Allen Kaplun

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Case 1-05-24528-ess Doc 39 _ Filed 08/23/06 Entered 09/19/06 11:02:34

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
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In re Chapter 13
ALLEN KAPLUN, Case No. 05-24528-ess
Debtor.

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MEMORANDUM DECISION DENYING
THE DEBTOR’S APPLICATION TO REOPEN CASE

On July 28, 2006, Allen Kaplun, the debtor in the above-captioned case, applied to the
Court for an order to show cause why Mr. Kaplun’s case should not be reopened pursuant to 1}
U.S.C. § 350(b), and why he should not be granted lawful title to real property located at 6822
Whitman Place, Sarasota, Florida 34243 (the “Property”) due to an alleged violation of the
automatic stay (the “Application”). The Court issued an Order to Show Cause on J uly 28, 2006,
directing Mr. Kaplun to show cause why his case should be reopened at a hearing on August 11,
2006, and denying all other relief requested in the Application.

On August 11, 2006, the Court held a hearing on the Application, at which Mr. Kaplun,
who is an attorney licensed in the State of New York, appeared in support of the Application.
The Chapter 13 Trustee, Marianne DeRosa (the “Chapter 13 Trustee”), and Joseph L. Fox,
counsel for Carl Loeffler, as Trustee of the Carl E. Loeffler Revocable Living Trust U/T.D.
8/21/01 and Step Properties, Inc. (“Loeffler and Step Properties”), appeared in opposition to the
Application (the “August 11 Hearing”). After consideration of the entire record, the argurients

of counsel and Mr, Kaplun, and for the reasons stated below, the Application is denied.

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

Case 1-05-24528-ess Doc 39 _ Filed 08/23/06 Entered 09/19/06 11:02:34

Background

Allen Kaplun filed a voluntary petition for relief under Chapter 13 of Title 11 of the
United States Code (the “Bankruptcy Code”) on September 6, 2005 (the “Petition Date”). On
September 27, 2005, the Chapter 13 Trustee moved to dismiss the case for failure to comply with
the disclosure requirements of the United States Bankruptcy Court for the Eastern District of
New York Local Bankruptcy Rule 2003-1, failure to submit any Chapter 13 plan payments
pursuant to 11 U.S.C. § 1326(a)(1), and failure to file a feasible Chapter 13 plan (the “Motion to
Dismiss”). On October 31, 2005, Loeffler and Step Properties moved for relief from the
automatic stay with respect to the Property pursuant to 11 U.S.C. § 362(d)(1), nunc pro turc to
the Petition Date (the “Lift Stay Motion”).

Mr. Kaplun filed written opposition to the Lift Stay Motion on November 18, 2005. A
hearing on the Lift Stay Motion was held on December 19, 2005, at which counsel for Loeffler
and Step Properties appeared and was heard, and Mr. Kaplun did not appear. At the hearing on
December 19, 2005, the Court granted the Lift Stay Motion but denied the request for nune pro
tunc relief, and directed counsel for Loeffler and Step Properties to settle a proposed order on
Mr, Kaplun on ten days’ notice. The proposed order was served on Mr. Kaplun on Decerr ber
19, 2005, and was entered, without further written opposition, on January 3, 2006 (the “Lift Stay
Order’).

Also on December 19, 2005, the Court held a hearing on the Motion to Dismiss, at which
the Chapter 13 Trustee appeared and was heard, and Mr. Kaplun did not appear. Mr. Kaplun did
not file any opposition to the Motion to Dismiss. At the December 19, 2005, hearing, the Court

granted the Motion to Dismiss and directed the Chapter 13 Trustee to settle a proposed order on

Case 1-05-24528-ess Doc 39 _ Filed 08/23/06 Entered 09/19/06 11:02:34

Mr. Kaplun on ten days’ notice. The proposed order was served on Mr. Kaplun on December
22, 2005, and was entered, without any written opposition, on January 9, 2006 (the “Dismissal
Order”).

On January 19, 2006, Mr. Kap!un applied to the Court for an order to show cause wily
the Lift Stay Order should not be vacated. The Court made the following entry on the proposed
order to show cause:

January 19, 2006

Unsigned order. The Court entered an order dated January 3, 2006, which

granted relief from the automatic stay. That order did not grant nunc pro tune

relief and, pursuant to Fed. R. Bankr. P. 4001(a)(3), became effective ten days

after it was entered. Thereafter, the Court entered an order dated January 9, 2006,

dismissing this case. “Upon dismissal of the bankruptcy petition, [this Court] is

divested of any jurisdiction to issue orders effecting related proceeding pending in

state court which effect the property of the debtor.” In re Garnett, 303 B.R. 274,

279 (E.D.N.Y. 2003).

Unsigned Order, Docket No. 28. On February 10, 2006, this bankruptcy case was closed.

On July 28, 2006, more than five months later, Mr. Kap!un brought this Application, in
which he seeks an order reopening this bankruptcy case and declaring that he possesses lawful
title to the Property. Mr. Kaplun argues that he is entitled to this relief because, among ot ier
reasons, the foreclosure sale of the Property conducted on September 8, 2005, was in violation of
the automatic stay that was then in effect, the Florida state courts hearing the foreclosure
proceedings were acting in disregard of the automatic stay and the alleged stay violation, and
guidance from the bankruptcy court was therefore required.

On July 31, 2006, three days after bringing this Application, Mr. Kaplun filed a new

voluntary petition for relief under Chapter 13 of the Bankruptcy Code in this Court. See /n re

Allen Kaplun, Case No. 06-4271 1-cec (Bankr. E.D.N.Y.). This was his fourth bankruptcy filing

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in just over one year.'
Discussion

Section 350(b) of the Bankruptcy Code states that "Ta] case may be reopened in the court
in which such case was closed to administer assets, to accord relief to the debtor, or for other
cause.” 11 U.S.C. § 350(b). Bankruptcy courts in this district and elsewhere have held tha: for a
case to be reopened pursuant to Section 350(b) of the Bankruptcy Code, it must have been closed
pursuant to Section 350{a). See 3 COLLIER ON BANKRUPTCY 350.03 at 350-6 (15th ed. 20004).

Where a bankruptcy case is not closed after having been fully administered, but rather, is
closed after having been dismissed, relief under Section 350(b) is not available. Critical Care
Support Servs., Inc. v. United States (In re Critical Care Support Servs.), 236 B.R. 137, 14)-41
(E.D.N.Y. 1999). See also In re Kent Funding Corp., 290 B.R. 471, 475 (Bankr. E.D.N.Y. 2003)
(dismissal of a case under 11 U.S.C. § 349(b) is “an event distinct from closure of a case.” i. In
this circumstance, a debtor may pursue the reopening of his or her case by seeking relief from
the order of dismissa! pursuant to Federal Rule of Bankruptcy Procedure 9024, which
incorporates Federal Rule of Civil Procedure 60. Aubain v. LaSalle Nat'l Bank (in re Aubain),

296 B.R. 624, 626 n.1 (Bankr. E.D.N.Y. 2003) (the debtor’s motion to reinstate would be

! On July 1, 2005, Mr. Kaplun filed for relief under Chapter 13 of the Bankruptcy Code
in the United States Bankruptcy Court for the District of Connecticut. See In re Allen Kapilun,
Case No. 05-50807 (Bankr. D, Conn.). That case was dismissed upon the Chapter 13 Trusstee’s
motion on July 21, 2005. As noted above, Mr. Kaplun filed the present case on September 6,
2005, and it was dismissed on January 9, 2006. See In re Allen Kaplun, Case No. 05-2452'8-ess
(Bankr. E.D.N.Y.). Mr. Kaplun next filed for relief under Chapter 13 of the Bankruptcy Code on
October 15, 2005, in the United States Bankruptcy Court for the Eastern District of New ‘/ork.
See In re Allen Kaplun, Case No. 05-33262-cec (Bankr. E.D.N.Y.). And finally, on July <1,
2006, Mr. Kaplun filed for relief under Chapter 13 of the Bankruptcy Code, again in the United
States Bankruptcy Court for the Eastern District of New York, and that case remains pencing.
See In re Allen Kaplun, Case No. 06-4271 1-cec (Bankr. E.D.N.Y.).

4

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addressed under Fed. R. Bankr. P. 9024 because her case had been dismissed, not closed). See
also 3 COLLIER ON BANKRUPTCY 350.03 at 350-6 (15th ed. 2004),

Here, Mr. Kaplun’s bankruptcy case was dismissed on the motion of the Chapter 13
Trustee on January 9, 2006. It was not “fully administered” under Section 350(a). Mr. Kag:lun
did not oppose the Trustee’s Motion to Dismiss or the entry of the Dismissal Order and has not
sought reconsideration of it under Federal Rule of Bankruptcy Procedure 9024. Instead, Mr.
Kaplun seeks to reopen his bankruptcy case under Section 350(b). For the reasons described
above and based on the entire record, the Court finds that this case may not be reopened under
11 U.S.C. § 350(b).

The Court also notes that Mr. Kaplun has not presented, and the record does not provide,
a basis under Federal Rule of Bankruptcy Procedure 9024 to reconsider the Dismissal order.
Fuirther, Mr. Kaplun does not dispute that he failed to make Chapter 13 plan payments ancl post-
petition mortgage payments, as required of Chapter 13 debtors by the Bankruptcy Code and
Federal Rules of Bankruptcy Procedure. That is, he does not contest, nor could he, the grcunds
for the dismissal of his case.

Two additional observations are in order, First, Mr. Kaplun has not established a l2gal or
factual basis for his request that the bankruptcy court should instruct the Florida state court in
how to interpret or apply the Lift Stay Order. And in all events, the Court may not enter any
order with respect to state court proceedings after a case has been dismissed, Jn re Garne't, 303
B.R. 274, 279 (E.D.N.Y. 2003). Second, Mr. Kaplun is not without a bankruptcy forum, as he
has a bankruptcy case that remains pending in this Court. See In re Allen Kaplun, Case No. 06-

42711-cec (Bankr. E.D.N.Y.).

Case 1-05-24528-ess Doc 39 _ Filed 08/23/06 Entered 09/19/06 11:02:34

Conclusion
Based on the entire record, and for the reasons stated herein, Mr. Kaplun’s Application is

denied. An order in conformity with this Memorandum Decision shall be entered

simultaneously herewith.

Dated: Brooklyn, New York

August 23, 2006
s/f Elizabeth S. Stong

ELIZABETH 8S. STONG
UNITED STATES BANKRUPTCY JUDGE