In Re: Atl Fin Fed ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-25-2009
In Re: Atl Fin Fed
Precedential or Non-Precedential: Non-Precedential
Docket No. 09-1990
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"In Re: Atl Fin Fed " (2009). 2009 Decisions. Paper 1125.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1125
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
AMENDED BLD-210 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1990
___________
In re: ATLANTIC FINANCIAL FEDERAL,
Alleged Debtor
MICHAEL R. SHEMONSKY,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 09-cv-00392)
District Judge: Honorable Malcolm Muir
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 11, 2009
Before: MCKEE, FISHER and CHAGARES, Circuit Judges
(Opinion filed: June 25, 2009)
_________
OPINION
_________
PER CURIAM
Michael R. Shemonsky, representing himself as an “alter ego” of Atlantic
Financial Federal (“AFF”), a failed savings and loan, initiated an involuntary bankruptcy
filing for AFF. The Federal Deposit Insurance Corporation (“FDIC”), the successor in
interest to AFF’s receiver, filed a motion to dismiss the bankruptcy suit. After a hearing,
the Bankruptcy Court granted the motion and dismissed the bankruptcy case. On
December 19, 2008, Shemonsky filed a motion to reconsider the dismissal, which the
Bankruptcy Court denied on January 21, 2009. Shemonsky filed a notice of appeal in
which he designated the order of January 21, 2009.
In the District Court, Shemonsky filed a brief. Although he briefly described a few
of his motions in the Bankruptcy Court (including his efforts to get a loan for twenty-five
billion dollars), he focused on one issue – whether the Bankruptcy Court should have
construed his motion for reconsideration as a motion to reopen under Rule 60 of the
Federal Rules of Civil Procedure. Shemonsky claimed that the Bankruptcy Court’s order
denying reconsideration was illegal because the Bankruptcy Court did not docket his
motion until January 21, 2009. He argued that because of when his motion was docketed,
it should have been docketed and construed as a motion to reopen.
Noting Shemonsky’s extensive litigation history, the District Court considered
only the issue raised in his brief. The District Court explained that Shemonsky
misunderstood when his motion for reconsideration was docketed, noting that it was
docketed as filed on December 19, 2008. After the motion was docketed, the Bankruptcy
Court ruled on it on January 21, 2009. The District Court also reviewed the entire
Bankruptcy Court docket and came to the conclusion that the Bankruptcy Court properly
considered the Shemonsky’s motion styled as a motion for reconsideration as a motion for
2
reconsideration. The District Court denied the appeal and affirmed the Bankruptcy
Court’s ruling of January 21, 2009.
Shemonsky appeals. He has filed a document in support of his appeal in which he
notes merely that he previously sued the Third Circuit Court of Appeals. He also presents
three motions – a motion to consolidate this case with another of his appeals, docketed at
C.A. No. 09-1301, a motion for the “FDIC to Produce the 10K for Year Ended 9-30-89,”
and a motion to “disbar and enjoin” counsel for the FDIC. The FDIC opposes the latter
two motions. In presenting reasons why the FDIC should not be ordered to produce “the
10K for Year Ended 9-30-1989,” the FDIC contends that the District Court properly
affirmed the Bankruptcy Court. The FDIC also argues, among other things, that
Shemonsky has not been found to be AFF’s “alter ego,” that he has been enjoined from
representing himself as an officer, director, employee, or agent of AFF, and also that the
FDIC, as the successor in interest to AFF’s receiver, could not be ordered to create a 10-K
report under the Financial Institutions Reform Recovery and Enforcement Act of 1989,
see 12 U.S.C. § 1821(j).
The District Court had jurisdiction to review the Bankruptcy Court’s order
pursuant to 28 U.S.C. § 158(a), and we have jurisdiction to review the District Court’s
order under 28 U.S.C. §§ 158(d) & 1291. Our review of the District Court’s
determination is plenary. See Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 353
(3d Cir. 2002). Upon review, and in complete agreement with the District Court’s
3
analysis, we conclude that Shemonsky’s appeal must be dismissed because it has no
arguable basis in fact or law. See 28 U.S.C. § 1915(e)(2)(B)(i); Neitzke v. Williams, 490
U.S. 319, 325 (1989). In short, as the District Court concluded, the Bankruptcy Court
properly treated Shemonsky’s motion as a motion for reconsideration. Shemonsky’s
pending motions are denied.
4