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 (WI TH 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, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 8 t h d ay of F e b r u a r y , two thousand twenty

- three

. 3 4 PRESENT: RAYMOND J. LOHIER, JR. , 5 STEVEN J. MENASHI, 6 BETH ROBINSON, 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 IN RE : AURORA COMMERICAL CORP. , 10 11 Debtor

. 12

------------------------------------------------------------------ 13 GERARD M. PIERRE, 14 15 Appel lant , 16 17

v. 18 No. 21

- 232 1

- bk 19 AURORA LOAN SERVICES, LLC., 202 Appellee, 1 2 AURORA COMMERICAL CORP., 3 4 Debtor

- Appellee. 5

------------------------------------------------------------------ 6 7 FOR APPELLANT : G erard M. Pierre, pro se , 8 Denver, CO 9 10 FOR DEBTOR

- APPELLEE : Kyle J. Ortiz and Eitan 11 Blander , Togut, Segal & Segal 12 LLP, New York NY 13 14 Appeal from a judgment of the United States District Court for the 15

Southern District of New York ( Edgardo Ramos , Judge ). 16
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 17

AND DECREED that the judgment of the District Court is AFFIRMED

. 18
Gerard M. Pierre, proceeding pro se , appeals from a n August 13, 2021 19
judgment of the United States District Court for the Southern District of New 20
York (Ramos, J. ) affirming an order of the Bankruptcy Court for the Southern 21
District of New York (Chapman, B.J. ) that disallowed and expunged his proof of 22

claim . We assume the parties’ familiarity with the underlying facts and the 23
record of prior proceedings, to which we refer only as necessary to explain our 24

decision to affirm. 253 Aurora Loan Services , LLC (“ALS”) filed for Chapter 11 bankruptcy in the 1
United States Bankruptcy Court for the Southern District of New York in March 2

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

based on claims he had previously raised in a 2009 bankruptcy proceeding in the 4
United States Bankruptcy Court for the District of Colorado against ALS, which 5

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

Colorado. Appellee’s App’x 1

– 40. The First Claim was disallowed and 7
expunged by the B ankruptcy C ourt because, among other things, it was barred 8
by applicable statutes of limitations

. See Appellee’s App’x 548

– 5 2

. Pierre 9
appealed the decision to the D istrict C ourt, which affirmed the B ankruptcy 10

C ourt

. S ee Pierre v. Aurora Com. Corp. , 620 B.R. 210 , 221 (S.D.N.Y. 2020)

. H e 11

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

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

Claim , Pierre filed a second proof of claim (the “Second Claim”), which 14
duplicat ed the First Claim but sought a larger damages award

. Appellee’s 15
App’x 568

– 71

. After a hearing, the B ankruptcy C ourt disallowed the Second 16
Claim, concluding that it “ merely restate [ d ] the arguments raised” in the First 17
Claim and was therefore expungable on the same basis. Appellee ’s App’x 7 22

– 184 33 , 878

– 81

. Pierre appealed that disallowance , and the D istrict C ourt affirmed. 1

See In re Aurora Com. Corp. , No. 20

- CV

- 8282 (ER), 2021 WL 3595716 (S.D.N.Y. 2
Aug. 13, 2021). Pierre now appeals the District Court’s affirmance of the 3

disallowance of the Second Claim

. 4
“In an appeal from a district court’s review of a decision of a bankruptcy 5
court, we conduct an independent and plenary review of the bankruptcy court’s 6
decision, accepting the bankruptcy court’s findings of fact unless they are clearly 7

erroneous and revie wing its conclusions of law de novo.” In re LATAM 8
Airlines Grp. S.A. , 55 F.4th 377, 382 (2d Cir. 2022) (quotation marks omitted). 9
Upon review of the record and the relevant case law, we conclude that the 10

B ankruptcy C ourt correctly dismissed the Second Cla im because it was barred by 11

res judicata or , in the alternative, the law of the case doctrine

. “Under the 12

doctrine of res judicata , or claim preclusion, a final judgment on the merits of an 13
action precludes the parties or their privies from relitigating issues that were or 14

could have been raised in that action.” TechnoMarine SA v. Giftports, Inc. , 758 15
F.3d 493, 499 (2d Cir. 2014) (quotation marks omitted)

. “To prove the 16

affirmative defense [ of res judicata ] a party must show that (1) the pr evious 17
action involved an adjudication on the merits; (2) the previous action involved 185 the plaintiffs or those in privity with them; [and] (3) the claims asserted in the 1
subsequent action were, or could have been, raised in the prior action.” Id. 2
(quotation marks omitted). The law of the case doctrine , on the other hand, 3
generally forecloses consideration of issues that were or could have been decided 4
during prior proceedings in the same action

. S ee Johnson v. Holder , 564 F.3d 5

95 , 99 (2d Cir. 20 0 9 )

. W hether we view the First Claim and the Second Claim as 6
part of two distinct actions or one action , the result is the same : the Second C laim 7
is barred by either res judicata or the law of the case doctrine , respectively

. 8

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

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

B ankruptcy C ourt in a decision that was affirmed by the D istrict C ourt and not 11
appealed to this Court ; a nd the Second Claim merely attempts to relitigate th e 12
same issues, against the same parties, that were previously considered and 13
rejected on the merits in the proceedings on the First Claim. I n any event, e ven 14
if we were to excuse the relitigation bar a nd consider the merits, we 15
independently agree that the Second Claim fails because it is barred by 16
applicable statutes of limitations

. 17
Finally, to the extent that Pierre argues that his procedural due process 186 rights were violated in the bankruptcy proceedings, we are not persuaded. In 1
bankruptcy proceedings, due process requires “notice reasonably calculated, 2

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

action ” and an “ opportunity to be heard

. ” In re Medaglia , 52 F.3d 451, 455 (2d 4
Cir. 1995) (quotation marks omitted). The Bankruptcy Court fulfilled these 5
requirements when it granted Pierre a hearing on his Second Claim and 6
permitted Pierre to be heard before ruling that the Second Claim was 7
disallowable and expungable on the same basis as the First Claim

. See 8
Appellee ’s App’x 725

– 2 6 ( B ankruptcy C ourt explaining to Pierre that “we’re 9
having a hearing on the amended claim today, so that you are afforded your due 10
process rights and your rights under the rules”). 11

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

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

is AFFIRMED

. 14

FOR THE COURT: 15 Catherine O’ Hagan Wolfe, Clerk of Court 16