Bank of America, N.A. v. McCowan et al

Filing 21

ORDER denying 14 Motion to Stay. Signed by Chief Judge James C. Dever III on 4/30/2018. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DMSION
No. 5:18-CV-75-D

BANK OF AMERICA, N.A.,

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)
Appellant, )
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v.

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RODNEY ALLEN MCCOWAN, et al.,

Appellees.

ORDER

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)

On March 23, 2018, Bank of America moved for a stay pending its appeal of the bankruptcy
court's orderofFebruary9, 2018 (the "Order") inlnre McCowm1, case number 09-10347 [D.E. 14].
On March 29, 2018, Rodney A. McCowan and Gregory Crampton ("Appellees") responded in
opposition [D.E. 17]. On April4, 2018, Bank of America replied [D.E. 19].
Initially, this court must determine whether the bankruptcy court's February 9, 2018 order
is a final appealable order ("Order"). The Order granted the trustee's motion to revoke abandonment
of real property. See [D .E. 1-1] 1. In granting the motion, the bankruptcy court cited Federal Ru1e
of Bankruptcy Procedure 9024 and Federal Ru1e of Civil Procedure 60(b)(6). See id. at 3. The
bankruptcy court held that the trustee justifiably relied on misrepresentations by both Bank of
America and the debtor in abandoning the property during the original bankruptcy proceedings and
that Bank of America shou1d have provided the trustee with the erroneously cancelled deed of trust.
See id. at 4. The bankruptcy court also held that Bank of America's misrepresentation warrants
relief under Ru1e 60(b)(6).

Under 28 U .S.C. § 158(a)(1) the district courts have jurisdiction to hear appeals from "final
judgments, orders, and decrees." Inbankruptcy proceedings, ''the concept offmality is more flexibly
applied than with regard to district court judgments." Brandt v. Wand Partners, 242 F .3d 6, 13 (1st
Cir. 2001 ). No bright-line or uniform rule, however, has been developed to determine when an order
or judgment is final. See id. "[A]n Order which ends a discrete judicial unit in the larger case
concludes a bankruptcy proceeding and is a final judgment for the purposes of28 U.S.C. § 158."
lnre Kitty Hawk. Inc., 204 F. App'x 341,343 (5th Cir. 2006) (per curiam) (unpublished); see lnre
Computer Learning Centers. Inc., 407 F.3d 656,660 (4th Cir. 2005); W.S. Badcoc Corp. v. Beaman,
No.4:14--CV-169-BO, 2015 WL575422, at *1 (E.D.N.C. Feb.l1,2015)(unpublished). The Order
is a final order because it ends a discrete unit of the larger case.

See In re Miller, No.

AZ-13-1307-JuKiD, 2014 WL 6883074, at *1-2 (B.A.P. 9th Cir. 2014) (allowing appeal of order
granting motion to revoke abandonment); In re DeGroot, 484 B.R. 311, 313 (B.A.P. 6th Cir. 2012)

("An order to abandon property of the estate is a final order for purposes of appeal.").
"Federal Rule of Bankruptcy Procedure 8007 provides that a party may seek a stay of a
judgment, order, or decree of the bankruptcy court pending appeal." Bate Land Co.. L.P. v. Bate
Land & Timber LLC, No. 7:16-CV-23-BO, 2016 WL 3582038, at *1 (E.D.N.C. June 27, 2016)
(unpublished); see Fed. R. Bank. P. 8007(a)(1)(A). 1 The standard of review for amotion to stay is
the same standard of review for a preliminary injunction.

See,~'

CWCapital Asset Mgmt.. LLC

v. Burcam Capital II. LLC, Nos. 5:13--CV-278-F, 5:13--CV-279-F, 2013 WL 3288092, at *2
(E.D.N.C. June 28, 2013) (unpublished). Thus, Bank of America must show that ''that [it] is likely
to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary

1

Ordinarily, a party must first seek relief in the bankruptcy court. See Fed. R. Bank. P.
8007(a)(l)(A). Bank of America complied with this requirement.

2

relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest."
Winterv. Nat. Res. Def. Council. Inc., 555 U.S. 7, 20 (2008). Themovingpartymustsatisfyallfour
requirements for a preliminary injunction. See Real Truth About Obama. Inc. v. FEC, 575 F .3d 342,
346 (4th Cir. 2009) (quotation omitted), vacated on other grounds, 559 U.S. 1089 (2010), reissued
in relevant pm:t, 607 F.3d 355 (4th Cir. 2010) (per curiam).
As for likelihood of irreparable harm absent the requested stay, Bank ofAmerica argues that
it will suffer irreparable harm because its appeal could be rendered moot ifthe trustee moves forward
with the sale and disposes of the property. See [D.E. 14] 13. Bank ofAmerica's alleged harm is not
irreparable. First, the potential sale ofthe property does not by itself establish irreparable harm. See,
~.

Rose v. Log~ No. RDB-13-3592, 2014 WL 3616380, at *3 (D. Md. July 21, 2014)

(unpublished) (quotation omitted); In re Edwards, 228 B.R. 573, 580 (Barucr. E.D. Pa. 1999)
("[S]omething more than preservation of the status quo is necessary to show irreparable harm.").
Moreover, "injuries that are fully remedied by monetary damages do not constitute irreparable
harm." In reAm. Land Acquisition Corp., No.: 12-76440-ast, 2013 WL 2481534, at *7 (Bankr.
E.D.N.Y. June 10, 2013) (unpublished); see In re Baker, No. 17-12870, 2017 WL 6015380, at *5
(E.D. Mich. Dec. 5, 2017) (unpublished) ("Because [claimant] does not explain why an eventual
award of monetary damages would fail to make her whole-or even why a foreclosure sale many
months away in March 2018 constitutes imminent harm-she cannot show irreparable harm ....");
White v. Gordon, No. 15-cv-523-JL, 2016 WL 8674632, at *3 (D.N.H. Jan. 29, 2016)
(unpublished), report and recommendation adopted 2016 WL 2637812 (D.N.H. May 9, 2016)
(unpublished); BDC Capital. Inc. v. ThoburnLtd. P'ship, 508 B.R. 633,639 (E.D. Va. 2014); Jnre
Forest Grove. LLC, 448 B.R. 729, 744 (Bankr. D.S.C. 2011). Bank of America has not explained

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why it cannot be adequately compensated with money damages ifthe sale occurs before the decision
on appeal.
Furthermore, several steps apparently need to occur before the property may be sold. First,
the bankruptcycourtmustdisallowBankofAmerica'sproofofclaim. See [D.E. 16] 10.2 Then, the
bankruptcy court must enter an order authorizing the sale of property. See id.; 11 U.S.C. § 363.
Bank of America has not explained why it cannot seek relief by filing a motion to stay if the
bankruptcy court disallows its proof of claim and orders a sale ofthe property. See, ~' In re Baker,
2017 WL 6015380, at *5 (harm not imminent when foreclosure sale months awayV Given that
Bank of America has failed to show a likelihood of irreparable harm absent the stay, the court need
not analyze the other factors. Thus, Bank ofAmerica's motion to stay is denied. See In re Culp, 550
B.R. 683, 691-92 (D. Del. 2015).

In sum, the court DENIES Bank of America's motion to stay [D.E. 14].
SO ORDERED. This -lo- day of April2018.

Chief United States District Judge

2

If the bankruptcy court allows Bank of America's proof of claim, it may enter an order
directing the trustee to abandon the property to Bank of America. See [D.E. 16] 11 n.7.
3

Bank of America asserts that the bankruptcy judge has already ruled that it is an unsecured
creditor and that the property should be sold. See [D.E. 18] 4--5; see also [D.E. 1-1] 5 ("Upon the
sale of the Property, BOA shall be reimbursed its proven reasonable maintenance expenses from the
net proceeds of the sale of the Property."). The court rejects this argument, however, because the
trustee still needs to move the court under 11 U.S.C. § 363 for an order authorizing the sale, and the
bankruptcy court still needs to enter an order.

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