           Case: 15-10684   Date Filed: 09/04/2015   Page: 1 of 9


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10684
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-mc-23425-KAM



JEFF TUCKER,

                                                     Plaintiff - Appellant,

                                  versus

BARRY E. MUKAMAL,

                                                     Defendant - Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (September 4, 2015)

Before MARCUS, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Jeff Tucker appeals an order the district court entered in its role as

bankruptcy appellate court affirming the bankruptcy court’s denial of a motion to

recuse and grant of a motion to conclude administration of the bankruptcy case.

After careful review, we affirm.

                                           I.

      Mr. Tucker filed a Chapter 7 bankruptcy petition in 2004, and the

bankruptcy court appointed appellee Barry Mukamal as Trustee. Two years later,

Mr. Tucker and the Trustee entered into a court-approved settlement agreement

which set forth payments Mr. Tucker was required to make by November 20, 2007

to settle certain debts against his estate in exchange for his discharge in

bankruptcy. The agreement provided that, if Mr. Tucker defaulted on his

obligations, the Trustee was entitled to exercise certain remedies, including (as

relevant here) revocation of the bankruptcy discharge.

      Mr. Tucker subsequently defaulted on his obligations under the settlement

agreement by failing to timely settle the debts against his estate, so the Trustee

moved in 2011 to revoke the bankruptcy discharge. After a hearing, the

bankruptcy court granted the motion. Shortly thereafter, Mr. Tucker filed a motion

for recusal of the bankruptcy judge, which was denied.

      Almost two years later, the Trustee filed a “Motion to Conclude

Administration of Chapter 7 Case” (the “Trustee’s Motion”). The Trustee noted


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that one claim against the now insolvent bankruptcy estate remained outstanding

and was the subject of an ongoing adversary proceeding between Mr. Tucker and a

purported creditor (a proceeding to which the Trustee was not a party). Citing the

near ten-year span of litigation and emphasizing that the adversary proceeding

could continue for some time without a resolution, the Trustee requested that the

bankruptcy court close the case subject to any distributions that may later occur as

a result of the resolution of the adversary proceeding and its impact on the single

outstanding claim against the estate.

      Although Mr. Tucker filed a response in opposition to the Trustee’s Motion,

he stated in his response that his objection was to the Trustee’s previous record of

“sitting on his hands” and neglecting “his statutory duty to close the case in an

expeditious manner.” Response in Opposition to Trustee’s Motion, Doc. 661 at 1-

2, In re Tucker, No. 1:04-bk-13319-AJC (Bankr. S.D. Fla. Aug. 1, 2013). Mr.

Tucker expressed frustration that the Trustee had “dragg[ed] the case on for three

years after the sole creditor and Jeff Tucker requested the case be closed.” Id. at 2.

He also stated that the Trustee “had absolute statutory authority to close the case

since September 15, 2010, when both the sole creditor and Jeff Tucker requested

[that Trustee] Mukamal close the case.” Id. at 3. The bankruptcy court, noting the

apparent agreement between the parties, granted the Trustee’s Motion and directed

the Trustee to close the case.


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      Mr. Tucker appealed the bankruptcy court’s denial of his motion to recuse

and decision ordering closure of the case to the district court, which affirmed both

orders. With respect to the recusal motion, the district court found that the

bankruptcy judge’s expressions of his opinion of Mr. Tucker’s credibility were

influenced by Mr. Tucker’s conduct, including his default on the settlement

agreement. Because the bankruptcy judge’s comments were grounded in his

experience overseeing the proceedings, the district court reasoned, the denial of the

motion to recuse did not amount to an abuse of discretion. With respect to the

bankruptcy court’s decision to grant the Trustee’s Motion, the district court found

that Mr. Tucker lacked standing to challenge that order because, since the estate

was deficient, he would not receive a distribution from it and therefore no longer

had a financial stake in the outcome of the proceedings. Mr. Tucker now appeals

from the district court’s order affirming both decisions.

                                         II.

      “In a bankruptcy case, this Court sits as a second court of review and thus

examines independently the factual and legal determinations of the bankruptcy

court and employs the same standards of review as the district court.” Brown v.

Gore (In re Brown), 742 F.3d 1309, 1315 (11th Cir. 2014) (internal quotation

marks omitted). We review the denial of a motion for recusal for an abuse of

discretion and will reverse only if the judge who decides not to recuse made “a


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clear error of judgment.” United States v. Kelly, 888 F.2d 732, 744-45 (11th Cir.

1989). We otherwise generally review a bankruptcy court’s factual findings for

clear error and its legal conclusions de novo. Fisher Island Ltd. v. Solby+Westbrae

Partners (In re Fisher Island Invs., Inc.), 778 F.3d 1172, 1189 (11th Cir. 2015).

                                        III.

                                         A.

      We first address whether the bankruptcy court abused its discretion in

denying Mr. Tucker’s motion to recuse. Federal law requires a judge to recuse

when his “impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). A

court ruling on a recusal motion under § 455(a) must decide “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.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988).

A judge is not “recusable for bias or prejudice [when] his knowledge and the

opinion it produced were properly and necessarily acquired in the course of the

proceedings.” Liteky v. United States, 510 U.S. 540, 551 (1994).

      Over the course of almost a decade of litigation in this case, the bankruptcy

judge made half a dozen or so comments about Mr. Tucker’s demeanor and

litigation strategy that Mr. Tucker now argues illustrated personal bias. These few

comments, made based on what the bankruptcy court observed in court, do not,


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however, reflect “a deep-seated favoritism or antagonism that would make fair

judgment impossible.” Id. at 555. Indeed, “expressions of impatience,

dissatisfaction, annoyance, and even anger,” such as those the bankruptcy judge

occasionally made in this case, “are within the bounds of what imperfect men and

women, even after having been confirmed as federal judges, sometimes display.”

Id. at 555-56.

      The bankruptcy judge’s comments, although undoubtedly reflective of his

annoyance with Mr. Tucker, were based on his interactions with Mr. Tucker, the

Trustee, and counsel throughout the proceedings. Without more, these comments

are insufficient to demonstrate to us the kind of favoritism or antagonism that

would make recusal necessary. We therefore conclude that the bankruptcy court’s

decision to deny Mr. Tucker’s recusal motion was not a clear error of judgment

and affirm the district court’s decision to uphold the bankruptcy court’s order.

                                          B.

      We turn now to Mr. Tucker’s contention that the bankruptcy court

erroneously ordered his case closed. The district court found that Mr. Tucker was

not aggrieved by the order granting the Trustee’s Motion because he had no

remaining financial stake in the proceedings and accordingly lacked standing to

challenge the bankruptcy court’s decision. Mr. Tucker argues that the district




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court’s conclusion regarding standing was wrong and that the bankruptcy court

should not have ordered the caser closed.

      We agree with the district court that the bankruptcy court did not err in

granting the Trustee’s Motion. Only a “person aggrieved” may appeal a

bankruptcy order, and our precedent has limited persons aggrieved to those with “a

financial stake in the order being appealed,” that is, those who are “directly,

adversely, and pecuniarily affect[ed]” by the order. Westwood Cmty. Two Ass’n v.

Barbee (In re Westwood Cmty. Two Ass’n), 293 F.3d 1332, 1335, 1337-38 (11th

Cir. 2002). “A person has a financial stake in the order when that order diminishes

[his] property, increases [his] burdens[,] or impairs [his] rights.” Id. at 1335

(internal quotation marks omitted).

      Here, Mr. Tucker does not dispute that the estate is deficient and as a result

he will receive no distribution from the underlying bankruptcy proceeding. Thus,

he was not directly pecuniarily affected by the bankruptcy court’s decision to order

the administration of the estate’s proceedings closed. As regards his contention

that he has standing because his ongoing adversary proceeding ultimately might

have affected his financial stake in the outcome of the underlying bankruptcy

proceeding, this argument is foreclosed by our precedent. See Atkinson v. Ernie

Haire Ford, Inc. (In re Ernie Haire Ford, Inc.), 764 F.3d 1321, 1325-26 (11th Cir.

2014) (“[A] party is not aggrieved, for the purposes of appealing from a


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bankruptcy court order, when the only interest allegedly harmed by that order is

the interest in avoiding liability from an adversary proceeding.”). Moreover, we

reject Mr. Tucker’s argument that other outstanding issues, such as whether the

court might impose sanctions, gave him a financial stake in the outcome of the

bankruptcy case’s administration. Those interests—which the Bankruptcy Code

does not specifically “seek[] to protect or regulate”—are insufficient to confer

standing. See id. at 1326.

      In any event, even if Mr. Tucker had standing to challenge the bankruptcy

court’s order on the Trustee’s Motion, we note he conceded before the bankruptcy

court that the Trustee had “absolute statutory authority” to close the case and

agreed that the case was due to be closed. He therefore has waived any argument

to the contrary. See Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1529

(2013) (emphasizing that, where a party concedes a point before a lower court that

he does not genuinely contest on appeal, his waiver will “prevent us from reaching

it”). The district court accordingly did not err in affirming the bankruptcy court’s

decision to grant the Trustee’s Motion.

                                          IV.

      For the foregoing reasons, we affirm the district court’s order upholding the

bankruptcy court’s denial of Mr. Tucker’s motion to recuse and closure of the

bankruptcy case.


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AFFIRMED.




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