In Re: Peggy Nestor

Background

Peggy Nestor filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of New York on April 25, 2023. Marianne Nestor, Peggy Nestor’s sister, became involved in the bankruptcy proceedings through her co-ownership of a property with Peggy Nestor.

The appeal concerned an August 16, 2024 bankruptcy court decision by Judge Michael E. Wiles authorizing an extension of a listing agreement with Sotheby’s. Marianne Nestor appealed that decision to the district court and represented herself.

Failure to Comply With Bankruptcy Appeal Rules

Federal Rule of Bankruptcy Procedure 8009(a) required Marianne Nestor, within 14 days after filing the notice of appeal, to file a designation of the items to be included in the appellate record and a statement of the issues to be presented. She also had to serve those materials on the appellee, Albert Togut.

Magistrate Judge Sarah L. Cave determined that Marianne Nestor had not filed the required designation and statement. Judge Cave issued an order directing her to explain why the appeal should not be dismissed and gave her an opportunity to show that excusable neglect justified allowing additional time. Marianne Nestor did not respond by the deadline and did not request an extension.

Judge Cave later issued a Report and Recommendation recommending dismissal of the appeal for failure to comply with the Federal Rules of Bankruptcy Procedure. The parties were given 14 days to object, but no objections or extension requests were filed.

District Court’s Ruling

Because no timely objections were filed, the district court reviewed the recommendation for clear error rather than conducting a new review of the challenged issues. Judge Rearden stated that the parties had waived their right to judicial review by failing to object, but the court reviewed the recommendation anyway and found no clear error.

Judge Rearden adopted Judge Cave’s recommendation and dismissed the action with prejudice for failure to comply with Federal Rule of Bankruptcy Procedure 8009(a). The court directed the clerk to close the case and mail a copy of the order to Marianne Nestor. The opinion did not decide whether the bankruptcy court was correct to authorize the extension of the listing agreement.