# Vynogradov v. Buzyukova

> District Court, S.D. Florida · November 4, 2021

URL: https://www.frixlaw.com/law-library/cases/10119883

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** November 4, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10119883

## How later opinions describe it (automated extraction)

- recognizing that “[a]ssessing witness credibility is uniquely the function of the trier of fact”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 21-CIV-60433-RAR

OLEKSIY VYNOGRADOV,

Appellant,

v.

YULIA STANISLAVOVNA BUZYUKOVA,

Appellee.
_______________________________/

ORDER DISMISSING BANKRUPTCY APPEAL

Appellant, Oleksiy Vynogradov, appeals the United States Bankruptcy Court’s Order (I)
Sustaining Objection to Claim; (II) Denying Motion to Dismiss; and (III) Sanctioning Oleksiy
Vynogradov for Violating the Automatic Stay, [ECF No. 1] (“Order”) at 3-4, as well as the
Bankruptcy Court’s Final Judgment, [ECF No. 1] (“Final Judgment”) at 6-7.1
Specifically, Appellant alleges that the Bankruptcy Court committed reversible error
regarding factual findings and legal conclusions in its Order and Final Judgment—and by ruling
that Appellant’s claim is forever barred under 11 U.S.C. § 523(a)(3). In response, Appellee, Yulia
Stanislavovna Buzyukova, asserts that the Bankruptcy Court did not err in its factual findings or
legal conclusions and maintains that Appellant brings this appeal improperly, making “sensational
attacks” on the Bankruptcy Court.

1 This Court has jurisdiction to review the Bankruptcy Court’s Order under 28 U.S.C. § 158(a)(1) (“The
district courts of the United States shall have jurisdiction to hear appeals (1) from final judgments, orders,
and decrees … of bankruptcy judges entered in cases and proceedings referred to the bankruptcy judges
under section 157 of this title.”).
Having considered the record in its entirety, Appellant’s Initial Brief [ECF No. 18] (“Initial
Brief”), Appellee’s Response Brief [ECF No. 19] (“Response”), and Appellant’s Reply Brief [ECF
No. 21] (“Reply”), it is hereby
ORDERED AND ADJUDGED that the Bankruptcy Court’s Order and Final Judgment
are AFFIRMED, and this appeal is DISMISSED.
BACKGROUND
This case centers around a final judgment dating back to February 13, 2014. [ECF No. 8]

(“Final Hearing Tr.”) at 6. Appellant had a business relationship with Appellee and her husband.
Id. at 6. The business relationship deteriorated, and litigation ensued. Id.; see also Initial Br. at
11-12. Ultimately, Appellant was awarded a final summary judgment for $123,329.28 against
Appellee and her husband. Final Hearing Tr. at 6. That judgment went unpaid and is now at issue
in Appellee’s voluntary Chapter 13 bankruptcy petition, filed on June 26, 2019 in the United States
Bankruptcy Court for the Southern District of Florida. Initial Br. at 11; Final Hearing Tr. at 7.
Appellee filed her original Chapter 13 bankruptcy petition on June 26, 2019. Initial Br. at
14. On July 8, 2019, Appellee filed her First Amended Chapter 13 plan. Id. The claims bar date
in this case was September 5, 2019. Final Hearing Tr. at 9. On September 11, 2019, Appellee
filed a Second Amended Chapter 13 Plan. Initial Br. at 6. On October 3, 2019, the Court entered

an Order Confirming Appellee’s Second Amended Chapter 13 Plan. Id. In December of 2019,
Appellee’s husband pled guilty to money laundering in the District of New Jersey. Department of
Justice, Florida Man Admits Laundering More than $9 Million in Account Takeover Scheme,
JUSTICE.GOV, https://www.justice.gov/usao-nj/pr/florida-man-admits-laundering-more-9-million-
account-takeover-scheme (last visited October 25, 2021).
Appellee listed the $123,329.28 claim as a debt on her original bankruptcy petition and
schedules. Final Hearing Tr. at 7. Attached to the claim were three creditors: Appellant; Iryna
Kobets; and the IK School of Gymnastics, LLC. Id. She listed 15901 Biscayne Boulevard, North
Miami Beach, Florida, 33160 as the address for the IK School of Gymnastics, LLC and 18201
Collins Avenue, Apartment 5005, North Miami Beach, Florida 33160 as Appellant and Kobet’s
address. Id. at 7-8. To the best of Appellee’s knowledge, Appellant and Kobets were living
together and shared a son. Id. at 9. Thus, she listed the same address for both of them. Id. In
addition, Appellee included Appellant, Kobets, and the IK School of Gymnastics as creditors on
the list required under 11 U.S.C. § 521 and Bankruptcy Rule 1007(a)(1). Id. Appellee relied on

Sunbiz, a State of Florida Division of Corporations’ website, to locate the creditors’ addresses. Id.
at 9.
On October 1, 2019, Appellant filed a proof of claim in Appellee’s Bankruptcy Case for
$161,618.19. Id. at 9. On that claim, Appellant listed his address as 18201 Collins Avenue,
Apartment 5005, Sunny Isles Beach, Florida 33160. Id. at 10. As judicially noticed by the Court,
Appellant’s address is the same on both Appellee’s bankruptcy filings and on Appellant’s proof
of claim. Id. Upon Appellant’s filing of the claim, Appellee’s attorney objected to the claim as
untimely. Id. at 11. Appellant filed a pro se response, alleging that he did not receive timely and
proper notice of Appellee’s bankruptcy and requesting that Appellee’s Chapter 13 bankruptcy be
dismissed. Id. Appellant had actual notice of the claim on or around September 3, 2019, at least

two days before the claims bar date.2 Id. at 12.
On April 21, 2020, Appellant, proceeding pro se in state court, filed an Order to Show
Cause regarding Contempt and an affidavit of Appellant for an Order to Show Cause why Igor and
Yulia Buzyukova should not be held in criminal contempt of court for failing to pay the judgment
due to the IK School of Gymnastics, Kobets, and Appellant. Id. at 16-17. Appellant served only

2 There was some discrepancy as to when Appellant received notice of the case. However, September 3,
2019 is the date credited by the Bankruptcy Court in its factual findings. Final Hearing Tr. at 11-12.
Appellee’s attorneys and as a result, Appellee did not become aware of the filing until the summer
of 2020. Id. Upon receiving the news, Appellee researched care for her children in the event she
was arrested and jailed until the debt was repaid. Id. at 18. On August 26, 2020, Appellee’s
counsel demanded $25,000 in damages from Appellant for violating the automatic stay in the
bankruptcy case. Id. On that same day, Appellant’s counsel withdrew Appellant’s motion for
criminal contempt in state court. Id. Five days later, on September 21, 2020, Appellee filed a
Motion for Contempt in the Bankruptcy Court for violating the automatic stay. Id.

On November 19, 2021, the Bankruptcy Court held an evidentiary hearing, [ECF No. 17-
1] at 3963-4196 (“Evidentiary Hearing Tr.”), on three contested matters in this case: Appellee’s
Objection to Claim of IK School of Gymnastics and Oleksiy Vynogradov; Appellant’s Amended
Request for Dismissal of Appellee’s Bankruptcy Petition; and Appellee’s Motion to Hold
Appellant in Contempt of Court for Violation of the Automatic Stay. Final Hearing Tr. at 5. The
Bankruptcy Court presented it’s ruling in a February 10, 2021 hearing. Final Hearing Tr. In its
final Order, the Bankruptcy Court sustained Appellee’s Objection to Appellant’s Claim, denied
Appellant’s Amended Request for Dismissal of Bankruptcy Petition, and granted Appellee’s
Motion for Contempt. Order at 4-5.
STANDARD OF REVIEW

“The district court must accept the bankruptcy court’s factual findings unless they are
clearly erroneous, but reviews a bankruptcy court’s legal conclusions de novo.” In re Englander,
95 F.3d 1028, 1030 (11th Cir. 1996) (citation and internal quotations omitted). “A finding is
clearly erroneous when although there is evidence to support it, the reviewing court upon
examining the entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Kane v. Stewart Tilghman Fox & Bianchi, P.A., 485 B.R. 460, 468 (S.D. Fla. 2013)
(citing United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)) (internal quotations omitted).
“If the lower court’s assessment of the evidence is plausible in light of the record viewed in its
entirety, the reviewing court may not reverse it even though convinced that had it been sitting as
the trier of fact, it would have weighed the evidence differently.” Id. (citing Anderson v. Bessemer
City, 470 U.S. 564, 573–574 (1985)). “Under de novo review, this Court independently examines
the law and draws its own conclusions after applying the law to the facts of the case, without regard
to decisions made by the Bankruptcy Court.” In re Brown, No. 08-1517-Orl-18, 2008 WL
5050081, at *2 (M.D. Fla. Nov. 19, 2008) (citing In re Piper Aircraft Corp., 244 F.3d 1289, 1295

(11th Cir. 2001)). A district court may affirm a bankruptcy court order on “any ground supported
by the record.” In re Gosman, 382 B.R. 826, 839 n.3 (S.D. Fla. 2007) (citing Bircoll v. Miami–
Dade County, 480 F.3d 1072, 1088 n.21 (11th Cir. 2007)) (internal citation omitted).
ANALYSIS
Appellant claims the Bankruptcy Court committed reversible error in both its Order and
Final Judgment. Initial Br. at 10. In response, Appellee contends that the Bankruptcy Court did
not commit clear error in either its Order or Final Judgment. Resp. at 8. The Court agrees with
Appellee and will address the issues raised on appeal in turn. As a result, the Bankruptcy Court’s
Order is AFFIRMED, and this appeal is DISMISSED as set forth herein.
I. The Bankruptcy Court’s factual findings do not constitute clear error.

Appellant argues that the Bankruptcy Court committed “clear error” when finding that: (1)
Appellant was “trained in the law”; (2) Appellee’s material errors and omissions in her bankruptcy
filings were the result of sloppiness; (3) Appellee was not a pro bono client; (4) Appellant was
noticed at the proper address; and (5) the Bankruptcy Court’s determination of witnesses’
credibility was faulty. A bankruptcy court commits “clear error” when the Court is left with a firm
conviction that the evidence shows a mistake was committed. See Kane, 485 B.R. at 468. On all
five issues, a careful review of the record belies any finding that the Bankruptcy Court committed
clear error.
1. Appellee was trained in the law.
First, Appellant contends that the Bankruptcy Court committed clear error when finding
that Appellant had legal training. Initial Br. 14–15. On September 24, 2020, the Bankruptcy Court
held a hearing to determine whether a translator, Mr. Parshin, engaged in the unauthorized practice
of law by aiding Appellant in the filing of certain motions and during state court proceedings held

on June 11, 2020. [ECF No. 6] (“Parshin Hearing”). In that Hearing, Mr. Parshin’s counsel
represented to the Bankruptcy Court that Appellant was in the process of signing an affidavit
discussing his relationship with Mr. Parshin. Id. at 8. The affidavit would discuss Appellant’s
educational and professional background, including attending law school in Ukraine for five years
and working for a judge in Kiev. Id. at 8. These representations were made to show the
Bankruptcy Court that Appellant authored his own pleadings, and therefore, Mr. Parshin did not
engage in the unauthorized practice of law. Id. at 8, 12. This Court credits the representations
made by Mr. Parshin’s counsel that Appellant had legal training—which were not objected to by
Appellant’s Counsel. Therefore, this Court does not find that the Bankruptcy Court erred upon
finding that Appellant was trained in the law.

2. Appellee’s material errors and omissions were the result of sloppiness in her
bankruptcy filings.

Upon review of the record, the Court is not convinced that the Bankruptcy Court erred in
finding that the mistakes made by Appellee in her filings were not intentional. In the Evidentiary
Hearing, Appellee testified as to each material error and omission raised by Appellant. Final
Hearing Tr. at 12–16. At the time of the Evidentiary Hearing, all such errors had been corrected
in Appellee’s amended filings. Id.
The Bankruptcy Court is in the best position to determine whether Appellee’s testimony
was credible. See In re Englander, 95 F.3d at 1030 (requiring a reviewing court to “give due
regard” to a bankruptcy court’s credibility judgments); see also United States v. Peters, 403 F.3d
1263, 1270 (11th Cir. 2005) (recognizing that “[a]ssessing witness credibility is uniquely the
function of the trier of fact”). In this case, the Bankruptcy Court found that Appellee’s testimony
was credible, Final Hearing Tr. at 6, and took special care to note that “notwithstanding her
husband’s criminal case, not once during the evidentiary hearing did [Appellee] plead the Fifth

Amendment and refuse to answer any question.” Id. at 16. After careful review, the Court is left
with the same impression as that of the Bankruptcy Court—Appellee proceeded sloppily, but did
not proceed in bad faith, when filing her bankruptcy petition. Final Hearing Tr. at 29.
3. Appellee was not a pro bono client.

The Court does not find that the Bankruptcy Court committed clear error in finding that
Appellee was not a pro bono client. Final Hearing Tr. at 33:16–17. Rather, the evidence suggested
that Appellee and counsel had yet to discuss any type of final payment, not that the matter had
been taken on a pro bono basis. Id. at 21:2–4. Again, the Court defers to the determination made
by the Bankruptcy Court that both Appellee and her counsel, Melissa Ramnauth, presented
credibly. Id. at 6. Specifically, Ms. Ramnauth testified to the fact that, in some capacity, Appellee
had been and was being billed. Final Hearing Tr. at 18–21.
4. Appellant was correctly associated with the 18201 Collins Avenue address.
Appellant contends that the Bankruptcy Court erred by finding that his address was 18201
Collins Avenue, Apt. 5005, North Miami Beach, Florida 33160–5156. This argument is
contradicted by the record and Appellant’s own filings. In his own Proof of Claim form, Appellant
listed the same address on Collins Avenue. Final Hearing Tr. at 24:23–25. Therefore, the
Bankruptcy Court did not err in finding that 18201 Collins Avenue was an address associated with
Appellant.
5. Melissa Ramnauth, Appellant’s Counsel, presented credibly.
Lastly, Appellant argues that the Bankruptcy Court clearly erred when it found that Melissa
Ramnauth’s testimony was credible. Initial Br. at 29. Again, Appellant’s arguments are not
persuasive. This Court finds no evidence in the record to warrant a credibility determination at
odds with that of the Bankruptcy Court. Final Hearing Tr. at 6:13–14. Contrary to Appellant’s

assertions, a court’s determination that an attorney is due a lesser amount of fees than they
requested bears no reflection on that lawyer’s credibility. Further, there is no evidence that
indicates Ms. Ramnauth’s use of the word “bill” was deceptive or in bad faith, particularly
considering the Court’s finding that Appellee was not a pro bono client. Id. at 33:16–17.
II. Upon de novo review, the Bankruptcy Court’s legal conclusions do not
constitute reversible error.

Appellant argues that the Bankruptcy Court’s legal conclusions constituted reversible error
in six instances. The Court will conduct a de novo review of each instance in turn.
1. Appellant willfully violated the automatic stay triggered by Appellee’s bankruptcy
case and was entitled to both actual and punitive damages.

The filing of a bankruptcy petition operates as an automatic stay against most other entities,
including those who are entitled to “recover a claim against the debtor that arose before the
commencement of the case under this title.” 11 U.S.C. § 362(a). There are few exceptions to the
automatic stay, one being “the commencement or continuation of a criminal action or proceeding
against the debtor.” 11 U.S.C. § 362(b)(1). As noted by the Bankruptcy Court, Appellant holds a
2014 judgment against Appellee. Final Hearing Tr. at 30:19–20. During the pendency of this
bankruptcy action, on April 21, 2020, Appellant filed two orders to show cause in state court,
including one for criminal contempt. Id. at 16:18–17:3. At the Evidentiary Hearing, Appellant
testified that he “wanted to show the Court that she [Appellee] was disregarding the judgment …
and she was not doing anything to – following the judgment of the Court.” Id. at 30:22–31:5.
While Appellant attempts to cloak the motion as one for criminal contempt, it is clear to this Court,
as it was to the Bankruptcy Court, that Appellant was attempting to recover on a claim arising
prior to Appellee’s filing of her Chapter 13 bankruptcy petition, in clear violation of the automatic
stay.3 Initial Br. at 30; Final Hearing Tr. at 31:6–12.
Next, the Court considers whether Appellant’s violation of the automatic stay was willful.

A violation of the automatic stay is willful if the party knew the automatic stay was invoked and
intended the actions which violated the stay. In re Jove Engineering, Inc., 92 F.3d 1539, 1555
(11th Cir. 1996). Based on the Bankruptcy Court’s factual findings, Appellant was aware and
actively involved in Appellee’s bankruptcy case at the time Appellant filed the state court motion
for criminal contempt in April 2020. Final Hearing Tr. at 31:22–25. Further, as made clear in his
testimony, Appellant intended to file the state court motion for criminal contempt. Final Hearing
Tr. at 30:22–31:5. Thus, the Court agrees that the violation was willful.
Lastly, the Court considers whether the award of damages in this case was appropriate. A
debtor who is injured by a willful violation is entitled to recover his or her actual damages
including costs and attorneys' fees, and if appropriate, may also recover punitive damages.

11 U.S.C. § 362(k); see also In re Lyubarsky, 615 B.R. 924, 929 (Bankr. S.D. Fla. 2020), In re
Sehman, No. 21-30141, 2021 WL 3520430, at *5 (Bankr. N.D. Fla. 2021). Contrary to Appellant’s
assertion that “the only damages recoverable for a stay violation are actual damages”, 11 U.S.C. §

3 Appellant argues that Appellee did not have standing to file her Motion for Contempt on September 1,
2020 because Appellant withdrew his state court contempt motion on August 26, 2020—at which point, he
argues, the injury was incapable of being repeated. Initial Br. at 31. The Court disagrees. Appellant could
have continued to file such motions, regardless of whether he withdrew the state court contempt motion
prior to Appellee’s filing of the Motion for Contempt.
362(k) explicitly allows for, in appropriate circumstances, punitive damages. Lodge v. Kondaur
Capitol Corp., 750 F.3d 1263, 1268 (11th Cir. 2014).
Punitive damages for a willful violation of an automatic stay are appropriate when a party
acts with reckless or callous disregard for the law or rights of others. 11 U.S.C. § 362(k). Courts
in the Eleventh Circuit have considered five factors in determining whether punitive damages are
proper: “(1) the nature of defendant’s conduct; (2) the nature and extent of harm to plaintiff; (3)
the [defendant]’s ability to pay; (4) the motives of defendant; and (5) any provocation by the

debtor.” In re Harrison, 599 B.R. 173, 187–188 (Bankr. N.D. Fla. 2019); see also In re Roche,
361 B.R. 615, 624 (Bankr. N.D. Ga. 2005).
Appellant argues that Appellee is not entitled to “actual damages” because she is a “pro
bono” client and therefore, cannot recover attorney’s fees. Initial Br. at 32. However, Appellee
was not a pro bono client, rendering the basis for Appellant’s argument moot.4 Further, courts
may award attorney’s fees pursuant to § 326(h) even if a debtor has suffered no other compensable
harm. Parker v. Credit Central South, Inc., 634 F. App’x 770, 774 (11th Cir. 2015); see also In
re Hedetneimi, 297 B.R. 837, 842 (Bankr. M.D. Fla. 2003) (citing In re Robinson, 228 B.R. 75, 85
(Bankr. E.D.N.Y. 1998). Said fees must be reasonable. In re Hedetneimi, 297 B.R. at 842. “The
explicit, specific, and broad language [of § 362(k)(1)] permits the recovery of attorneys’ fees

incurred in stopping the stay violation, prosecuting a damages action, and defending those
judgments on appeal.” In re Horne, 876 F.3d 1076, 1081 (11th Cir. 2017). In the instant case, the

4 Even if Appellee were a pro bono client, federal courts have awarded attorney’s fees to parties in cases
where the client was represented by pro bono counsel. Lyubarsky, 615 B.R. at 935; see also Blanchard v.
Bergeron, 489 U.S. 87, 94 (1989).
Court finds that an award of actual damages (which were exclusively attorney’s fees) was legally
appropriate.5
Next, Appellant contends that punitive damages were not warranted because (1) Appellee
did not request them in her Motion for Contempt [ECF No. 11] (“Motion for Contempt”) at 763–
766, and (2) because Appellee did not present evidence demonstrating that all five factors
considered by the Eleventh Circuit in awarding punitive damages were met. Initial Br. at 32; 34.
Contrary to the assertions of Appellant, Appellee did raise the issue of punitive damages in her

Motion for Contempt. Motion for Contempt at 765 ¶ 16. Specifically, Appellee requested “any
other relief deemed just and appropriate by th[e] Court.” Id. at 766.
Further, the five factors considered in awarding punitive damages weigh in favor of
Appellee’s award: the nature of Appellant’s conduct was egregious; Appellee was harmed;
Appellant was clearly seeking to collect on a prepetition debt; and there was no evidence of
provocation by Appellee. Final Hearing Tr. at 35; see also In re Harrison, 599 B.R. at 188, In re
Roche, 361 B.R. at 624. The only remaining factor for the Court to consider is evidence of
Appellant’s ability to pay. Here, the Bankruptcy Court lacked any evidence of Appellant’s ability
to pay. Final Hearing Tr. at 35:7–8. However, a lack of specific evidence of a party’s ability to
pay is not dispositive of whether an award of punitive damages is warranted. For instance, in

Lyubarsky, the Court could not point to any specific evidence of the Creditors’ ability to pay. In
re Lyubarsky, 615 B.R. at 938. However, the court still issued an award for punitive damages. Id.

5 Insofar as the parties ask the Court to reconsider the amount of attorney’s fees awarded, the Court
concludes that the Bankruptcy Court applied the proper legal principles and therefore reviews the award of
attorneys’ fees for abuse of discretion. Easley v. Collection Serv. of Nev., 910 F.3d 1286, 1289 (9th Cir.
2018)); see also Eskanos & Adler, P.C. v. Roman (In re Roman), 283 B.R. 1, 7 (9th Cir. BAP 2002) (internal
quotation marks and citations omitted)). The Bankruptcy Court did not abuse its discretion in awarding
Appellee $6,300 in attorney’s fees. Final Hearing Tr. at 34.
2. Appellee’s Chapter 13 Plan was not procured by fraud under 11 U.S.C. § 1330(a).

Under 11 U.S.C. § 1330(a), a party in interest may request the revocation of an order of
confirmation if such order was procured by fraud. To prove that a debtor obtained a confirmation
of his plan by fraud, the creditor must prove: (1) that the debtor made a representation regarding
his compliance with § 1330(a) which was materially false; (2) that the representation was either
known by the debtor to be false, or was made without belief in its truth, or was made with reckless
disregard for the truth; (3) that the representation was made to induce the court to rely upon it; (4)
that the court did rely upon it; and (5) that as a consequence of such reliance, the court entered
confirmation. See In re Nikoloutsos, 199 F.3d 233, 238 (5th Cir. 2000) (citing In re Edwards, 67
B.R. 1008, 1009–10 (Bankr. D. Conn. 1986)). Courts review findings of fact within this
framework for clear error. Id. As a threshold matter, the Court finds that the Bankruptcy Court,
in applying the Nikoloutsos framework, applied the correct legal test to determine whether
revocation under § 1330 was proper. Final Hearing Tr. at 27–28.
To put it simply, Appellant argues that Appellee intentionally lacked candor in filling out
her bankruptcy petition. Initial Br. at 32–34. Specifically, she failed to list a potential claim
against Adem International, LLC for $150,000; closed Bank of America accounts; and her
connection to Vigor Green. Final Hearing Tr. at 11-19. Of these errors, the Bankruptcy Court did

find that the failure to list the $150,000 claim from Adem International was a material omission.
Final Hearing Tr. at 28:20–22. This Court, like the Bankruptcy Court, emphasizes a debtor’s
responsibility to be truthful and complete when filling out their bankruptcy schedules. However,
as the Bankruptcy Court pointed out, and as this Court would like to reiterate, Appellee has
amended her bankruptcy schedule to account for not only the Adem International omission, but
for the omissions related to the closure of several Bank of America accounts, and her involvement
in Vigor Green, her husband’s business. Id. at 28:22–24. And, as with most Chapter 13 plans, the
Bankruptcy Court relied on Appellee’s regular income to construct and confirm her plan, not on
“intangible assets that are speculative at best.” Id. at 29:5–8. Ultimately, this Court agrees with
the Bankruptcy Court, and does not find that these mistakes and omissions amounted to fraud.
3. The Bankruptcy Court did not deny Appellant sufficient notice and procedural due
process by (1) finding that two days of notice prior to the bar date was sufficient; (2)
by awarding punitive damages to Appellee; and (3) by disallowing Appellant’s Claim
under 11 U.S.C. § 523(a)(3).

Under 11 U.S.C. § 502, a claim or interest, proof of which is filed under § 501, is deemed
allowed unless a party in interest objects. A creditor must file a proof of claim no later than 70
days after the order for relief under the appropriate chapter is entered. Fed. R. Bankr. P. Rule
3002(c). On a motion filed by a creditor before or after the claims bar date, the court may extend
the time by not more than 60 days if (A) the notice was insufficient under the circumstances to
give the creditor a reasonable time to file a proof of claim because the debtor failed to timely file
the list of creditors’ names and addresses required by Rule 1007(a); or (B) the notice was
insufficient under the circumstances to give the creditor a reasonable time to file a proof of claim,
and the notice was mailed to the creditor at a foreign address. Fed. R. Bankr. P. Rule 3002(c)(6).
Appellant argues that the Bankruptcy Court erred when finding that two days of actual
notice was sufficient to file a proof of claim in this case. Initial Br. at 36. The Bankruptcy Court
found, and this Court agrees, that Appellant had actual notice of Appellee’s bankruptcy petition
on or before September 3, 2019. The claims bar date in this case was September 5, 2019 and
Appellant filed his claim on October 1, 2019. Final Hearing Tr. at 24:14–21. Appellee argues that
the claim is untimely, as Appellant had actual notice of the bankruptcy prior to September 5, 2019.
Resp. Br. at 23.
As a matter of law, neither exception contained in Fed. R. Bankr. P. Rule 3002(c)(6)
warrants an extension of the time to file a claim. As determined by the Bankruptcy Court, the
debtor timely filed a list of creditors’ names and addresses, including Iryna Kobets and Appellant
at 18201 Collins Avenue, Apartment 5005, North Miami Beach, Florida 33160. Final Hearing Tr.
at 8:15–23. The address listed by Appellee matched the address Appellant listed on his October
1, 2019 proof of claim. Id. at 10:1–7. Further, Appellant was sent two court-issued Certificates
of Notice on June 29, 2019 and the Appellee filed a Certificate of Service on July 8, 2019. Resp.
Br. 19. That, coupled with Appellant’s own testimony that he had actual notice of Appellee’s
bankruptcy on September 3, 2019, persuades the Court that Rule 3002(c)(6)(A) does not apply.

The second exception is equally inapplicable because notice of the bankruptcy was not
mailed to a foreign address. Fed. R. Bankr. P. Rule 3002(c)(6)(B). Insofar as Appellant cites In
Re Fitzgerald in support of its argument, the Court finds that In re Fitzgerald actually supports the
Bankruptcy Court’s holding that notice was sufficient and the claim should be barred as untimely.
8:19-07741, 2020 WL 5745973 (M.D. Fla. 2020). The case relies on a finding that the debtor
listed the creditor’s address incorrectly, a fact that is not present here. Id. at *4. In sum, the Court
finds that notice to Appellant was sufficient and Appellant’s proof of claim was untimely.
Next, Appellant argues, for a second time, that awarding punitive damages violated
Appellant’s procedural due process because damages were not requested in Appellee’s Motion for
Contempt. Initial Br. at 36. This is patently false. In Appellee’s Motion for Contempt, Appellee

specifically requested “any other relief deemed just and appropriate by th[e] Court.” Motion for
Contempt at 766.
Lastly, Appellant argues that he was denied sufficient notice and due process because the
Bankruptcy Court made a determination that Appellant’s claim was not a type specified by
11 U.S.C. § 523(a)(3). Initial Br. at 36. He posits that this issue was not in front of the Bankruptcy
Court and should therefore not have been addressed. Id. However, the Bankruptcy Court is not
barred from considering relevant law outside of that presented by the debtor or creditor. Here, the
Bankruptcy Court concluded that Appellant’s claim is not one that would be excepted from
discharge under 11 U.S.C § 523(a)(3) as Appellant’s claim was listed and scheduled as required
by 11 U.S.C § 521(a)(1). Final Hearing Tr. at 25. This finding had no effect on whether
Appellant’s untimely claim should have been allowed; whether Appellant’s amended request for
dismissal of Appellee’s Chapter 13 bankruptcy claim should have been granted; or whether
Appellant violated the automatic stay when he filed a motion for criminal contempt in the
underlying state court case and thus, provide no grounds for reversal.

4. The Bankruptcy Court did not abuse its discretion when making certain rulings at
the November 19, 2021 Evidentiary Hearing.

The Court reviews the Bankruptcy Court’s evidentiary rulings for an abuse of discretion.
In re Int’l Mgmt. Assocs., LLC, 781 F.3d 1262, 1265 (11th Cir. 2015); see also In re Walker, 515
F.3d 1204, 1213 (11th Cir. 2008), United States v. Malol, 476 F.3d 1283, 1291 (11th Cir. 2007).
And even if the bankruptcy court did commit an abuse of discretion, a district court will only
overturn an evidentiary ruling if the defendants have shown that the ruling had a “substantial
prejudicial effect.” Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir. 2014)
(quotation marks and citations omitted).
Here, Appellant argues that the Bankruptcy Court prevented Appellant and Appellee from
testifying about certain topics during the Evidentiary Hearing. Initial Br. 29–30. Upon careful
review of the transcript, the Court has assured itself that the determinations made by the
Bankruptcy Court, largely related to relevancy, whether a question was more prejudicial than
probative, and vagueness, did not constitute an abuse of discretion. Evidentiary Hearing Tr. at
4162:12–4163:25; see also id. at 4163:8–23. Further, even if the Bankruptcy Court had abused its
discretion, the Court does not find that any of these evidentiary rulings would have substantially
prejudiced Appellant. Accordingly, reversal is unwarranted.
III. Appellee’s Motion for Attorney’s Fees and Costs warrants denial.
Appellee asks this Court to award her attorney’s fees and costs pursuant to Fed. R. Bankr.
P. Rule 8020 and Fed. R. App. P. 38. See Motion for Attorney’s Fees [ECF No. 22]. Rule 8020
is similar to Rule 38 and allows a district court to award “just damages and single or double costs
to the appellee” when the appeal is frivolous. Fed. R. Bankr. P. 8020; Fed. R. App. P. 38; see also
Steffen v. Berman, No. 8:09-1953, 2010 WL 2293235, at *1 (M.D. Fla. June 7, 2010). An appeal
is frivolous when “the result is obvious or when the appellant’s argument is wholly without merit.”
Id. (citations omitted). While Appellant’s arguments ultimately are not successful, Appellant is
not barred from challenging the sufficiency of factual findings or legal conclusions and therefore,
the Court does not find that the appeal was frivolous. Accordingly, Appellee’s Motion for
Attorneys’ Fees and Costs related to a Frivolous Appeal [ECF No. 22] is DENIED.
CONCLUSION
For the reasons stated herein, it is hereby
ORDERED AND ADJUDGED that the Bankruptcy Court’s Order and Final Judgment is
AFFIRMED, and this appeal is DISMISSED with prejudice. The Clerk is directed to CLOSE
this case and any remaining motions are DENIED as moot.

DONE AND ORDERED in Fort Lauderdale, Florida, this 4th day of November, 2021.

UNITED STATES DISTRICT JUDGE
ce: counsel of record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10119883. Public record. Not legal advice.