Appx 5 Re DKT 258 Re 03-93031 BC NDGA DKT 258 Hagenau, C.J. 10.24.22 Order

Case 03-93031-wlh Doc 258 Filed 10/26/22 Entered 10/27/22 00:47:40 Desc
Imaged Certificate of Notice Page 1 of 54
IT IS ORDERED as set forth below:
Date: October 24, 2022
_____________________________________
Wendy L. Hagenau
U.S. Bankruptcy Court Judge
_______________________________________________________________
9.10-1re Appendix 5
Hagenau, C.J., Jim Crow punitive leave to file sanction
UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
IN RE: CHAPTER 11
GROUP MANAGEMENT CORP., Case No. 03-93031-WLH
DEBTOR.
ORDER
This case was closed in May 2003, but Ulysses Thomas Ware aka Thomas Ware has sent
numerous documents to the Court since then. Some documents are sent by Mr. Ware individually
as a “party in interest” and some as “legal representative” of debtor Group Management Corp. The
documents are not always clear as to the relief sought, but the Court will undertake to decipher
them and provide a ruling on them.
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I. Facts
Group Management Corp (“GMC” or “Debtor”) filed a chapter 11 petition under the
Bankruptcy Code on March 18, 2003. The petition was filed by “Thomas Ware” as attorney for
GMC and signed by Lamar Sinkfield as CEO. The case was assigned to Judge Margaret Murphy.
The petition reflected assets of $100,000, liabilities of $1.5 million, and outstanding common stock
of 54,500,000 shares held by 720 persons. On March 26, 2003, the Court entered an order requiring
GMC to obtain new counsel because Mr. Ware had been suspended from practicing in the Northern
District of Georgia as of June 29, 1999, for failing to comply with sanctions orders entered in 1995
and 1996 by the Bankruptcy Court. GMC then retained Sims Gordon to represent it.
Prior to Mr. Gordon’s representation, Mr. Ware filed a Motion to Reject Executory
Contract seeking to reject a “Financing Transaction” allegedly entered into in February 2001 for
GX 1, GX 2, GX 3, and GX 4, Hobbs Act criminal usury convertible promissory notes, null and void ab initio and unenforceable.
$1.1 million with Alpha Capital Aktiengesellschaft, Amro International, S.A., Markham Holdings,
The 02cv2219 (SDNY) plaintiffs--unregistered broker-dealers lacking Art. III standing and a lawful claim
Ltd and Stonestreet Limited Partnership (collectively “the Subscribers”). Attached to the Motion
GX 5
was a “Subscription Agreement” signed by the Subscribers, which appears to be the Financing
GX 5 The unregistered broker-dealers
Transaction GMC wished to reject. Under the Subscription Agreement, the Subscribers held
convertible notes, which could be converted into shares of the Debtor upon certain conditions.
Upon his retention, Mr. Gordon filed a similar motion to reject. A hearing on the motion was
scheduled for April 15, 2003.
On April 10, 2003, the U.S. Trustee filed a Motion to Dismiss the bankruptcy case with
prejudice or, alternatively, to convert the case to chapter 7. The U.S. Trustee alleged that GMC
was not a Georgia corporation or authorized to transact business in Georgia, the schedules and
statement of financial affairs had not been timely filed, and the case was filed in bad faith to avoid
or forestall Mr. Ware’s arrest under a Contempt Order issued by the District Court for the Southern
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Hagenau, found as fact, none the wiser, that the 02cv2219 (SDNY) proceeding was a Hobbs Act 18 USC 1961(6)(B) unlawful
debt collection proceeding concerning GX 1, GX 2, GX 3, and GX 4, null and void ab initio criminal usury unlawful subject
matter, and void contracts.
District of New York in case no. 02-cv-2219 (S.D.N.Y.) (“SDNY Case”). The U.S. Trustee
attached to the motion a copy of the Contempt Order issued in the SDNY Case which recited that
in November 2002, the Court had ordered the Debtor and Mr. Ware to honor the Subscribers’
conversion requests and that the conversion requests had not been honored. The court in the SDNY
Case ordered GMC and Mr. Ware to honor the conversion requests within three days or to pay the
Subscribers $1,000/day until the requests were honored. The court also stated it would issue a
warrant for Mr. Ware’s arrest to be committed to the U.S. Marshals’ custody until the contempt
was purged. The U.S. Trustee alleged the bankruptcy filing was made for the “improper purpose
of obstructing and delaying creditors in the enforcement of their rights and remedies . . . and
without any bona fide reorganizational purpose[.]”

the 02cv2219 (SDNY) plaintiffs, notice how Hagenau deceptively avoids all mention of the unregistered broker-dealer status of the plaintiffs
On April 11, 2003, the Subscribers responded to the Motion to Reject Executory Contract,
KTS' 18 USC 156-57 conspiracy to commit bankruptcy fraud and conceal the fact that its clients were unregistered broker-dealer engaged in Hobbs
Act loan sharking and money laundering
through their counsel, Dennis Meir at Kilpatrick Stockton, contending the Subscription Agreement
was not executory because the court in the SDNY Case had issued a judgment on it. The
Subscribers filed their own Motion to Dismiss or, alternatively, a Motion for Relief from Stay, and
brief. The Subscribers also alleged the bankruptcy filing by GMC was in bad faith and for the
purpose of evading the orders in the SDNY Case and sought the dismissal of the case or relief
from the stay to enforce the order in the SDNY Case. Attached to the Motion was a form 8-K,
purportedly signed by Mr. Ware as Chief Executive, indicating that he had resigned from the board
of GMC effective March 17, 2003, and that Mr. Sinkfield was appointed to the board and was
acting CEO. The Subscribers asked that their Motion to Dismiss be heard at the same time as the
Debtor’s Motion to Reject.
The Court moved forward with the hearing on the Motion to Reject on April 15, 2003. Mr.
Ware and GMC’s counsel were present, and Mr. Ware testified extensively as to the Subscription
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Agreement and the bases for its rejection. Counsel for the Subscribers and the U.S. Trustee also
participated. After the conclusion of the direct examination of Mr. Ware, the Court continued the
remainder of the hearing to April 30, 2003 and set the two Motions to Dismiss for the same time.
The GMC Schedules and Statement of Financial Affairs were filed on April 25, 2003. They
showed that GMC owned stock in two other companies valued at over $1 million and other
intangible assets of over $1 million. The scheduled unsecured creditors included the Subscribers
and others totaling over $6 million. Schedule G listed the Subscription Agreement as an executory
contract, and Schedule H listed only two holders of common stock (neither being Mr. Ware). Mr.
Ware signed the Schedules as “In House counsel”.
The continued hearing on the Motion to Reject and the hearing on the Motions to Dismiss
were held on April 30, 2003. When the matter was called, GMC’s atty, Mr. Gordon, announced a
settlement with the Subscribers which would result in the dismissal of the case. The Court was
told that negotiations occurred directly between GMC and the Subscribers (and not between the
attorneys). The announced settlement required the Debtor to comply with the orders in the SDNY
Case. The matter was reset to May 12, 2003, to give the parties an opportunity to document the
settlement and dismiss the case. No further hearing was conducted. On May 20, 2003, the Court
signed an order granting both the U.S. Trustee’s and the Subscribers’ Motions to Dismiss and
dismissing the case, which was docketed on May 21, 2003. The Order was prepared by Mr. Meir,
counsel to the Subscribers, but reviewed and approved by Mr. Gordon for GMC and Mr. Morawetz
for the U.S. Trustee. The Order prohibited GMC from filing another bankruptcy petition for a
period of 180 days. No one appealed or challenged the dismissal order. The case was closed on
June 3, 2003.
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GMC filed a second bankruptcy case in this district on December 3, 2003 (after the 180-
day period expired), but this time under chapter 7 of the Bankruptcy Code (Case No. 03-83009).
Mr. Ware was listed as counsel and Lamar Sinkfield signed again as CEO. GMC filed its Schedules
and Statement of Financial Affairs identifying only a domain name as an asset, and identifying the
Subscribers as the primary creditors. GMC attended its 341 meeting of creditors. GMC did not
receive a discharge. (A corporate debtor is not entitled to a discharge under chapter 7. 11 U.S.C.
§ 727(a)(1); In re HRN Grp., LLC, 2019 WL 6045478, at *8 (Bankr. N.D. Ga. Nov. 13, 2019)).
Mr. Ware, as counsel for GMC, filed a Motion for Sanctions against the Subscribers and Ari
Rabinowitz, Michael Finkelstein, and Thomas Badien on September 13, 2004, alleging they
violated the stay by continuing proceedings in the SDNY Case. The matter was not scheduled for
hearing, and the Court entered an order on March 14, 2005 directing the Debtor to re-serve certain
parties and file a certificate of service. No action was taken by the Debtor. In the meantime, the
Chapter 7 trustee filed a notice of no distribution on October 12, 2004, and the case was closed on
May 16, 2005.

18 USC 1961(B)(6) criminal usury unlawful debt collection activity
Meanwhile, Mr. Ware’s legal troubles continued. On May 28, 2003, and again on June 22,
2004, the court in the SDNY Case entered an order for Mr. Ware’s arrest, and the court referred
the matter to the U.S. Attorney for prosecution of criminal contempt. On November 17, 2004, Mr.
Ware was indicted for criminal contempt and violating 18 U.S.C. § 401(3) in Case No. 04-cr-1224
(SDNY). After trial in November 2007, he was convicted of three counts of criminal contempt and
violating 18 U.S.C. § 401(3) and sentenced to 97 months in prison on February 2, 2009. His appeals
and numerous requests for reconsideration were unsuccessful. On September 20, 2005, the United
States initiated a criminal complaint against Mr. Ware for, inter alia, conspiracy to defraud the
United States and use of manipulative and deceptive devices in connection with the sale of
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securities in violation of 18 U.S.C. §§ 2, 371 and 15 U.S.C. §77q(a) and 77x (Case No. 05-cr-1115
(SDNY)). He was arrested on September 26, 2005 and indicted on the charges. After a jury trial,
he was convicted on two counts on April 30, 2007, and ultimately sentenced to 60 months in prison
for Count 1 and 97 months in prison for Count 2. His appeals and numerous motions to set aside
the conviction were all denied.
This Court next heard from Mr. Ware in late 2011 when he sent letters to Judge Murphy’s
chambers. Her chambers responded to Mr. Ware directing him to file appropriate pleadings with
the Bankruptcy Clerk, rather than attempt to communicate directly with the judge. In July 2012, Cf., 18 USC
Mr. Ware submitted to the Bankruptcy Court an “Emergency Motion for Fraud on the Court
2071(a), (b)
crimes of the
Proceedings” (“2012 Motion to Reconsider”) seeking relief from the 2003 dismissal, pursuant to Atlanta, GA
bankruptcy
Fed. R. Bankr. P. 9024, among numerous other requests. He did not seek to reopen the case. The court's
employees
Bankruptcy Court did not docket the motion, but the Bankruptcy Clerk sent a letter on July 25, regarding
judicial court
2012 to Mr. Ware informing him that the submission did not concern an active bankruptcy case.
records.
Mr. Ware continued to send documents to the Bankruptcy Court, to Judge Murphy, and to
other judges directly. He also asked the Bankruptcy Court for a certified copy of the docket in the
GMC case and requested that the Bankruptcy Court return all unfiled papers. On October 5, 2012,
the Bankruptcy Court sent Mr. Ware a second letter stating that the papers did not relate to an
active bankruptcy case before the Bankruptcy Court for the Northern District of Georgia. The letter
also indicated that, per Mr. Ware’s request, the Bankruptcy Court was enclosing a certified copy
of the docket in Case No. 03-93031 and returning all of the documents that Mr. Ware had sent to
the Bankruptcy Court.
On June 10, 2015, the Eleventh Circuit docketed a petition for writ of mandamus filed by
Mr. Ware, initiating Case No. 15-12568. Mr. Ware sought an order compelling the Bankruptcy
No such judicial court records were ever received by Mr. Ware--that is the judicial court records have been stolen and/or
destroyed by the court's employe1951, 1961(6)(B), and 2071(a)(b)--a Hobbs Act robbery of judicial court records.
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Court to docket and adjudicate his “Motion to Reconsider.” On September 3, 2015, the Eleventh
Circuit issued an order and directed the Bankruptcy Court for the Northern District of Georgia to
respond to the petition for writ of mandamus, which the Bankruptcy Court did on December 1,
2015. Based on the information presented, the Eleventh Circuit found Mr. Ware had not shown he
had standing as a non-party to challenge the 2003 bankruptcy dismissal from which he sought
mandamus relief. The Eleventh Circuit also found no evidence Mr. Ware would obtain substantive
relief based on his unsupported fraud-on-the-court allegations. Accordingly, the Eleventh Circuit
denied his petition for writ of mandamus on March 30, 2016 and denied as frivolous his request to
refer the Bankruptcy Court for a criminal investigation. Mr. Ware filed a motion for
reconsideration, which the Eleventh Circuit denied on September 14, 2016. He filed a motion for
en banc rehearing and relief, which was returned unfiled because the case was closed. Mr. Ware
then filed a petition for writ of certiorari, which the Supreme Court denied.
Mr. Ware initiated another petition for writ of mandamus, which was docketed on April
11, 2016 as Case No. 16-11607 (Mr. Ware filed the petition while he was pursuing reconsideration
and appeal of the denial of the first mandamus petition). Mr. Ware sought an order compelling the
Bankruptcy Court to file, docket, and adjudicate his Rule 9024 motion; to serve him a copy of all
transcripts in the bankruptcy case; and certify all pleadings and papers submitted in the bankruptcy
case to the SEC and DOJ, requesting the SEC and Department of Justice enter an appearance in
the [closed] bankruptcy case and requesting a special prosecutor be appointed to open a criminal
investigation into judges and officials from the bankruptcy court and the federal government. The
Eleventh Circuit denied his petition on September 23, 2016. The court found Mr. Ware failed to
show the bankruptcy court had “a duty exacted by law” to docket his Rule 9024 motion that was
not “to any degree debatable.” The court found his bare allegations of fraud reflected in the Rule
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9024 motion were almost certainly meritless and likely time barred. Further, the Court held Mr.
Ware had not shown definitively he had standing as a non-party to challenge the 2003 bankruptcy
dismissal from which he sought mandamus relief.
Mr. Ware then filed a third petition for writ of mandamus, which was docketed on June 23,
2016 as Case No. 16-13978. This third petition was filed while the first two petitions were still
pending or subject to motions for reconsideration. The Eleventh Circuit Court of Appeals
considered and denied his request on March 17, 2017. The Court noted Mr. Ware had not met his
burden of showing the Bankruptcy Court had an undebatable duty to docket his Fed. R. Bankr. P.
9024 motion, that his Rule 9024 motion was likely meritless and time-barred, and that Mr. Ware
had not shown he had standing to challenge the Bankruptcy Court’s 2003 dismissal of the
bankruptcy case.
Mr. Ware filed a motion to reconsider the denial of his third mandamus petition, which the
Court of Appeals denied on June 16, 2017. Mr. Ware then moved for clarification of the order
denying his motion for reconsideration, which the Court of Appeals considered. It entered an order
on November 1, 2017 clarifying its ruling on timeliness, standing, and the merits of the Rule 9024
motion. Mr. Ware filed a second motion for clarification. On March 1, 2018, the Court of Appeals
provided further clarification on the legal standard applied in determining Mr. Ware’s allegations
of fraud likely were frivolous and its reasoning in determining that Mr. Ware’s standing arguments
were improper in his reconsideration motion, and the Court of Appeals denied the second motion
for clarification to the extent Mr. Ware sought clarification of matters beyond the scope of the
Eleventh Circuit’s prior orders. The docket indicates that when Mr. Ware filed yet another request
for clarification with the Court of Appeals, it was returned on March 23, 2018 unfiled because a
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party may not file a request for “reconsideration of a denied Application to file a Second or
Successive Petition.”
From 2012 on, Mr. Ware continued sending letters to Judge Murphy and other judges and
to the Bankruptcy Clerk. Some were addressed to the Bankruptcy Court, others were copies of
letters sent to other courts referring to other cases (the criminal cases and a new case filed on March
21, 2022 in the Eastern District of New York, which was then transferred to the Southern District
of New York and given Case No. 22-cv-3409). Occasionally, these letters were returned to Mr.
Ware and, at other times, the court responded to Mr. Ware’s inquiries (for example: October 1,
2016; February 5, 2017; April 5, 2021; April 21, 2021; June 9, 2021; June 23, 2021; and August
18, 2022). Nevertheless, the letters continued and increased in frequency. Beginning in 2021, the
Court endeavored to place these communications on the docket, even when they were not
addressed to this Court and were not pleadings in this bankruptcy case. The letters ask a number
of questions which, upon review, reflect a lack of understanding by Mr. Ware of the bankruptcy
process, this bankruptcy case and its outcome, and the lack of any effect this bankruptcy case had
on his legal issues. After much review, the Court distills Mr. Ware’s concerns to the following:
a) Whether the Court has “Article III” jurisdiction of this case;
b) Whether the Court has accurately maintained the docket in this case;
c) What effect the dismissal of this bankruptcy case had on GMC or the Subscribers;
d) What effect subsequent litigation between Mr. Ware and the Subscribers and
subsequent decisions by New York courts had on the bankruptcy case;
e) Whether the Court should reopen this case or otherwise vacate the dismissal order;
f) Whether the bankruptcy case should be transferred to the Southern District of New
York;
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g) Whether the bankruptcy case should be referred to the United States Attorney, Georgia
Bar, SEC, or other investigatory body; and
h) Whether recusal is necessary.
(Doc. Nos. 84-91, 151-158, 165, 175-184, 187-188, 197-203, 239, 241).
The court will attempt to address Mr. Ware’s concerns, but first must address Mr. Ware’s
standing to request relief, individually or on behalf of GMC.
II. Legal Analysis
a. Standing
As an initial matter, the Court must first determine whether Mr. Ware may properly
prosecute the various requests for relief before the Court. He alleges he is a party in interest under
11 U.S.C. § 1109(b) and legal representative of the Debtor. The question of standing is a threshold
issue. Chen v. Siemens Energy, Inc., 467 F. App’x 852, 853 (11th Cir. 2012) (standing “is a
jurisdictional prerequisite to suit in federal court.”) (quoting Alabama v. United States Env’t. Prot.
Agency, 871 F.2d 1548, 1554 (11th Cir. 1989). The burden of establishing standing is borne by
the party seeking to be heard. Time Warner Cable, Inc. v. Hudson, 667 F.3d 630, 635 (5th Cir.
A factual issue requiring an evidentiary hearing to conclusively resolve.
2012). “[T]he question of standing is whether the litigant is entitled to have the court decide the
merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Article
III of the Constitution requires that a plaintiff demonstrate a “case or controversy.” See Mass. v.
E.P.A., 549 U.S. 497, 516 (2007). Courts have interpreted this to require: (1) the party asserting
standing has suffered actual injury or been threatened with injury, (2) the injury is traceable to the
objectionable conduct, and (3) the relief requested is likely to redress the injury. See E.F. Hutton
& Co., Inc. v. Hadley, 901 F.2d 979, 984 (11th Cir. 1990)). The first element of Article III standing
requires “injury in fact,” defined as “‘an invasion of a legally protected interest’ that is ‘concrete
10
and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 578 U.S. 330, 330 (2016) (citation omitted).
This Article III standing requirement in federal court applies in bankruptcy court. Section
1109 of the Bankruptcy Code does not expand the concept of standing; rather Article III standing
is an overlay to section 1109(b) that guides the courts in determining who is a party in interest in
any given issue. In re Alpha Nat. Res. Inc., 544 B.R. 848, 854 (Bankr. E.D. Va. 2016). Section
1109(b) provides “[a] party in interest, including the debtor, the trustee, a creditors’ committee, an
equity security holders’ committee, a creditor, an equity security holder, or any indenture trustee,
may raise and may appear and be heard on any issue in a case under this chapter.” 11 U.S.C.
§ 1109(b). The universe of entities that can be a “party-in-interest” is not restricted solely to the
seven enumerated entities set forth in section 1109, In re Odin Demolition & Asset Recovery,
LLC, 544 B.R. 615, 626 (Bankr. S.D. Tex. 2016), because the word “including” as used in the
Bankruptcy Code is not limiting. 11 U.S.C. § 102(3). But “while the concept of ‘party in interest’
is elastic and not limited to the entities listed in [section] 1109(b), it typically refers to someone
with a financial or legal stake in the outcome of the case.” In re Pulp Finish 1 Co., 2014 WL
201482, at *5–6 (Bankr. S.D.N.Y. Jan. 16, 2014).
Section 1109(b) provides that any party in interest has the right to raise and to appear and
be heard on “any issue in a case.” Not every party in interest with a financial stake in the overall
outcome of the case will necessarily hold a significant interest in, or be concerned with, a particular
issue. 7 Collier on Bankruptcy ¶ 1109.04 (16th 2022). The right to appear in any particular
proceeding depends entirely on the relationship between the issue in question and the particular
circumstances surrounding the stakeholder’s particular interest. Id. Thus, “a determination whether
an entity qualifies as a party in interest should be made within the specific reorganization process
11
context for which the determination is sought.” In re Am. Motor Club, Inc., 149 B.R. 317, 321
(Bankr. E.D.N.Y. 1993). Because one’s interests depend on the nature of the issue, “a person may
be a ‘party in interest’ for some purposes but not others.” In re Pulp Finish 1 Co., 2014 WL 201482,
at *5–6 (Bankr. S.D.N.Y. Jan. 16, 2014). For example, status as “party in interest” under section
1109(b) does not give standing to file a Rule 60(b) motion, In re El Paso Refinery, LP, 37 F.3d
230, 233 (5th Cir. 1994); In re Boyd, 618 B.R. 133, 159 (Bankr. D.S.C. 2020), or an appeal.
Thakkar v. Good Gateway, LLC, 636 B.R. 917, 923 (N.D. Ga. 2022).
Mr. Ware alleges he has standing to request relief because he is a party in interest under
section 1109. Mr. Ware is not identified as a creditor; he is not the Debtor or a trustee. He has been
held personally liable, civilly and criminally, for his acts while representing the Debtor or serving
as an officer or director of the Debtor. It seems his real goal is to “undo” his personal liability, but
that desire does not give him “party in interest” standing in the corporation’s case. He also alleges
What alleged "evidence" Hagenau does not say or produce.
he is a “party in interest” because he is a shareholder. The evidence is conflicting on this point, but
assuming without deciding that he was and is a shareholder, even this party in interest
determination must be made by evaluating each issue involved and the effect of that issue on a
shareholder. The Court will address Mr. Ware’s individual standing below in the context of the
relief requested.
Mr. Ware’s documents also state he is requesting relief as “legal representative” of the
Debtor, but Mr. Ware does not have authority to represent the Debtor and request relief for the
Debtor. The Debtor in the underlying case is an artificial entity and must be represented by counsel.
It is well established in the Eleventh Circuit that a corporation may not appear in federal court
without an attorney. Nat’l Indep. Theatre Exhibitors, Inc. v. Buena Vista Dist. Co., 748 F.2d 602,
609 (11th Cir. 1984). While individual parties may plead and conduct their own cases personally
The is not record evidence cited to by Hagenau establishing GPMT to be a corporation, Hagenau simply makes up conjecture
she needs to support her risible and manifestly frivolous legal conclusions.
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Note through out the entire risible document Hagenau did not cite or provide any factual support for any factual conclusion--she
simply lied and made up everything she claims is a fact, a clear cut conspiracy to commit bankruptcy fraud in violation of 18
USC 2, 156-57, 371, 1951, 1961(6)(b), and 2071(a), (b).
pursuant to 28 U.S.C. § 1654, a corporation and its sole shareholder are still “separate legal
persons.” In Palazzo v. Gulf Oil Corp., 764 F.2d 1381, 1385 (11th Cir. 1985), cert. denied, 474
U.S. 1058 (1986), the Eleventh Circuit confirmed that because a corporation is an artificial entity
that can only act through agents, it cannot appear in court acting “pro se.” This is true even when
the person seeking to represent the corporation or limited liability corporation is its president or
major shareholder. See Winzer v. EHCA Dunwoody, LLC, 277 Ga. App. 710, 713-14 (2006) (cites
omitted). Mr. Ware now contends GMC is unincorporated. There is no evidence to support this
Hagenau refused all request to conduct an evidentiary hearing conduct to address these disputed factual issues.
contention but, even if GMC is an unincorporated business entity, Mr. Ware may not prosecute an
action or file papers on its behalf. See In re Parrott Broad. Ltd. P'ship, 492 B.R. 35, 39 (Bankr. D.
Idaho 2013) (explaining while individuals in bankruptcy or other court proceedings may represent Delusional and
fraudulent legal
themselves, the same prerogative is not afforded to corporations and other business entities); Licht conclusions
unsupported in
v. Am. West Airlines, 40 F.3d 1058, 1059 (9th Cir. 1994) (“Corporations and other unincorporated law or in fact.
associations must appear in court through an attorney”). The rule that a layperson cannot appear
in court in a representative capacity applies to all forms of business entities, In re 1103 Norwalk
St., L.L.C., 2003 WL 23211564, at *1 (Bankr. M.D.N.C. Nov. 26, 2003), subsequently dismissed
sub nom. In re 1103 Norwalk St., LLC, 174 F. App’x 787 (4th Cir. 2006), and cannot be
circumvented by subterfuge. See e.g., Jones v. Niagara Frontier Transp. Auth., 722 F.2d 20, 23
(2d Cir.1983). The bottom line is that a non-attorney litigant may not represent other litigants.
Church of the New Testament v. United States, 783 F.2d 771, 774 (9th Cir. 1986).
Mr. Ware was not and is not the legal representative of the Debtor. Mr. Ware was not
counsel of record for the Debtor, Mr. Gordon was. Mr. Ware is still not authorized to practice law
in this district because he was disbarred from the practice of law in the State of Georgia on October
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6, 2008. Mr. Ware cannot represent the Debtor as a non-attorney. Accordingly, he is not the legal
representative of GMC.
b. Whether the Court has “Article III” jurisdiction of this case
In Docs. Nos. 151, 165, 175, 177, and 187, Mr. Ware asks the Court to verify its Article
III jurisdiction. Mr. Ware apparently does not understand that a bankruptcy court is an Article I
court, not an Article III court. Nevertheless, the bankruptcy court has jurisdiction over bankruptcy
Being completely ignorant of the law Hagenau confuses statutory jurisdiction of a
cases. bankruptcy court to adjudicate a Title 11 matter, with Article III standing of a party
to request relief in a Title 11 case, she is the one who is hopelessly confused.
The analysis of the Court’s jurisdiction begins with the statutory scheme because
“jurisdiction of the bankruptcy courts, like that of other federal courts, is grounded in, and limited
by, statute.” Celotex Corp. v. Edwards, 514 U.S. 300, 307 (1995). The bankruptcy court has
jurisdiction in the first instance to determine its own subject matter jurisdiction. In re Equip.
Finders, Inc. of Tennessee, 473 B.R. 720, 727 (Bankr. M.D. Tenn. 2012) (citing Chicot County
Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376–77 (1940)).
The authority to establish bankruptcy courts is found in Article I of the Constitution, which
gives Congress the power “[t]o establish . . . uniform Laws on the subject of Bankruptcies
throughout the United States.” U.S. Const art. 1 § 8. The Bankruptcy Code, found in title 11 of the
fluff and
puffery United States Code, contains nearly all the applicable uniform federal bankruptcy law. District
courts, not bankruptcy courts, have original but not exclusive jurisdiction over bankruptcy cases,
28 U.S.C. § 1334(a), and all civil proceedings “arising under title 11, or arising in or related to
cases under title 11.” 28 U.S.C. § 1334(b). Pursuant to 28 U.S.C. § 157(a), however, a district court
may refer “any or all cases under title 11 and any or all proceedings arising under title 11 or arising
in or related to a case under title 11” to the bankruptcy courts of that district. The Northern District
of Georgia has referred all proceedings within its bankruptcy jurisdiction to the bankruptcy judges.
14
LR 83.7, NDGa. As extensions of the district court, the Bankruptcy Court is thus authorized to
hear all three categories of civil proceedings. In re Tyler, 493 B.R. 905, 911 (Bankr. N.D. Ga.
2013).
The first category of cases, “arising under” proceedings, “are matters invoking a
substantive right created by the Bankruptcy Code.” Id. at 1345. Such matters are considered core
proceedings. Id. at 1348 (citing Wood v. Wood (In re Wood), 825 F.2d 90, 97 (5th Cir. 1987)).
The second category, “arising in a case under title 11,” pertains to claims that are “not
based on any right expressly created by title 11, but nevertheless, would have no existence outside
of the bankruptcy.” Grausz v Englander, 321 F 3d 467, 471 (4th Cir. 2002). Typically, the facts
giving rise to a claim “arising in” a bankruptcy case occur during the course of the bankruptcy
case. See Mercer v Allen, 2014 WL 185252 (M.D. Ga. Jan 15, 2014); In re Taylor, 2006 WL
6591616 (Bankr. N.D. Ga. May 4, 2006). These matters also constitute core proceedings. Wortley
v. Bakst, 844 F.3d 1313, 1318 (11th Cir. 2017).
The third category of cases involves matters relating to a case under title 11. This group
includes matters that “could have a material effect on the administration of the case or claims
against the bankruptcy estate, but such a claim could exist outside of bankruptcy[.]” See
Customized Distrib., LLC v. Coastal Bank & Tr. (In re Lee’s Famous Recipes, Inc.), 2011 WL
7068916, at *1-2 (Bankr. N.D. Ga. Dec. 12, 2011) (citing Schroeder v. New Century Holdings,
Inc. (In re New Century Holdings, Inc.), 387 B.R. 95, 104 (Bankr. D. Del. 2008)). In Pacor, Inc.
v. Higgins, 743 F.2d 984 (3d Cir. 1984), the Third Circuit Court of Appeals explained that a civil
proceeding is related to a bankruptcy case if “the outcome of that proceeding could conceivably
have any effect on the estate being administered in bankruptcy.” Id. at 994. The Eleventh Circuit
has adopted the Pacor test with little or no variation. Celotex, 514 U.S. at 308 n.6; see e.g., Miller
Hagenau has nothing of substance to say regarding the lack of Article III standing of the 02cv2219
(SDNY) plaintiffs, unregistered broker-dealer15who lacked Article III standing, a lawful claim to have
appeared in the Chapter 11. Again Hagenau is confused, the plaintiffs have the burden to
establishing their standing to have appeared in the Chapter 11. See Steel Co., 523 U.S. at 93-95.
Totally useless information that did not address the elephant in the room--the 02cv2219,
unregistered broker-dealers Article III standing to have appeared in the Chapter 11.
v. Kemira, Inc. (In re Lemco Gypsum, Inc.), 910 F.2d 784, 788 (11th Cir. 1990). But “‘[r]elated
to’ jurisdiction is not so broad as to encompass litigation of claims arising under state law or non-
bankruptcy Federal law that will not have an effect on the bankruptcy estate, simply because one
of the litigants filed a petition in bankruptcy.” Harlan v. Rosenberg & Assocs., LLC (In re Harlan),
402 B.R. 703, 711 (Bankr. W.D. Va. 2009) (citations omitted). A non-bankruptcy case with
common issues of fact with a bankruptcy case is not automatically “related to” the bankruptcy case
for purposes of jurisdiction; the resolution must also affect the bankruptcy estate. See HOC, Inc.
v. McAllister (In re McAllister), 216 B.R. 957, 966 (Bankr. N.D. Ala. 1998). Thus, “bankruptcy
courts have no jurisdiction over proceedings that have no effect on the estate of the debtor.”
Celotex, 514 U.S. at 308 n.6. Matters within the Court’s “related to” jurisdiction are typically non-
core.
Where a matter is “core” under 28 U.S.C. § 157, the Court is authorized to enter a final
order. 28 U.S.C. § 157(c)(1); Exec. Benefits Ins. Agency v. Arkison, 573 U.S. 25, 34 (2014). Any
objections to that order are appealed to the district court. Id. With respect to non-core matters
within the Court’s jurisdiction, the Court issues proposed findings of fact and conclusions of law
to the district court. Id.
In the referenced documents (Docs. Nos. 151, 165, 175, 177, and 187), Mr. Ware asks the
Court to confirm its Article III jurisdiction, particularly in light of the dismissal of Case No. 02-
cv-2219 (SDNY). As explained, this Court has jurisdiction under Article I of the Constitution,
which was invoked when the Debtor, GMC, voluntarily filed this bankruptcy case. Nothing that
happens in another case in another jurisdiction can deprive the Court of its jurisdiction over the
Debtor and property of the estate while a case is pending. The dismissal of Case No. 02-cv-2219
(which, contrary to Mr. Ware’s statements, was without prejudice) had no effect on this Court’s
Being completely ignorant of the law, Hagenau says dumb things trying to be smart--that is, the
issue is not the statutory jurisdiction of the bankruptcy court, but the Article III standing of the
02cv2219 plaintiffs, unregistered broker-dealers 16 who as a matter of law lack Art. III standing to
enforce or collect the null and void ab initio GX 1-4, criminal usury convertible promissory notes.
Hagenau limited intellect caused her to struggle with the legal concept of "void ab initio" and thus
from the beginning in 2001 the convertible notes were void, and from 2001 the plaintiffs lacked a
lawful debt required to be repaid, and thus, lacked standing to have appeared in the Chapter 11.
jurisdiction of this case in 2003 when it entered the Dismissal Order. See In re Kassover, 2008 WL
4845757, at *2 (Bankr. S.D.N.Y. Oct. 30, 2008).
c. Whether the Court has accurately maintained the docket in this case
Mr. Ware complains the Court has not maintained an accurate docket. In particular, he
contends the Bankruptcy Clerk should have entered on the docket every letter or document he sent
to the Bankruptcy Clerk or a judge at any time, as well as his 2012 Motion to Reconsider and his
proposed “Memorandum Decision and Final Order” in this case sent on July 31, 2022 via email to
chambers.
Even as a “party in interest,” Mr. Ware has not shown he has standing to challenge how
the docket was maintained. He has failed to plead any concrete and particularized injury in fact
from the way in which the docket has been maintained. Just because he may be dissatisfied with
docket entries does not mean he has standing.
The Bankruptcy Clerk is the official custodian of the records and dockets of the bankruptcy
court. 28 U.S.C.A. § 156(e). Pursuant to Bankruptcy Rule 5003(a), a clerk must maintain a docket
and enter “each judgment, order, and activity in that case as prescribed by the Director of the
Administrative Office of the Courts.” Fed. R. Bankr. P. 5003(a). “Judgment” means “any
appealable order,” Fed. R. Bankr. P. 9001(7), and each judgment must be set out in a separate
document. Fed. R. Bankr. P. 7058; Reid v. White Motor, 886 F.2d 1462 (6th Cir. 1989) (citing In
re Ozark Rest. Equip. Co., Inc., 761 F.2d 481(8th Cir. 1985)). An “order” is “direction of a court
or judge made or entered in writing,” Order, Black’s Law Dictionary (11th ed. 2019), or “[a]
decision issued by a court or authoritative body.” Order, Wex Legal Dictionary,
https://www.law.cornell.edu/wex/order (last visited Oct. 21, 2022). “Activity” is not defined in the
rule, and the Administrative Office has no directives as to what constitutes an “activity”. “Activity”
17
is defined in the dictionary as “something which a person . . . or group chooses to do,” Activity,
Oxford English Dictionary, https://www.oed.com/view/Entry/1958 (last visited Oct. 21, 2022), or
“work performed to create a result.” Activity, Dictionary.org, https://thelawdictionary.org/activity/
(last visited Oct. 21, 2022). Colliers states that activity includes “judgments, orders, and pleadings
. . . and proceedings in a case.” 9 Collier on Bankruptcy ¶ 5003.03. In each case, though, only
orders, judgments and activities in that case are to be entered.
As a general rule, the clerk of a court has a duty to file documents and papers that are
presented for the purpose of filing, but papers and documents not presented to the clerk are not
filed. In re Mangum, 2006 WL 3626775, at *2 (N.D. Ill. Dec. 7, 2006); Fed. R. Civ. P. 5(e); Fed.
R. Bankr. P. 5005(a)(1); 21 C.J.S. Courts § 340 (2006). Specifically, papers and documents
delivered to chambers are not presented to the clerk for filing. BLR 9003-2. The general
requirement of filing also does not apply when a statute or a court rule expressly authorizes the
clerk to refuse to accept documents and papers for filing under specified circumstances. Wilson v.
Robl, 2007 WL 2746665, at *4 (W.D. Ky. Sept. 19, 2007) (citing 21 C.J.S. Courts § 340 (2006)).
Statutes or court rules may expressly authorize the clerk to refuse to accept papers for filing where
a complaint is submitted by a person who has been found to be a “vexatious litigator.” 21 C.J.S.
Courts § 337 (citing State ex rel. Montgomery Cty. Pub. Def. v. Siroki, 108 Ohio St. 3d 334
(2006)); see also Martin-Trigona v. Shaw, 986 F.2d 1384 (11th Cir. 1993). In addition, the clerk
may be directed by court rule not to accept a pleading which is not accompanied by specified
documents. 21 C.J.S. Courts § 337.
Further, a court may refuse to docket items reflecting events taking place in other courts.
In In re Malloy, 2022 WL 1488437, at *2 (E.D. Pa. May 11, 2022), the debtor argued the docket
in the Bankruptcy Court ought to reflect the subsequent actions taken in the higher court, and not
18
just actions taken in the Bankruptcy Court. Id. On appeal, the District Court affirmed the
Bankruptcy Court’s decision to leave off these docket entries, holding “[r]equesting that the
Bankruptcy court’s docket reflect …events that took place elsewhere, were docketed in the courts
in which they took place, are not part of the bankruptcy case, and are public record would make
the docket entry violate Fed. R. Bankr. P. 5003.” Id.
Finally, Courts have also held that after a case is closed, the clerk of the court is under no
obligation or duty to file documents in that case, absent a motion to reopen the case by an
appropriate party. Miller v. Johnson, 541 F.Supp. 1165, 1176 (D.D.C. 1982); see also Wilson,
2007 WL 2746665, at *4 (bankruptcy court clerk did not err in refusing to file a motion to
reconsider in closed case). For example, in In re Stewart, 2020 WL 597843 (Bankr. D.D.C. Feb.
5, 2020), the debtor filed an amended list of creditors, which the clerk docketed. The court
concluded that the case not having been reopened, the filing ought to be treated as ineffective. Id.
at *2. Similarly, the Eleventh Circuit returned as “unfiled” certain of Mr. Ware’s documents
submitted in the mandamus action because the action was closed or finally decided. But, a clerk’s
failure to accept a filing is only a non-nefarious filing error similar to the procedural error
encompassed in Rule 5005(c) and can be dealt with in that manner. In re Villegas, 2008 WL
4371668, at *3 (Bankr. S.D. Tex. Sept. 17, 2008).
In this case, Mr. Ware has bombarded this Court with documents. At least since 2021, Mr.
Ware has emailed documents to this Judge’s chambers’ email and her courtroom deputy. The Court
receives about one email per day, sometimes more, sometimes less. The Court has attempted to
accommodate Mr. Ware by reviewing these emails and asking the clerk to place a description of
them on the docket. Mr. Ware has a Pacer account and can therefore check the docket at will.
More recently, the court has provided Mr. Ware with “Notice of Electronic Filing” so he receives
19
email confirmation of items reflected on the docket. But none of this satisfies Mr. Ware. Instead,
he has many complaints.
First, Mr. Ware contends the Bankruptcy Clerk should have docketed numerous documents
and papers delivered after the case was closed. As explained above, the Bankruptcy Clerk was not
obligated to docket items after the case was closed, other than a motion to reopen. If that motion
was granted, the Bankruptcy Clerk would then begin to docket items under Rule 5005. But, even
if the Bankruptcy Clerk was obligated to file items in a closed case, the Court finds no error in the
decisions made by the Bankruptcy Clerk.
Second, Mr. Ware argues the Court erred when it did not docket his 2012 Motion to
Reconsider the 2003 dismissal of the case. This issue has already been litigated and the Eleventh
Circuit rejected that argument when it considered and denied Mr. Ware’s three requests for writ of
mandamus. The Eleventh Circuit denied his first petition for writ of mandamus seeking an order
compelling the Bankruptcy Court to file, docket, and adjudicate his Rule 9024 motion on March
30, 2016. Mr. Ware initiated a second petition for writ of mandamus, which was denied on
September 23, 2016. Mr. Ware then filed a third petition for writ of mandamus, which the Eleventh
Circuit Court of Appeals denied on March 17, 2017. In each instance, the Eleventh Circuit held
Mr. Ware failed to show the bankruptcy court had “a duty exacted by law” to docket his Rule 9024
motion that was not “to any degree debatable.” The court concluded Mr. Ware had not shown
standing, timeliness of the motion, or the merits thereof. The Eleventh Circuit has addressed Mr.
Ware’s contention. This Court will not revisit the matter now.
Third, Mr. Ware contends the Court has not accurately maintained the docket in this case
because it does not reflect proceedings that have taken place in other courts. Rule 5005 requires
the Bankruptcy Clerk to keep a record of judgments, orders, and activities in the Bankruptcy Court;
20
it does not require the Bankruptcy Clerk to docket every filing or pending activity in other cases
As the bankruptcy court observed in Malloy, 2022 WL 1488437, at *2, the docket is not required
to reflect the subsequent actions taken in higher courts or other jurisdictions. Mr. Ware has not
demonstrated the Court violated the Bankruptcy Rules.
Fourth, Mr. Ware complains about the letters he sent to chambers or the Bankruptcy Clerk
not being on the docket. Communications to chambers are not filings with the Court, Rule
5005(a)(1), and need not be docketed. BLR 9003-2. Papers to be filed must be mailed to the Clerk
or delivered in person to the Clerk. Under General Order 45-2021, only pro se debtors may file
via electronic means. GMC is a corporation not eligible to file papers without an attorney and
therefore does not qualify as a pro se debtor. Mr. Ware is not a debtor and therefore does not
qualify as a pro se debtor. Additionally, Local Rule 9003-2 provides that any requests for relief
“must be by written motion, pleading, or other paper, and not by letter or email. Unless the
Bankruptcy Judge determines otherwise, a letter or email will not be treated as a motion, will not
be considered by the bankruptcy court and will not be docketed in the case.” Moreover, letters to
the Bankruptcy Clerk are not orders, judgments, or activities in the case since they do not ask the
Court (i.e., the Judge) to act. Accordingly, the Bankruptcy Clerk was not required to docket Mr.
Ware’s voluminous correspondence.
Finally, Mr. Ware complains that the Bankruptcy Clerk did not docket his proposed order
sent to chambers via email on July 31, 2022. As the Court explained to Mr. Ware in its letter of
August 3, 2022, proposed orders are not docketed unless and until entered by the Court. For
attorneys authorized to use CM/ECF, proposed orders are uploaded to CM/ECF and held in
suspense until the Court reviews and evaluates them. For proposed orders submitted by pro se
21
parties or others not authorized to use CM/ECF, the proposed order is held in Court chambers. See
BLR 9013-2.
For these reasons, the Court concludes the Bankruptcy Clerk was not obligated to docket
any items after the case was closed, including Mr. Ware’s 2012 Motion to Reconsider, actions
taken by higher courts or in other jurisdictions, letters sent to chambers and the Bankruptcy Clerk,
or his proposed order. The Court concludes the Court has accurately maintained the docket in this
case.
Mr. Ware has also requested multiple certified copies of the docket pursuant to Rule 5006
which obligates the clerk to “issue a certified copy of the record of any proceeding in a case under
the Code or of any paper filed with the clerk on payment of any prescribed fee.” Fed. R. Bankr. P.
5006. The Clerk has provided certified copies of the docket to Mr. Ware on several occasions
(October 5, 2012; April 5, 2021; June 23, 2021; and August 17, 2022), all without payment, but
Mr. Ware complains the certification is inaccurate because it does not include items not on the
docket (as described above) and does not certify the authenticity of signatures. The Court finds the
Clerk has more than met her duty under Rule 5006. The Clerk must only certify the docket—not
the authenticity of what is submitted for filing—and items not placed on the docket are obviously
not part of the docket to certify. See Fed. R. Bankr. P. 5006 Advisory Committee Notes; see also
United States v. Doyle, 130 F.3d 523, 545 (2d Cir. 1997). Moreover, Mr. Ware’s requests for
certification are unnecessary and abusive. He has a Pacer account and can see what is on the
docket. The Court has provided him with notices of electronic filing so that he receives an email
when something is docketed. The certification process is meant to provide admissible evidence in
another court, not to allow a litigant to harass the clerk’s office. The Court will therefore limit Mr.
Ware’s future requests for a certified copy of the docket to once every 12 months, absent order of
22
the Court. The Clerk last certified the docket on August 17, 2022 so she will not be obligated to
provide another certification until August 16, 2023. Additionally, the fees for certification and
copies as set by the Judicial Conference must be paid before the Clerk is obligated to comply with
such a request.
d. Effect of dismissal of this bankruptcy case
This case was dismissed on May 21, 2003 pursuant to an order (the “Dismissal Order”)
agreed to by Debtor’s counsel. Now Mr. Ware wants the dismissal vacated, seeming to contend
the dismissal had some effect on his other legal issues. The Dismissal Order made no determination
of any claims or defenses of the Debtor, Mr. Ware, or the Subscribers. To understand the effect of
dismissal, Mr. Ware must understand the nature of a bankruptcy case and how it differs from other
civil litigation.1
A bankruptcy case begins with the filing of the petition and the estate is created by property
of the debtor, all of which becomes property of the estate. An “automatic stay” goes into effect
giving the debtor an opportunity to reorganize its business. Generally, the rights of debtors and
creditors under non-bankruptcy law are fixed as of the petition date. Under Chapter 11, the debtor
becomes the “debtor in possession.” 11 U.S.C. § 1101. The purpose of a Chapter 11 case is
business reorganization. In re Brannan, 40 B.R. 20, 25 (Bankr. N.D. Ga. 1984). To this end, the
debtor submits a reorganization plan in order to rehabilitate and continue the operation of the
business and all of the assets of the debtor are applied to the reorganization effort or the plan may
propose a liquidation. Id. The confirmed plan creates new contractual rights, replacing or
superseding pre-bankruptcy contracts.
1
The Court suspects Mr. Ware does understand the uniqueness of bankruptcy cases since, as a lawyer, he filed multiple
bankruptcy cases.
23
In a Chapter 11 case, the U.S. Trustee plays a role in monitoring the progress of the case
and the debtor’s operation of the business. The U.S. Trustee or a party in interest may file a motion
to dismiss or convert a Chapter 11 case to a Chapter 7 case “for cause.” Generally, if cause is
established after notice and hearing, the court must convert or dismiss the case (whichever is in
the best interests of creditors and the estate) unless it specifically finds that the requested
conversion or dismissal is not in the best interest of creditors and the estate. 11 U.S.C. § 1112(b).
Alternatively, the court may decide that appointment of a chapter 11 trustee or an examiner is in
the best interests of creditors and the estate. 11 U.S.C. § 1104(a)(3).
If a case is dismissed, such dismissal generally ends the automatic stay and revests property
of the estate in the entity in which such property was vested immediately before the
commencement of the case. 11 U.S.C. §§ 349(b)(3) and 362(c)(1) and (2)(B). “The basic purpose
of [Section 349(b)] is to undo the bankruptcy case, as far as practicable, and to restore all property
rights to the position in which they were found at the commencement of the case.” In re Aheong,
276 B.R. 233, 239 (B.A.P. 9th Cir. 2002) (citing legislative history). 2 “Unless the court . . . orders
otherwise,” dismissal under section 349(b) returns the Debtor to its pre-bankruptcy status and the
estate ceases to exist. 11 U.S.C. § 349(b); In re Westgate Nursing Homes, Inc., 518 B.R. 250, 255
2
The statutory effects of dismissal are provided for by section 349(b) of the Bankruptcy Code, which provides:
(b) Unless the court, for cause, orders otherwise, the dismissal of a case other than under section
742 of this title—
(1) reinstates—
(A) any proceeding or custodianship superseded under section
543 of this title;
(B) any transfer avoided under section 522, 544, 545, 547, 548,
549, or 724(a) of this title, or preserved under section 510(c)(2),
(C) any lien avoided under section 506(d) of this title;
(2) vacates any order, judgment, or transfer ordered, under section 522(i)(1), 542,
550, or 553 of this title; and
(3) revests the property of the estate in the entity in which such property was
vested immediately before the commencement of the case under this title.
11 U.S.C. § 349(b).
24
(Bankr. W.D.N.Y. 2014); see also In re Sweports, Ltd., 511 B.R. 522, 525 (Bankr. N.D. Ill. 2014)
(noting the dismissal order terminates the estate); In re Garnett, 303 B.R. 274, 278 (E.D.N.Y.2003)
(“[T]here simply is no bankruptcy estate after the dismissal has been entered.”). With a dismissal
there is no estate and, “[a]fter entry of an order of dismissal, the debtor’s debts and property are
subject to the general laws, unaffected by bankruptcy concepts.” In re Creamer, 596 B.R. 920, 921
(Bankr. N.D. Fla. 2018) (citation omitted).
Normally, dismissal of a bankruptcy petition has no long-term consequences for the
debtor’s ability to re-file. In re Hall, 304 F.3d 743, 746 (7th Cir. 2002). Grounds for dismissal
“with prejudice,” however, exist under 11 U.S.C. § 349(a) and § 105. Section 349(a) provides:
Unless the court, for cause, orders otherwise, the dismissal of a case under this title
does not bar the discharge, in a later case under this title, of debts that were
dischargeable in the case dismissed; nor does the dismissal of a case under this title
prejudice the debtor with regard to the filing of a subsequent petition under this
title, except as provided in section 109(g) of this title.
This section permits the Court “for cause” to dismiss a case with prejudice. “With prejudice” in
this context means either barring the discharge of certain debts or limiting the debtor’s authority
to file a bankruptcy petition for a certain time period or both. In re Burroughs, 2014 WL 1689969,
at *2 (Bankr. N.D. Ga. Apr. 29, 2014); see also Colonial Auto Ctr. v. Tomlin (In re Tomlin), 105
F.3d 933, 938 (4th Cir. 1997) (although the two sanctions differ in purpose and effect, courts often
refer to both sanctions as dismissals “with prejudice”). Additionally, section 105(a) of the
Bankruptcy Code provides, “The court may issue any order, process, or judgment that is necessary
or appropriate to carry out the provisions of this title.” 11 U.S.C. § 105(a). But, in any construction,
the phrase “with prejudice” is limited to these two functions. “With prejudice” does not have the
meaning assigned to it in Fed. R. Civ. P. 41.
25
Here, two motions to dismiss were filed in this case. The U.S. Trustee filed a motion to
dismiss the bankruptcy case on several bases: that GMC was not a Georgia corporation or
authorized to transact business in Georgia, the schedules and statement of financial affairs had not
been timely filed, and the case was filed in bad faith to avoid or forestall Mr. Ware’s arrest based
on Mr. Ware’s failure to honor the Subscribers’ conversion requests. The U.S. Trustee sought
dismissal of the case with the proviso that Debtor would be ineligible to seek further relief under
chapter 11 of the Bankruptcy Code for a period of 180 days (Doc. No. 13). The Subscribers also
sought dismissal of the case or, alternatively, for relief from the stay. Before the motions could be
heard, though, counsel for the Debtor and for the Subscribers announced in open court that they
reached a settlement resulting in the dismissal of the case. Debtor’s counsel reviewed and approved
the order of dismissal “with prejudice” submitted to the Court, which barred the Debtor from filing
a bankruptcy petition under any chapter of the Bankruptcy Code for 180 days.
Upon the dismissal, to which Debtor’s counsel consented, the property of the estate
revested in the entity in which such property was vested immediately before the commencement
of the case, most likely the Debtor. In other words, dismissal returned the parties to their
“prepetition financial status quo.” Czyzewski v. Jevic Holding Corp., 580 U.S. 451, 454 (2017).
Debtor’s debts and property were thus subject to general non-bankruptcy laws, unaffected by the
bankruptcy. The Court never decided the validity of the Subscribers’ claims or the Debtor’s
defenses thereto. The order of dismissal did not alter the parties’ rights, it merely returned them to
their pre-bankruptcy status. Even though the case was dismissed “with prejudice,” it was only as
to a refiling by the Debtor for 180 days and not with prejudice to the Debtor’s rights as to the
Subscribers’ claims. Nothing in this dismissed bankruptcy case had any effect on the Subscribers’
claims or Mr. Ware’s legal issues arising therefrom.
26
e. Effect of subsequent litigation between Mr. Ware and the Subscribers and of
subsequent decisions by New York courts on bankruptcy case
Mr. Ware seems to believe that events occurring after the entry of the Dismissal Order
02cv2219 (SDNY)
affect it. He contends that because the SDNY Case was dismissed, the Subscribers do not have a
claim and could not have had a claim in 2003. Similarly, Mr. Ware argues that decisions of the
New York Court of Appeals and the Second Circuit on criminal usury invalidate the Subscribers’
claims. In each instance, he argues the Subscribers’ claims are somehow retroactively invalidated,
such that the Subscribers had no right to “interfere” in the bankruptcy case. He contends the
Dismissal Order is therefore moot. He is wrong.
Effectively, Mr. Ware argues that due to events occurring years after the bankruptcy case
was dismissed, the Subscribers lost their “party in interest” right to file a motion to dismiss in
2003. But, standing to file a motion to dismiss is determined at the time the motion was filed. See
In re Allison, 2006 WL 2620480, at *3 (Bankr. S.D. Tex. Sept. 12, 2006). In 2003, the Subscribers
asserted they were creditors of the Debtor and, as such, were parties in interest. 11 U.S.C.
§ 1109(b). The Subscribers held convertible notes issued by the Debtor and an order in the SDNY
Case for the recovery of money. The Debtor listed the Subscribers as creditors, although disputed.
The Debtor filed a Motion to Reject the Subscription Agreement which, if granted, could also give
rise to a claim. 11 U.S.C. §§ 365(g)(1) and 502(g). The fact GMC disputed the Subscribers’ claim
does not eliminate their standing to file a motion to dismiss, In re Abijoe Realty Corp., 943 F.2d
121, 125 (1st Cir. 1991), particularly where, as here, the purpose of the motion to dismiss was to
continue the litigation in the SDNY Case where the rights of the parties were being determined.
So the Subscribers had every right to file a motion to dismiss, and the Court had every right to
grant that motion, particularly since the Debtor agreed to it.

Hagenau's conspiracy to commit 18 USC 156-57 bankruptcy fraud, and aid and abet Hobbs Act, 18 USC 1951,
criminal usury unlawful debt collection activity, 18 USC 1961(6)(B), by KTS' clients, the 02cv2219 (SDNY)
plaintiffs, unregistered broker-dealers see U.S. v. Grote, 921 F.3d 105, 115-17 (2d Cir. 2020).
27
Hagenua being completely ignorant of the law, see Adar Bays, LLC v. GeneSYS ID, Inc., 28 F.4d 379 (2d Cir.
2022) (ruled KTS' clients' "convertible promissory notes" GX 1, GX 2, GX 3, and GX 4 are NULL AND VOID AB
INITIO, which ostensibly Hagenau cannot comprehend "initio" (from the beginning), and unenforceable--that is,
not a lawful debt that is required to be repaid, and therefore, ipso facto, the "Subscribers" lacked a lawful claim,
and thus, lacked Article III standing to have appeared in 03-93031, request, and be granted any judicial relief.
Pursuant to Fed. R. Civ. P. 41(a)(2), see U.S. v. L-3 Comm'cs EO Tech., Inc., 921 F.3d 11, 18-19 (2d Cir. 2019)
(Kearse, J.) (all prior orders [GX 7, GX 11, GX 24, and GX 34 entered in 02cv2219] are annulled and vitiated).
Dismissal of the SDNY Case in 2007 has no bearing on whether dismissal of the
??? Hagenau's
bankruptcy case was warranted in 2003. 3 The SDNY Case was voluntarily dismissed by the fraud on the
Chapter 11
Subscribers without prejudice in December 2007. This dismissal did not adjudicate the estate, fraud on
the court and Mr.
Subscribers’ claims and does not mean the Subscribers’ claims are or were invalid. Moreover, Ware, total
delusion and in
whether dismissal of the bankruptcy case was appropriate was determined based on the facts and furtherance of the
conspiracy to
circumstances as they existed at the time, and a subsequent dismissal of another case in another collect the
unlawful loan
forum years after the dismissal of the bankruptcy case cannot change that outcome. For example, sharking criminal
usury debts, GX
in In re Sneed, 2008 WL 1782375 (Bankr. E.D. Cal. Apr. 18, 2008), the trustee questioned the 1-4.
reasonableness of a sale transaction after it occurred based on subsequent developments. The court
rejected his argument, explaining, “[i]t would be particularly unfair to consider, by hindsight,
subsequent events, such as dismissal of the criminal charges . . ., unless those events were
reasonably anticipated or known . . . at the time of the transaction.” Id. at *7.
Next, Mr. Ware argues that the Subscribers’ claims were invalid under a New York Court Hagenau is having
a very hard time
of Appeals decision and Second Circuit decision on conversion rights and criminal usury decided with "void ab initio"
regarding GX 1-4,
in 2021 and 2022. See Adar Bays, LLC v. GeneSYS ID, Inc., 28 F.4th 379, 380 (2d Cir. 2022); KTS and its clients'
loan sharking
Adar Bays, LLC v. GeneSYS ID, Inc., 37 N.Y.3d 320 (2021). Subsequent developments in the criminal usury
unlawful debts.
law generally do not undo prior determinations, Portis v. United States, 33 F.4th 331, 335 (6th Cir.
2022), and a party may not challenge the legal conclusions on which a prior judgment or order
rests. Horne v. Flores, 557 U.S. 433, 447 (2009); Capeletti Bros., Inc. v. Metropolitan Dade Cty.,
735 F.Supp. 1040, 1042 (S.D. Fla. 1990); In re Damron, 598 B.R. 350, 354 (Bankr. S.D. Ga. 2019).
Dkt, 90 was dismissed after the statute of limitation had run on all claim in the 02cv2219 complaint; and
because the statute of limitations is not tolled by the plaintiffs' voluntary dismissal of the 02cv2219 complaint,
the dismissal was thus with prejudice, see Williard v. Wood., 164 U.S. 502, 523 (1896)
3
While Mr. Ware contends the New York case was dismissed with prejudice, the record reflects otherwise. On
December 20, 2007, the District Court for the Southern District of New York entered an Order of Dismissal Without
Prejudice Pursuant to FRCP 41(a)(2) (Doc. No. 90), which clearly says “WITHOUT PREJUDICE.” He seems to
argue, though, that because the case was dismissed and the statute of limitations has run, the claims were effectively
dismissed with prejudice.
28
Importantly, these cases did not involve Mr. Ware or the Subscribers’ claims, so they do not
directly affect the Subscribers’ claims.
Moreover, the Court did not determine whether the Subscribers had a claim in the
bankruptcy case. The Subscribers asserted a claim in the case and the Debtor recognized that
assertion when it filed a Motion to Reject the Subscription Agreement as an executory contract.
But, ultimately, no determination of the amount or validity of the Subscribers’ claim was necessary
to the Dismissal Order because the Debtor consented to dismissal.
Finally, dismissal of the case was not dependent on the Subscribers’ participation in the
case. The U.S. Trustee also filed a Motion to Dismiss raising several grounds for dismissal of the
case and requesting the dismissal be with a bar to refiling. Ultimately, Debtor’s counsel agreed to
dismissal of the case. In other words, the case would have been dismissed on those bases and was
not contingent on the Subscribers requesting dismissal. See In re Johnston, 149 B.R. 158 (B.A.P.
9th Cir. 1992) (even if other movants lacked standing as creditors to move to dismiss or convert
Chapter 11 case, the U.S. Trustee, who joined in motion to dismiss or convert, was a party in
interest with standing to request dismissal or conversion).
The dismissal of the SDNY Case and subsequent New York decisions regarding securities
law have no bearing on the bankruptcy case.
f. Whether the Court should reopen this case or otherwise vacate the dismissal
The primary relief Mr. Ware seems to want from the Court is for the Court to vacate the
Dismissal Order to which the Debtor’s attorney agreed. As explained below, Mr. Ware is not
entitled to this relief and vacating a 19-year-old dismissal of a bankruptcy case makes no sense.
The Court will consider whether the case must be reopened before the request to vacate the
29
Dismissal Order can be considered, whether Mr. Ware has standing to request reopening, and
whether reopening is proper.
i. Whether the case must be reopened
The case was closed on June 3, 2003, after its dismissal. The first question is whether the
case needs to be reopened to consider the motion under Rule 60 to vacate the dismissal. Section
350 of the Bankruptcy Code provides that “[a]fter an estate is fully administered and the court has
discharged the trustee, the court shall close the case.” 11 U.S.C. § 350(a). Section 350(b) in turn
provides that “[a] case may be reopened in the court in which such case was closed to administer
assets, to accord relief to the debtor, or for other cause.” 11 U.S.C. § 350(b). Section 350
contemplates that “reopening” is available for “fully administered” and closed cases. In re Bailey,
2009 WL 6498530, at *1 (Bankr. N.D. Ga. Sept. 3, 2009). Reopening a case usually occurs to
“take care of some detail that was overlooked or left unfinished at the time the case was closed. It
was not designed as an opportunity to create, and then enforce, rights that did not exist at the time
the case was originally closed.” Pingaro v. Ameriquest Mortg. Co. (In re Pingaro), 2008 WL
8664764 (B.A.P. 1st Cir. Aug. 14, 2008) (quoting In re Finch, 378 B.R. 241, 246 (B.A.P. 8th Cir.
2007). Bankruptcy Rule 5010 requires that a case be reopened upon the filing of a motion, and the
moving party must pay a fee with the motion to reopen in the same amount as the fee for filing a
case under the same chapter on the date of reopening. 4 Bankruptcy Court Miscellaneous Fee
Schedule, Item 11. The current fee for filing a motion to reopen a Chapter 11 case is $1167. Id.
4
There is no reopening fee:
x if the case is reopened to file an action related to the debtor’s discharge, for instance, to file a complaint to
obtain a determination of dischargeability of a debt other than under 11 U.S.C. 523(c);
x if the petition to reopen seeks to correct an administrative error;
x if the judge enters an order waiving the fee;
x if an order has previously been entered waiving the initial filing fee on a Chapter 7 case;
x if the Motion is filed by a US Government agency e.g., the U.S. Trustee.
30
“Generally, a closed case must be reopened before the bankruptcy court may entertain a
substantive matter.” Wilson, 2007 WL 2746665 (citing In re Leach, 194 B.R 812, 814-16 (E.D.
Mich. 1996)); see also In re Woldeyohannes, 2022 WL 3135287, at *1 (Bankr. D. Conn. Aug. 3,
2022); In re Levy, 2018 WL 1579888, at *2 (Bankr. D. Conn. Mar. 29, 2018) (holding that the
reopening, by itself, has no independent legal significance and determines nothing with respect to
the merits of any requested order). In some instances, though, a bankruptcy case need not be
reopened to seek certain relief including, for example, a claim for violation of the discharge
injunction or a pre-discharge claim for a stay violation. See Johnson v. Smith, 575 F.3d 1079, 1084
(10th Cir. 2009) (finding no basis to require plaintiff “to move to reopen the Chapter 13 case to
pursue [Section] 362(k)(1) adversary proceeding”); In re Stanwyck, 450 B.R. 181, 193 (Bankr.
C.D. Cal. 2011) (rejecting “Defendants’ assertion that [plaintiff] was required to reopen his prior
bankruptcy cases to assert [Section] 362(k) claims”); In re Patterson, 297 B.R. 110, 115 (Bankr.
E.D. Tenn. 2003) (finding it not necessary to reopen closed case to proceed with action relating to
the discharge injunction).
This case was dismissed, though, before being closed. Closing and dismissing a bankruptcy
case are two distinct events. Typically, dismissal does not coincide with termination of all
proceedings. Dismissal allows creditors and debtors to get on with their non-bankruptcy business
and resolve their disputes in appropriate forums.
Since there is a distinction between reopening a closed case and vacating an order
dismissing a case, some courts have held that a dismissed case is not a closed case and cannot be
reopened. See e.g., Pavelich v. McCormick, Barstow, Sheppard, Wayte & Carruth LLP (In re
Pavelich), 229 B.R. 777, 781 (9th Cir. BAP 1999) (“Reopening a dismissed case is an oxymoron
– since the consolidated cases were dismissed rather than closed, there are no closed cases to
31
reopen.”). In Armel Laminates, Inc. v. Lomas & Nettleton Co. (In re Income Prop. Builders, Inc.),
699 F.2d 963, 965 (9th Cir. 1983) (per curiam), the court concluded the word “reopened” used in
section 350(b) “obviously relates to the word ‘closed’ used in the same section.” Id. at 965. The
court concluded a case cannot be reopened unless it has been closed, and “[a]n order dismissing a
bankruptcy case accomplishes a completely different result than an order closing it would and is
not an order closing.” See also In re Peachtree Stratford, LP, 2005 WL 6486095, *1 (Bankr. N.D.
Ga. Oct. 25, 2005) (“Court lacks the power under section 350 to reopen a dismissed case to take
action in that case as if it had never been dismissed.”); Goldenberg v. Deutsche Bank Nat’l Tr. Co.
(In re Papazov), 2013 WL 2367802 (B.A.P. 9th Cir. May 30, 2013) (concluding because debtor
could not ‘reopen’ a bankruptcy case that was not ‘closed’ for purposes of section 350(a), the
bankruptcy court did not abuse its discretion when it denied her motion to reopen).
Other courts, however, have held a case that is dismissed and administratively closed may
be reopened for limited purposes because dismissal and closing are separate acts. See In re Ross,
278 B.R. 269, 273 (Bankr. M.D. Ga. 2001) (holding that debtor could reopen case that was
dismissed and subsequently closed without affecting the order of dismissal). For example, in
Stewart, 2020 WL 597843, the court determined that a case that is dismissed and closed is still a
closed case for which a motion to reopen may be filed for certain purposes, including to review
the reasonableness of the fees of the debtor’s counsel. The court was clear, however, that reopening
such a case would not vacate or otherwise affect the dismissal. A case dismissal can be undone
only through an appeal or a motion under Rules 9023 or 9024, In re Hashiman, 2020 WL 5914605,
at *2 (B.A.P. 9th Cir. Oct. 5, 2020); see also In re Carver, 2021 WL 2932485, at *1 (Bankr. D.
Idaho July 12, 2021), and the case must first be reopened. See e.g., Wilson, 2007 WL 2746665, at
*5; In re Leach, 194 B.R. 812, 814-816 (E.D. Mich. 1996).
32
Still other courts will address a request for reconsideration of a dismissal order without
first reopening the case or will treat a motion to reopen a dismissed case as a motion to vacate a
judgment or order. See e.g., In re Martin, 2011 WL 4344441, at *2 (Bankr. W.D. Tex. Sept. 14,
2011); In re Lampman, 494 B.R. 218, 222 (Bankr. M.D. Pa. 2013) (construing motion to reinstate
case as a motion to reconsider).
This Court agrees with those courts that have held a case dismissed and administratively
closed may be reopened for limited purposes and that a case must be reopened before considering
relief under Rule 60. The Court understands that closure and dismissal are different creatures, so
even though the case is a dismissed case, it is also a closed case for which a motion to reopen may
be filed. Here, the case was dismissed on May 21, 2003; it was subsequently closed on June 3,
2003. The Court concludes a motion to reopen can be filed in a case such as this one. The motion
to reopen, however, will not affect the Dismissal Order, and the case must be successfully reopened
before the Court can entertain a motion to reconsider under Rule 9024.
ii. Mr. Ware’s standing
In considering a motion to reopen, the movant has the burden of establishing that the case
should be reopened, In re Env’t Wood Prod., Inc., 609 B.R. 901, 912 (Bankr. S.D. Ga. 2019), and
that he has standing to seek the ultimate relief requested. Federal Rule of Bankruptcy Procedure
5010 permits a case to be reopened “on motion of the debtor or other party in interest.” Fed. R.
Bankr. P. 5010 (emphasis added). Rule 5010 does not define party in interest; instead, courts look
to section 1109(b), and they disagree as to whether all those indicated in section 1109(b) have
standing to file a motion to reopen or whether only the debtor, trustee, and creditors have such
standing. See In re Papazov, 610 F. App’x 700 (9th Cir. 2015); see also Goldenberg v. Deutsche
Bank Nat’l Trust Co. (In re Papazov), 610 Fed.Appx. 700 (9th Cir. 2015) (holding that the
33
enumerated list of “parties in interest” in § 1109(b) may guide a court in determining the scope of
potential movants under Rule 5010); see also In re Trigee Found., Inc., 2016 WL 3971734, at *2
(Bankr. D.D.C. July 19, 2016) (in considering whether to reopen a case that was closed, for court
administration purposes, after the case was dismissed, “it makes sense that the defendants would
have to be a party in interest in order to seek reopening.”).
Some courts conclude that standing to seek reopening of a closed case is confined to those
with a particular and/or direct stake in the reopened case, such as debtors, creditors, and trustees.
In re Canal St. Ltd. P’ship, 269 B.R. 375, 379 (B.A.P. 8th Cir. 2001); Nintendo Co. v. Patten (In
re Alpex Computer Corp.), 71 F.3d 353, 356 (10th Cir. 1995) (“This expansive view
notwithstanding, when we peruse the case law on standing under these circumstances, we find that
concept implicitly confined to debtors, creditors, or trustees, each with a particular and direct stake
in reopening cognizable under the Bankruptcy Code.”); Alexandria Surveys, LLC v. Alexandria
Consulting Grp., LLC (In re Alexandria Surveys Int’l, LLC), 500 B.R. 817, 820 (E.D. Va. 2013),
aff’d sub nom. Alexandria Consulting Grp., LLC v. Alexandria Surveys Int’l, LLC, 589 F. App’x
126 (4th Cir. 2014) (case law has read “party in interest” under Rule 5010 to be limited to the
debtor itself, a trustee, or a creditor).
Other cases suggest, however, that “party in interest” should have the same broad meaning
under Rule 5010 as it does under section 1109. In re Odin Demolition & Asset Recovery, LLC,
544 B.R. 615, 626 (Bankr. S.D. Tex. 2016); see also In re Krowel, 631 B.R. 277, 281 (B.A.P. 1st
Cir. 2021); White v. Bos., 104 B.R. 951, 954 (S.D. Ind. 1989). Under this reasoning, a shareholder
of the debtor would be a “party in interest” and thus a proper party to move to reopen a closed
case. See In re Canoe Mfg. Co., Inc., 466 B.R. 251, 253 (Bankr. E.D. Pa. 2012). Nevertheless, the
shareholder must have a direct stake in the particular reason for reopening. In Canoe Mfg. Co., for
34
example, the court recognized that a non-debtor may seek to reopen a closed case and that the
movant, who claimed to be a shareholder of the debtor, would be a party in interest to the extent it
was seeking relief in his shareholder capacity. Id. at 253. The court nevertheless found it would be
an inappropriate exercise of discretion to reopen the case. Id.
The Court concludes, at least in the context of reopening a Chapter 11 case, the better
approach is to evaluate the request by all potential “parties in interest” as defined by section 1109
by looking at the financial and legal stake of the movant seeking to reopen the case.
In this case, Mr. Ware is not seeking to reopen the case to accord relief to himself, since he
is not the Debtor. Mr. Ware does not assert any stake in reopening the bankruptcy case premised
on relief to which he could be entitled as a creditor, such as administration of newly discovered
assets. He does not seek additional distributions on a claim. And even if he did, no assets exist to
distribute. Mr. Ware is also not a trustee, and no trustee was appointed in the Chapter 11
bankruptcy case.
Instead, Mr. Ware seeks to reopen the case for the primary purpose of vacating the
dismissal of this bankruptcy case in 2003 and taking other actions personally against the
Subscribers. Mr. Ware contends he is a party in interest with standing to seek to reopen the case.
At the hearing before the Court on April 15, 2003, Mr. Ware stated he owned 200,000-300,000
shares in the Debtor worth approximately $160,000. The Debtor’s sworn Schedules do not disclose
any such interest, so it is not clear whether Mr. Ware did, or does, in fact own an equity security
interest in the Debtor (to the extent the Debtor exists and has shares—Mr. Ware contends GMC is
an unincorporated business entity, so it is not clear that it has any shares to issue). To the extent
Mr. Ware was, or still is, a shareholder of the Debtor and is seeking relief in his shareholder
capacity, it seems he would fall within the parameters of a “party in interest.” He must, however,
35
still demonstrate he has constitutional standing and establish grounds to reopen the case. Because
his standing to reopen the case turns on the reasons for reopening and the relief requested, the
Court will address his standing as it addresses the relief requested.
iii. Reopening is not proper
As an initial matter, Mr. Ware has not paid the required $1167 filing fee for a motion to
reopen, so granting the motion is improper. Turning to the merits, Mr. Ware is seeking to reopen
the case “for cause” to have the Dismissal Order vacated. “The Code does not define ‘other cause,’
and the decision to reopen is discretionary.” Env’t Wood Prod., 609 B.R. at 912; In re Judson, 586
B.R. 771, 772 (Bankr. C.D. Cal. 2018). A bankruptcy case should not be reopened where it would
be a futile exercise or a waste of judicial resources. See Redmond v. Fifth Third Bank, 624 F.3d
793, 803 (7th Cir. 2010). If the moving party cannot obtain the substantive relief which it intends
to seek, “then there is no reason to grant a motion to reopen.” In re Frazer/Exton Dev., 503 B.R.
620, 635 (Bankr. E.D. Pa. 2013). “The question of whether to reopen ‘depends upon the
circumstances of the individual case.’” Env’t Wood Prod., 609 B.R. at 912 (citations omitted). A
bankruptcy judge may consider a number of nonexclusive factors in determining whether to
reopen, including:
(1) the length of time that the case was closed;

(2) whether a nonbankruptcy forum has jurisdiction to determine the issue that is
the basis for reopening the case;
(3) whether prior litigation in the bankruptcy court determined that another court
would be the appropriate forum;
(4) whether any parties would suffer prejudice should the court grant or deny the
motion to reopen;
(5) the extent of the benefit to any party by reopening; and
(6) whether it is clear at the outset that no relief would be forthcoming if the motion
to reopen is granted.
Env’t Wood Prod., 609 B.R. at 912.
36
A number of these factors support denial of Mr. Ware’s motion to reopen. First, this case
was closed 19 years ago in 2003. “As the time between closing of the estate and its reopening
increases, so must also the cause for reopening increase in weight.” In re Geo Specialty Chem.
Ltd., 577 B.R. 142, 179 (Bankr. D.N.J. 2017); In re Nylon Net Co., 225 B.R. 404, 405 (Bankr.
W.D. Tenn. 1998) (“It is well settled that the greater the elapse of time between the closing of the
bankruptcy case and the request to reopen, the more compelling the reason for reopening the case
should be.”). Reopening a case that was dismissed and closed 19 years ago would be extraordinary
and, as discussed below, no compelling reason exists to reopen the case. The Debtor’s estate
terminated on the entry of the Dismissal Order and all of the estate property revested in the Debtor
under section 349(b)(3). There is therefore no estate to be administered. Moreover, the lengthy
delay is prejudicial to creditors who may not still be in existence, have purged files, or taken actions
in reliance on the dismissal of the bankruptcy case.
Further, “[c]ourts routinely decline to exercise their discretion to reopen bankruptcy cases
where the parties are seeking or could seek relief in a competent alternative forum.” In re HBLS,
L.P., 468 B.R. 634, 639 (Bankr. S.D.N.Y. 2012). This is especially true if the movant already
sought and failed to obtain the same substantive relief in another forum, which may invoke
preclusion doctrines. In re Neil’s Mazel, Inc., 492 B.R. 620, 628 (Bankr. E.D.N.Y. 2013). Here,
Mr. Ware’s complaint seems to be that the Subscribers did not have a valid claim in the bankruptcy
case and were not parties in interest authorized to seek relief in the case. Putting aside the fact the
Debtor filed the case and the Debtor filed the motion to reject executory contract, the granting of
which would create a claim, 11 U.S.C. 502(g)(1), Mr. Ware has contested the Subscribers’ claims
in multiple other forums. The litigation began in the SDNY Case, and then continued in the
criminal action for contempt 04-cr-1224 (SDNY). Most recently, Mr. Ware has lodged complaints
37
about the Subscribers in 22-cv-3409 (SDNY). The validity of the Subscribers’ claims need not be
decided by the Bankruptcy Court and is not relevant to the disposition of the bankruptcy case.
Courts also decline to reopen cases where there is no merit to the ultimate relief being
requested. See, e.g., Cohen v. CDR Creances S.A.S. (In re Euro–Am. Lodging Corp.), 549
Fed.Appx. 52, 54 (2d Cir. 2014). Where the ultimate relief being sought has no merit, reopening
the case would be “meaningless.” State Bank of India v. Chalasani (In re Chalasani), 92 F.3d 1300,
1307 (2d Cir. 1996); In re Atari, Inc., 2016 WL 1618346, at *11 (Bankr. S.D.N.Y. Apr. 20, 2016);
In re Hashiman, 2020 WL 5914605 (B.A.P. 9th Cir. Oct. 5, 2020).
Here, the ultimate relief Mr. Ware seeks is for the Court to vacate the Dismissal Order
under Fed. R. Bankr. P. 9024, which incorporates Fed. R. Civ. P. 60. The rule permits relief from
a final judgment, order, or proceeding in certain circumstances. Fed. R. Civ. P. 60; Fed. R. Bankr.
P. 9024. The decision to alter or amend a judgment is highly discretionary. Am. Home Assurance
Co. v. Glenn Estess & Assocs., 763 F.2d 1237, 1238-39 (11th Cir. 1985).
Mr. Ware alleges a fraud has been perpetrated on the Court by the Subscribers justifying
relief under Rule 60(d)(3) and, further, that the Subscribers’ claims are invalid as described above,
which the Court construes as seeking relief under Rule 60(b). Mr. Ware does not have standing to
pursue relief under Rule 60(b).
Rule 60(b) states a court may grant relief from judgment to “a party or its legal
representative.” In re Remington Park Owners Ass’n, 548 B.R. 108, 115 (Bankr. E.D. Va. 2016).
The term “legal representative” means not only a duly appointed legal representative, but also
individuals in a position tantamount to that of a party—i.e., nonparties whose interests are directly
affected by the final judgment, that is, one who is in privity with a party. See id.; In re El Paso
Refinery, LP, 37 F.3d 230, 234 (5th Cir. 1994). The term was intended to reach “only those
38
individuals who were in a position tantamount to that of a party or whose legal rights were
otherwise so intimately bound up with the parties that their rights were directly affected by the
final judgment.” Kem Mfg. Corp. v. Wilder, 817 F.2d 1517 (11th Cir.1987).
Many courts have specifically held that an attorney does not qualify as a “legal
representative” of a party for purposes of Rule 60(b) and, “[e]ven if the term ‘legal representative’
were construed to include a party’s attorney-at-law, the term certainly should not extend to a
party’s former counsel.” In re El Paso Refinery, LP, 37 F.3d 230, 234 (5th Cir. 1994). Mr. Ware
is not the Debtor—GMC is a separate business entity. Mr. Ware also did not represent the Debtor,
Mr. Gordon did and, even then, “legal representative” does not include a party’s former counsel.
Mr. Ware has not established he is in a position “tantamount” to that of the Debtor, or that his
rights are so intimately bound up with the Debtor’s that his rights were directly affected by the
Dismissal Order. A remote pecuniary interest like that of a putative shareholder does not suffice.
He does not have standing to pursue a Rule 60(b) motion.
On the other hand, Mr. Ware’s standing to request relief under Rule 60(d)(3) is not limited
to parties or their legal representative, but the moving entity must still have constitutional standing.
See, e.g., In re Old ANR, LLC, 2019 WL 2179717, at *7 (Bankr. E.D. Va. May 17, 2019); Gache
v. Hill Realty Assocs., LLC, 2014 WL 5048336, at *4-5 (S.D.N.Y. Sept. 22, 2014). Mr. Ware must
show he has an injury in fact as a shareholder of GMC. The injury to his shareholder interest must
be “actual or imminent,” not “conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560-61 (1992). Here, Mr. Ware’s alleged interest as a shareholder is only hypothetically
at stake in this case. Mr. Ware contends that, if the case was reinstated, he would ultimately be
entitled to funds. But the case was dismissed 19 years ago. No evidence has been presented or even
alleged that the Debtor is still in business. The Court surmises the Debtor is not still in business
39
given Mr. Ware’s convictions on securities fraud involving GMC. No evidence has been presented
that assets still exist to be distributed to creditors, much less to shareholders. What Mr. Ware really
wants, he is not entitled to: undoing his conviction and judgments against him. Since he has shown
no particular injury in his capacity as shareholder, the Court concludes he does not have standing
to pursue a Rule 60(d)(3) motion. But, if he did have standing, Mr. Ware would not be entitled to
relief under Rule 60(d)(3).
Rule 60(d)(3) allows for relief from a final judgment if the movant can show “fraud on the
court.” Fed. R. Civ. P. 60(d)(3). “There is no statute of limitations for fraud on the court.” In re
Roussos, 541 B.R. 721, 729 (Bankr. C.D. Cal. 2015). Where relief from a judgment is sought due
to fraud on the court, the fraud must be established by clear and convincing evidence. Booker v.
Dugger, 825 F.2d 281, 283 (11th Cir. 1987). “[O]nly the most egregious misconduct, such as
bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an
attorney is implicated, will constitute a fraud on the court.” Rozier v. Ford Motor Co., 573 F.2d
1332, 1338 (5th Cir. 1978). Stated differently, the movant must show an “unconscionable plan or
scheme” to improperly influence the court’s decision. Id. Fraud between parties does not constitute
fraud on the court, as it does not carry the same threat of public injury. S.E.C. v. ESM Group, Inc.,
835 F.2d 270, 273 (11th Cir. 1988).
Mr. Ware has not plead any evidence that the Subscribers perpetuated a fraud on the Court
or that the Court relied in any way on any misrepresentations of the Subscribers. As described
above, even if the Subscribers had no claim in the bankruptcy case, the Court would not vacate the
Dismissal Order. It was also entered in response to the U.S. Trustee’s motion and the Debtor
consented. Mr. Ware’s conclusory averments are insufficient to sustain his evidentiary burden on
the issue. Lustig v. Stone, 2019 WL 11660556, at *11 (S.D. Fla. Apr. 29, 2019), aff’d, 813 F.
Fraud by omission--KTS' fraud in concealing the unregistered broker-dealer status of its clients,
and lack of stand to appear in the Chapter 11 and seek dismissal by fraudulent and frivolous
motions is the fraud on the court. 40
App’x 461 (11th Cir. 2020) (conclusory statements of nefarious conduct are insufficient to
establish fraud by clear and convincing evidence for purposes of Rule 60(d)(3)). Mr. Ware’s
allegations of “fraud” stem entirely from a purported scheme among the Subscribers and
subsequent developments years later in the law on criminal usury and the litigation with the
Subscribers. Mr. Ware offers only a rehash of previously rejected arguments. Furthermore, Mr.
Ware fails to identify any improper misconduct designed to influence the decision of the Court,
fabrication of evidence, or other such fraud on the court, as opposed to fraud between parties.
Accordingly, Mr. Ware has not established a basis for relief under Rule 60(d)(3).
Mr. Ware does not cite to Rule 60(b) in his most recent motion to vacate (Doc. No. 84),
but he did reference it in his 2012 Motion to Reconsider of which he complains. As discussed
above, he does not have standing to bring such a motion, under the terms of Rule 60(b) or under
Article III of the Constitution. But even if he did, he would not succeed in his request. As the
Eleventh Circuit pointed out multiple times, motions under Rule 60(b)(1)-(b)(3) must be brought
within one year. Fed. R. Civ. P. 60(c)(1). Even his 2012 Motion to Reconsider was filed way
beyond that period. Motions under Rule 60(b)(4), (b)(5), and (b)(6) must be brought within a
reasonable time, Fed. R. Civ. P. 60(c)(1), and even the 2012 Motion to Reconsider was brought
nine years after the Dismissal Order was entered.
Mr. Ware has not established a basis for relief under Rule 60(b)(4) because the Dismissal
Order is not void. The concept of a void judgment is narrowly construed. “A judgment is not void
. . . simply because it is or may have been erroneous. . . . . Instead, Rule 60(b)(4) applies only in
the rare instance where a judgment is premised either on a certain type of jurisdictional error or on
a violation of due process that deprives a party of notice or the opportunity to be heard.” United
41
Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 270 (2010) (cites omitted). The Dismissal
Order is not based on any jurisdictional error. Thus, the judgment is not void.
No basis exists for setting aside the Dismissal Order under Rule 60(b)(5). Rule 60(b)(5)
applies only to those judgments with prospective application. In re Macklin, 2015 WL 1945160,
at *24 (Bankr. E.D. Cal. Apr. 8, 2015), aff’d sub nom. Macklin v. Deutsche Bank Nat’l Tr. Co.,
2015 WL 9274103 (E.D. Cal. Dec. 21, 2015). Most often, Rule 60(b)(5) arises in the context of
“institutional reform litigation” or prospective injunctions where the prospective actions are
“reviewed for inequitable application because of changed circumstances.” Lee v. Marvel Enters.,
Inc., 765 F.Supp. 2d 440, 451 (S.D.N.Y. 2011). No basis exists for setting aside the Dismissal
Order under Rule 60(b)(5). Mr. Ware’s request for relief does not arise in the context of
“institutional reform litigation” and does not involve a prospective injunction. Here, the Dismissal
Order has not been satisfied, released or discharged. Consequently, even if there was a subsequent
change in law after the bankruptcy case was dismissed, that does not provide a basis for relief here.
Mr. Ware has articulated no basis that justifies relief under Rule 60(b)(6) as to the
Dismissal Order. This section affords the Court some discretion to address issues raised by the
parties that necessitate the setting aside of a prior order or judgment. However, it is not meant to
supersede the requirements of Rule 60(b)(1) through (5). In other words, a Rule 60(b)(6) motion
must be based on some reason other than those stated in clauses (1)-(5). Solaroll Shade and Shutter
Corp., Inc. v. Bio-Energy Sys., Inc., 803 F.2d 1130, 1133 (11th Cir. 1986); see also Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993). The relief available
under Rule 60(b)(6) is limited and is meant “only for extraordinary circumstances.” Toole v.
Baxter Healthcare Corp., 235 F.3d 1307, 1316 (11th Cir. 2000) (quoting Frederick v. Kirby
Tankships, Inc., 205 F.3d 1277, 1288 (11th Cir. 2000)). To justify relief under Rule 60(b)(6), “a
42
party must show ‘extraordinary circumstances’ suggesting that the party is faultless in the
delay.” Pioneer, 507 U.S. at 393 (citing Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847, 863 (1988)). The circumstances are not extraordinary to warrant reconsideration of the
Dismissal Order.
For all these reasons, the Court finds Mr. Ware offers no circumstances that would
constitute grounds for vacating the dismissal order under Rule 9024. Accordingly, the Court finds
no basis to reopen this case or otherwise vacate the dismissal.
g. Whether the bankruptcy case should be transferred
Mr. Ware contends the bankruptcy case should be transferred to the Southern District of
New York.
Bankruptcy Rule 1014(a)(1) requires a timely motion of a party in interest to request
transfer of a case. Fed. R. Bankr. P. 1014(a)(1); see also In re Peachtree Lane Assocs., Ltd., 188
B.R. 815, 832 (N.D. Ill. 1995) (considering whether a movant qualified as a “party in interest”
under section 1109 for purposes of a motion to transfer venue). To the extent Mr. Ware is a
shareholder of the debtor and is seeking relief in his shareholder capacity, he could be a “party in
interest” (the Court notes, however, Mr. Ware has not established he is in fact a shareholder). But
he must still demonstrate he has constitutional standing. See Peachtree, 188 B.R. at 828 (movant
must demonstrate legally protectable interest in the venue). He has failed to do so. But even if he
had standing, the court could not and would not transfer a closed case.
Bankruptcy Rule 1014(a)(1) authorizes a court to transfer a properly venued case (in accord
with 28 U.S.C. § 1412). If the case is improperly venued, Bankruptcy Rule 1014(a)(2) states the
case may be dismissed or transferred (in accord with 28 U.S.C. § 1406). In both instances, the
court must determine “that the transfer is in the interest of justice or for the convenience of the
43
parties.” Fed. R. Bankr. P. 1014(a) & (b). Bankruptcy Rule 1014 requires a timely motion and
hearing with prior notice to the petitioners, the United States trustee, and other entities as directed
by the court. Id. Transferring venue of a bankruptcy case is not to be taken lightly, In re Enron
Corp., 274 B.R. 327, 342 (Bankr. S.D.N.Y. 2002), and the party seeking a change of venue has the
burden of proof, which must be carried by a preponderance of the evidence. In re Lehman Bros.
Holdings Inc., 2013 WL 5908057, at *5 (Bankr. S.D.N.Y. Nov. 4, 2013).
Mr. Ware has not carried his burden as he has presented no evidence to support transferring
the bankruptcy case. His request to transfer the case is far from timely, and the Court notes it was
Mr. Ware who initially filed the bankruptcy petition in the Northern District of Georgia and
presumably selected this venue for the bankruptcy case. In any event, there is no case for the Court
to transfer—the case was dismissed 19 years ago. While a court “has the authority to transfer a
case even where it lacks personal jurisdiction over it, once . . . dismissed . . ., the court cannot then
transfer the case to another district.” Mirman v. Feiner, 915 F. Supp. 2d 282, 284 (E.D.N.Y. 2013)
(cites omitted); Marengo Films, Inc. v. Koch Int'l LLC, 2003 WL 21435728, at *5 (N.D. Tex. June
16, 2003) (since petition was already dismissed, it was not within the interest of justice to transfer
the case). The Court therefore finds no basis to transfer the bankruptcy case. 5
h. Referral to the Department of Justice, State Bar, SEC, or other investigative

bodies
Mr. Ware asks the Court to refer this matter to the Department of Justice, to direct the SEC
to begin an enforcement action against the Subscribers and others, and to ask the Georgia Bar to
investigate the Subscribers’ attorneys and others.
5
Mr. Ware asks the Court to ask the AO to transfer the case to the Southern District of New York. The AO does not
have authority to transfer cases. See Fed. R. Bankr. P. 1014(a) (providing “the court . . . may transfer the case” and
“the court . . . may dismiss the case or transfer it”) (emphasis added).
44
Pursuant to 18 U.S.C. § 3057, the Court, in limited circumstances, shall refer the question
of whether a potential federal bankruptcy crime has been committed to the United States Attorney
for investigation. That statute provides in relevant part:
Any judge, receiver, or trustee having reasonable grounds for believing that any
violation under chapter 9 of this title or other laws of the United States relating to
insolvent debtors, receiverships or reorganization plans has been committed, or that
an investigation should be had in connection therewith, shall report to the
appropriate United States attorney all the facts and circumstances of the case, the
names of the witnesses and the offense or offenses believed to have been
committed. Where one of such officers has made such report, the others need not
do so.
18 U.S.C. § 3057(a). Pursuant to this provision, a judge may report certain conduct to the United
States Attorney, but the Court has no authority to determine whether a prosecution should occur.
In re Refrigeration Station, Inc., 1999 WL 33581627, *2 (Bankr. S.D. Ga. Dec. 15, 1999). A court
is compelled to report facts whenever “reasonable grounds exist for a belief that a violation of the
bankruptcy laws has occurred and that such violations have not been litigated before the
bankruptcy and appellate courts.” In re Narumanchi, 471 B.R. 35, 44 (D. Conn. 2012). The Court
is not required to report all conduct since the section only covers laws relating to insolvent debtors,
receiverships, or bankruptcy. Estes v. Ramirez, 2014 WL 11698007, *11 (S.D. Tex. June 13,
2014), amended in part, 2014 WL 11698095 (S.D. Tex. Aug. 7, 2014). Further, there must be some
evidence for the court to form a reasonable belief a violation of bankruptcy laws has been
committed. See In re Burt, 179 B.R. 297, 300 (Bankr. M.D. Fla. 1995); In re Walker, 2006 WL
3483480, *3 (Bankr. S.D. Fla. July 11, 2006). For example, a judge is not obligated to report all
facts and circumstances underlying a stock transaction where there are no reasonable grounds for
believing that any violations of the bankruptcy laws had been committed and where the same issue
of fraud had been pleaded, argued and litigated before the bankruptcy, district, and appellate courts.
In re Botany Indus., Inc., 463 F. Supp. 793, 799 (E.D. Pa. 1978), aff’d sub nom. Amalgamated Ins.
45
Fund of New York, Appeal of, 609 F.2d 500 (3d Cir. 1979), and aff’d sub nom. Botany Indus.
Inc., in Matter of, 609 F.2d 500 (3d Cir. 1979).
Mr. Ware does not have standing to request the Court refer matters under 18 U.S.C.
§ 3057(a). A debtor (or its counsel or shareholder) cannot require a court to refer matters for
criminal prosecution. Va. Hosp. Ctr. Arlington Health Sys. v. Akl (In re Akl), 2010 WL 1667294
(Bankr. D.D.C. Apr. 23, 2010); Mays v. Citibank, N.A., 2005 WL 6111610, *10 (S.D. Fla. Mar.
31, 2005), summarily aff’d, 180 Fed. Appx. 143 (11th Cir. 2006). This section does not directly or
by implication establish any private right of action for a third party other than a federal judge,
receiver, or trustee to request a report or referral to the United States Attorney. Id.
Mr. Ware asks the Court to refer this case to the Department of Justice for prosecution of
violations of various laws, but such relief is not available for several reasons. First, Mr. Ware lacks
standing to make such a request as there is no private right of action. Second, the Court can only
refer alleged violations of bankruptcy laws. Third, the record is void of any evidence to form a
reasonable belief that any violations of bankruptcy laws have been committed. Accordingly, there
is no basis to refer this case to the United States Attorney for prosecution and the request is denied.
The Eleventh Circuit determined a similar request in 2016 was frivolous.
Mr. Ware also requests the Court ask the Georgia Bar to investigate the Subscribers’
attorneys and others. Pursuant to Bankruptcy Local Rule, attorney disciplinary matters are
governed by Rules 83.1(C) and 83.1(F) of the Civil Local Rules for the District Court for the
Northern District of Georgia. Local Rule 83.1(F)(3) provides, in relevant part, that “complaints
alleging professional misconduct by an attorney admitted to practice in this Court . . . must be
submitted . . . in writing and must state with particularity the basis for the allegations. Complaints
of professional misconduct must be under oath.” Upon receiving a complaint of professional
46
misconduct made under Local Rule 83.1(F)(3), the court must determine: “(i) whether the
complaint should be terminated because the allegations are unjustified, frivolous, unsupported, or
insubstantial; (ii) whether, for members of the State Bar of Georgia, the complaint should be
referred to the State Disciplinary Board as a formal or informal complaint[.]” LR83.1(F)(4); see
also Cohran v. State Bar of Georgia, 790 F. Supp. 1568, 1573 (N.D. Ga. 1992) (explaining the
Office of the General Counsel of the State Bar of Georgia has the power to screen complaints
against members of the bar and to “dismiss those complaints which are unjustified, frivolous,
patently unfounded or which fail to state facts sufficient to invoke the disciplinary jurisdiction of
the State Bar of Georgia.”).
Mr. Ware has not set forth with particularity any allegations of professional misconduct.
Instead, he has made a series of unsupported general allegations about the Subscribers’ counsel.
The Court notes, once again, that the bankruptcy case was pending 19 years ago; it is not clear that
any of the counsel involved in the case are even still practicing law. Moreover, the issues alleged
have been unsuccessfully litigated by Mr. Ware in other courts. The Court determines Mr. Ware
has not set forth a basis for a referral to the State Disciplinary Board and, accordingly, declines to
ask the State Bar to investigate attorney conduct.
Mr. Ware asks the Court to direct the SEC to begin an enforcement action against the
Subscribers. The SEC is the agency required to enforce the securities laws, In re Hodge, 216 B.R.
932, 936 (Bankr. S.D. Ohio 1998), and the SEC retains the power to “make such investigations it
deems necessary to determine whether any person has violated or is about to violate any [securities
law.]” 15 U.S.C. § 78u(a)(1). All SEC investigations are conducted privately, and the Court cannot
order the SEC to investigate. See How Investigations Work, U.S. Securities and Exchange
Commission, https://www.sec.gov/enforce/how-investigations-work.html. Should the
47
enforcement division of the SEC find that an investigation is needed, it can make that
determination. See In re Colin, Hochstin Co., 41 B.R. 322, 326 (Bankr. S.D.N.Y. 1984). The SEC
has in fact already prosecuted Mr. Ware and obtained a criminal conviction against him, so it seems
unlikely they will conduct an additional investigation. The securities issues alleged have been
unsuccessfully litigated by Mr. Ware in other courts, and the Court determines Mr. Ware has not
set forth a basis to direct the SEC to investigate.
i. Recusal
Mr. Ware asks that this judge “resign,” which the Court interprets as a request for recusal.
Recusal of this judge from hearing any further matter in this case is governed by 28 U.S.C.
§ 455(a), which provides, “Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The appropriate test under Eleventh Circuit law is “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). The Court will “not consider the perceptions of idiosyncratic,
hypersensitive, and cynical observers.” Id. (cites omitted). And “the judge need not recuse himself
based on the ‘subjective view of a party’ no matter how strongly that view is held.” United States
v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990) (cites omitted). Further, 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.’” Tucker v. Mukamal, 2015 WL 5166276
at *2 (11th Cir. Sept. 4, 2015) (citing Liteky v. United States, 510 U.S. 540, 551 (1994)). A judge
is not disqualified by a litigant’s suit or threatened suit against him. United States v. Ford, 293 F.
Supp. 3d 1138, 1140 (E.D. Cal. 2018).
48
Section 455 “does not invite recusal whenever it is requested by a party.” Guthrie v. Wells
Fargo Home Mortg., N.A., 2015 WL 1401660 at *3 (N.D. Ga. March 26, 2015). In fact, “there is
as much obligation for a judge not to recuse when there is no occasion for him to do so as there is
for him to do so when there is.” Id. (cites omitted). “[C]ourts must exercise great care in
considering motions for recusal so as to discourage their use for purposes of judge shopping or
delay[.]” Barna v. Haas (In re Haas), 292 B.R. 167, 175 (Bankr. S.D. Ohio 2003).
Importantly, “it is the facts, not the movant’s allegations, that control the propriety of
recusal.” Guthrie, 2015 WL 1401660 at *3. “Recusal cannot be based on ‘unsupported, irrational
or highly tenuous speculation.’” United States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999)
(cites omitted). Furthermore, allegations made under 28 U.S.C. § 455 need not be taken as true.
Weatherhead v. Globe Int’l, Inc., 832 F.2d 1226, 1227 (10th Cir. 1987). Finally, motions to recuse
under Section 455 “are typically decided by the presiding judge.” Guthrie, 2015 WL 1401660 at
*3.
Mr. Ware’s allegations seem to be that this judge cannot render a fair judgment. This is not
true. Moreover, the Supreme Court has recognized that recusal is not required even if the judge
has formed a negative opinion of the party, except in rare circumstances. “The judge who presides
at a trial may, upon completion of the evidence, be exceedingly ill disposed towards the defendant,
who has been shown to be a thoroughly reprehensible person. But the judge is not thereby
recusable for bias or prejudice, since his knowledge and the opinion it produced where properly
and necessarily acquired in the course of the proceedings, and are indeed sometimes (as in a bench
trial) necessary to completion of the judge’s task. Liteky, 510 U.S. at 550-51. The Court has no
knowledge of this case except through Mr. Ware’s pleadings. Mr. Ware’s allegations do not form
a legal basis for recusal of the Judge.
49
Vindictive, retaliatory, and punitive leave to file sanction in concert with Colleen McMahon, see Ex.
10, G.
j. Limitation on Future Filings
Note Hagenau's racially-coded language in describing Mr. Ware's efforts to obtain 15 USC 78p(b) disgorgement of +$522 million
in short-swing profits. As described at the outset, Mr. Ware sends documents to chambers almost daily. Since
March 2021, the docket reflects over 200 additional entries. This is simply absurd.
A litigant’s right of access to the courts is neither absolute nor unconditional. In re
Armstrong, 309 B.R. 799, 805 (B.A.P. 10th Cir. 2004). “Litigants who file frivolous, abusive
papers ‘interfere with the orderly administration of justice.’” In re Meltzer, 535 B.R. 803, 820
(Bankr. N.D. Ill. 2015). The Eleventh Circuit “repeatedly has held that federal courts have the
power to manage their dockets and curb vexatious litigation.” United States v. Maass, 2005 WL
2298296, at *3 (11th Cir. Sept. 22, 2005) (citing Martin-Trigona v. Shaw, 986 F.2d 1384, 1387
(11th Cir. 1993); Copeland v. Green, 949 F.2d 390 (11th Cir. 1991)). Bankruptcy courts have
inherent powers to control the course of litigation before them. Armstrong, 309 B.R. at 805. That
power is supplemented by 28 U.S.C. § 1651(a) and 11 U.S.C. § 105(a). In re Agrawal, 2018 WL
4850376, at *1 (Bankr. W.D. Okla. Oct. 4, 2018). The “All Writs Act,” 28 U.S.C. § 1651(a),
authorizes federal courts to “issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” By its terms, the All Writs Act
applies to bankruptcy courts to regulate the activities of abusive litigants. In re Melcher, 2014 WL
1410235, at *9 (B.A.P. 9th Cir. Apr. 11, 2014).
Dissatisfaction with the outcome of a bankruptcy case does not entitle a litigant to file
frivolous documents after the case is over. In re Packer Ave. Assocs., 884 F.2d 745, 748 (3d Cir.
1989). An injunction limiting a litigant’s filings is appropriate where necessary to prevent undue
interference with the orderly administration of bankruptcy proceedings. In re Amir, 2013 WL
5302549, at *2-3 (Bankr. N.D. Ohio Sept. 18, 2013). For example, in Packer, the District Court
enjoined the pro se debtor from filing any further documents relating to the case, finding that 27
50
Note that Hagenau's complete ignorance of the law does not equate to frivolity, she should know
better.
frivolous filings were an “unwarranted expenditure of administrative and judicial time and
Note Hagenau, similarly to the Court of Appeals Oct. 8, 2010, show cause
resources.” Packer, 884 F.2d at 748. order did not with specifically identify the motion that was allegedly
frivolous, nor did Hagenau state exactly why the motion was frivolous.
The Court finds the more than 200 submissions in less than two years in this case closed
since 2003 is abusive and frivolous. Mr. Ware has continued filing papers requesting the same
relief despite a denial of three requests for mandamus by the Eleventh Circuit. The papers are filed
almost daily and vary with the court from which Mr. Ware requests relief. But these requests for
relief are outdated and simply not available in this Court. For example, in addition to the requests
for relief addressed in this Order, he has asked the Court to determine the Subscribers were
They are
unregistered broker-dealers; to require the Subscribers to show cause as to why they are not liable according to
FINRA's May 17,
to Mr. Ware, GMC, and “others” for their criminal conduct; to notify the U.S. Attorney to vacate 2021, certification.
the New York criminal proceedings; to notify the SDNY courts that all SDNY proceedings have
been vacated, abrogated, and annulled; to refer district court judges, judges and trustees of this
Court, the U.S. Trustee, the Subscribers, their counsel, and his criminal attorneys to the
Department of Justice. He has alleged that the Court and its employees have participated in
collection of a RICO loan sharing debt and violated RICO and that they are in “contempt” of the
They are in
order in the SDNY Case dismissing that case. These documents contain incendiary allegations contempt of the
Dec. 20, 2007,
against judges of every court who come in contact with this case without any basis and some
Rule 41(a)(2)
derogatory and inappropriate language. They misstate what has happened in other courts. Mr. order.
Ware is a disbarred attorney but, even so, he knows better. Cf., with language in the Ex. 1, the Nov. 5,
2010, 2d Cir.'s leave to file punitive sanction.
As stated above, the Court will instruct the Clerk to cease filing documents that are emailed,
or that are sent to chambers, or that are copies of pleadings in other cases, or correspondence to or
from anyone. But the Court believes Mr. Ware should be barred from filing any more pleadings,
documents or papers of any kind in this closed bankruptcy case. The case has been closed for 19
Note Hagenau did not supply a legally sufficient reason, merely what her personal "belie[fs] are,
which is not legally sustainable in a court of law, not a court of beliefs.
51
years and it is simply over. Because of the age of the closed case, there is no reason for this Court
to permit filings upon review. This Order will provide Mr. Ware with 14 days to show cause why
the court should not bar him from filing, sending, or otherwise delivering documents for filing in
this case.
III. CONCLUSION
As set out above, Mr. Ware is not entitled to any of the relief he seeks, either individually
or on behalf of the Debtor. It is therefore
ORDERED that all relief requested by Mr. Ware, whether in his individual capacity or as
“legal representative” of the Debtor, is DENIED including without limitation:
- his request to reopen this case;
- his request to vacate the dismissal in this case or deem it null and void;
- his request to reinstate the automatic stay in this case;
- his request to refer any person or entity to the Department of Justice, the Securities and
Exchange Commission, the Georgia Bar or any other body for investigation;
- his request for a status conference;
- his request to transfer this bankruptcy case to the bankruptcy court in the Southern
District of New York or ask the Administrative Office of the Courts to make such a
transfer;
- his request for this Court to “validate its ‘Article 3 jurisdiction’”;
- his request for this Judge to resign or recuse herself;
- his request for the Court to issue show cause orders to the Subscribers, their counsel
and others;
- his request for the Clerk to docket certain undocketed documents;
52
- his request to find the Clerk violated her duties and the rules regarding filing and
docketing and certification of the docket.
It is ORDERED FURTHER that the Clerk must only place on the docket of the Group
Management case papers properly filed with the Clerk (not emailed) and which are orders,
judgments or activities reflecting requests for relief in this bankruptcy case. Any papers emailed
to chambers and not delivered directly to the Clerk in accordance with Northern District Georgia
Local Rules and General Orders are not filed and therefore need not be reflected on the docket.
ORDERED FURTHER that the Clerk need not file or docket papers delivered to the
Clerk if they are copies of pleadings filed in cases other than the above-styled case, copies of
correspondence sent to any person or entity, or correspondence to the Clerk.
ORDERED FURTHER that the clerk need not provide docket certification more than
once in a 12-month period unless the Court orders otherwise.
ORDERED FURTHER that Mr. Ware is directed to show cause within fourteen (14) days
of the date hereof as to why he should not be deemed a vexatious litigant and be prohibited from
making any further filings in this closed bankruptcy case.
END OF ORDER
Distribution List
Ulysses T. Ware
The Office of Ulysses T. Ware
123 Linden Blvd.
Ste 9-L
Brooklyn, N 11226
Note that Dkt. 258 is completely and constitutionally defective--completely devoid of the
constitutional procedure safeguards required by due process of law prior to the imposition of any
sanction. Hagenua did not, because she cannot, identify any of Mr. Ware's filings as frivolous, only
the fact that Mr. Ware filed "more than 200 filings" does not make the filings legally "abusive or
frivolous." Hagenau, cannot do better because she does not know better. A sad day for the
judiciary.
53
United States Bankruptcy Court
Northern District of Georgia
In re: Case No. 03-93031-wlh
Group Management Corp. Chapter 11
Debtor
CERTIFICATE OF NOTICE
District/off: 113E-9 User: bncadmin Page 1 of 1
Date Rcvd: Oct 24, 2022 Form ID: pdf471 Total Noticed: 4
The following symbols are used throughout this certificate:
Symbol Definition
+ Addresses marked '+' were corrected by inserting the ZIP, adding the last four digits to complete the zip +4, or replacing an incorrect ZIP. USPS
regulations require that automation-compatible mail display the correct ZIP.
Notice by first class mail was sent to the following persons/entities by the Bankruptcy Noticing Center on Oct 26, 2022:
Recip ID Recipient Name and Address
db + Group Management Corp., c/o Ulysses T. Ware, The Office of Ulysses T. Ware, 123 Linden Blvd, Ste 9-L, Brooklyn, NY 11226-9725
aty + Sims W. Gordon, Jr., The Gordon Law Firm, PC, Suite 1500, 400 Galleria Parkway, SE, Atlanta, GA 30339-5953
op + Ulysses T. Ware, 123 Linden Blvd, Suite 9-L, Brooklyn, NY 11226-9725
+ Ulysses T. Ware, The Office of Ulysses T. Ware, 123 Linden Blvd., Ste 9-L, Brooklyn, N 11226-9725
TOTAL: 4
Notice by electronic transmission was sent to the following persons/entities by the Bankruptcy Noticing Center.
Electronic transmission includes sending notices via email (Email/text and Email/PDF), and electronic data interchange (EDI).
NONE
BYPASSED RECIPIENTS
The following addresses were not sent this bankruptcy notice due to an undeliverable address, *duplicate of an address listed above, *P duplicate of a
preferred address, or ## out of date forwarding orders with USPS.
Recip ID Bypass Reason Name and Address
*+ Ulysses T. Ware, The Office of Ulysses T. Ware, 123 Linden Blvd., Ste 9-L, Brooklyn, N 11226-9725
TOTAL: 0 Undeliverable, 1 Duplicate, 0 Out of date forwarding address
NOTICE CERTIFICATION
I, Gustava Winters, declare under the penalty of perjury that I have sent the attached document to the above listed entities
in the manner shown, and prepared the Certificate of Notice and that it is true and correct to the best of my information and
belief.
Meeting of Creditor Notices only (Official Form 309): Pursuant to Fed .R. Bank. P.2002(a)(1), a notice containing the
complete Social Security Number (SSN) of the debtor(s) was furnished to all parties listed. This official court copy contains
the redacted SSN as required by the bankruptcy rules and the Judiciary's privacy policies.
Date: Oct 26, 2022 Signature: /s/Gustava Winters
CM/ECF NOTICE OF ELECTRONIC FILING

The following persons/entities were sent notice through the court's CM/ECF electronic mail (Email) system on October 24, 2022 at the address(es) listed
below:
Name Email Address
Office of the United States Trustee
[email protected]
Thomas Ware
on behalf of Debtor Group Management Corp. [email protected]
TOTAL: 2

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Case 03-93031-wlh Doc 258 Filed 10/26/22 Entered 10/27/22 00:47:40 Desc

Imaged Certificate of Notice Page 1 of 54

IT IS ORDERED as set forth below:

Date: October 24, 2022

UNITED STATES BANKRUPTCY COURT

GROUP MANAGEMENT CORP., Case No. 03-93031-WLH

them and provide a ruling on them.

scheduled for April 15, 2003.

without any bona fide reorganizational purpose[.]”

Debtor’s Motion to Reject.

Ware signed the Schedules as “In House counsel”.

May 16, 2005.

the conviction were all denied.

the Bankruptcy Court.

dismissal from which he sought mandamus relief.

a) Whether the Court has “Article III” jurisdiction of this case;

subsequent decisions by New York courts had on the bankruptcy case;

Bar, SEC, or other investigatory body; and

h) Whether recusal is necessary.

standing to request relief, individually or on behalf of GMC.

II. Legal Analysis

Robins, 578 U.S. 330, 330 (2016) (citation omitted).

201482, at *5–6 (Bankr. S.D.N.Y. Jan. 16, 2014).

b. Whether the Court has “Article III” jurisdiction of this case

v. Bakst, 844 F.3d 1313, 1318 (11th Cir. 2017).

to the district court. Id.

4845757, at *2 (Bankr. S.D.N.Y. Oct. 30, 2008).

docket entries does not mean he has standing.

decision issued by a court or authoritative body.” Order, Wex Legal Dictionary,

Oxford English Dictionary, https://www.oed.com/view/Entry/1958 (last visited Oct. 21, 2022), or

“work performed to create a result.” Activity, Dictionary.org, https://thelawdictionary.org/activity/

orders, judgments and activities in that case are to be entered.

documents. 21 C.J.S. Courts § 337.

the docket entry violate Fed. R. Bankr. P. 5003.” Id.

4371668, at *3 (Bankr. S.D. Tex. Sept. 17, 2008).

he has many complaints.

decisions made by the Bankruptcy Clerk.

demonstrated the Court violated the Bankruptcy Rules.

Ware’s voluminous correspondence.

d. Effect of dismissal of this bankruptcy case

superseding pre-bankruptcy contracts.

the best interests of creditors and the estate. 11 U.S.C. § 1104(a)(3).

(Bankr. N.D. Fla. 2018) (citation omitted).

Normally, dismissal of a bankruptcy petition has no long-term consequences for the

meaning assigned to it in Fed. R. Civ. P. 41.

claims or Mr. Ware’s legal issues arising therefrom.

Dismissal Order is therefore moot. He is wrong.

grant that motion, particularly since the Debtor agreed to it.

reasonably anticipated or known . . . at the time of the transaction.” Id. at *7.

directly affect the Subscribers’ claims.

to the Dismissal Order because the Debtor consented to dismissal.

interest with standing to request dismissal or conversion).

law have no bearing on the bankruptcy case.

whether reopening is proper.

i. Whether the case must be reopened

the discharge injunction).

and resolve their disputes in appropriate forums.

*5; In re Leach, 194 B.R. 812, 814-816 (E.D. Mich. 1996).

case as a motion to reconsider).