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In Re: Waiehu Aina, LLC, Debtor. v. Robert K. Armitage

September 20, 2011

IN RE: WAIEHU AINA, LLC, DEBTOR.
DANE S. FIELD, CHAPTER 7 TRUSTEE FOR WAIEHU AINA, LLC,
PLAINTIFF,
v.
ROBERT K. ARMITAGE, SR.; CHARMINE ARMITAGE; ROBERT K. ARMITAGE, JR.; NAMI KEKAUALUA ARMITAGE; HAYLEEANA ARMITAGE; HILEYSOHN ARMITAGE; HAVEN ARMITAGE; REANNON ARMITAGE; WAYNE K. ARMITAGE; DENISE ARMITAGE; RICKIE KA'AHA'AINA; STEVEN HEIME; ZACHARY KANOA; VALERIE SAROL; DOE DEFENDANTS 1-999, DEFENDANTS.



(Appeal from Order and Judgment of Bankruptcy Court) Bk. No. 10-01188(Chapter 7)

The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

Adversary Proceeding No. 11-00003

ORDER GRANTING APPELLEE'S MOTION TO DISMISS APPEAL

Before the Court is Appellee Dane S. Field, Chapter 7 Trustee for Waiehu Aina, LLC's ("Trustee" or "Appellee") Motion to Dismiss Appeal for Lack of Appellate Jurisdiction ("Motion"), filed on May 13, 2011. This matter came on for hearing on August 29, 2011. Appearing on behalf of Appellee was Neil Verbrugge, Esq. Pro se Appellants Robert K. Armitage and Robert Iiams ("Appellants") did not appear at the hearing. After careful consideration of the Motion, the parties' filings and the arguments of counsel, the Trustee's Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND

I. Bankruptcy Proceeding

The Trustee moves pursuant to Fed. R. Bankr. P. 8002 for an order dismissing the present appeal from the United States Bankruptcy Court for the District of Hawai'i ("Bankruptcy Court"). The debtor in the underlying Chapter 7 matter, Waiehu Aina, LLC ("Debtor"), owns real property in Waiehu, Maui, Hawai'i, comprised of 277 acres of unimproved land ("the Property"). The Trustee is the duly appointed Chapter 7 trustee for Debtor, charged with administering and liquidating the Debtor's assets for the benefit of creditors. Various unauthorized persons, including Appellants, occupied portions of the Property without the permission of the Debtor or the Trustee. [Mem. in Supp. of Motion at 4.]

On January 10, 2011, the Trustee initiated adversary proceeding no. 11-90003 seeking turnover of the Debtor's property, and filed a Motion for Summary Judgment on January 11, 2011. On March 16, 2011, the Bankruptcy Court entered: (1) an Order Granting Summary Judgment against Appellants ("Order"); (2) Judgment on the Order; and (3) a Writ of Possession. [Id. at 5-6.]

On March 23, 2011, bankruptcy defendant Charmaine Armitage filed to Motion to Reconsider the Order, Judgment, and Writ of Possession ("Motion to Reconsider"). On April 5, 2011, the Bankruptcy Court entered an order denying Motion to Reconsider. [Id. at 6.]

On May 2, 2011, Mr. Armitage and "Interested Party," Robert Iiams,*fn1 filed a "Notice of Appeal and Request to Vacate Bankruptcy Orders of a Writ Possession and a Motion for Summary Judgment Based Upon Fraud in Fact After Case Was Closed" ("Notice of Appeal"). [Id. at 6-7.]

II. The Trustee's Motion

In the instant Motion, the Trustee seeks dismissal of the appeal as untimely. The Trustee argues that, pursuant to Fed. R. Bankr. P. 8002, the deadline for filing a notice of appeal is fourteen days after the entry of the order or judgment appealed from. In this case, the deadline was fourteen days after the Bankruptcy Court entered the Order Denying the Motion to Reconsider on April 5, 2011. Accordingly, Appellants should have filed their Notice of Appeal by April 19, 2011, but did not do so until May 2, 2011. The Notice of Appeal is untimely, and the Trustee argues the appeal must be dismissed for lack of appellate jurisdiction. [Id. at 8-9.]

II. Appellants' Withdrawal of Appeal and Non-Opposition

Appellants did not file an opposition to the Motion. Instead, on June 17, 2011, Appellants filed with the Bankruptcy Court a document entitled "Respondent's Withdrawal of Appeals and Motion Based on Court's Inability to Lawfully Hear Case or Grant an Appeal Without First Establishing in Rem Jurisdiction or Existence of a Contract with the Real Parties in Interest" ("Withdrawal"). [Dkt. no. 10.] Although largely unintelligible, the Withdrawal appears to state that the Bankruptcy Court does not have jurisdiction over the Property, and "[w]hereas said Court under jurisdictional challenge in the immediate matter is unable to prove jurisdiction, it therefore ...


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