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Lavigne v. U.S. Trustee

United States District Court, D. Maine

May 25, 2016

BEVERLY ANN LAVIGNE
v.
US TRUSTEE, et al.

          ORDER ON MOTIONS FOR TEMPORARY RESTRAINING ORDER, TRANSFER, AND SANCTIONS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         After appealing from the Bankruptcy Court’s dismissal of her Chapter 11 petition, Ms. Lavigne filed a motion for temporary restraining order, a motion to transfer her appeal to another district court, and a motion for sanctions and to vacate state of Maine court orders. Upon reviewing their merits, the Court denies all motions.

         I. PROCEDURAL HISTORY

         On February 17, 2016, Beverly Ann Lavigne filed a bankruptcy appeal with this Court. Notice of Appeal and Statement of Election (ECF No. 1). When Ms. Lavigne failed to designate a record on appeal, the Court issued an Order to Show Cause on March 17, 2016. Order to Show Cause (ECF No. 3). On March 18, 2016, Ms. Lavigne moved to extend the time to respond to the Order to Show Cause. Mot. for Time Extensions to Prepare Docs. (ECF No. 4). On March 24, 2016, the Court issued an order that a stay was still in effect on the matter pursuant to 11 U.S.C. § 362(c)(2) of the Bankruptcy Code, Order on Stay Issue (ECF No. 5), and on March 25, 2016, the Court issued an order over the objections of the Bank of New York Mellon, Vivian Savage, and Gail Ferry, granting the motion for extension and giving Ms. Lavigne until April 25, 2016 to comply with Federal Rule of Bankruptcy 8009(a)(1). Order on Mot. for Extension (ECF No. 8). On March 29, 2016, Ms. Lavigne filed a letter with this Court setting forth the issues on appeal and designating the record upon which she intends to rely. Statement of Issues to Designate a Record (ECF No. 9-1).

         Ms. Lavigne filed a motion for temporary restraining order (TRO) on April 19, 2016, against Respondents Gail Ferry and Vivian Savage, in addition to their attorney, Joseph O’Donnell. Pet. for Ex Parte TRO and for Inj. from Harassment or Interference with Business “Me. Cottage Getaways” Prop. (ECF No. 10) (Pet.’s TRO). On April 22, 2016, Ms. Lavigne filed a reply to the motion to show cause. Reply Mot. for Mot. to Show Cause (ECF No. 13). The Court issued a status order on April 25, 2016, establishing that Ms. Lavigne’s March 29, 2016 filing facially complied with Rule 8009(a)(1), deeming the Order to Show Cause satisfied.[1] Status Order (ECF No. 14). On April 25, 2016, the Respondents filed a response to Ms. Lavigne’s motion for TRO. Joseph M. O’Donnell’s Resp. toPet. for Ex Parte TRO and for Inj. from Harassment or Interference with Business ‘Me. Cottage Getaways’” (ECF No. 15) (Resp’ts’ Opp’n). Ms. Lavigne filed a reply to the Respondents’ response on May 9, 2016. Reply to Mr. O’Donnell, Esq. Resp. to Pet. for Ex parte TRO (ECF No. 18) (Pet.’s Reply).

         In addition, Ms. Lavigne filed a motion to transfer the case to the Districts of Columbia or Florida on May 9, 2016, Mot. to or Notice of Removal (ECF No. 19) (Mot. to Transfer), and on May 16, 2016, she filed a motion for sanctions and to vacate a state court order. Motion to Sanction All Plaintiffs and to Vacate Order of $94, 000 by Judge Nancy Carlson (ECF No. 21) (Mot. for Sanctions).

         II. THE PARTIES’ POSITIONS

         A. Motion for Temporary Restraining Order

         Ms. Lavigne frames her motion for TRO as an “ENFORCEMENT of STAY that is already in Place from this District Court” and that the respondents are “[d]efaulting on that stay.” Pet.’s TRO at 1. The relief she seeks is as follows: (1) “[a]n ex parte [TRO] for the time for review of the [a]ppeal” enjoining the Respondents from “Slandering Title or Creating a Document that Slanders or alters the ‘Lavigne’ name or property, including Maine Cottage Getaways, ” “Threatening Petitioner or any person(s) residing at Petitioner(s) residence, ” “Entering Petitioners’ business (54 Evergreen Ave), including yard and shed area”; (2) injunctive relief “not to exceed a period of [three] years, enjoining Respondents from slanderous or damaging remarks for personal . . . or business entities owned or managed by Beverly Lavigne [including enjoining] respondent(s) from interference with business or property or any attempt for any sale of property”; (3) “enjoining Respondent(s) and any other person(s) acting on Respondent(s) behalf from committing those acts set forth”; (4) an injunction “that prevents Respondent(s) sale of any property or any recordation of any deeds in any instrument to be recorded in any Maine State Registry of Deeds until funds are provided for Quiet Title or Tile research for Franklin County and York County Deeds prepared by Respondent and injunction for a period of 5 years thereafter”; (5) an injunction “to stop any seizure of property and return any and all subject to final decision of appeals court and full repayment of $30, 000 owed with interest to Petitioner until the conclusion of Review”; and (6) “reasonable attorney’s fees and costs . . . and such further relief as the Court [d]eems just and appropriate.” Id. at 1-2.

         Ms. Lavigne asserts that Gail Ferry, Viviane Savage and their counsel, Joseph O’Donnell, “have applied methods of thievery . . . to take property and destroy an income producing business while [the stay] was continued by order of” this Court. Pet.’s TRO Attach. 1 Decl. of Pet., at 1 (ECF No. 10) (Pet.’s Decl.). She argues that the Respondents have violated her “28 U.S.C.[] [§] 1292 First Amendment freedoms, ” causing “irreparable injury which necessitates immediate redress.”[2] Id. at 1. Ms. Lavigne also suggests that there are jurisdiction, conflict of interest, and conflict of laws issues, and states that on November 19, 2015, [3] the Hon. Nancy Carlson of the state of Maine District Court held a hearing in Franklin County and issued an order that Ms. Lavigne believes the Respondents are using to take actions against her property. Id. at 1. These actions include Mr. O’Donnell notifying tenants of Maine Cottage Getaways, as well as neighbors of the property, that Mr. Lavigne no longer owns the property and that they should notify Mr. O’Donnell if Mr. Lavigne “approached the property.” Id. at 2. Ms. Lavigne also alleges that the Respondents “changed the locks and gave the local policeman a key, ” instructed tenant Marlisa Clapp not to pay the rent to her and instead to Gail Ferry, that on January 15, 2016 Gail Ferry registered herself with the Secretary of State’s Office as the “Registered Agent of Maine Cottage Getaways” in violation of state of Maine law, and that Ms. Ferry now “tells everyone” she is the owner of Maine Cottage Getaways, LLC, which is a significant asset subject to the bankruptcy appeal in this Court. Id. at 2.

         Additionally, Ms. Lavigne alleges that there were “attempts to record an un-recordable transfer tax” regarding her property, as on February 29, 2016 Gail Ferry delivered a quitclaim deed to the York County registry of deeds as “Gail Ferry agent of . . . Maine Cottage Getaways.” Id.; Pet’s TRO Attach. 3 Quitclaim Deed (ECF No. 10). Also, Ms. Lavigne argues she owes less than $94, 000, and cites a promissory note from September 5, 2003, where Ms. Lavigne, in her capacity as Trustee of the Roger J. Lavigne Trust, promised to repay to herself, in her individual capacity, $30, 000 with 8 percent interest. Pet’s TRO Attach. 5 Promissory Note (ECF No. 10). Further, Ms. Lavigne disputes the payoff amount and estimated value of the 54 Evergreen Ave. property, and asserts “Truth and Lending” violations. Id.

         B. Respondents’ Response to Motion for TRO

         The Respondents, “without waiving any defenses for insufficiency of service of process, jurisdiction, venue, and related defenses, ” ask the Court to deny Ms. Lavigne’s motion for TRO on a number of grounds. Resp’ts’ Opp’n at 1. First, Mr. O’Donnell asserts that, as counsel for Vivian Savage and Gail Ferry, he is not a proper party to this matter, as no argument has been made as to why he should be joined as a party, there has been no service of process on him, and he has not waived any requirement that process be served. Id. (citing Fed.R.Civ.P. 12(b)(5) & 20). The Respondents also assert Ms. Lavigne has failed to state a claim upon which relief can be granted, raising Federal Rule of Civil Procedure 12(b)(6) and arguing that she has cited to “no rule or law as to why relief should be granted, ” nor has she specified exactly what relief she seeks or why it is being asked. Id. at 2.

         Moreover, the Respondents contend that Ms. Lavigne’s motion for injunctive relief “does not make a claim that contains the cognizable elements of a preliminary injunction.” Id. Citing Diaz-Carrasquillo v. Garcia-Padilla, 750 F.3d 7, 10 (1st Cir. 2014), they offer the standard when considering a request for a temporary restraining order and preliminary injunction, in that the movant must prove by reasonable certainty: (1) the “likelihood of success on the merits, ” (2) “irreparable harm if the request is rejected, ” (3) that the hardship to the movant outweighs any hardship to the parties against whom the order is sought, ” and (4) “any effect that the injunction would have on the public interest.” Id.

         The Respondents contend that Ms. Lavigne has made no showing of a likelihood of success on the merits of her claim, as “it is not entirely clear to counsel what her claim is, and what relief is being sought against the named parties, ” and likewise “has made no showing of irreparable harm that would result from a lack of such an order.” Id. at 3. Regarding her claim that on November 19, 2016, when the Maine District Court considered Gail Ferry’s turn-over request, the Respondents argue that there was no automatic stay in effect, and that Ms. Lavigne’s Chapter 11 case was not filed until January 28, 2016. Id. Further, they assert that the continuance of the stay per 11 U.S.C. § 362(c)(3) is limited because her case before the Bankruptcy Court was dismissed on November 24, 2015, and even though she filed the instant Chapter 11 petition within a year of the dismissal, she did not seek to extend the stay in this Court on a showing of good cause and the stay expires within 30 days. Id. Moreover, the Respondents contend it is unclear if there would be any hardship at all if the order was not granted, and any hardship to Ms. Lavigne would not outweigh the hardship of the parties named in this motion, “especially where it is unclear for what relief is being asked.” Id. Finally, the Respondents claim a grant of injunction “would be contrary to the public interest as it would invite vague pleadings with the promise of relief, and subject the courts and the public to additional burden and expense.” Id.

         C. Ms. ...


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