Mecklenburg County v. Lineberger et al

Filing 5

ORDER Granting 3 Plaintiff's Motion to Remand to State Court. This case is remanded to Mecklenburg County District Court. Signed by Senior Judge Graham Mullen on 4/18/2018. (Pro se litigant served by US Mail.)(jaw) (Main Document 5 replaced on 4/19/2018) (thh). Modified on 4/19/2018 to correct order text, NEF re-generated (thh). Modified text on 4/19/2018 (jaw).

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18CV67-GCM
MECKLENBURG COUNTY,

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Plaintiff,
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Vs.
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VINCENT E. LINEBERGER and spouse, )
ELIZABETH LINEBERGER, et al.,
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Defendants.
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____________________________________)

ORDER

This matter is before the Court upon the Plaintiff Mecklenburg County’s Motion to
Remand. The pro se Defendant Elizabeth Lineberger has filed a response in opposition. The
Plaintiff has not filed a Reply and the time for doing so has expired. Accordingly, this matter is
ripe for disposition.
FACTUAL BACKGROUND
On June 9, 2016, the Defendant Elizabeth Cole filed a voluntary Petition under Chapter
13 of Title 11 of the U.S. Code in the Bankruptcy Court for the Western District of North
Carolina, (In re Elizabeth Cole, Case No. 16-30960]. The Defendant Vincent E. Lineberger is
not a Co- debtor in the Bankruptcy case.
This case is a property tax foreclosure action filed in Mecklenburg County District Court
involving property located at 2728 Marney Avenue, Charlotte North Carolina (the “Property”).
At the time the Cole Petition was filed, the property was owned by Vincent Lineberger and was
listed on the County Tax records in his name. The Notice of Bankruptcy lists the Debtor as
Elizabeth Cole and makes no reference to her spouse, Vincent Lineberger, or to the Marney
Avenue Property. A quit claim deed was recorded on the Mecklenburg County Public Registry
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on September 22, 2016 at Book 31189, Page 601 creating a tenancy-by-the- entireties between
the Debtor Cole and her spouse, Lineberger.
The County filed the tax foreclosure action on November 18, 2016, Mecklenburg County
v. Vincent E. Lineberger, and spouse Elizabeth Lineberger, et. al., (No. 16-CVD-20919), based
on a valid lien for unpaid ad valorem property taxes in the amount of $16,109.43. The property
was sold on March 28, 2017 for $35,000. On March 31, 2017, upset bids of $45,000 and $47,250
were filed.
On April 4, 2017, Counsel for the County was advised by Vincent Lineberger that the
property was subject to the Bankruptcy Court’s jurisdiction based on his marriage to the Debtor.
The County filed a Motion to Set Aside the Sale and an Order Setting Aside the Sale was entered
on April 7, 2017. The County moved the Bankruptcy Court pursuant to 11 U.S.C. §362 to order
relief from the automatic stay to permit the County to proceed with the pending tax foreclosure
action. On June 30, 2017, the Bankruptcy Court entered an Order Granting Relief from
Automatic Stay to Proceed with Tax Foreclosure Sale of Property (In re Elizabeth Cole, Case
No. 16-30960, Doc. No. 136), which authorized the County to proceed with the tax foreclosure
sale of the property. The sale was conducted on February 13, 2018 with a high bid received. No
confirmation of sale has taken place due to the filing of the Notice of Removal.
The Debtor Cole filed a Notice of Appeal with the District Court on November 13, 2017,
seeking to appeal the Order Granting Relief From Automatic Stay entered on June 30, 2017.
[Case No. 3:17-cv-00661, Doc. No. 1]. The Bankruptcy Court entered an order on December 5,
2017 denying the Motion for Leave to Appeal In Forma Pauperis, finding that the appeal was
not taken in good faith. [Doc. No. 173, Case. No. 16-30960]. On January 11, 2018, this Court

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entered an Order dismissing the appeal without prejudice for failure to pay the required filing
fee. [Doc. No. 186, Case. No. 16-30960]. The Notice of Removal was filed on February 7, 2018.
DISCUSSION
The issues in the case have already been adjudicated by the Bankruptcy Court. The
County moved the Bankruptcy Court pursuant to 11 U.S.C. §362 to order relief from the
automatic stay to permit the County to proceed with the pending tax foreclosure action. On June
30, 2017, the Bankruptcy Court entered an Order Granting Relief from Automatic Stay to
Proceed with Tax Foreclosure Sale of Property, which authorized the County to proceed with the
tax foreclosure sale. There are no issues to be decided in the removed case, except confirmation
of the sale. The Bankruptcy Court has already determined that the sale should proceed under the
supervision of the State Court, with any excess proceed to be paid to the Trustee.
IT IS THEREFORE ORDERED that the Plaintiff’s Motion to Remand is hereby
GRANTED, and this case is remanded to Mecklenburg County District Court.

Signed: April 18, 2018

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