy court’s findings of fact unless they are clearly 

8 erroneous and reviewing its conclusions of law de novo.” In re LATAM 

9 Airlines Grp. S.A., 55 F.4th 377, 382 (2d Cir. 2022) (quotation marks omitted).

10 Upon review of the record and the relevant case law, we conclude that the 

11 Bankruptcy Court correctly dismissed the Second Claim because it was barred by 

12 res judicata or, in the alternative, the law of the case doctrine. “Under the 

13 doctrine of res judicata, or claim preclusion, a final judgment on the merits of an 

14 action precludes the parties or their privies from relitigating issues that were or 

15 could have been raised in that action.” TechnoMarine SA v. Giftports, Inc., 758 

16 F.3d 493, 499 (2d Cir. 2014) (quotation marks omitted). “To prove the 

17 affirmative defense [of res judicata] a party must show that (1) the previous 

18 action involved an adjudication on the merits; (2) the previous action involved 
5

1 the plaintiffs or those in privity with them; [and] (3) the claims asserted in the 

2 subsequent action were, or could have been, raised in the prior action.” Id.

3 (quotation marks omitted). The law of the case doctrine, on the other hand,

4 generally forecloses consideration of issues that were or could have been decided 

5 during prior proceedings in the same action. See Johnson v. Holder, 564 F.3d 

6 95, 99 (2d Cir. 2009). Whether we view the First Claim and the Second Claim as 

7 part of two distinct actions or one action, the result is the same: the Second Claim 

8 is barred by either res judicata or the law of the case doctrine, respectively. 

9 Pierre conceded that the Second Claim arises out of the same facts that formed 

10 the basis of the First Claim; the First Claim was disallowed and expunged by the 

11 Bankruptcy Court in a decision that was affirmed by the District Court and not 

12 appealed to this Court; and the Second Claim merely attempts to relitigate the

13 same issues, against the same parties, that were previously considered and 

14 rejected on the merits in the proceedings on the First Claim. In any event, even 

15 if we were to excuse the relitigation bar and consider the merits, we 

16 independently agree that the Second Claim fails because it is barred by 

17 applicable statutes of limitations.

18 Finally, to the extent that Pierre argues that his procedural due process 
6

1 rights were violated in the bankruptcy proceedings, we are not persuaded. In 

2 bankruptcy proceedings, due process requires “notice reasonably calculated, 

3 under all the circumstances, to apprise interested parties of the pendency of the 

4 action” and an “opportunity to be heard.” In re Medaglia, 52 F.3d 451, 455 (2d 

5 Cir. 1995) (quotation marks omitted). The Bankruptcy Court fulfilled these 

6 requirements when it granted Pierre a hearing on his Second Claim and 

7 permitted Pierre to be heard before ruling that the Second Claim was 

8 disallowable and expungable on the same basis as the First Claim. See

9 Appellee’s App’x 725–26 (Bankruptcy Court explaining to Pierre that “we’re 

10 having a hearing on the amended claim today, so that you are afforded your due 

11 process rights and your rights under the rules”).

12 We have considered Pierre’s remaining arguments and conclude that they 

13 are without merit. For the foregoing reasons, the judgment of the District Court 

14 is AFFIRMED.

15 FOR THE COURT: 

16 Catherine O’Hagan Wolfe, Clerk of Court