In re Krichevsky

640 B.R. 524

IN RE: Michael KRICHEVSKY, Debtor.

Case No. 1-19-43516-ess

United States Bankruptcy Court, E.D. New York.

Signed April 25, 2022

Michael Krichevsky, 4221 Atlantic Avenue, Brooklyn, NY 11224, Debtor, pro se

MEMORANDUM DECISION ON THE MOTION TO RECUSE OF THE DEBTOR MICHAEL KRICHEVSKY

ELIZABETH S. STONG, UNITED STATES BANKRUPTCY JUDGE

Introduction

Before the Court is the motion of the Chapter 11 debtor, Michael Krichevsky, to recuse the undersigned bankruptcy judge, Honorable Elizabeth S. Stong, in this bankruptcy case pursuant to Judiciary Code Sections 144 and 455(a), 28 U.S.C. §§ 144, 455(a) (the "Motion to Recuse").¹

Jurisdiction

The United States Bankruptcy Court for the Eastern District of New York has jurisdiction over this motion pursuant to Judiciary Code Sections 157(b)(2)(A) and 1334(b), 28 U.S.C. §§ 157(b)(2)(A) and 1334(b), 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), 28 U.S.C. § 157(b), and venue is proper before this Court pursuant to Judiciary Code Section 1409, 28 U.S.C. § 1409.

Background

In order to provide some context for this Motion to Recuse, the Court describes some of the extensive record in Mr. Krichevsky's Chapter 11 bankruptcy case and a pending adversary proceeding, and in a separate bankruptcy case filed nearly ten years ago, In re Elena Svenson , Case No. 12-43050, and a related adversary proceeding, Michael Krichevsky v. Elena Svenson , Adv. Pro. No. 12-01229, in which Mr. Krichevsky brought two motions to recuse this Court.²

Mr. Krichevsky's Bankruptcy Case

On June 6, 2019, Mr. Krichevsky filed a petition for relief under Chapter 13 of the Bankruptcy Code. ECF No. 1. Some four months later, on October 4, 2019, he voluntarily converted his case to one under Chapter 11. ECF No. 26.³ On August 16, 2021, Mr. Krichevsky filed a motion to set the last day to file proofs of claims (the "Motion for Bar Date"). ECF No. 223. In the more than two and one-half years that his Chapter 11 case has been pending, he has not filed a Chapter 11 plan or disclosure statement.

The Secured Creditors’ Motions for Stay Relief and To Dismiss

Two secured creditors have sought relief from the automatic stay in Mr. Krichevsky's bankruptcy case. On March 17, 2020, Wells Fargo Bank, N.A. ("Wells Fargo") filed a motion for stay relief with respect to his real property located at 4221 Atlantic Avenue, Brooklyn, NY 11224 (the "Wells Fargo Stay Relief Motion"). ECF No. 47. On May 19, 2020, Mr. Krichevsky filed a cross motion to strike and dismiss with prejudice the Chapter 11 proof of claim filed by U.S. Bank, N.A. ("U.S. Bank") and Wells Fargo which was, in substance, Mr. Krichevsky's opposition to that motion. ECF No. 57. And on June 16, 2020, the Court entered an order granting the Wells Fargo Stay Relief Motion (the "Wells Fargo Stay Relief Order"). ECF No. 70. On June 25, 2020, Mr. Krichevsky filed a notice of appeal of the Wells Fargo Stay Relief Order. ECF No. 71. Thereafter, on March 22, 2021, or just over one year after the Wells Fargo Stay Relief Motion was filed, the District Court for the Eastern District of New York entered an order affirming the Wells Fargo Stay Relief Order and dismissing Mr. Krichevsky's appeal. ECF No. 102.

On June 8, 2021, Select Portfolio Servicing, Inc. ("SPS") filed a motion for stay relief with respect to Mr. Krichevsky's real property located at 120 Oceana Drive West, Unit 5D, Brooklyn, NY 11235 (the "SPS Stay Relief Motion"). ECF No. 134. On July 26, 2021, Mr. Krichevsky filed opposition to the SPS Stay Relief Motion. ECF No. 195. And on August 6, 2021, the Court entered an order granting the SPS Stay Relief Motion (the "SPS Stay Relief Order"). ECF No. 197. On August 19, 2021, Mr. Krichevsky filed a notice of appeal of the SPS Stay Relief Order. ECF No. 224. On March 31, 2022, he filed a memorandum of law in support of the appeal, and on March 31, 2022, the district court entered an order granting an extension of time for U.S. Bank to respond to Mr. Krichevsky's appellant's brief. That appeal remains pending.

And on December 8, and December 10, 2021, SPS filed a motion to dismiss and amended motion to dismiss Mr. Krichevsky's Chapter 11 bankruptcy case (the "Amended Motion to Dismiss"). ECF Nos. 249, 250.

Mr. Krichevsky's Motions Seeking Relief Against the Secured Creditors and Their Counsel

This Chapter 11 bankruptcy case has followed a somewhat contentious path. Mr. Krichevsky has brought several motions seeking various forms of relief against the secured creditors Wells Fargo and SPS, and their law firms and individual attorneys. These include motions for sanctions, motions in limine, and motions to take judicial notice and to draw adverse inferences from the record.

On May 27, 2021, Mr. Krichevsky filed a "Motion to Sanction for Willful Violation of Bankruptcy Rules 2019 and 3001" (the "Motion for Sanctions"). ECF No. 122. One month later, on June 26, 2021, he filed an "Emergency Notice of Motions, Motions in Limine, for First Request to Take Judicial Notice, Make Adverse Inference Against Proof of Claim and Memorandum of Law" (the "Motion in Limine No. 1"). ECF No. 156. He argues, in substance, that the Court should prohibit U.S. Bank, Wells Fargo, and their attorneys, from testifying, or mentioning that he defaulted on July 1, 2010, and should take judicial notice and draw adverse inferences against U.S. Bank, Wells Fargo, and their attorneys to the effect that U.S Bank's proof of claim is time-barred and that the prior state court foreclosures were not authorized by U.S. Bank. Motion in Limine No. 1 at 8.

On June 27, 2021, Mr. Krichevsky filed an amended cross-motion to sanction Natsayi Mawere, Esq. and Reed Smith, LLP ("Reed Smith") (the "Amended Cross-Motion for Sanctions"). ECF No. 157. That same day, he filed a cross-motion to sanction attorneys Alexandra K. Fugate, Esq., Brittany J. Maxon, Esq., David Bruce Wildermuth, Esq., Miranda L. Sharlette, Esq. a/k/a Miranda Jakubec, Esq., Natalie A. Grigg, Esq., Woods Oviatt Gilman, LLP ("Woods"), U.S. Bank, and Wells Fargo (the "Cross-Motion for Sanctions"). ECF No. 160. Here again, he argues, in substance, that the subjects of his Cross-Motion for Sanctions and Amended Cross-Motion for Sanctions violated Bankruptcy Rule 9011 because their submissions to the Court, as well as their arguments, are based on false allegations and fraud. Cross-Motion for Sanctions ¶ 13; Amended Cross-Motion for Sanctions ¶ 10.

On the following day, June 28, 2021, Mr. Krichevsky filed an "Emergency Notice of Motions, Motions in Limine No. 2 for Request to Take Judicial Notice No. 2, Make Adverse Inference Against Proof of Claim and Memorandum of Law" (the "Motion in Limine No. 2"). ECF No. 167. And two days later, on June 30, 2021, he filed an "Emergency Notice of Motions, Motions in Limine No. 3 for Request to Take Judicial Notice No. 3, Make Adverse Inference Against Proof of Claim and Memorandum of Law" (the "Motion in Limine No. 3"). ECF No. 177. He argues, in substance, that the Court should take judicial notice of and draw adverse inferences from his exhibits, statements of fact, and judicial admissions; and separately, that the Court should prohibit attorneys from Woods and Reed Smith from stating that he defaulted on July 1, 2010 or stating that they represent U.S. Bank National Association, as Trustee for Banc of America Funding Corporation Mortgage Pass-Through Certificates, Series 2006-F. Motion in Limine No. 3, at 13. He also argues that the Court should take judicial notice, pursuant to Federal Rule of Evidence 201, that his motion for sanctions was properly served on Reed Smith and that Reed Smith continued to be in violation of Bankruptcy Rule 2019 and the New York Rules of Professional Conduct. Motion in Limine No. 3 ¶ 11(A).

On July 15, 2021, Mr. Krichevsky filed a motion for discovery sanctions against Ms. Mawere, Ms. Grigg, Ms. Fugate, Mr. Wildermuth, Reed Smith, and Woods (the "Motion for Discovery Sanctions"). ECF No. 185. He argues, in substance, that sanctions against the attorneys for Reed Smith and Woods are appropriate because their submissions and arguments in opposition to his motions are based on fabricated documents, perjury, and false allegations. Motion for Discovery Sanctions ¶ 7.

The Secured Creditors’ and Their Counsel's Motion for a Protective Order

On August 23, 2021, Wells Fargo, U.S. Bank, Reed Smith, Ms. Mawere, Jennifer L. Achilles, Esq., Kelly Duncan, Stephanie Terese Tautge, Daniel V. Edward, Charice Lenise Gladden, and Jeremiah Herberg filed a motion for a protective order and an injunction against the filing of further motions against Mr. Krichevsky in his bankruptcy case and adversary proceeding. (the "Motion for Protective Order") and a memorandum of law in support of the Motion for Protective Order (the "Memorandum in Support of Motion for Protective Order). ECF Nos. 230, 231. They state:

[Mr.] Krichevsky indisputably seeks to abuse discovery procedures as a means to unduly burden his creditors and Adversary Proceeding Defendants. His demands solely concern the issues of U.S. Bank's Amended Proof of claim and standing as holder of the Note with the right to foreclose on [Mr.] Krichevsky's Mortgage. Those issues have already been litigated, considered, and repeatedly determined in U.S. Bank's favor by this Court, the District court, and the state court.

Mem. in Support of Motion for Protective Order at 14 (emphasis in original). The Motion for Protective Order remains pending.

This Motion To Recuse

On November 28, 2021, Mr. Krichevsky filed this motion to recuse this Court (the "Motion to Recuse"). ECF No. 246. On December 1, 2021, the Court entered an order scheduling a hearing on the Motion to Recuse for March 9, 2022, and allowing Mr. Krichevsky to supplement the Motion to Recuse by ...