United States District Court, D. South Carolina, Spartanburg Division
Anthony J. Cilwa, Appellant,
John K. Fort, United States Trustee, Appellee.
TIMOTHY M. CAIN UNITED STATES DISTRICT JUDGE.
matter is before the court on an appeal from an order of the
bankruptcy court denying Appellant Anthony Cilwa's motion
to withdraw his bankruptcy petition, which the bankruptcy
court treated as a request for a voluntary
dismissal. In accordance with 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02, D.S.C., this matter was
referred to a magistrate judge for handling. The magistrate
judge filed a Report and Recommendation
(“Report”) recommending that the court affirm the
bankruptcy court's order. (ECF No. 16). Appellant timely
filed objections. (ECF No. 20).
Report has no presumptive weight and the responsibility to
make a final determination in this matter remains with this
court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). In the absence of objections, this court is not
required to provide an explanation for adopting the Report.
See Camby v. Davis, 718 F.2d 198, 199 (4th Cir.
1983). Rather, “in the absence of a timely filed
objection, a district court need not conduct a de novo
review, but instead must only satisfy itself that there is no
clear error on the face of the record in order to accept the
recommendation.” Diamond v. Colonial Life
& Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(quoting Fed.R.Civ.P. 72 advisory committee's note).
Report, the magistrate judge sets out the procedural history
and background of this case. (Report at 2-4). Briefly,
Appellant filed for bankruptcy under Chapter 7 on January 18,
2015. In May 2015, Bruce P. Kriegman filed an unsecured claim
for $376, 781.02, which the bankruptcy court allowed. On
September 14, 2015, the Trustee initiated an adversary
proceeding in which he sought to avoid a transfer of
property. Specifically, the Trustee alleged that Appellant
sold property of the estate located in South Carolina after
filing for bankruptcy and without court authorization, and he
then used the proceeds to purchase property in Florida which
he subsequently transferred to his son. The bankruptcy court
granted the Trustee's summary judgment motion and found
that the transfer of the South Carolina property was an
unauthorized post-petition transfer and the Trustee was
entitled to the proceeds from that sale. Further, the
bankruptcy court avoided the transfer of the Florida property
from Appellant to his son, and held that the Trustee was
entitled to a turnover of any interest Appellant had in the
Florida property. Appellant appealed the bankruptcy
court's order and this court affirmed that order.
Cilwa v. Fort, No. 7:16-cv-1301-TMC, 2016 WL 7403958
(D.S.C. Dec. 22, 2016). The Fourth Circuit Court of Appeals
subsequently affirmed this court's order in Cilwa v.
Fort, 687 Fed. App'x 280 (4th Cir. 2017), and the
United States Supreme Court denied Appellant's petition
for a writ of certiorari in Cilwa v. Fort, 138 S.Ct.
his appeal was pending, on January 30, 2017, Appellant filed
a motion to withdraw his bankruptcy petition which the
bankruptcy court denied. (ECF Nos. 6-1, 6-2). Appellant filed a
motion for reconsideration (ECF No. 6-3) which the bankruptcy
court also denied (ECF No. 6-6). Appellant is now appealing
the denial of his motion to withdraw his bankruptcy petition.
to 11 U.S.C. § 707(a), a court may dismiss a Chapter 7
bankruptcy case after notice and a hearing for cause. Section
707(a) does not define “cause, ” but provides
three non-exhaustive examples:
(1) unreasonable delay by the debtor that is prejudicial to
(2) nonpayment of any fees or charges required under chapter
123 of title 28; and
(3) failure of the debtor in a voluntary case to file, within
fifteen days or such additional time as the court may allow
after the filing of the petition commencing such case, the
information required by paragraph (1) of section 521(a), but
only on a motion by the United States trustee.
11 U.S.C. § 707(a). The key decision is whether the
dismissal is in the best interests of the creditors and the
debtor. See In re Williamsburg Suites, Ltd., 117
B.R. 216, 218 (Bankr. E.D. Va. 1990). A voluntary dismissal
will normally be denied when the dismissal will cause some
plain legal prejudice to the debtor's creditors. See
In re Carroll, 24 B.R. 83, 86 (Bankr. N.D. Oh. 1982).
Legal prejudice is found to exist where assets which would
otherwise be available to the creditors are not available
because of the dismissal. See In re Cometh, 142 B.R.
755, 757 (Bankr. E.D. Va. 1992).
motion, Appellant alleged that he did not have any remaining
creditors because his creditors have either been repaid or
dropped their claims. The bankruptcy court found that these
allegations were not supported by the record. (ECF No. 6-2 at
2). The magistrate judge concluded that Appellant has failed
to provide any factual grounds or legal authority to show
that the bankruptcy court abused its discretion in denying
Appellant's motion. (Report at 5-6). In his objections,
Appellant contends that the house was never in his estate; he
did not sign the original or amended bankruptcy filings; he
has paid his creditors except for the false proof of claim;
the bankruptcy court erred in accepting the only claim filed;
and the action filed in Washington upon which he alleges the
claim was based was dropped. (Objections at 1).
review, the court finds that Appellant's objections are
nonspecific, unrelated to the dispositive portions of the
magistrate judge's Report, or merely restate his claims.
See Gaines v. South Carolina, No. 0:08-cv-0053-RBH,
2009 WL 3817287, at *3 (D.S.C. Nov. 12, 2009) (finding that
because petitioner's objections merely restated the
claims from his habeas petition, the district court had no
reason to engage in a second analysis of those claims, which
magistrate judge had already addressed in detail). Here, as
the magistrate judge found, Appellant has failed to establish
that the bankruptcy court abused its discretion in denying
Appellant's motion to withdraw. Appellant is, in essence,
attempting to re-litigate the claim which the bankruptcy
thorough review of the Report and the record in this case,
the court adopts the Magistrate Judge's Report (ECF No.
16) and incorporates it herein. It is therefore
ORDERED that the Bankruptcy Court's
Order is AFFIRMED and this appeal is