Viktoria Benkovitch v. Deutsche Bank National Trust Company
DueProcess
Which is worse, that a debtor obtains a real property that she already owns, free of any liens, because a secured creditor failed to timely comply with a bankruptcy court's final confirmation order; or, when that same bankruptcy court fails to enforce said final order?
QUESTIONS PRESENTED In this case, there is a confirmed Chapter 11 bankruptcy plan, substantially consummated, and later, converted to a Chapter 7. “[T]he provisions of a confirmed plan bind the debtor... and any creditor ... whether or not such creditor has accepted the plan.” 11 U.S.C. Section 1141(a). The bankruptcy court’s order confirming said plan is a final judgment which has not been appealed, not revoked nor voided, and not vacated. Therefore, this case presents the following questions: 1. Which is worse, that a debtor obtains a real property that she already owns, free of any liens, because a secured creditor failed to timely comply with a : LL SSt*Cssbpankruptcy court's final confirmation order; or, when that same bankruptcy court fails to enforce said final order? Subsequently, in the appeal — proceedings below, should the courts have enforced the clear and unambiguous terms of a final order, including where the bankruptcy court failed to enforce its own order? 2. What makes a non-appealed and non-vacated bankruptcy court , confirmation order entered after meticulous and compliant attention to due process and proper notice, and which has not been voided different from any other final order? Does said final judgment also have res judicata effect, precluding it from collateral attack? Is a secured creditor bound by the terms of a confirmed bankruptcy plan where it had notice, and did not i object to nor appeal, and did not move to void or vacate that confirmed bankruptcy plan? ; 3. Does a bankruptcy court have equitable discretion to ignore the clear terms of its own final order? And, can the Bankruptcy Code be over-ridden by equitable considerations and notions of fairness? Can a bankruptcy court . find a confirmed bankruptcy plan fair and equitable, but then refuse to enforce it? 4. Does conversion from a Chapter 11 proceeding to a chapter 7 undo a bankruptcy confirmation order which has not been appealed, not revoked ’ nor voided, and also not vacated and, everything that happened before : such conversion? . ii