STRICKLAND VS WELLS FARGO BANK NA
Filing
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ORDER Affirming the decision of the Bankruptcy Court; finding as moot 8 Motion to Dismiss; terminating 9 Motion to Strike (construed by the Court as Appellant's initial brief in support of her appeal); terminating 11 Motion to Vacate (c onstrued by the Court as Appellant's initial brief in support of her appeal); terminating 13 Motion to Strike (construed by the Court as Appellant's initial brief in support of her appeal).Ordered by U.S. District Judge C ASHLEY ROYAL on 12/10/14 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PATRICIA STRICKLAND,
Appellant,
v.
WELLS FARGO BANK,
Appellee.
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Case No. 5:14‐CV‐00186 (CAR)
Bankruptcy Appeal
ORDER ON APPEAL
Currently before the Court is Appellee’s Motion to Dismiss pro se Appellant‐Debtor
Patricia Strickland’s appeal of the United States Bankruptcy Court for the Middle District
of Georgia’s Order Granting Relief from Stay. Appellant filed her Amended Notice of
Appeal on April 17, 2014, and failed to timely file her initial brief in accordance with Rule
8009 of the Federal Rules of Bankruptcy Procedure and this Court’s Letter Regarding
Bankruptcy Briefing Schedule. However, due to Appellant’s pro se status, the Court
hereby CONSTRUES her Motions to Strike [Docs. 9 & 13] and her Motion to Vacate [Doc.
11] as if they are Appellant’s initial brief in support of her appeal. Having considered the
record of the lower court, the parties’ briefs, and the relevant case law, the decision of the
Bankruptcy Court is hereby AFFIRMED. Thus, Appellee’s Motion to Dismiss [Doc. 8] is
MOOT.
LEGAL STANDARD
The Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a)(1). In
reviewing the decision of a bankruptcy court, a district court functions as an appellate
court.1 In that capacity, district courts “may affirm, modify, or reverse a bankruptcy
judge’s judgment, order, or decree or remand with instructions for further proceedings.”2
The Court must accept the Bankruptcy Court’s findings of fact unless those facts are
clearly erroneous.3 The Court may not make independent factual findings. 4 Conclusions
of law, however, including the Bankruptcy Court’s interpretation and application of the
United States Bankruptcy Code, are reviewed de novo.5 Thus, this Court owes no deference
to the Bankruptcy Court’s interpretation of the law or its application of the law to the
facts.6
BACKGROUND
This pending appeal arises out of Appellant’s execution of a security deed in favor
of Mortgage Lenders Network USA, Inc. as security for a note in the original principal
amount of $102,420. The security deed conveyed the real property located at 996 South
Mulberry Street, Jackson, Ga. 30323 (the Property) as security for the note.
On September 30, 2013, Appellant filed a bankruptcy petition under Chapter 7 of
1 See Williams v. EMC Mortg. Corp. (In re Williams), 216 F.3d 1295, 1296 (11th Cir. 2000) (per curiam).
2 Fed. R. Bankr. P. 8013.
3 Id.
4 Equitable Life Assurance Socʹy v. Sublett (In re Sublett), 895 F.2d 1381, 1384 (11th Cir. 1990).
5 See Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir. 1990).
6 Goerg v. Parungao (In re Goerg), 930 F.2d 1563, 1566 (11th Cir. 1991).
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the United States Bankruptcy Code, 11 U.S.C. § § 101 et seq., in the United States
Bankruptcy Court for the Middle District of Georgia. Appellee Wells Fargo filed a Motion
for Relief from Stay on December 13, 2013, requesting relief from the automatic stay under
11 U.S.C. § 362(a) to pursue its state law rights and remedies in connection with the
security deed and the Property.
The United States Bankruptcy Court for the Middle District of Georgia held an
initial hearing on the Motion for Relief on January 9, 2014. Appellant appeared and
argued in opposition to the Motion at the initial hearing. The Bankruptcy Court continued
the hearing in favor of a full evidentiary hearing which was held on April 1, 2014. At the
full hearing, both Appellant and Appellee were given the opportunity to present evidence
and additional argument in support of their respective positions. On April 7, 2014, the
Bankruptcy Court granted the Motion for Relief.
On April 17, 2014, Appellant filed an Amended Notice of Appeal on the Order
Granting Relief from Stay together with a Designation of contents for Inclusion in Record
on Appeal. On May 1, 2014, Appellee timely filed its Designation of Additional Items for
Record on Appeal, and on May 13, 2014, the Notice of Appeal was docketed by the Clerk
of the United District Court for the Middle District of Georgia.
On May 14, 2014, the Clerk mailed and docketed a letter addressed to the parties
setting forth the briefing schedule and directing Appellant to “serve and file [her] initial
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brief within 14 days after entry of the appeal on the docket pursuant to Rule 8009.”7
Appellant failed to timely file her initial brief, and thus, on June 4, 2014, Appellee moved
to dismiss the appeal.
As of the date of this Order, Appellant has filed a “Motion to Strike Appellee’s
Motion to Dismiss Appeal” on June 16, 2014, a “Motion to Vacate Judgment and Brief in
Support of Motion to Vacate Bankruptcy Court Order” on July 17, 2014; and a “Motion to
Strike Appellee’s Brief” on August 11, 2014. Although it is unclear whether these Motions
are intended as untimely initial briefs, because Appellant is proceeding pro se, the Court
will construe them as if they are Appellant’s initial brief in support of her appeal.
DISCUSSION
Appellant first contends that she did not receive proper “due process of the law
under the 14th Amendment.”8 Due process for a motion for relief requires proper notice
and an opportunity to be heard.9 Appellant clearly received both. The transcripts from the
hearings on January 9, 2014, and April 1, 2014, establish that Appellant received notice,
appeared at the hearing, and argued in opposition to the Motion for Relief. Thus, any
contention that she was deprived of her due process rights is without merit.
Appellant also appears to argue that she did not receive a jury trial; however, she is
not entitled to a trial by jury on the motion for relief. A “hearing on a motion for relief
7 Scheduling Letter, Doc. 3.
8 Doc. 79.
9 See In re Richards, 2012 WL 2357672 at *4 (Bankr. N.D. Ga. 2012) (citing Lachance v. Erickson, 522
U.S. 622 (1988)).
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from stay is meant to be a summary proceeding, and the validity or merits of claims and
defenses are not litigated during the hearing.”10 Rather, the purpose of the hearing is
simply to determine “whether a creditor has a colorable claim to property of the estate.”11
“As a matter of law, the only issue properly and necessarily before a bankruptcy court
during relief from stay proceedings is whether the movant creditor has a colorable claim;
thus the decision to lift the stay is not an adjudication of the validity or avoidability of the
claim, but only a determination that the creditor’s claim is sufficiently plausible to allow
its prosecution elsewhere.”12 An order granting relief from stay, therefore, only finds that
the creditor has a colorable claim and that its interest is not adequately protected by the
debtor at the time the order is issued.13 “The effect of the bankruptcy court’s order for
relief from stay does not equate to a final decision on the merits of a discrete issue, but
merely grants the right to assert a claim in another court.”14 Thus, Appellant’s argument
that she was denied her right to a trial by jury is without merit.
CONCLUSION
Due to Appellant’s pro se status, the Court CONSTRUES her Motions to Strike
[Docs. 9 and 13] and her Motion to Vacate [Doc. 11] as if they are her initial brief in
support of her appeal. Having reviewed the applicable law and the arguments of the
parties, the Court agrees with the decision of the Bankruptcy Court and finds Appellant’s
10 In re Fontaine, 2011 WL 1930620 at *1 (Bankr. N.D. Ga. April 12, 2011).
11 Id.
12 Grella v. Salem Five Cent Bank, 42 F.3d 26, 32 (1st Cir. 1994).
13 In re Richards, 2012 WL 2357672 at *2 (Bankr. N.D. Ga. 2012) (citation omitted).
14 Id. at *3 (citation omitted).
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contentions to be without merit. Accordingly, it is hereby ORDERED that the decision of
the Bankruptcy Court be AFFIRMED. Thus, Appellee’s Motion to Dismiss [Doc. 8] is
MOOT.
SO ORDERED, this 10th day of December, 2014.
SSH
S/ C. Ashley Royal
C. ASHLEY ROYAL, JUDGE
UNITED STATES DISTRICT COURT
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