    14-2050
    Osborne v. Tulis


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second Circuit,
    held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of
    New York, on the 19th day of February, two thousand fifteen.

    PRESENT:
                BARRINGTON D. PARKER,
                PETER W. HALL,
                RAYMOND J. LOHIER, JR.,
                            Circuit Judges.
    _____________________________________

    In Re: Patrisha S. Osborne and George R.
    Osborne

    *************************************

    Patrisha S. Osborne, George R. Osborne,

                             Debtors-Appellants,

                       v.                                                       14-2050

    Mark S. Tulis, as Chapter 7 Trustee for
    Patrisha S. Osborne and George R. Osborne

                             Trustee-Appellee.

    _____________________________________

    FOR DEBTORS-APPELLANTS:                        Patrisha S. and George R. Osborne, pro se,
                                                   Elizaville, NY
FOR TRUSTEE-APPELLEE:                         Stuart E. Kahan, Oxman Tulis Kirkpatrick
                                              Whyatt & Geiger, LLP, White Plains, NY


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Seibel, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellants Patrisha and George Osborne, proceeding pro se, appeal from the district

court’s judgment affirming a bankruptcy court order granting the trustee’s motion to approve a

settlement agreement.

       “The rulings of a district court acting as an appellate court in a bankruptcy case are subject

to plenary review.” In re Stoltz, 315 F.3d 80, 87 (2d Cir. 2002). Consequently, “[i]n an appeal

from a district court’s review of a bankruptcy court decision, we review the bankruptcy court

decision independently, accepting its factual findings unless clearly erroneous but reviewing its

conclusions of law de novo.”        In re Enron Corp., 419 F.3d 115, 124 (2d Cir. 2005).

Accordingly, we review the district court’s ruling on standing de novo. See In re Zarnel, 619 F.3d

156, 161 (2d Cir. 2010).

       “The burden to establish standing remains with the party claiming that standing exists . . . .”

Hirsh v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995). “[I]n determining whether a

party has standing to appeal from a particular ruling of a bankruptcy court, we have frequently

looked to whether an appellant is a person aggrieved[,] that is, a person directly and adversely

affected pecuniarily by the challenged order of the bankruptcy court.” Zarnel, 619 F.3d at 161

(quotation marks omitted). Consequently, a Chapter 7 debtor generally has standing to object


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only where there is a “reasonable possibility” that the value of the bankruptcy estate assets exceeds

estate debts. See In re 60 E. 80th St. Equities, Inc., 218 F.3d 109, 116 (2d Cir. 2000). Thus, in

this one-asset case, in order to have standing, the Osbornes needed to demonstrate a reasonable

possibility that the value of Patrisha Osbone’s legal malpractice cause of action against her

attorneys in an earlier bankruptcy proceeding (“the malpractice case”) exceeded the $128,643.51

in claims against the Chapter 7 estate.

       On appeal, the Osbornes principally argue that the district court undervalued the

malpractice case. We find that argument unpersuasive. As the district court observed, although

the malpractice case was predicated on Patrisha Osborne’s counsel’s failure to obtain an extension

of the automatic stay of the foreclosure sale of the Osbornes’ property, New York law requires

more than simply attorney error for the recovery of damages in a malpractice action. See Rudolf

v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007) (“To establish causation, a

plaintiff must show that he or she would have prevailed in the underlying action or would not have

incurred any damages, but for the lawyer’s negligence.”). In the Osbornes’ case, to recover in the

malpractice case they would need to show that the damages arising from the foreclosure sale

would have been avoided had their counsel obtained the extension of the stay. The Osbornes,

however, have failed to demonstrate a reasonable possibility that Patrisha Osborne could have

implemented a successful reorganization plan even if the stay had been granted. By appellants’

own admission, such a plan would have required monthly payments of over $8,000, but even the

most charitable reading of the Osbornes’ self-reported financial statements shows that less than

$2,500 per month would have been available for payments to creditors. Based on the record

before the bankruptcy court, therefore, the Osbornes failed to demonstrate that they could have


                                                 3
proffered and executed a reorganization plan that avoided the foreclosure. Having failed in that

regard, they have also failed to demonstrate any reasonable possibility that they would be able to

recover more than the $50,000 that the trustee agreed to accept in settlement of the malpractice

case.

        We have reviewed the Osbornes’ remaining arguments and find them without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                             FOR THE COURT:
                                             Catherine O=Hagan Wolfe, Clerk




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