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McCallan v. Wilkins

United States District Court, M.D. Alabama, Northern Division

September 17, 2018

TIMOTHY MCCALLAN, Appellant,
v.
CARLY B. WILKINS, as Trustee for Debtors Allegro Law, LLC and Allegro Financial Services, LLC, Appellee.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE

         Before the court are two cases, 2:18-CV-604, and 2:18-CV-608, both concerning Defendant/Appellant Timothy McCallan, and Plaintiff/Appellee Carly B. Wilkins. They were filed by McCallan on June 25, 2018, were consolidated on September 4, 2018, and were heard for oral argument on September 6, 2018.

         I. BACKGROUND

         A. 2:18-CV-604

         2:18-CV-604 is a motion for leave to appeal the bankruptcy court's 35-page Memorandum Decision dated May 23, 2018. In that decision, the bankruptcy judge meticulously spells out the history of McCallan's games and deceit before concluding:

For all of the length, breadth, and weight of these proceedings, the bottom line remains simple. McCallan owes more than $100, 000, 000. The evidence shows and the Court finds that McCallan has secreted millions of dollars' worth of money and property in locations presently unknown to the Trustee. Until he discloses all of his property and turns over all of his ill-gotten gains, he remains in contempt.

(Doc. # 1-1 at 44-45.)

         Now pending are: (1) Appellant McCallan's motion (Doc. # 1-1) for leave to file an interlocutory appeal; (2) Appellee Carly B. Wilkins's motion (Doc. # 2) to dismiss for lack of jurisdiction; and (3) Appellee's motion (Doc. # 10) to strike McCallan's brief on the grounds that this court lacks jurisdiction over McCallan's appeal. Moreover, the court must decide whether this action is frivolous and/or interposed for delay and, if so, whether McCallan and/or his attorneys should be subject to sanctions (including costs and the opposing party's attorneys' fees) for filing a frivolous appeal and/or for filing this appeal for the purpose of delay.

         B. 2:18-CV-608

         2:18-CV-608 contains a notice of appeal of the bankruptcy judge's 3-page order dated May 29, 2018. (Doc. # 1-1.) The 3-page May 29th order incorporates the 35-page May 23rd order, adds that McCallan remains in contempt, urges the parties to meet and work matters out, and expresses the bankruptcy court's desire for closure on this case that has been ongoing since 2010.

         Now pending are: (1) McCallan's notice of appeal (Doc. # 1-1); (2) Appellee's motion to dismiss (Doc. # 2) for lack of jurisdiction; and (3) Appellee's motion (Doc. # 12) to strike McCallan's brief on the grounds that this court lacks jurisdiction over McCallan's appeal. Additionally, as with 2:18-CV-604, this court must address whether McCallan and/or his attorneys should be subject to sanctions. (Docs. # 5, 16.)

         II. PROCEDURAL HISTORY

         McCallan has been here before, and this court has previously described his shenanigans at length.[1] In a nutshell, on October 6, 2016, the bankruptcy court held McCallan in civil contempt of court for willful failure to comply with its previous order to account for the whereabouts of the more than $100, 000, 000.00 he stole from 30, 000 victims. On October 23, 2017, the bankruptcy court ordered McCallan jailed for contempt after finding that McCallan's claims that he had complied with the court's orders were false. In ongoing efforts to purge himself of contempt, McCallan has repeatedly lied to the bankruptcy court, and more than one attorney has been suspended or disbarred from more than one state for their role in his fraud.[2]

         On June 25, 2018, McCallan filed in this court a motion for leave to appeal from the bankruptcy court's May 23, 2018 Order (2:18-CV-608), and a notice of ...


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