Petition for Writ of Certiorari — Philip Emiabata, et ux., Petitioners v. Bank of New York Trust Company, et al.

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CASE NUMBER: USAP2 23-7705

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PETITIONERS

APPENDIX:

:

Appendix- (Al)[2 pages], (A2) [4 pages], (A3)[l

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page] and (A4) [5 pages]

II'

Appendix- (B)[14 pages]

Appendix- (C)[5 pages]

[

Appendix-(D1)[7 pages] and (D2)[2 pages]

Appendix- (E) [1 page]

Appendix- (H) [2 pages]

Appendix- (I) [8 pages]

Appendix- (J) [16 pages]

TOTAL PAGES = 112

CAUSE NUMER: USAP223-7705

APPELLANT APPENDIX?[ A 1~A 4]

Appendix (A1) [2pages]These was filed in United States

District Court Case 3:22-cv-01013-QAW (Doc# 25) JUDGMENT

Dated: 08/17/23

Appendix(A2) [4pages] These was filed in The United District

Court Case 3:22-cv-01013-QAW (Doc# 28) ORDER DENYING

MOTION TO AMEND THE JUDGMENT UNDER FEDERAL RULE OF

CIVIL PROCEDURE 59(e) Dated: 09/15/23

Appendix- (A3)[2page] These was also filed in The United

States District Court Case 3:22-cv-01013-QAW(Doc# 35) ORDER

DENYING as moot ECF No [30] Dated: 11/15/23

Appendix- (A4)[5pages] These was also filed in The United

States District Court Case 3:22-cv-1010-QAW(Doc# 26) ORDER

DENYING “MOTION TO AMEND THE JUDGMENT” UNDER FEDERAL

RULE OF CIVIL PROCEDURE 60(b) Dated 09/30/23.

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Case 3:22-cv-01013-OAW

Document 25

Filed 08/17/23

Page 1 of 2

C /lpi>eM3iX /Q

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

IN RE: EMIABATA

NO. 3:22-cv-01013-OAW

Bankruptcy Case No: 21-30197

PHILIP EMIABATA AND SYLVIA

EMIABATA,

Appellants

v.

US TRUSTEE,

Notice

v.

New Rez, LLC, doing business as

Shellpoint Mortgage Servicing, doing

Business as MTGLQ Investors, LP.;

Santander Consumer USA Inc.;

ROBERTA NAPOLITANO,

Appellees

v.

SYLVIA NGOZI EMIABATA,

Debtor

JUDGMENT

This action having come before the Court on an appeal of an order of the

United States Bankruptcy Court before the Honorable Omar A. Williams, United

States District Judge; and the Court having considered the full record of the case

including applicable principles of law and having issued an order dismissing the

case for Plaintiffs’ failure to timely file their appellate brief on or before August 1,

2023, it is hereby

ORDERED, ADJUDGED and DECREED that judgment be and is hereby

entered dismissing the case, and the case is closed.

EOD: 8/17/23

Dated at Hartford, Connecticut, 17th day of August, 2023.

DINAH MILTON KINNEY, Clerk

Bv

Isl Frances Velez

Frances Velez

Deputy Clerk

Case 3:22-cv-01013-OAW

Document 28

Filed 09/15/23

Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

IN RE: EMIABATA,

Appellant.

No. 3:22-cv-1013 (OAW)

ORDER DENYING MOTION TO AMEND THE JUDGMENT

UNDER FEDERAL RULE OF CIVIL PROCEDURE 59(e)

Self-represented plaintiff, Sylvia Emiabata, brought this action as an appeal from

Bankruptcy Court. ECF No. 1; In re: Emiabata, 642 B.R. 481 (Bankr. D. Conn. 2022).

On August 11, 2023, the court dismissed the case for Plaintiff’s failure to timely file her

appellate brief after being granted multiple extensions of time within which to do so. ECF

No. 24. Accordingly, the case was closed on that date.

On August 29, 2023, Plaintiff filed a motion to alter or amend the judgment

pursuant to Federal Rule of Civil Procedure Rule 59(e). ECF No. 26. “A motion for

reconsideration is an extraordinary request that is granted only in rare circumstances,

such as where the court failed to consider evidence or binding authority.” Van Buskirk v.

United Grp. of Cos., Inc., 935 F.3d 49, 54 (2d Cir. 2019). “The standard for granting such

a motion is strict, and reconsideration will generally be denied unless the moving party

can point to controlling decisions or data that the court overlooked—matters, in other

words, that might reasonably be expected to alter the conclusion reached by the court.”

Shrader v. CSX Transp. Inc., 70 F.3d 255, 257 (2d Cir. 1995).

The court “for good cause” may extend the time for a party to act “if the party

failed to act because of excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). The district

court has the discretion to determine whether such excusable neglect is present in each

case. See Gladstone Ford v. N.Y. City Transit Auth., 43 Fed.Appx. 445, 449 (2d Cir.

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2002) (upholding the district court's denial of leave to file a reply because the movant

did not have a sufficient excuse for his failure to request an extension); Davidson v.

Keenan, 740 F.2d 129, 132 (2d Cir. 1984) (upholding the district court's rejection of a

late filing). In assessing excusable neglect, courts consider: “(1) the danger of prejudice

to the [other party], (2) the length of the delay and its potential impact on judicial

proceedings, (3) the reason for the delay, including whether it was within the reasonable

control of the movant, and (4) whether the movant acted in good faith.” Falls v. Novartis

Pharms. Corp., No. 3:13-CV-270 JBA, 2014 WL 3810246, at *2 (Aug. 1,2014) (citing

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).

This case comes before the district court as an appeal of a bankruptcy court

decision dismissing Plaintiffs Chapter 13 case. ECF No. 1 at 8. The bankruptcy court

noted that Plaintiff filed her Chapter 13 case in bad faith, as an effort to stall foreclosure

based on a defaulted mortgage from 2002. In re: Emiabata, 642 B.R. at 481. That

court’s decision includes a table tracking over a dozen bankruptcy cases filed by

Plaintiff or her spouse, all of which were dismissed. Id. at 483. In considering the

length of delay, the court not only considers the delay in the present case, but also the

strategic practice of delay apparently used by Plaintiff.

Plaintiff was granted two extensions of time in which to file her appellate brief,

and was warned that failure to file by the extended deadline would result in dismissal of

the case. ECF Nos. 15 and 23. She alleges that she has not received all of the court’s

orders and thus that she could not comply with them. See ECF No. 26, at 4. Plaintiff

also states that she mailed the appellant’s brief, but that it was never filed. Id. at 3.

Although Plaintiff blames the delay on the United States Postal Service and the Clerk’s

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Case 3:22-cv-01013-OAW

Document 28

Filed 09/15/23

Page 3 of 4

Office, she has provided no evidence for these claims, and the court takes notice of the

fact that prior delays have been at Plaintiffs request. See id. at 4-5; ECF Nos. 14 and

21.

Furthermore, there is reason to doubt that Plaintiff resides in Connecticut and

that venue is proper in this court. See In re: Emiabata, 642 B.R. at 482. The residential

address provided by Plaintiff is the address of a UPS store, and Plaintiff has failed to file

supplemental evidence that she resided in Connecticut at the times relevant to venue.

Id. These details, when taken with the repeated delays and history of bankruptcy filings,

suggest that Plaintiff has not acted in good faith.

Having weighed these factors, the court finds that there is no excusable neglect

to justify Plaintiff’s failure to act. Plaintiff has filed a timely motion to amend the

judgment under Rule 59(e). See Fed. R. Civ. P. 59(e) (motion must be filed within 28

days after judgment). However, Plaintiff is not entitled to relief under Rule 59 because

she has not demonstrated that the court overlooked any legal or factual issue that would

have altered its decision. See, e.g., Tanner v. MTA Long Island R.R., No. 22-CV-9831

2023 WL 2889456, at *1-3 (S.D.N.Y. Apr. 10, 2023) (denying a Rule 59(e) motion where

the plaintiff did not demonstrate that the court overlooked any “controlling decisions or

factual matters”); see also Pickering-George v. Gazivoda Mgmt. LLC, No. 22-CV-10397,

2023 WL 1466634, at *1-2 (S.D.N.Y. Feb. 1,2023) (denying a Rule 59(e) motion where

the plaintiff did not show “that the Court overlooked any controlling decisions or factual

matters with respect to dismissal of [the] action”). Accordingly, the motion is denied.

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*> * .

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to amend the judgment (ECF No. 26)

is DENIED.

IT IS SO ORDERED at Hartford, Connecticut, this 15th day of September, 2023.

Isl

OMAR A. WILLIAMS

UNITED STATES DISTRICT JUDGE

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Case 3:22-cv-01013-OAW

Document 35

Filed 11/15/23

Page 1 of 2

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***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States

policy permits attorneys of record and parties in a case (including pro se litigants) to

receive one free electronic copy of all documents filed electronically, if receipt is required

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referenced document is a transcript, the free copy and 30 page limit do not apply.

U.S. District Court

District of Connecticut

Notice of Electronic Filing

The following transaction was entered on 11/14/2023 at 5:20 PM EST and filed on 11/14/2023

Case Name:

In Re: Emiabata

3:22-cv-01013-QAW

Case Number:

Filer:

WARNING: CASE CLOSED on 08/11/2023

Document Number: 34(No document attached)

Docket Text:

ORDER denying as moot EOF No. [30], Motion for Leave to Proceed In Forma

Pauperis, as to Philip Emiabata. Philip Emiabata is not a named party to this case,

and so he may not file a motion.

ORDER denying ECF No. [29], Motion for Leave to Proceed In Forma Pauperis, as

to Sylvia Emiabata. The court dismissed this case for Plaintiffs failure to file her

appellate brief after having been given several extensions within which to do so.

See ECF No. 24. Plaintiff filed a motion to amend the judgment, which was denied

because it failed to show excusable neglect. See ECF Nos. [26] and [28]. Plaintiff

filed an appeal with the United States Court of Appeals for the Second Circuit and

now asks for leave to appeal in forma pauperis. However, ”[a]n appeal may not be

taken in forma pauperis if the trial court certifies in writing that it is not taken in

good faith." 28 U.S.C.A. ^ 1915. Good faith is shown where a party "seeks

appellate review of any issue not frivolous," Coppedge v. United States, 369 U.S.

438, 445 (1962). Here, Plaintiff and her husband have a history of filing Chapter 13

cases in bad faith in order to stall a foreclosure action based on a defaulted

mortgage from 2002, and they have used the appeals process to draw out this

process. See ECF No. [26] at 3-4, in re: Emiabata, 642 B.R. 481, 481-486 (Bankr. D.

Conn. 2022). Thus, the issue for which Plaintiff seeks appellate review is not

taken in good faith. Accordingly, the motion to proceed in forma pauperis is

denied. Signed by Judge Omar A. Williams on 11/14/23. (Coghlan, Katharine)

3:22-cv-01013-OAW Notice has been electronically mailed to:

Patrick Crook

pcrook@chl3m.com

Mitchell J. Levine

mlevine@nairlevin.com

Robert Joseph Piscitelli

ipiscitelli@mpllawfnm.com

Walter J. Onacewicz, Jr

wonacewicz@nairlevin.com

US Trustee

ustpregion02.nh.ecf@usdoj.gov

3:22-cv-01013-OAW Notice has been delivered by other means to:

Sylvia Emiabata

857 Post Rd. #139

Fairfield, CT 06824

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Page I or b

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UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

IN RE: EMIABATA,

Appellant.

No. 3:22-cv-1010 (OAW)

ORDER DENYING “MOTION TO AMEND THE JUDGMENT”

UNDER FEDERAL RULE OF CIVIL PROCEDURE 60(b)

I.

PROCEDURAL HISTORY

Self-represented plaintiffs, Sylvia and Phillip Erniabata, brought this action as an

appeal from bankruptcy court. ECF No. 1; Case No. 21-ap-03010. The case on appeal

is an adversary proceeding in which the Emiabatas are plaintiffs suing numerous

defendants who allegedly were involved in the property at issue.

ECF No.1.

The

bankruptcy court dismissed the underlying Chapter 13 case, Case No. 21-bk-30197, on

July 22, 2022, and it dismissed the adversary proceeding (for lack of jurisdiction) on

August 1,2022. See, Case No. 21-ap-03010, ECF Nos. 155 & 160. Plaintiffs thereinafter

filed a notice of appeal, see Case No. 21-ap-03010, ECF No. 163, causing the case to

appear before the undersigned (as Case No. 22-cv-1010).

On June 21, 2023 (and after granting several extensions of time), the court

dismissed the case for Plaintiffs’ failure to timely file their appellate brief. ECF No. 22.

Accordingly, the case was closed on that date. Then, on August 10, 2023, Plaintiffs filed

a “motion to alter or amend the judgment,’’ claiming as authority to do so Rule 60(b) of

the Federal Rules of Civil Procedure, see ECF No. 23, though they still did not attach or

otherwise file their appellate brief, which originally was due on November 23, 2022 (some

ten months ago), see ECF No. 14.

1

Plaintiffs seek relief under three provisions of Rule 60(b): Clause (1), which permits

relief from a judgement for “mistake, inadvertence, surprise, or excusable neglect;”

Clause (2), which permits relief due to newly discovered evidence; and Clause (6), which

permits relief for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b). They argue

that they are entitled to such relief because: (1) they did not receive this court’s order

granting them an extension of time in which to file their brief; (2) such mistake was the

fault of the court or the United States Postal Service; and (3) Plaintiff, Philip Emiabata,

was sick, receiving treatment out of town, and taking medication that caused dizziness.

ECF No. 23-1 at 1-2.

18. DISCUSSION

“The decision whether to grant a party's Rule 60(b) motion is committed to the

‘sound discretion’ of the district court”. Stevens v. Miller, 676 F.3d 62, 67 (2d Cir. 2012).

A. Excusable Neglect

Plaintiffs contend that their failure to timely file a brief constitutes “excusable

neglect” under Rule 60(b)(1). in assessing excusable neglect, courts consider: “(1) the

danger of prejudice to the [other party], (2) the length of the delay and its potential impact

on judicial proceedings, (3) the reason for the delay, including whether it was within the

reasonable control of the movant, and (4) whether the movant acted in good faith.” Falls

v. Novartis Pharms. Corp., No. 3:13-CV-270 JBA, 2014 WL 3810246, at *2 (Aug. 1,2014)

(citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Lid. P'ship, 507 U.S. 380, 395

(1993)). For the following reasons, the court finds that Plaintiffs have been the cause for

the repeated delays in this case, and that they have not acted in good faith.

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page is or a •

This case comes before the district court as an appeal of an adversarial proceeding

in bankruptcy court that was dismissed due to the dismissal of Plaintiffs’ underlying

Chapter 13 case. ECF No. 1-1 at 1. In her ruling dismissing the Chapter 13 case, Judge

Nevins noted that “[m]ost of the claims asserted in the pending adversary proceeding are

non-sensical and frivolous, or, are barred by prior litigation between the parties.” In re:

Emiabata, 642 B.R. 481,486 (Bankr. D. Conn. 2022). The bankruptcy court noted that

Plaintiffs filed their Chapter 13 case in bad faith, as an effort to stall foreclosure based on

a defaulted mortgage from 2002.

Id. at 481.

That court’s decision includes a table

tracking over a dozen bankruptcy cases filed by Plaintiffs, each of which was dismissed.

Id. at 483. In considering the length of delay, the court not only considers the delay in the

present case, but also the strategic practice of delay apparently used by Plaintiff.

Plaintiffs were granted three extensions of time in which to file their appellate brief

and were warned that failure to file by the extended deadline would result in dismissal of

the case. ECF Nos. 17, 19 and 21. Plaintiffs allege that they did not receive all of the

court’s orders and thus that they could not comply with them. See ECF No. 23-1 at 2.

Plaintiffs also claim they mailed the appellant’s brief, but that it was never filed, id. at 4,

though the present motion (mailed from Austin, I exas, see ECF No. 23-1) was delivered

to the court and was posted on the docket at tCF No. 23. And although Plaintiffs blame

the United States Postal Service and also the Clerk’s Office for their failure to file an

appellate brief, they have provided no evidence for these claims, and the court takes

notice of the fact that previous delays have been at Plaintiffs’ request. See id. at 4-5;

ECF Nos. 15 and 20.

3

Furthermore, there is reason to doubt that Plaintiff resides in Connecticut and that

venue is proper in this court,

See In re: tmiabala, 642 B.R. at 482. The residential

address provided by Plaintiff is the address of a UPS store, and Plaintiffs have failed to

file supplemental evidence that they resided in Connecticut at the times relevant to venue.

Id. These details, when taken with the repeated delays and history of bankruptcy filings

suggest that Plaintiffs have not acted in good faith.

Plaintiffs’ failure to check the status of the case or to file their appellate brief after

being granted three extensions of time in which to do so cannot be considered excusable

neglect under the circumstances of this case. See Lawtone-Bowies v. Brown, No. 211242-CV, 2022 WL 839280 at 1 (2d Cir. Mar. 22, 2022} (no excusable neglect where

Plaintiff failed to check whether her response had been filed).

Due to length of delay;

reasons for delay, and Plaintiff's’ bad faith tactics, the court finds that the neglect simply

was not excusable within the meaning of Rule 60(b)(1 ->

B. Newly Discovered Evidence

Plaintiffs aiso seek relief under Rule 60(b)(2), which allows for reconsideration

where there is “newly discovered evidence that, with reasonable diligence, could not have

been discovered [-within 28 days of the judgment.]” Fed. R. Civ. P. 60(b)(2). Plaintiffs’

motion for relief does not allege any new evidence, so this argument is unavailing.

C. Extraordinary Circumstances

“Relief under Rule 60(b)(6) is appropriate only in cases presenting extraordinary

circumstances.” Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir. 2001) (quoting First

Fidelity Bank, N.A. v. Gov't of Antigua & Barbuda, 877 F.2d 189, 196 (2d Cir. 1989). The

discretion of the court whether to grant a motion under Rule 60(b)(6) “is especially broad.”

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Matter of Emergency Beacon Corn666 F.2d 754, 760 (2d Cir. 1981). None of the

reasons for relief listed by Plaintiffs rise to the level of “extraordinary circumstance.”

Plaintiffs have not shown why medical, travel, or other needs have prevented them from

filing an appellate brief by a deadline set at their own request (or at any time since then),

see ECF No. 21, particularly in light of the fact that they were able to file multiple requests

for extension of time, and the instant motion, itself.

ill. CONCLUSION

Having carefully weighed these factors, the court finds no valid grounds to grant

Plaintiffs’ Rule 60(b) motion. Plaintiffs have filed a timely motion for relief from a judgment

or order under Rule 60(b).

See Fed. R. Civ. P. 60(c) (motion must be made within a

reasonable time). However, they are not entitled to such relief because they have not

demonstrated that there was excusable neglect, new evidence, nor any extraordinary

circumstances that would merit relief from judgment. Accordingly, the motion is denied.

ORDER

For the foregoing reasons, Plaintiffs’ motion for relief from judgment (ECF No. 23)

is DENIED.

IT IS SO ORDERED at Hartford, Connecticut, this 30th day of September, 2023.

/s/

OMAR A. WILLIAMS

UNITED STATES DISTRICT JUDGE

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Case: 23-7705, 04/19/2024, DktEntry: 91.1, Page 1 of 2

D. Conn.

22-cv-1010

Williams, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

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 19th day of April, two thousand twenty-four.

Present:

Barrington D. Parker,

Michael H. Park,

Circuit Judges *

In Re: Sylvia Emiabata,

Debtor.

Philip Emiabata,

Plaintiff-Appellant,

Sylvia Emiabata, •

Debtor-Plaintiff-Appellant,

v.

23-7705

NewRez, LLC, D/B/A Shellpoint Servicing,

Appellee,

Specialized Loan Servicing, LLC, et al.

Defendants-Appellees.

k-

Appellants, pro se, move for leave to proceed in forma pauperis. Appellee, JP Morgan Chase

Bank, N.A., moves for summary affirmance and imposition of a leave-to-file sanction. Upon due

' i*

* Judge Calabresi has recused himself from consideration of this motion. Pursuant to Second

Circuit Internal Operating Procedure E(b), the matter is being decided by the two remaining

y«

members of the panel.

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Case: 23-7705, 04/19/2024, DktEntry: 91.1, Page 2 of 2

consideration, it is hereby ORDERED that Appellants’ motion is DENIED and the appeal is

DISMISSED because it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams,

490 U.S. 319, 325 (1989); see also 28 U.S.C. § 1915(e). Appellee’s motion for summary

affirmance is DENIED as moot, and its motion for sanctions is DENIED. Appellants are warned,

however, that the continued filing of clearly meritless appeals, motions, or other papers could result

in sanctions including a leave-to-file sanction requiring Appellants to obtain permission from this

Court before filing further submissions. See Sassower v. Sansverie, 885 F.2d 9,11 (2d Cir. 1989).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

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