Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Askri

United States District Court, E.D. Virginia, Alexandria Division

November 8, 2017

In re SYED ASKRI, Debtor.
v.
THOMAS P. GORMAN, TRUSTEE, Appellee. SYED ASKRI, Appellant, In re SYED ASKRI, Debtor. SYED ASKRI, Appellant,
v.
THOMAS P. GORMAN, TRUSTEE, Appellee.

          MEMORANDUM OPINION

          Leonie M. Brinkema United States District Judge.

         Before 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.

         I. BACKGROUND

         On 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.[1] 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 49-50.

         When 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[2] 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.

         After 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.

         Although 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] .[3]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.

         While 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.

         After 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

         II. DISCUSSION

         Although 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.

         A. Stand ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.