Bush v. Washington Mutual Bank, F.A. (In Re Bush)

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 06-12528 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-02176-CV-TWT-1
BKCY No. 05-93104-BKC-MHM
IN RE: SAMUEL ADAM BUSH,
Debtor.
____________________________________________________
SAMUEL ADAM BUSH,
Plaintiff-Appellant,
versus
WASHINGTON MUTUAL BANK, F.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 31, 2007)
Before TJOFLAT, HULL and FAY, Circuit Judges.
PER CURIAM:
Samuel Adam Bush, proceeding pro se, appeals the district court’s order
affirming the bankruptcy court’s grant of relief from the automatic stay and grant
of in rem relief to Washington Mutual Bank (“Washington Mutual”). On appeal,
Bush argues that the district court judge erred in failing to recuse himself because
the judge was a party in one of Bush’s pending civil actions. He challenges the
bankruptcy court’s order on the ground that, because the August 3, 2004
foreclosure sale of his property by Washington Mutual took place after he filed a
Chapter 13 petition, the sale was a nullity due to the automatic stay and the
bankruptcy court did not have the legal authority to validate the sale. For the
reasons set forth more fully below, we affirm.
On May 5, 2005, Bush filed the voluntary Chapter 13 bankruptcy petition
giving rise to this case. Bush had previously filed a voluntary Chapter 13 petition
on August 3, 2004. That same day, approximately three hours after Bush filed this
petition, Washington Mutual, the holder of a mortgage deed for the above-
referenced real property, conducted a foreclosure sale of, and purchased, this
property. On September 17, 2004, Washington Mutual moved to annul the
automatic stay to permit the foreclosure sale to stand. The bankruptcy court
granted the motion. It also dismissed Bush’s Chapter 13 case. Bush appealed the
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order annulling the automatic stay to the district court, which affirmed the order on
March 2, 2005. Bush did not appeal the district court’s order.
After Bush filed the instant Chapter 13 petition, Washington Mutual moved,
inter alia, for relief from the automatic stay and in rem relief, alleging that Bush
was a tenant at sufferance on foreclosed property and seeking leave to continue to
pursue dispossessory proceedings against him. The bankruptcy court granted
Washington Mutual’s motion, finding cause to lift the automatic stay. It further
found in rem relief, which would prevent an automatic stay from arising with
regard to the property should Bush or someone claiming an interest in the property
through Bush file a subsequent bankruptcy petition, necessary to afford effective
relief to Washington Mutual.
Bush appealed to the district court and his case was reassigned to Judge
Thomas W. Thrash, Jr. because it was related to two cases, Bush v. Washington
Mutual and Washington Mutual v. Bush, assigned to Judge Thrash. Bush filed a
motion to recuse Judge Thrash on the ground that the judge was named as a party
to one of his pending civil actions. The district court judge, noting that he had
been named as a third-party defendant by Bush, who claimed that the judge acted
corruptly in another proceeding in which the court dismissed a claim against a
bankruptcy judge due to judicial immunity, denied Bush’s motion to recuse. The
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court found that Bush sought recusal on the ground that, because he sued a judge,
that judge must be biased against him. Reasoning that granting the motion in these
circumstances would give Bush an effective means to manipulate and needlessly
delay the judicial process, the district court found Bush’s motion to recuse without
merit. The district court affirmed the bankruptcy court’s order granting relief from
the automatic stay and in rem relief.
We review a district court judge’s refusal to recuse himself for abuse of
discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). We
independently examine the bankruptcy court’s factual and legal determinations. In
re Int’l Admin. Servs., Inc., 408 F.3d 689, 698 (11th Cir. 2005). “We review de
novo determinations of law, whether reached by the district court or the bankruptcy
court.” In re Sunshine Jr. Stores, Inc., 456 F.3d 1291, 1308 (11th Cir. 2006). We
review the bankruptcy court’s factual findings for clear error. Id.
Recusal in this case is premised on Bush’s civil claim against Judge Thrash,
which was filed as a result of Judge Thrash’s adverse ruling in a prior case.
Recusal is required in certain circumstances, including when the judge “has a
personal bias or prejudice concerning a party . . . .” 28 U.S.C. § 455(b). In
addition, “[a]ny justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be
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questioned.” Id. § 455(a). The standard for recusal under § 455(a) is “whether an
objective, disinterested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant doubt about the
judge’s impartiality . . . .” United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.
2003) (citation and quotation marks omitted). A judge’s rulings in a related case
are not a sufficient basis for recusal, except where pervasive bias is shown. Bolin
v. Story, 225 F.3d 1234, 1239 (11th Cir. 2000). “A judge is not disqualified
merely because a litigant sues or threatens to sue him.” United States v. Grismore,
564 F.2d 929, 933 (10th Cir. 1977); accord Azubuko v. Royal, 443 F.3d 302, 304
(3d Cir. 2006); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). Thus,
the district court judge did not abuse his discretion in denying Bush’s motion for
recusal.
On appeal, Bush’s challenge to the bankruptcy court’s order is premised on
the argument that Washington Mutual’s foreclosure sale of his property was
invalid due to the automatic stay. We cannot, however, grant Bush relief on this
ground. Bush did not appeal the district court’s March 2, 2005 order affirming the
annulment of the automatic stay to this Court, and this order is not properly before
us in the instant appeal. See Fed.R.App.P 4(a)(1)(A),6(b)(1); Rinaldo v. Corbett,
256 F.3d 1276, 1278 (11th Cir. 2001). Moreover, Bush did not challenge
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Washington Mutual’s motion for relief from the automatic stay and for in rem
relief on this ground before the bankruptcy court. He therefore has waived the
issue and we will not consider it. See In re Worldwide Web Sys. Inc., 328 F.3d
1291, 1300-01 (11th Cir. 2003). Bush did allege that he filed an answer and
counterclaim in the state court dispossessory proceedings brought by Washington
Mutual, after he had determined that he was being illegally disenfranchised of his
legal rights. The bankruptcy court, rejecting Bush’s argument that he should
obtain the protections of the Bankruptcy Code while he continued to attempt to
establish the invalidity of the foreclosure, found that its prior determination
regarding the issue of the validity of the foreclosure sale was final. We agree and
conclude that collateral estoppel, which “refers to the effect of a judgment in
foreclosing relitigation of a matter that has been litigated and decided[,]” Quinn v.
Monroe County, 330 F.3d 1320, 1328 (11th Cir. 2003), forecloses any attempt by
Bush in this appeal to relitigate the issue of whether the foreclosure sale was
invalid due to the operation of the automatic stay.1
1
The doctrine of collateral estoppel applies under federal law if the following four
factors are met:
(1) the issue at stake must be identical to the one involved in the prior litigation;
(2) the issue must have been actually litigated in the prior suit; (3) the
determination of the issue in the prior litigation must have been a critical and
necessary part of the judgment in that action; and (4) the party against whom the
earlier decision is asserted must have had a full and fair opportunity to litigate the
issue in the earlier proceeding.
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In light of the foregoing, we hold that the denial of Bush’s motion to recuse
was not an abuse of discretion. As the invalidity of the foreclosure sale due to the
operation of the automatic stay is the only ground upon which Bush challenges the
bankruptcy court’s order on appeal, we
AFFIRM.
CSX Transp., Inc. v. Bhd. of Maint. of Way Employees, 327 F.3d 1309, 1317 (11th Cir. 2003)
(citation and quotation marks omitted).
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