                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-2009

In Re: Atl Fin Fed
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1990




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"In Re: Atl Fin Fed " (2009). 2009 Decisions. Paper 1125.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1125


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AMENDED BLD-210                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 09-1990
                                      ___________

                      In re: ATLANTIC FINANCIAL FEDERAL,

                                                                   Alleged Debtor

                             MICHAEL R. SHEMONSKY,

                                                     Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 09-cv-00392)
                       District Judge: Honorable Malcolm Muir
                     ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
      Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 11, 2009
               Before: MCKEE, FISHER and CHAGARES, Circuit Judges

                              (Opinion filed: June 25, 2009)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Michael R. Shemonsky, representing himself as an “alter ego” of Atlantic

Financial Federal (“AFF”), a failed savings and loan, initiated an involuntary bankruptcy

filing for AFF. The Federal Deposit Insurance Corporation (“FDIC”), the successor in
interest to AFF’s receiver, filed a motion to dismiss the bankruptcy suit. After a hearing,

the Bankruptcy Court granted the motion and dismissed the bankruptcy case. On

December 19, 2008, Shemonsky filed a motion to reconsider the dismissal, which the

Bankruptcy Court denied on January 21, 2009. Shemonsky filed a notice of appeal in

which he designated the order of January 21, 2009.

       In the District Court, Shemonsky filed a brief. Although he briefly described a few

of his motions in the Bankruptcy Court (including his efforts to get a loan for twenty-five

billion dollars), he focused on one issue – whether the Bankruptcy Court should have

construed his motion for reconsideration as a motion to reopen under Rule 60 of the

Federal Rules of Civil Procedure. Shemonsky claimed that the Bankruptcy Court’s order

denying reconsideration was illegal because the Bankruptcy Court did not docket his

motion until January 21, 2009. He argued that because of when his motion was docketed,

it should have been docketed and construed as a motion to reopen.

       Noting Shemonsky’s extensive litigation history, the District Court considered

only the issue raised in his brief. The District Court explained that Shemonsky

misunderstood when his motion for reconsideration was docketed, noting that it was

docketed as filed on December 19, 2008. After the motion was docketed, the Bankruptcy

Court ruled on it on January 21, 2009. The District Court also reviewed the entire

Bankruptcy Court docket and came to the conclusion that the Bankruptcy Court properly

considered the Shemonsky’s motion styled as a motion for reconsideration as a motion for



                                             2
reconsideration. The District Court denied the appeal and affirmed the Bankruptcy

Court’s ruling of January 21, 2009.

       Shemonsky appeals. He has filed a document in support of his appeal in which he

notes merely that he previously sued the Third Circuit Court of Appeals. He also presents

three motions – a motion to consolidate this case with another of his appeals, docketed at

C.A. No. 09-1301, a motion for the “FDIC to Produce the 10K for Year Ended 9-30-89,”

and a motion to “disbar and enjoin” counsel for the FDIC. The FDIC opposes the latter

two motions. In presenting reasons why the FDIC should not be ordered to produce “the

10K for Year Ended 9-30-1989,” the FDIC contends that the District Court properly

affirmed the Bankruptcy Court. The FDIC also argues, among other things, that

Shemonsky has not been found to be AFF’s “alter ego,” that he has been enjoined from

representing himself as an officer, director, employee, or agent of AFF, and also that the

FDIC, as the successor in interest to AFF’s receiver, could not be ordered to create a 10-K

report under the Financial Institutions Reform Recovery and Enforcement Act of 1989,

see 12 U.S.C. § 1821(j).

       The District Court had jurisdiction to review the Bankruptcy Court’s order

pursuant to 28 U.S.C. § 158(a), and we have jurisdiction to review the District Court’s

order under 28 U.S.C. §§ 158(d) & 1291. Our review of the District Court’s

determination is plenary. See Kool, Mann, Coffee & Co. v. Coffey, 300 F.3d 340, 353

(3d Cir. 2002). Upon review, and in complete agreement with the District Court’s



                                             3
analysis, we conclude that Shemonsky’s appeal must be dismissed because it has no

arguable basis in fact or law. See 28 U.S.C. § 1915(e)(2)(B)(i); Neitzke v. Williams, 490

U.S. 319, 325 (1989). In short, as the District Court concluded, the Bankruptcy Court

properly treated Shemonsky’s motion as a motion for reconsideration. Shemonsky’s

pending motions are denied.




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