United States District Court, D. South Carolina, Spartanburg Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on an appeal of the order of the
United States Bankruptcy Court for the District of South
Carolina (“the Bankruptcy Court”), dated February
6, 2017, denying Debtor Anthony Cilwa's second motion to
withdraw bankruptcy petition [Doc. 6-2]. [Doc. 1.] Pursuant
to the provisions of 28 U.S.C. § 636 (b)(1)(A) and Local
Civil Rule 73.02(B)(2)(e), D.S.C., all pretrial proceedings
involving litigation by individuals proceeding pro se are
referred to a United States Magistrate Judge for
Anthony Cilwa (“Debtor” or
“Appellant”) filed a notice of appeal in the
Bankruptcy Court on February 14, 2017 [Doc. 1-1], and the instant
appellate case was opened in this Court on February 15, 2017.
By Order of this Court, dated March 6, 2017, the parties were
directed to file briefs. [Doc. 7; see also Doc. 9.]
Appellant filed his brief on April 27, 2017 [Doc. 11],
Appellee John K. Fort (“Trustee”) filed his brief
on May 19, 2017[Doc. 12], and Appellant filed a reply
brief on May 30, 2017 [Doc. 13]. Accordingly, the matter is
ripe for review.
Appellant's fourth case filed in this Court related to
his proceedings in the Bankruptcy Court. [See Cilwa v.
Fort, No. 8:16-mc-00074-TMC (requesting leave to appeal
an interlocutory order of the Bankruptcy Court); In re:
Cilwa, No. 7:16-cv-01301-TMC (appealing the Bankruptcy
Court's April 15, 2016, orders granting a motion for
summary judgment as to Debtor and Christopher Cilwa
(“Debtor's Son”)); In re: Cilwa, No.
7:16-cv-03690-TMC (seeking to withdraw the reference to the
Bankruptcy Court); see also Philips v. Pitt Cnty. Mem.
Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (courts
“may properly take judicial notice of matters of public
record”); Colonial Penn Ins. Co. v. Coil, 887
F.2d 1236, 1239 (4th Cir. 1989) (“We note that
‘the most frequent use of judicial notice is in
noticing the content of court records.'”). The
undersigned has previously summarized Plaintiff's
bankruptcy proceedings as follows:
Debtor filed a Chapter 7 bankruptcy case, No. 15-00263-hb, on
January 18, 2015. In May 2015, Bruce P. Kriegman
(“Kriegman”) filed an unsecured claim in the
bankruptcy case in the amount of $376, 781.02, arising from a
lawsuit concerning Debtor's alleged involvement in a
Ponzi scheme. On December 1, 2015, the Bankruptcy Court
overruled Debtor's objection to Kriegman's claim and
allowed the claim as filed.
Trustee initiated an adversary proceeding against Debtor and
Debtor's Son, No. 15-80172-hb, for the benefit of
creditors on September 14, 2015. In the adversary proceeding,
Trustee alleged that, after Debtor filed his bankruptcy case
and without court authorization, Debtor sold property of the
estate located in South Carolina and used proceeds from the
sale to purchase another property in Florida, which Debtor
subsequently transferred to Debtor's Son. Trustee sought
avoidance of the transfer and turnover of property.
Trustee filed a motion for summary judgment on January 15,
2016, and the Bankruptcy Court granted the motion as to
Debtor and Debtor's Son on April 15, 2016. The Bankruptcy
Court ordered that (a) Debtor's post-petition transfer of
his interest in the real property located at 1229 Sunset
Lane, Anderson County, South Carolina 29624 (“the South
Carolina Property”) was an unauthorized post-petition
transfer as described in 11 U.S.C. § 549 and Trustee is
entitled to the turnover of the proceeds from the sale of
Debtor's interest in the South Carolina Property; (b)
pursuant to 11 U.S.C. § 549, the transfer of the real
property located at 4920 Long Meadow Drive, Leesburg, Florida
24784 (“the Florida Property”) from Debtor to
Debtor's Son is avoided and Trustee is entitled to the
turnover of any interest in the Florida Property that was
transferred to Debtor's Son pursuant to 11 U.S.C.
§§ 542 and 551; and (c) Trustee is entitled to the
turnover of any interest Debtor holds in the Florida Property
pursuant to 11 U.S.C. §§ 542 and 551.
[In re: Cilwa, No. 7:16-cv-01301-TMC, Doc. 25 at 2-3
(footnote and citations omitted).] This Court affirmed the
April 15, 2016, final orders entered by the Bankruptcy Court
in the adversary proceeding. [In re: Cilwa, No.
7:16-cv-01301-TMC, Doc. 37.]
January 30, 2017, Debtor filed a motion to withdraw
application for Chapter 7.
Doc. 6-2 at 1.] The Bankruptcy Court construed the motion as
one seeking voluntary dismissal of the Chapter 7 case
pursuant to 11 U.S.C. § 707(a) and noted this was the
second such motion filed in the Bankruptcy Court.
[Id.] On February 6, 2017, the Bankruptcy Court
denied Debtor's motion to withdraw. [Doc. 6-2.] In the
instant proceeding, Appellant appeals the Bankruptcy
Court's February 6, 2017, order. [Docs. 1; 6-7.]
Construction of Pro Se Pleadings
brought this action pro se, which requires the Court to
liberally construe his pleadings. Erickson v.
Pardus, 551 U.S. 89 (2007); Estelle v. Gamble,
429 U.S. 97, 106 (1976). Pro se pleadings are held to a less
stringent standard than those drafted by attorneys.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). The mandated liberal construction means only that
if the court can reasonably read the pleadings to state a
valid claim on which an appellant could prevail, it should do
so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th
Cir. 1999). A court may not construct the appellant's
legal arguments for him. Small v. Endicott, ...