Mark Duhaney

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NEW YORK
x
In re:
Chapter 13
MARK DUHANEY, 	Case No.: 18-45846-ess
Debtor.
x
MEMORANDUM DECISION ON THE DEBTOR’S APPLICATION TO REOPEN
THIS CHAPTER 13 CASE AND FOR OTHER RELIEF
Appearances:
Mark Duhaney
738 East 95th Street
Brooklyn, NY 11236
Debtor, pro se
David Lapa, Esq.
Menashe & Lapa LLP
400 Rella Boulevard (Suite 190)
Suffern, NY 10901
Brian Schechter, Esq.
Office of the Chapter 13 Trustee
100 Jericho Quadrangle (Suite 127)
Jericho, NY 11753
Attorney for the Chapter 13 Trustee
Pallavi Bhave, Esq.
Eisenberg, Gold & Agrawal
1040 North Kings Highway (Suite 200)
Cherry Hill, NJ 08034
Attorneys for Lycan Capital Fund I LLC
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Introduction
A request to reopen a bankruptcy case under Bankruptcy Code Section 350(b) is typically
a straightforward matter. Here, the question of whether to reopen this bankruptcy case raises two
issues of note.
First, Section 350(b) permits this a case to be reopened “in the court in which such case
was closed to administer assets, to accord relief to the debtor, or for other cause.” And a
neighboring provision in the Bankruptcy Code, Section 350(a), states that “[a]fter an estate is
fully administered and the court has discharged the trustee, the court shall close the case.” But
are these two provisions mere neighbors, or is one conditioned on the other? That is, in order to
reopen the case under Section 350(b), is it necessary that the case be “fully administered”?
And second, the grounds set forth in Section 350(b) for reopening the bankruptcy case
are broad indeed – “to administer assets, to accord relief to the debtor, or for other cause.” Yet,
what if the “relief” that the debtor seeks is simply not available? If there is a plausible or
colorable basis for the relief that the debtor seeks to pursue, that is one thing. But where there
simply is no prospect of the “relief to the debtor,” should the case nevertheless be reopened?
The Court considers these questions in turn.
Jurisdiction
This Court has jurisdiction over this matter pursuant to Judiciary Code Sections 157 and
1334, and the Standing Order of Reference dated August 28, 1986, as amended by the Order
dated December 5, 2012, of the United States District Court for the Eastern District of New
York. This is a core proceeding pursuant to Judiciary Code Section 157(b)(2)(A) and
157(b)(2)(K). Venue is proper in this Court pursuant to Judiciary Code Sections 1408 and 1409.
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Selected Background and Procedural History
Mr. Duhaney’s Chapter 13 Case
On October 11, 2018, Mark Duhaney, by counsel, filed a petition for relief under Chapter
13 of the Bankruptcy Code. On his bankruptcy petition, he lists 738 East 95th Street, Brooklyn,
NY 11236 as his residence (the “Property”). See ECF No. 1. On Schedule A/B, he claims a 100
percent interest in the Property, and values it at $593,000. Id. On Schedule D, Mr. Duhaney lists
Planet Home Lending as having a $1,096,618, claim that is secured by the Property. Id. Planet
Home Lending is the servicer for the mortgage held by Goshen Mortgage LLC, as separate
trustee for GDBT I (“Goshen”). See Proof of Claim 3-1.
On November 13, 2018, Mr. Duhaney filed a Chapter 13 Plan. Chapter 13 Plan, ECF No.
9 (the “Plan”). The Plan proposes that Goshen’s secured claim will be addressed through a loan
modification to be pursued in the bankruptcy case by Mr. Duhaney. Plan at 3.
On November 27, 2018, the Chapter 13 Trustee filed a motion to dismiss the case on
grounds, among others, that Mr. Duhaney did not provide proof of post-petition mortgage
payments, proof of payment of domestic support obligations, and an affidavit stating whether all
applicable federal, state, and local tax returns under Bankruptcy Code Section 1308 have been
filed, as required by E.D.N.Y. LBR 2003-1(a) and (b); that he did not provide copies of payment
advices or other evidence of payment received within 60 days before the date of filing, or a copy
of a federal income tax return for the most recent year, as required by Bankruptcy Code Sections
521(a) and 521(e); that he did not appear and be examined at the Section 341 Meeting of
Creditors, as required by Bankruptcy Code Section 343; and that he did not make timely Chapter
13 plan payments as required by Bankruptcy Code Section 1326(a)(1), and was some $2,700, in
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arrears at the time of the Motion. Chapter 13 Motion to Dismiss, ECF No. 13 (the “Motion to
Dismiss”), at 1-2.
On November 30, 2018, Mr. Duhaney filed a request to enter into this Court’s loss
mitigation program with Planet Home Lending, the servicer for Goshen. Loss Mitigation
Request, ECF No. 14. No opposition was made to that request, and on December 21, 2018, the
Court entered an Order directing that Mr. Duhaney and Planet Home Lending participate in loss
mitigation. Order, ECF No. 16.
On April 30, 2019, Goshen filed a Loss Mitigation Status Report stating, among other
things, that it offered Mr. Duhaney a loan modification that called for a $30,000 good faith down
payment and a six-month trial period. Loss Mitigation Status Report filed by Alan Smikun on
Behalf of Goshen Mortgage dated April 30, 2019, ECF No. 22. Thereafter, Mr. Duhaney made a
counteroffer to pay a $10,000 down payment with the payment of the remaining balance over
time. Id. But the parties could not agree on the value and payment schedule of the proposed
down payment. Id. From time to time, and on May 23, 2019, the Court held loss mitigation
status conferences at which Mr. Duhaney and Goshen appeared and were heard, and at the May
23, 2019, status conference, loss mitigation was terminated on consent.
On August 5, 2019, Mr. Duhaney, again by counsel, filed a letter of no opposition to the
Motion to Dismiss. Letter dated August 2, 2019, ECF No. 23. And on August 5, 2019, the
Court held a hearing on the Motion to Dismiss at which Mr. Duhaney and the Chapter 13 Trustee
appeared and were heard, and, without opposition, the Court granted the Chapter 13 Trustee’s
Motion to Dismiss.
On August 30, 2019, the Court entered an order granting the Motion to Dismiss and
dismissed the case. Order Dismissing Case, ECF No. 25. And just over two months later, on
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November 6, 2019, the Court entered an order closing the case. Order Closing Case, ECF No.
28.
Mr. Duhaney’s Application To Reopen this Bankruptcy Case and for a Stay Violation Finding
On May 7, 2025, Mr. Duhaney filed an Application in Support of an Order To Show
Cause. Application in Support of Order to Show Cause, ECF No. 29 (the “Application” or
“App.”). Though he was represented in his Chapter 13 bankruptcy case, he filed this application
pro se. Mr. Duhaney asks the Court to reopen this bankruptcy case and to find that Goshen
violated the automatic stay when, on August 21, 2019, and while this case was pending, it
assigned the mortgage on the Property to Lycan Capital Fund I LLC (“Lycan”). Application at
2. He also seeks a declaration that the assignment is void and an order directing Lycan to cease
taking any action against the Property. App. at 1-2. And he asks the Court to impose penalties
on Lycan for violating the automatic stay. App. at 2. Finally, Mr. Duhaney seeks leave to file an
adversary complaint upon the reopening of the case to vacate all related state court filings and to
seek money damages. App. at 4.
In support of the Application, Mr. Duhaney submits a copy of the assignment, recorded
on August 21, 2019, as well as the case’s docket sheet and this Court’s order of dismissal. App.
at 2; Exh. C; Exh. A; Exh. B.
On June 30, 2025, the Chapter 13 Trustee filed Opposition to Mr. Duhaney’s
Application. Opposition to Motion to Reopen Case, ECF No. 33 (the “Trustee Opposition” or
“Trustee Opp.”). She argues that this case cannot be reopened pursuant to Bankruptcy Code
Section 350(b) because it was not closed pursuant to Bankruptcy Code Section 350(a). Trustee
Opp. at 1. And she points to the bankruptcy court’s decision in In re Alfau, where the court
found:
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A case that is automatically dismissed under § 521(i) is not “fully administered”
and “closed” pursuant to § 350(a). Thus, a bankruptcy case that has not been
fully administered and closed cannot be reopened under § 350(b). Olejnik, 2010
WL 4366183, at *3; Critical Care Support Servs., 236 B.R. at 140-41 (noting that
§ 350(b) was not implicated where the debtor’s bankruptcy petition was dismissed
as opposed to closed within the meaning of § 350(a).)
Trustee Opp. at 1 (citing In re Alfau, 2024 WL 2036108, at *5 (Bankr. E.D.N.Y. May 7, 2024)),
ECF No. 33.
In addition, the Chapter 13 Trustee argues that the post-petition assignment of a mortgage
is not a violation of the automatic stay. Trustee Opp. at 1-2 (citing In re Doresca, 2024 WL
3418064 (Bankr. E.D.N.Y. July 15, 2024)). She states, “courts have recognized that postpetition
assignments of mortgage do not constitute acts to ‘create, perfect or enforce’ a lien in violation
of 11 U.S.C. § 362(a).” Id.
On July 23, 2025, Lycan filed Opposition to Mr. Duhaney’s Application. Opposition to
Debtor’s Motion to Reopen Case, ECF No. 36 (the “Lycan Opposition” or “Lycan Opp.”). It
asserts that on March 26, 2015, Goshen commenced a foreclosure action against Mr. Duhaney,
and on June 26, 2018, it was awarded a judgment of foreclosure. Lycan Opp. at 2. Lycan states
that a foreclosure auction was scheduled for October 11, 2018, but was stayed when that same
day, Mr. Duhaney filed this bankruptcy case. Id.
Lycan states that Mr. Duhaney’s October 2018 bankruptcy case was the first of five
bankruptcy cases filed by Mr. Duhaney and his co-obligors or family members, including Pearl
Kelly, a co-occupant with Mr. Duhaney, and Ceceile Campbell, Mr. Duhaney’s mother, to halt
the foreclosure process. Lycan Opp. at 2-7.
Lycan also states that this series of filings includes the filing of a Chapter 13 case by Ms.
Kelly, In re Pearl Kelly, Case No. 23-41085, before Judge Mazer-Marino of this Court, on
March 30, 2023, the same day that another foreclosure sale was scheduled to occur. Lycan Opp.
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at 3-4. Lycan states that it did not receive notice of that filing and proceeded with the auction
and foreclosure sale that day. Lycan Opp. at 3. And on May 19, 2023, Judge Mazer-Marino
entered an order retroactively validating the sale of the Property and granting Lycan in rem stay
relief with respect to the Property for a period of two years. Lycan Opp. at 3-4.
Lycan further states that on November 25, 2024, it received an order and writ of
possession to schedule an eviction from New York Supreme Court, Kings County. Lycan Opp.
at 4. Pursuant to the Supreme Court’s order, a sheriff’s eviction was scheduled for July 17, 2025
– and then that eviction was stayed by the fifth and latest bankruptcy case, In re Ceceile Nertella
Campbell, Case No. 25-43136, also before Judge Mazer-Marino, filed by Ms. Campbell. Lycan
Opp. at 7.1
Lycan, like the Chapter 13 Trustee, argues that since Mr. Duhaney’s bankruptcy case was
dismissed, it was not fully administered and cannot be reopened pursuant to Bankruptcy Code
Section 350(b). Lycan Opp. at 8-9 (citing In re Income Prop. Builders, Inc., 699 F.2d 963 (9th
Cir. 1982); In re Kent Funding Corp., 290 B.R. 471, 476 (Bankr. E.D.N.Y. 2003); France v.
Lewis & Coulter, Inc. (In re Lewis & Coulter, Inc.), 159 B.R. 188, 191 (Bankr. W.D. Pa. 1993)).
And, like the Chapter 13 Trustee, Lycan argues that a post-petition assignment of a mortgage,
such as the one at issue, is not an act to "create, perfect, or enforce" a lien and therefore does not
violate the automatic stay. Lycan Opp. at 9 (citing Sigmon v. Cornerstone Home Lending (In re
Sprouse), 2014 WL 948490, at *4-5 (Bankr. W.D.N.C. Mar. 11, 2014)).
1 While Mr. Duhaney’s Application was pending, Lycan moved for in rem stay relief in In re
Ceceile Nertella Campbell. In re Ceceile Nertella Campbell, Case No. 25-43136, ECF No. 9. A
hearing on that motion was held by Judge Mazer-Marino on August 12, 2025, at which the Court
granted Lycan’s motion, and an in rem stay relief order was entered on August 26, 2025. See In
re Ceceile Nertella Campbell, Case No. 25-43136, ECF entry dated August 12, 2025 (hearing);
ECF No. 23 (Order).
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On July 30, 2025, the Court held a hearing on the Application, at which Mr. Duhaney, the
Chapter 13 Trustee, and Lycan appeared and were heard. On that same day, shortly before the
hearing, Mr. Duhaney filed a Supplemental Memorandum of Law in Further Support of the
Motion to Reopen Case, ECF No. 38 (“Memorandum in Support” or “Mem. in Support”). In
that Memorandum, Mr. Duhaney reiterates his argument that Goshen’s assignment of the
mortgage to Lycan violated the stay and requests that his bankruptcy case be reopened to permit
him to file an adversary proceeding to address the asserted stay violation pursuant to Bankruptcy
Code Section 362(k) against Lycan. Mem. in Support at 3-4.
On August 13, 2025, the Court held a continued hearing on the Application, at which Mr.
Duhaney, the Chapter 13 Trustee, and Lycan appeared and were heard. At that hearing, the
Court set a schedule for supplemental filings by the parties, permitting Mr. Duhaney to file any
further submissions by August 27, 2025, and Lycan to file any further response by September 17,
2025. The Court set a continued hearing on the Application for September 29, 2025.
On August 27, 2025, Mr. Duhaney filed a Supplemental Memorandum in Further
Support of Motion to Reopen Case Pursuant to 11 U.S.C. § 350(b), ECF No. 41 (the
“Supplemental Memorandum in Support” or “Supp. Mem. in Support”). In his Supplemental
Memorandum in Support, Mr. Duhaney argues, in substance, that the assignment of the
mortgage to Lycan was part of a “pre-planned scheme to shift the prosecution of the foreclosure,
convert control over the Premises, and insulate Goshen from tax exposure,” among other
questionable or improper objectives. Supp. Mem. in Support at 2 (citing In re Sprouse, 2014 WL
948490, at *2).
Mr. Duhaney also points to a pattern of assertedly improper practices by Lycan and its
attorney, David Lapa, who functioned in several roles in connection with Lycan and the
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transactions at issue. Supp. Mem. in Support at 2-4. And he asserts that Mr. Lapa’s roles give
rise to a conflict of interest and violate New York’s Rules of Professional Conduct. Supp. Mem.
in Support at 12-16.
Mr. Duhaney argues, in substance, that Lycan violated New York Banking Law Article
12-D, and seeks information concerning the operations, membership, and licensing of Lycan,
among other matters. Supp. Mem. in Support at 5-9. He also asserts that the Assignment of
Mortgage from Goshen to Lycan is defective. Supp. Mem. in Support at 24-28.
And Mr. Duhaney questions the adequacy and appropriateness of service on Goshen and
argues that this undermines the standing of the parties to proceed. Supp. Mem. in Support at 9-
12. He also argues that the question of standing remained unaddressed for many years, as the
parties continued to litigate in New York state court. Supp. Mem. in Support at 16-24.
Finally, Mr. Duhaney requests several forms of relief, all in connection with the asserted
stay violation, including vacating the dismissal of this bankruptcy case; reinstatement of the
automatic stay; granting leave to file an adversary proceeding with expedited discovery and an
evidentiary hearing; and a direction that all parties maintain the status quo as to the property.
Supp. Mem. in Support at 28-30.
On September 17, 2025, Lycan filed a Supplemental Opposition to Debtor’s Motion to
Reopen Case, ECF No. 45 (“Supplemental Opposition” or “Supp. Opp.”). In its Supplemental
Opposition, Lycan asserts that Mr. Duhaney’s Supplemental Memorandum in Support “raises no
new legal arguments” and does not change the fact that his “central theory – that a 2019
assignment of mortgage from Goshen to Lycan violated the automatic stay – is foreclosed by
settled case law.” Supp. Opp. at 1. Lycan also argues that Mr. Duhaney lacks standing to
challenge the assignment, because he is not a party to it. Supp. Opp. at 2.
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Lycan also disputes that “Lycan’s corporate formation or licensure status somehow voids
the assignment or undermines Lycan’s standing.” Supp. Opp. at 3. These matters, it argues, are
“of no legal consequence in this proceeding.” Id. And it states that “New York law does not
prohibit creditors from assigning mortgages to newly formed entities, nor does it prohibit those
entities from hiring the same counsel who formed them.” Id. For the same reasons, it states that
Mr. Duhaney’s assertion “of a conflict of interest is also baseless.” Id. It notes that “[a]ttorneys
routinely form and represent LLCs in real estate and commercial transactions.” Id.
And Lycan notes that Mr. Duhaney’s “conduct has already been found to have been part
of [a] scheme to hinder and delay Lycan’s rights.” Supp. Opp. at 4. It concludes:
Simply put, there was no impropriety here on behalf of Lycan – only a well-worn
procedural strategy to hinder and delay a lawful order of possession and relitigate
final state court rulings through collateral attack [that] is barred by the Rooker-
Feldman Doctrine. This Court is not the proper forum for the [Debtor’s] baseless
contentions and [they] should not be entertained.
Id.
Finally, on September 29, 2025, the Court held a continued hearing on the Application, at
which Mr. Duhaney, the Chapter 13 Trustee, and Lycan appeared and were heard. At that
hearing, the Court closed the record and reserved decision on the Application.
Discussion
This Application calls for the Court to consider several matters. To begin, the Court
notes the liberal construction that is properly accorded to submissions and requests for relief that
are advanced by self-represented individuals. Next, the Court considers the standard that applies
to reopening a bankruptcy case under Bankruptcy Code Section 350. This calls for at least two
questions to be addressed – first, whether a case must be “closed” under Section 350(a) in order
to be reopened under Section 350(b); and second, whether it is appropriate to consider the
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availability of the relief sought in the context of determining whether reopening “to accord relief
to the debtor” is warranted. 11 U.S.C. § 350(b). And finally, the Court considers whether Mr.
Duhaney has met the standards applicable for the relief that he seeks in the Application.
Consideration and Construction of Pro Se Submissions
At the outset, it is worth noting that special consideration and rules of construction are
appropriate in the assessment of filings and requests for relief that are made by pro se parties.
As the Second Circuit has observed:
[A] pro se litigant is entitled to “special solicitude,” that a pro se litigant's
submissions must be construed “liberally,” and that such submissions must be
read to raise the strongest arguments that they “suggest.” At the same time, our
cases have also indicated that we cannot read into pro se submissions claims that
are not “consistent” with the pro se litigant's allegations, or arguments that the
submissions themselves do not “suggest,” that we should not “excuse frivolous or
vexatious filings by pro se litigants,” and that pro se status “does not exempt a
party from compliance with relevant rules of procedural and substantive law.”
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (citations omitted).
The Question of Reopening this Bankruptcy Case Under Bankruptcy Code Section 350(b)
One question presented by Mr. Duhaney’s Application is whether this bankruptcy case may
be reopened under Bankruptcy Code Section 350(b). That Section, and Section 350(a), are often
considered in tandem, and they state:
(a) [Closing –] After an estate is fully administered and the court has discharged
the trustee, the court shall close the case.
(b) [Reopening –] A case may be reopened in the court in which such case was
closed to administer assets, to accord relief to the debtor, or for other cause.
11 U.S.C. §§ 350(a), 350(b).
Mr. Duhaney seeks to reopen this Chapter 13 bankruptcy case so that, in substance, he
may pursue relief against Lycan for an asserted violation of the automatic stay while this case
was pending. Mr. Duhaney cites In re Edwards, 901 F.2d 1383, 1387 (7th Cir. 1990) for the
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proposition that a dismissed bankruptcy case may be reopened under Bankruptcy Code Section
350(b) for cause, to protect the integrity of the bankruptcy process. Mem. in Support at 2.2 That
stay violation occurred, he argues, when Goshen assigned the mortgage that it held on the
Property to Lycan. Application at 1-2.
Lycan responds that Mr. Duhaney’s bankruptcy case may not be reopened under
Bankruptcy Code Section 350(b) because it was not “fully administered” and the trustee
discharged under Section 350(a). Lycan Opp. at 8-9.
And the Chapter 13 Trustee similarly argues that in the absence of a bankruptcy case
closing that comports with the terms of Section 350(a), a case cannot be reopened under Section
350(b). Trustee Opp. at 1.
At the outset, it is plain from the language of Bankruptcy Code Section 350(a) that a
court shall close a case “[a]fter an estate is fully administered” and the trustee is “discharged.”
11 U.S.C. § 350(a). That is, once the work of the case is done, then the court “shall” close the
case. Cases should not be open for longer than necessary, and when these conditions are met,
closing the case is the statutorily-mandated next step.
It is also plain from the language of Bankruptcy Code Section 350(b) that a court may
reopen a case “to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C.
§ 350(b). That is, a court may exercise its discretion, upon a proper showing of “cause,” to
reopen a bankruptcy case to complete any work that remains to be done – whether to administer
an asset, “to accord relief to the debtor,” or, more generally, “for other cause.” Id.
2 The Court notes that In the Matter of Edwards, 901 F.2d 1383 (7th Cir. 1990), addresses
aspects of a debtor’s reaffirmation of a debt and does not appear to address Section 350(b) or the
reopening of a bankruptcy case. It also does not appear to include the text quoted by Mr.
Duhaney in his Memorandum in Support.
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And it is evident that a bankruptcy case that has been “closed” under Bankruptcy Code
Section 350(a) may be the subject of a request to reopen a case under Section 350(b). But it is
less clear whether only a case that has been closed under Section 350(a) may be reopened under
Section 350(b). Put another way, where a bankruptcy case has not been fully administered and
the trustee discharged under Section 350(a), may a court nevertheless reopen the case under
Section 350(b)?
Some courts have found or inferred a connection between Section 350(a) and 350(b) in
considering a motion to reopen under Section 350(b). They have looked to whether a case has
been closed pursuant to Section 350(a) to address a request to reopen a case under Section
350(b), and have considered that to be, in substance, a condition precedent to reopening the case.
As one district court found:
[A] bankruptcy is normally closed after the bankruptcy proceedings are
completed. At that time the debts of the bankrupt are usually discharged and the
proceeds of debtor's nonexempt assets divided among creditors. A bankruptcy is
reopened under 11 U.S.C. § 350(b), not to restore the prebankruptcy status [which
is what happens after an order of dismissal], but to continue the bankruptcy
proceeding. The word “reopened” used in Section 350(b) obviously relates to the
word “closed” used in the same section. In our opinion a case cannot be reopened
unless it has been closed. An order dismissing a bankruptcy case accomplishes a
completely different result than an order closing it would and thus is not an order
closing.
Critical Care Support Servs., Inc. v. United States (In re Critical Care Support Servs.), 236 B.R.
137, 140-41 (E.D.N.Y. 1999) (quoting Armel Laminates, Inc v. Lomas & Nettleton Co. (In re
Income Property Builders, Inc.), 699 F.2d 963, 965 (9th Cir. 1982)).
Describing this line of authority, the Collier’s treatise states:
The Court of Appeals for the Ninth Circuit and other courts have held that a case
cannot be reopened unless it was closed pursuant to section 350(a) after it has
been administered. Therefore, a dismissed case cannot be reopened under section
350(b). A dismissal can be undone only through an appeal or a motion under
Federal Rule of Bankruptcy Procedure 9023 or 9024.
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3 Collier on Bankruptcy ¶ 350.03, at 350-07 (Richard Levin & Henry J. Sommer eds., 16th ed.)
(footnote omitted).
At the same time, courts and Collier’s alike recognize that, in substance, a request to
reopen a case under Section 350(b) to accord relief to the debtor should be viewed as an
opportunity to address and protect rights or obligations that arise under the Bankruptcy Code,
and that otherwise would remain unaddressed. This makes sense – again, as the Collier’s treatise
notes, “only rarely should the bankruptcy court decline to exercise its jurisdiction to enforce
rights arising under the Bankruptcy Code.” 3 Collier on Bankruptcy ¶ 350.03[4], at 350-13
(Richard Levin & Henry J. Sommer eds., 16th ed.). See Arleaux v. Arleaux (In re Arleaux), 210
B.R. 148, 149 (B.A.P. 8th Cir. 1997) (reasoning that a court should routinely reopen cases unless
a complaint is completely lacking in merit).
And a court may decline to reopen a case where the claims to be asserted clearly lack
merit. As one bankruptcy appellate panel has observed, “‘where . . . the proposed
dischargeability complaint is completely lacking in merit, it is not inappropriate for the court to
examine the issues, nor is it an abuse of discretion to deny the motion to reopen.’” Pennington-
Thurman v. Bank of Am. N.A. (In re Pennington-Thurman), 499 B.R. 329, 332 (B.A.P. 8th Cir.
2013) (quoting In re Arleaux, 210 B.R. at 149).
Finally, a motion to reopen a bankruptcy case is committed to the “broad discretion” of
the bankruptcy court. 3 Collier on Bankruptcy ¶ 350.03[5] at 350-15 (Richard Levin & Henry J.
Sommer eds., 16th ed.). The court “may consider numerous factors, including equitable
concerns, and ought to emphasize substance over technical considerations.” Id. See In re
Arleaux, 210 B.R. at 149 (stating that “[i]t is well settled that bankruptcy judges enjoy
considerable discretion in deciding whether to reopen cases” (citing cases)).
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In light of these considerations, it is far from clear that only a case that has been fully
administered and closed under Section 350(a) is eligible to be reopened under Section 350(b), for
several reasons.
At the outset, the plain text of Sections 350(a) and 350(b) does not require that closure
under Section 350(a) is a prerequisite to reopening under Section 350(b). One subsection does
not depend on, or even refer to, the other. Instead, Section 350(a) directs that a court shall close
a case when, in substance, the work of the case is done. And Section 350(b) provides that a court
may reopen a case, in the court’s discretion, if one of the criteria to reopen the case is met.
In addition, Section 350(b) sets out a broad and permissive framework to address whether
a court may reopen a case to address, in substance, any matters that may require attention. It is
hard to imagine more sweeping or inclusive language than “to administer an asset, to accord
relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). It would be odd indeed if somehow,
a court’s hands were tied in the face of a legitimate and useful request to reopen a bankruptcy
case, simply because the bankruptcy estate had not been “fully administered.” 11 U.S.C. §
350(a).
Accordingly, this Court finds and concludes that it is not necessary for Mr. Duhaney’s
bankruptcy case to have been “fully administered” and closed under Bankruptcy Code Section
350(a) as a condition to considering whether it should be “reopened in the court in which such
case was closed to administer assets, to accord relief to the debtor, or for other cause.” 11 U.S.C.
§§ 350(a), 350(b).3
3 In the alternative, if a case must be closed under Bankruptcy Code Section 350(a) to be eligible
to be reopened under Section 350(b), then the outcome here would be the same. That is,
following that rule, Mr. Duhaney would not be entitled to reopen this bankruptcy case under
Bankruptcy Code Section 350(b), because it was not fully administered under Section 350(a).
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What does this mean in practice? The question of reopening a case calls for the Court to
assess the grounds advanced in the motion both in the context of the statutory requirements of
Section 350(b) and in the context of the facts and circumstances of the particular case. And a
pragmatic approach that “emphasize[s] substance over technical considerations” is not
misplaced. 3 Collier on Bankruptcy ¶ 350.03[5] at 350-15 (Richard Levin & Henry J. Sommer
eds., 16th ed.).4
The reasoning followed by one bankruptcy court is instructive. In In re Weber, the
bankruptcy court considered a motion to reopen a bankruptcy case in order to determine whether
a violation of the automatic stay had occurred. In re Weber, 283 B.R. 630 (Bankr. D. Mass.
2002). As the court explained, “first, as a matter of procedure, the Movants seek the reopening
of the case. Second, the Movants ask that, once the case is reopened, the Court void [the action
that assertedly violated the automatic stay].” In re Weber, 283 B.R. at 633. The court found:
Although sequential logic would suggest that the Court first determine whether to
reopen the case, there is no reason to reopen the case if there was no stay
violation. Accordingly, the Court will consider first whether the automatic stay
was violated and allow that determination to properly influence whether the case
should be reopened.
Id. See In re Smith, 400 B.R. 370, 376-77 (Bankr. E.D.N.Y. 2009), aff'd, 426 B.R. 435 (E.D.N.Y.
2010), aff'd, 645 F.3d 186 (2d Cir. 2011) (affirming bankruptcy court decision to deny motion to
motion to reopen to pursue adversary proceeding where underlying complaint was meritless);
Reichel v. Jensen-Carter (In re Reichel), 645 B.R. 620, 624 (B.A.P. 8th Cir. 2022) (finding that
And here, the Court reaches the same conclusion – that this case should not be reopened – but on
different grounds.
4 It is worth noting that as a matter of case administration, in a Chapter 13 bankruptcy case that
is dismissed without being fully administered – as Mr. Duhaney’s case was – the Chapter 13
trustee enters a Final Report and Account for Dismissed Case, and the bankruptcy case is closed.
See ECF No. 27 (final report) and 28 (order closing case and discharging trustee).
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“[i]f a debtor’s request is futile because the relief sought lacks merit, a request to reopen is not
warranted”).
That is, where, as here, a motion to reopen a case to “accord relief to the debtor,” may
seem to direct the Court first to the question of reopening, that query may well be inextricably
intertwined with the question of whether the relief that the debtor ultimately seeks is available.
Where the debtor has asserted a plausible or colorable basis to seek the relief at issue, and even
where the answer to that question is not clear from the record, then reopening the case is likely to
be the appropriate outcome. The same may well be true if the question of whether the relief is
available is a close call. But where, as in In re Weber, the court concludes that the relief is
simply not available, then the court may “allow that determination to properly influence whether
the case should be reopened.” In re Weber, 283 B.R. at 633.
Accordingly, this Court finds and concludes that it is appropriate first to consider whether
Mr. Duhaney has established a plausible or colorable basis for his claim of a violation of the
automatic stay, and then, in light of that assessment, to consider whether this bankruptcy case
should be reopened.
Whether Mr. Duhaney Has Stated a Plausible or Colorable Claim for a Violation of the
Automatic Stay
Mr. Duhaney’s argument that Goshen has violated the automatic stay is straightforward.
He asserts that Goshen violated the automatic stay when, on August 21, 2019, and while this
bankruptcy case was pending, it transferred and assigned the mortgage on the Property to Lycan.
App. at 2. He states:
I am asking the Court to reopen my bankruptcy case and to declare that the
transfer of my property, in the form of a mortgage assignment from Goshen
Mortgage LLC, Trustee for GDBT I Trust 2011-1, to Lycan Capital Fund I LLC,
is void because it was made during my active bankruptcy case, without Court
permission, and in violation of the automatic stay.
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App. at 1. Mr. Duhaney seeks to reopen this bankruptcy case to seek a declaration that the
assignment is void, and to seek the imposition of penalties on Lycan for its actions. App. at 1-2.
He also asks the Court to enjoin any further action against the Property by Lycan. Id.
So, in order to set forth a plausible or colorable claim for a violation of the automatic
stay, Mr. Duhaney must describe acts or conduct that, if proven, would amount to a stay
violation. And the Court must view his assertions generously, through the lens of the liberal
construction that is due to filings and requests for relief that are made by pro se parties. But still,
a stay violation claim that passes a minimum threshold of viability must be made.
The starting point for considering whether Mr. Duhaney has described a plausible or
colorable claim for a violation of the automatic stay is found in the plain text of the Bankruptcy
Code. Section 362(a)(4) states that a bankruptcy petition “operates as a stay, applicable to all
entities, of . . . any act to create, perfect, or enforce any lien against property of the estate.” 11
U.S.C. § 362(a)(4). And Section 362(a)(5) states that the bankruptcy case also stays “any act to
create, perfect, or enforce against property of the debtor any lien to the extent that such lien
secures a claim that arose before the commencement of the case under this title.” 11 U.S.C. §
362(a)(5).
Courts in this Circuit, including this Court, recognize that a party seeking damages and
other relief for a violation of the automatic stay must prove the following elements: “(1) that a
bankruptcy petition was filed, (2) that the debtor is an individual, (3) that the creditor received
notice of the petition, (4) that the creditor's actions were in willful violation of the stay, and (5)
that the debtor suffered damages.” In re Laskaratos, 605 B.R. 282, 299-300 (Bankr. E.D.N.Y.
2019) (citing In re Leiba, 529 B.R. 501, 506 (Bankr. E.D.N.Y. 2015)). “Courts also recognize
that the term ‘willful’ in the context of § 362(k) means any deliberate act taken by a creditor in
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violation of the automatic stay, which the violator knows to be in existence.” In re Laskaratos,
605 B.R. at 300 (internal quotations omitted).
How does this apply in the context of a debtor’s assertion that an assignment of a
mortgage is a stay violation? In one recent decision addressing similar allegations, the
bankruptcy court found that “[c]ourts have recognized that postpetition assignments such as the
Assignment of Mortgage at issue here do not constitute acts to “create, perfect, or enforce” a lien
and therefore do not violate the automatic stay.” Doresca v. IndyMac Bank, FSB (In re
Doresca), 2024 WL 3418064 (Bankr. E.D.N.Y. July 15, 2024), at *6 (citing In re Sprouse, 2014
WL 948490, at *4-5). As the court explained, “Debtor asserts that the recordation of the
Assignment of Mortgage constituted the ‘creation’ and ‘execution’ of a mortgage lien against the
Property . . . This is incorrect as a matter of New York law. Recording the assignment did not
create or perfect the lien.” In re Doresca, 2024 WL 3418064, at *6 (emphasis in original). As a
consequence, the court concluded, neither the assignment of the mortgage, nor the recording of
that assignment, violated the automatic stay. Id.
Other courts have reached similar conclusions when confronted with similar facts. For
example, in In re Sprouse, the court found that “an assignment does not create a lien; rather it is
the original execution of the deed of trust that creates the lien and the original recording that
perfects the lien” and that “[n]either an assignment nor the recording of an assignment
constitutes an enforcement of [a] lien, which could only be enforced through a foreclosure.” In
re Sprouse, 2014 WL 948490, at *4-5. See Lunn v. WestVue NPL Tr. II (In re Lunn), 2016 WL
5349726, at *5 (Bankr. W.D.N.Y. Sept. 23, 2016) (stating that “‘[n]either an assignment nor the
recording of an assignment constitutes an enforcement of the lien, which could only be enforced
through a foreclosure’”).
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And in Sanchez v. Aurora Loan Services, LLC (In re Sanchez), the court likewise
concluded:
The [postpetition] recordation of the assignment does not violate the automatic
stay. The transfer of a beneficial interest in a deed of trust is not an act of
perfection of a lien. . . . The lien on the property is perfected at the time the Deed
of Trust is recorded, which in the present case was well before the filing of the
bankruptcy petition.
Sanchez v. Aurora Loan Servs., LLC (In re Sanchez), 2011 WL 10656551, at *8 (Bankr. E.D.
Cal. Dec. 16, 2011).
Finally, and to the same effect, in In re Samuels, the court explained that an assignment
or transfer of a mortgage and note cannot give rise to a claim for a stay violation, because such
an act does not “collect a debt” – instead, it “merely transfers the claim from one entity to
another.” In re Samuels, 415 B.R. 8, 22 (Bankr. D. Mass. 2009). As the court found:
The postpetition assignment of a mortgage and the related note from one holder to
another is not a transfer of property of the estate. The mortgage and note are
assets of the creditor mortgagee, not of the Debtor. Nor is the postpetition
assignment of a mortgage and the related note an act to collect a debt; the
assignment merely transfers the claim from one entity to another. The Debtor
cites no particular subsection of 11 U.S.C. § 362(a), the automatic stay, that she
contends such an assignment violates, and the court is aware of none.
Id.
So, in light of this clear and persuasive authority, the Court turns to the elements of a
claim for a violation of the automatic stay, and Mr. Duhaney’s assertions. And the Court does so
mindful of the requirement to view those assertions in light of the “special solicitude” that is due
to pro se submissions and considers his submissions “to raise the strongest arguments that they
‘suggest.’” Triestman, 470 F.3d at 477.
As noted above, several elements must be satisfied in order to assert a plausible or
colorable claim for a violation of the automatic stay. These are: “(1) that a bankruptcy petition
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20
was filed, (2) that the debtor is an individual, (3) that the creditor received notice of the petition,
(4) that the creditor's actions were in willful violation of the stay, and (5) that the debtor suffered
damages.” In re Laskaratos, 605 B.R. 282 at 299-300.
There can be no doubt that here, a bankruptcy petition was filed, satisfying the first
element, or that Mr. Duhaney is an individual, satisfying the second element of a claim for a
violation of the bankruptcy stay. See Chapter 13 Voluntary Pet. for Individuals, ECF No. 1. As
to the third element, the record indicates that both Goshen’s counsel and its servicer were listed
on the Verification of Creditor Matrix. Id. See Notice of Electronic Filing Procedure –
Information Regarding Meeting of Creditors, ECF No. 5-3 (listing Goshen’s counsel and servicer
as notice recipients).
And plainly, Mr. Duhaney has asserted that he has been harmed by the threat of loss of
his home, satisfying the fifth element of a stay violation claim. As he asserts, “I am also asking
the Court to stop [Lycan] from taking any further action against my home . . . , including
foreclosure or transfer, and to order that any property wrongfully taken be returned to my
bankruptcy estate.” App. at 1-2.
But here, the record shows that Mr. Duhaney comes up short in his assertions as to a
willful violation of the stay by Goshen. He states that “[t]his transfer happened during the time
the automatic stay was in effect and without asking the Court for permission.” App. at 2. And
he argues:
The mortgage was assigned from Goshen to Lycan on or about August 21, 2019 –
nine days before the case was dismissed. Lycan’s opposition does not deny this.
“Actions taken in violation of the automatic stay are void ab initio.” – Kalb v.
Feuerstein, 308 U.S. 433, 438 (1940).
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“Even ministerial or nonjudicial acts to enforce a lien may violate the automatic
stay if they affect estate property.” – In re Ebadi, 448 B.R. 308 (Bankr. E.D.N.Y.
2011).
The assignment was not merely ministerial – it altered the identity of the secured
creditor and affected the administration of estate property.
Mem. in Support at 2 (emphasis in original). Mr. Duhaney also asserts – correctly – that “[n]o
motion for relief from stay was ever filed.” Mem. in Support at 3 (emphasis in original).
None of these facts appears to be disputed by Goshen or Lycan – and yet, these
undisputed facts cannot overcome the well-established rule that “neither the assignment of a
mortgage, nor its recording, is an ‘act to create, perfect, or enforce a lien’ under [Bankruptcy
Code] Section 362(a).” In re Doresca, 2024 WL 3418064, at *6. Without such an act, there
simply is no violation of the automatic stay.
Mr. Duhaney also argues that Goshen and Lycan engaged in a “pre-planned scheme to
shift the prosecution of the foreclosure, convert control over the Premises, and insulate Goshen
from tax exposure.” Supp. Mem. in Support at 2. And he argues that Lycan and its counsel
engaged in improper practices that violate New York’s Banking Law and Rules of Professional
Conduct. See Supp. Mem. in Support at 2-4, 5-9, 12-16. He also claims that the Assignment of
Mortgage from Goshen to Lycan is defective. See Supp. Mem. in Support at 24-28.
But these assertions, whatever their merits may be, do not lend support to Mr. Duhaney’s
claim that a willful violation of the automatic stay occurred when Goshen assigned the mortgage
on the Property to Lycan because, here again, they do not describe an “‘act to create, perfect, or
enforce a lien’ under [Bankruptcy Code] Section 362(a).” In re Doresca, 2024 WL 3418064, at
*6. Nor, more generally, do they amount to an action to collect on a debt. See 11 U.S.C. §
362(a).
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Finally, Mr. Duhaney urges the Court to reject Lycan’s arguments that he has not
proceeded in good faith in pursuing his bankruptcy case or this Application. He states:
Lycan devotes the majority of its opposition to character attacks and accusations
of bad faith against the Debtor and co-defendants. These are irrelevant to the
question of whether the assignments violated the stay before the August 30, 2019
dismissal.
Even if the court later determines that the Debtor engaged in abusive filings, this
does not retroactively validate stay violations that occurred during the protected
period.
“Actions that violate the stay are void, regardless of the actor’s good faith.” – In
re Soares, 107 F.3d 969, 976 (1st Cir. 1997).
The Court may impose future filing restrictions but should not ignore or ratify
unlawful acts that occurred while this Court’s stay order was in force.
Mem. in Support at 3 (emphasis in original).
Here again, the Court recognizes the accuracy of Mr. Duhaney’s statements, in many
respects. That is, the question of his good faith in filing this bankruptcy case should not
determine whether a willful stay violation has occurred. While there may be situations where a
party’s abuse of the bankruptcy process weighs in the consideration of whether a willful and
actionable stay violation has taken place, this is not such a case. But here again, Mr. Duhaney’s
arguments as to his good faith simply do not lend support to his claim that Goshen’s assignment
of the mortgage on the Property to Lycan was a willful violation of the automatic stay.
* 	* 	*
For these reasons, and based on the entire record, the Court finds and concludes that Mr.
Duhaney has not stated a plausible or colorable claim for a violation of the automatic stay.
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Whether Mr. Duhaney Has Shown that this Bankruptcy Case Should Be Reopened
Having determined that Mr. Duhaney has not established a plausible basis for his claim
of a violation of the automatic stay, the Court turns to the question of whether this bankruptcy
case should be reopened.
As the bankruptcy court found in In re Weber, where a debtor seeks to reopen a case to
pursue an asserted stay violation, “there is no reason to reopen the case if there was no stay
violation.” In re Weber, 283 B.R. at 633. Where it is not clear from the record whether a stay
violation occurred, and even where the record suggests a possibility, though less than a
probability, that a stay violation may be established, then it may well be both appropriate and
prudent to reopen the bankruptcy case “to accord relief to the debtor, or for other cause.” 11
U.S.C. § 350(b).
Indeed, where the record suggests the prospect that a debtor may accomplish a
bankruptcy purpose through the reopening of a case under the broad standard of Section 350(b),
to complete any work that remains to be done, then the fact that the case may not have been
“fully administered” under Section 350(a) should not be an obstacle to reopening the case.
At the same time, where the record demonstrates, unmistakably, that there simply would
be no relief available to the debtor upon the reopening of the case, then “it is not inappropriate
for the court to examine the issues, nor is it an abuse of discretion to deny the motion to reopen.”
In re Arleaux, 210 B.R. at 149.
And so here. The Court has carefully considered the arguments and assertions advanced
by Mr. Duhaney in support of his claim that a violation of the automatic stay occurred and must
be addressed. It has done so with attention to the special solicitude that is due to arguments
advanced by pro se litigants. And even viewed in the most favorable light, the Court finds and
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concludes that Mr. Duhaney has not stated a plausible or colorable claim for a violation of the
automatic stay.
The conduct of which Mr. Duhaney complains – “a mortgage assignment from Goshen
Mortgage LLC, Trustee for GDBT I Trust 2011-1, to Lycan Capital Fund I LLC, . . . made
during my active bankruptcy case, without Court permission,” simply does not amount to a
violation of the automatic stay. App. at 1. Courts within and outside the Circuit have uniformly
reached the same conclusion, and for good reason. And in the absence of a plausible or
colorable claim, Mr. Duhaney’s request to reopen this bankruptcy case “to accord relief to the
debtor, or for other cause,” cannot succeed.
For these reasons, and based on the entire record, the Court finds and concludes that Mr.
Duhaney has not shown that this bankruptcy case should be reopened.
Reconsideration Under Federal Rules of Civil Procedure 59 and 60
For the sake of a complete record, and mindful of the Second Circuit’s direction to
construe pro se submissions “‘liberally’” and “to raise the strongest arguments that they
‘suggest,’” the Court also considers whether Mr. Duhaney has established a basis to revisit this
Court’s Dismissal Order or Order Closing Case under Federal Rules of Civil Procedure 59 or 60,
made applicable here by Bankruptcy Rules 9023 and 9024. Triestman, 470 F.3d at 477.
Altering or Amending a Judgment Under Rule 59. Bankruptcy Rule 9023 provides that
Federal Rule of Civil Procedure 59 applies in cases under the Bankruptcy Code. Rule 59
addresses grounds to alter or amend a judgment, and provides that a court may grant a motion to
alter or amend a judgment if certain criteria are met.
A request for reconsideration invites the Court to consider several matters. In this
Circuit, “[t]he major grounds justifying reconsideration are an intervening change of controlling
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law, the availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)
(internal quotations and citations omitted).
In addition, “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)
(citations omitted). Courts narrowly construe this standard, and apply it strictly against the
moving party, so as “to dissuade repetitive arguments on issues that have already been
considered fully by the court.” Caleb & Co. v. E.I. DuPont De Nemours & Co., 624 F. Supp.
747, 748 (S.D.N.Y. 1985).
And the Second Circuit has stated that Rule 59 is not “a vehicle for relitigating old issues,
presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple.’” Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)
(citation omitted).
Here, the record does not show, or even suggest, that there are “controlling decisions or
data that the court overlooked” that would have changed the outcome of any matters considered
during the pendency of Mr. Duhaney’s bankruptcy case. That is, neither the standards for
reconsideration nor Rule 59 provides a basis to revisit and undo the dismissal and closure of this
bankruptcy case.
Relief from a Judgment or Order Under Rule 60. Bankruptcy Rule 9024 provides that
Federal Rule of Civil Procedure 60 applies in cases under the Bankruptcy Code. Rule 60(b)(1)
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to 60(b)(6) set forth several grounds on which, “[o]n motion and just terms, the court may relieve
a party . . . from a final judgment, order, or proceeding.” Fed. R. Civ. P. 60(b).
Rule 60(b)(1) permits a court to relieve a party from a final order on grounds of “mistake,
inadvertence, surprise, or excusable neglect.” Rule 60(b)(2) provides that a court may relieve a
party from a final order on grounds of “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a new trial under Rule 59(b).”
Rule 60(b)(3) provides that a court may relieve a party from a final order on grounds of “fraud
(whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an
opposing party.” Rule 60(b)(4) provides that a court may relieve a party from a final order on
grounds that “the judgment is void.” Rule 60(b)(5) provides that a court may relieve a party
from a final order on grounds that “the judgment has been satisfied, released, or discharged; it is
based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no
longer equitable.” And Rule 60(b)(6) provides that a court may relieve a party from a final order
for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(1)-(6).
As the Second Circuit has noted, “[s]ince [Rule] 60(b) allows extraordinary judicial
relief, it is invoked only upon a showing of exceptional circumstances.” Nemaizer v. Baker, 793
F.2d 58, 61 (2d Cir. 1986). And as with Rule 59, Rule 60(b) is strictly applied, following the
tenet that “[a] court’s final judgment should not ‘be lightly reopened.’” Herschaft v. N.Y.C.
Campaign Fin. Bd., 139 F. Supp. 2d 282, 286 (E.D.N.Y. 2001) (quoting Nemaizer, 793 F.2d at
61). Moreover, “a motion under Rule 60(b) is addressed to the sound discretion of the trial court
. . . .” Montco, Inc. v. Barr (In re Emergency Beacon Corp.), 666 F.2d 754, 760 (2d Cir. 1981).
In his Supplemental Memorandum in Support, Mr. Duhaney cites Rule 60(b)(4) and
asserts that “orders entered without due process are void.” Supp. Mem. in Support at 11. He
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asks the Court to vacate the Dismissal Order under Rule 60(b)(4) “for lack of constitutionally
adequate notice and opportunity to be heard (service misdirected to Goshen).” Supp. Mem. in
Support at 28.
But here, the record does not show, or even suggest, that there was any shortcoming in
the notice or due process afforded to any party to this proceeding – including Mr. Duhaney,
Goshen, and Lycan. Instead, the record shows that the Dismissal Order was entered after the
Chapter 13 Trustee provided notice to Mr. Duhaney and his counsel of the Motion to Dismiss,
which was served and filed on Mr. Duhaney and his counsel on November 27, 2018. Motion to
Dismiss, ECF No. 13. And the Court scheduled four hearings on the Motion to Dismiss, and on
the fourth scheduled hearing, the Court held a hearing on that motion on August 5, 2019, at
which the Chapter 13 Trustee and Mr. Duhaney appeared and were heard, and the Motion to
Dismiss was granted. ECF Entry dated August 5, 2019. Thereafter, at the Court’s direction, the
Chapter 13 Trustee settled a notice of proposed order of dismissal of the case on notice to Mr.
Duhaney and his counsel. Notice of Settlement of Proposed Order, ECF No. 24. And without
opposition, that Dismissal Order was entered on August 30, 2019. Dismissal Order, ECF No. 25.
And the same is true as to the consideration of Mr. Duhaney’s Application. The record
shows that both notice of the Application and an opportunity to be heard were provided to Mr.
Duhaney, Goshen, and Lycan. In particular, on May 19, 2025, the Application was served by
Mr. Duhaney on Lycan, Goshen, the Chapter 13 Trustee, and the United States Trustee. App. at
7; Certificate of Service, ECF No. 32.
Thereafter, on May 15, 2025, the Court entered an order scheduling a hearing on the
Application for July 8, 2025, and that order was served on Mr. Duhaney, Mr. Duhaney’s former
counsel, Planet Home Lending, the Chapter 13 Trustee, and the United States Trustee. Order
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Scheduling Hearing on the Debtor’s Application, ECF No. 30; BNC Certificate of Mailing with
Application/Notice/Order Notice Date 05/17/2025, ECF No. 31.
Mr. Duhaney and Lycan filed extensive written submissions addressing the Application,
including Lycan’s Opposition to the Application (ECF No. 36), Mr. Duhaney’s Memorandum of
Law in Further Support of the Application and Supplemental Memorandum of Law (ECF Nos.
38, 41), and Lycan’s Supplemental Opposition (ECF No. 45).
And finally, the Court held four hearings on the Mr. Duhaney’s Application, on July 8,
2025, July 30, 2025, August 13, 2025, and September 29, 2025, at which Mr. Duhaney and
Lycan appeared and were heard.
Nor does the record show, or even suggest, that any of Rule 60(b)’s other grounds for
relief are met – including “mistake, inadvertence, surprise, or excusable neglect” (Rule 60(b)(1));
“newly discovered evidence that, with reasonable diligence, could not have been discovered in
time to move for a new trial under Rule 59(b)” (Rule 60(b)(2)); “fraud (whether previously
called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party” (Rule
60(b)(3)); “the judgment has been satisfied, released, or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer equitable”
(Rule 60(b)(5)); or “any other reason that justifies relief” (Rule 60(b)(6)).
In sum, Rule 60 does not provide a basis for relief from the dismissal and closure of this
bankruptcy case.
* 	* 	*
For these reasons, and based on the entire record, the Court finds and concludes that Mr.
Duhaney has not shown that this Court’s Dismissal Order, or its Order Closing Case, should be
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altered or amended under Federal Rule 59, or that relief from those orders is warranted under
Federal Rule 60.
Conclusion
For the reasons set forth herein, the Court finds and concludes that Mr. Duhaney has not
established grounds to reopen this bankruptcy case. An order in accordance with this
Memorandum Decision shall be entered simultaneously herewith.
____________________________
Elizabeth S. Stong
United States Bankruptcy Judge
Dated: Brooklyn, New York
December 4, 2025
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