U.S. Bankruptcy Court finds claim against debtors unsubstantiated

Daily Record (Rochester, NY), Apr 8, 2005 by Nora A. Jones

Based on a cross-claim as a creditor in a separate action, Richard Cordero asserted a claim in the Chapter 13 bankruptcy, In re: David G. DeLano and Mary Ann DeLano, in the U.S. Bankruptcy Court for the Western District of New York. Finding no legal or factual basis that demonstrates that DeLano has any legal responsibility or liability to Cordero, the district's chief bankruptcy judge, the Honorable John C. Ninfo, II, ruled against Cordero and denied any stay of the decision pending an appeal.

In the same April 4 decision, Judge Ninfo addressed Cordero's recusal motion, finding it without substance.

Background

On Jan. 27, 2004, David G. DeLano and Mary Ann DeLano filed a petition initiating a Chapter 13 bankruptcy.

Richard Cordero filed a proof of claim in the DeLano case in May 2004, asserting that he was a creditor based on his cross-claim against DeLano in a separate action: In re: Premier Van Lines, Inc., Case No. 01-20692 (the Premier case), where DeLano was named individually and as an officer of M&T Bank. Cordero's involvement with both bankruptcy proceedings relate to the status of some stored personal property.

The DeLanos commenced a claim objection proceeding in response to the Cordero claim. Subsequently, the court entered an interlocutory order giving the debtors and Cordero approximately 90 days to complete any and all discovery in connection with the claim objection proceeding. The August 2004 interlocutory order also set Dec. 15, 2004 as the date the matter would be scheduled for an evidentiary hearing.

In November 2004, Cordero filed a motion to enforce the August interlocutory order and for discovery. The court denied Cordero's request to the extent that Cordero was demanding documents that were unrelated to the claim objection proceeding and documents that were not within DeLano's possession. The court noted that Cordero had the ability to obtain the requested documents from M&T Bank or other parties to the Premier action.

In December 2004, the court set March 1 as the trial date for the claim objection proceeding. On Feb. 23, Cordero filed a notice of motion requesting that Judge Ninfo recuse himself due to his lack of impartiality.

DeLano Trial Begins

At the start of the DeLano trial, the court questioned Cordero about his status as an attorney, having learned that he graduated from law school in England and was admitted to the New York bar in 1989.

Cordero confirmed that he was a licensed attorney and asserted that he had advised the court of his status as an attorney during the Premier case.

Recusal Motion

Cordero previously filed a recusal motion in the Premier case. Referring to an October 2003 order in Premier, the court stated that it did not believe any reasonable person, fully familiar with the facts and circumstances of the DeLano case ... would or could question the court's impartiality, or believe that it was biased or prejudiced toward Cordero.

Continuing its discussion on the recusal motion in the DeLano action, the court pointed out that Cordero, like many pro se litigants, had filed many motions.

As every court knows, wrote Judge Ninfo, many of these typical pro se procedural and tangential motions and requests would never be made if the pro se litigant was represented by and required to pay counsel for pursing them.

When the court fails to grant that litigious pro se litigant the relief ... requested, continued Judge Ninfo, [the litigant] often attributes their lack of success to the court being biased or prejudiced. This appears to be exactly what Cordero has done.

Noting that Cordero is in fact a licensed, experienced, registered attorney, Judge Ninfo explained, [I]t is difficult to believe that his allegations of bias, prejudice and impartiality are genuine.

Also noting that Cordero's arguments seem to focus more on form than substance, the court expressed its concern that litigants have their day in court. Judge Ninfo determined there was no reasonable foundation for Cordero's recusal motion.

Claim Objection Proceeding

In August 2004, the bankruptcy court observed that Cordero's claim in the DeLano case lacked detail pursuant to 11 USC Section 502, and relevant case law, writing: The claim objection on its face is compelling, because the Cordero claim and its attachments set forth no legal or factual basis that demonstrates that DeLano has any legal responsibility or liability to Cordero, and the court is not otherwise aware of any factual basis for such a claim from the proceedings in the Premier AP or the DeLano case.

Even after reviewing the relevant portions of the Cordero Premier claims, the court observed, in its August 2004 interlocutory order: ...there was nothing in the allegations which demonstrated that: (1) either M&T or DeLano had any legal duty to Cordero with respect to the Cordero property; (2) DeLano was at any time acting other than as an employee of M&T Bank and within the scope of his employment; (3) M&T Bank or DeLano ... ever took possession of or exercised control over the Cordero property ... [or] (5) anything that DeLano did ... caused the loss of or damage to some or all of the Cordero property.