15-1559
In re Soundview Elite Ltd. (Fletcher v. Ball)
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
New York, on the 14th day of April, two thousand sixteen.
PRESENT:
ROSEMARY S. POOLER,
BARRINGTON D. PARKER,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
In re Soundview Elite Ltd., et al.,
Debtors.
_____________________________________
Alphonse Fletcher, Jr.,
Appellant,
v. 15-1559
Corinne Ball, Chapter 11 Trustee,
Trustee-Appellee.
_____________________________________
FOR APPELLANT: Alphonse Fletcher, Jr., pro se, San Francisco, CA.
FOR APPELLEE: William J. Hine, Esq., Jones Day, New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Oetken, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Appellant Alphonse Fletcher, Jr., pro se, appeals from the district court’s judgment
affirming an order of the bankruptcy court for the Southern District of New York, which denied
Fletcher’s motion to remove the Chapter 11 trustee, Corinne Ball, and the district court’s order
denying Fletcher’s motion for reconsideration. We assume the parties= familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.
“A district court’s order in a bankruptcy case is subject to plenary review, meaning that this
Court undertakes an independent examination of the factual findings and legal conclusions of the
bankruptcy court.” In re Cacioli, 463 F.3d 229, 234 (2d Cir. 2006) (internal quotation marks
omitted). Thus, we review the bankruptcy court’s conclusions of law de novo and its findings of
fact for clear error. In re First Cent. Fin. Corp., 377 F.3d 209, 212 (2d Cir. 2004). A bankruptcy
court’s denial of a motion to remove the trustee under 11 U.S.C. § 324(a) is reviewed for abuse of
discretion. See In re Eloise Curtis, Inc., 326 F.2d 698, 701 (2d Cir. 1964). A bankruptcy court
abuses its discretion when its ruling is based on an erroneous view of the law or a clearly erroneous
assessment of the evidence. See In re Highgate Equities, Ltd., 279 F.3d 148, 152 (2d Cir. 2002).
Fletcher’s arguments on appeal, like his motion for reconsideration, do not undermine the
bankruptcy court’s conclusion that his motion to remove the trustee was without merit. Under
Section 324(a), the bankruptcy court may, “after notice and a hearing, . . . remove a trustee, other
than the United States trustee, or an examiner, for cause.” 11 U.S.C. § 324(a). “Grounds for
disapproval or removal of a trustee in bankruptcy are not to be found in his formal relationships,”
and the Court has “traditionally stressed the elements of fraud and actual injury to the debtor
interests.” In re Freeport Italian Bakery, Inc., 340 F.2d 50, 54 (2d Cir. 1965) (internal quotation
marks omitted).
Fletcher does not show fraud or actual injury to the Debtor’s interests. He does not allege
that the trustee knew of any specific conflict that she failed to disclose despite her knowledge of it
and her duty to do so. The trustee gave notice, before the bankruptcy court approved her
appointment, that her law firm may have represented and may continue to represent “parties
actually or potentially adverse to the Debtors,” but stated that it would not do so in any matters
relating to the Debtors or their Chapter 11 cases. Fletcher’s conclusory accusations of fraud and
his assertion that Jones Day had previously reported, in unrelated proceedings, working for parties
that were not mentioned in its disclosure in the Soundview proceeding does not show that the
trustee knowingly failed to report a current, relevant conflict. See In re Freeport Italian Bakery,
Inc., 340 F.2d at 54; cf. also Fed. R. Civ. P. 9(b) (“[A] party must state with particularity the
circumstances constituting fraud or mistake.”). Moreover, Fletcher does not show or allege any
actual injury to the Debtor’s interests. The bankruptcy court therefore did not abuse its discretion
in denying the motion to remove the trustee.
We have considered Appellant’s remaining arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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