United States District Court, E.D. Virginia, Alexandria Division
In re SYED ASKRI, Debtor.
THOMAS P. GORMAN, TRUSTEE, Appellee. SYED ASKRI, Appellant, In re SYED ASKRI, Debtor. SYED ASKRI, Appellant,
THOMAS P. GORMAN, TRUSTEE, Appellee.
M. Brinkema United States District Judge.
the Court are Syed Askri's two appeals from decisions of
the United States Bankruptcy Court for the Eastern District
of Virginia. For the reasons that follow, in Civil Action No.
1:17-cv-506, the Bankruptcy Court's Order will be
affirmed, and in Civil Action No. 1:17-cv-463, the appeal
will be dismissed as moot.
January 25, 2017, appellant-debtor Syed Askri
("Askri" or "debtor"), proceeding pro se,
filed for protection under Chapter 13 of the Bankruptcy Code.
Tr. R. Part 1 [Dkt. No. 2-3] 31. This petition was the fifth
bankruptcy case filed by Askri or his wife since 2011 and
involves three loans secured by Askri's primary
residence: a $530, 000 mortgage on the property (the
"First Mortgage") and two lines of credit, one for
$250, 000 (the "HELOC Second Mortgage") and one for
$350, 000 (the "HELOC Third Mortgage"), both of
which are secured by the same property. Id. at
Askri filed this Chapter 13 petition, he owed approximately
$550, 000 on the First Mortgage, see Debt. Br. [Dkt. No. 4]
6; approximately $255, 000 in principal and accumulated
interest, of which more than $130, 000 was in arrears, on the
HELOC Second Mortgage, Tr. R. Part 1, at 107; and
approximately $400, 000 in principal and accumulated
interest, of which more than $57, 000 was in arrears, on the
HELOC Third Mortgage, Id. at 125. All told, at the
time the petition was filed, Askri owed approximately $1.2
million on the three loans, but he owned only minimal liquid
assets, see Id. at 38-46, and claimed approximately
$7, 500 in monthly net income-$3, 000 of which was
"speculative 'contributions from children,
'" Debt. R. [Dkt. No. 2-2] 129-30. Moreover, before
filing the current petition, Askri had not made any payments
on either HELOC mortgage since 2012 and, in the interim, he and
his wife had collectively filed multiple bankruptcy petitions
in leapfrog fashion. Tr. Br. [Dkt. No. 8] 1 n.1, 3.
Askri filed this bankruptcy petition and Thomas P. Gorman
("Trustee") was appointed as the Trustee, creditor
First Horizon Bank (a division of First Tennessee Bank, which
services the HELOC Second Mortgage) filed a Motion for Relief
from the Stay [Bankr. Dkt. No. 16], arguing that the
Askris' history of bankruptcy filings and nonpayment
justified lifting the automatic stay to allow foreclosure on
the property, Id. at 6-7. In addition, the Trustee
filed a Motion to Dismiss, in which he argued that
Askri's history of unsuccessful bankruptcy filings and
his meager income relative to his arrearages demonstrated
that he was not proceeding in good faith. Id.
his response to both motions was less than clear, Askri
appeared to focus on three main points: (1) that he had
appropriately rescinded the three mortgages under the Truth
in Lending Act and, as a result, none of the three lenders
retained a security interest in his home; (2) that First
Horizon Bank, the party moving to lift the stay, is a
"fictitious" entity that does not actually own the
mortgage; and (3) that the Chapter 13 trustee inappropriately
advocated on behalf of absent creditors and/or noncreditors.
See Id. at 17-23; Memorandum in Opposition [Bankr.
Dkt. No. 22]. After holding evidentiary hearings, the
bankruptcy court granted both motions. See Tr. R. Part 1, at
92; Order Granting Motion to Dismiss Case [Bankr. Dkt. No.
64] .Askri timely appealed the Order lifting the
stay in Civil Action No. 1:17-cv-463 and the Order dismissing
the petition in Civil Action No. 1:17-cv-506.
pursuing his appeals pro se, Askri filed a Reply
Brief [Dkt. No. 11], in which he represented that he had
recently tendered payment to one of his creditors, First
Tennessee Bank, to stop the foreclosure of his home. See
Id. at 24, Ex. A. After that brief was filed, the
Trustee was ordered to advise the Court of the impact of this
tender on his position in this appeal. [Dkt. No. 12]. In his
response, the Trustee informed the Court that he was
"very skeptical that any true 'tender' has or
could have occurred." In response, the Court ordered
Askri to provide evidence and a statement submitted under
penalty of perjury demonstrating that he had tendered payment
to First Tennessee Bank and that the bank had accepted that
payment. On September 15, Askri filed a response, submitted
under penalty of perjury, in which he claimed not only that
he had tendered full payment to First Tennessee Bank but also
that he had tendered full payment to the two other secured
creditors, U.S. Bank and Bank of America, and that those
creditors had accepted his payments. [Dkt. No. 15]. Askri
wrote that the $1.2 million was
tendered to the alleged creditors, and the tender was
accepted by the U.S. Bank, Wells Fargo, by Mr. Richard D.
Levy EVP and Controller (Principal Accounting Officer), First
Horizon National Corporation 165 Madison Avenue, Memphis,
Tennessee 38103 and M&T Bank Corporation, One M&T
Plaza, Buffalo NY14203 by Mr. Drew J. Pfirrman SVP for
accounting in Loan Number: 4458370396746089 and Bank of
America Corporation, 100 N Tryon St. Charlotte, N.C 28255 for
accounting loan number: 68998000600299.
Id. at 8-9. Despite the Court's order that he
provide "evidence, such as a cancelled check, " see
[Dkt. No. 14], demonstrating these payments, he has failed to
provide any such evidence.
receiving Askri's response, the Court directed the
Trustee to confer with the secured creditors to determine
whether the payments described by Askri had been tendered and
accepted and to advise the Court of the current status of
each of Askri's loans. [Dkt. No. 16]. The Trustee
conferred with the HELOC creditors, who informed him that
Askri had recently paid approximately $150, 000 on the Second
HELOC Mortgage, enough to bring the mortgage current and stop
the impending foreclosure sale but not enough to pay off the
mortgage, and, contrary to Askri's claim, he had not paid
any amount on the Third HELOC Mortgage. See Dkt. No. 19. The
First Mortgage holder has not responded. See id
Askri's appellate briefs are nearly indecipherable, they
appear to argue that the bankruptcy court erred by failing to
permit Askri to remain under Chapter 13 protection or convert
his petition to Chapter 11 proceedings while he
"proceeded to establish and prove his [Rescission
claims, " by allowing the Trustee to advocate on behalf
of creditors, by dismissing the bankruptcy petition despite
Askri's ability to make Plan payments, and by violating
Askri's equal protection and due process rights. See
Debt. Br. 11-12.