Wilson v. BanCorpSouth Bank

Filing 26

Opinion. Signed by Judge S. Thomas Anderson on 12/20/13. Associated Cases: 2:13-cv-02270-STA-tmp, 2:13-cv-02284-STA-tmp, 2:13-cv-02667-STA-tmp(Anderson, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
TIMOTHY L. WILSON,

)
)
Appellant,
)
)
v.
)
No. 13-2270-STA-tmp
)
BANCORPSOUTH BANK,
)
)
Appellee.
)
)
______________________________________________________________________________
OPINION
______________________________________________________________________________
Pro se appellant Timothy L. Wilson (“Wilson”) appeals the decisions of the United States
Bankruptcy Court for the Western District of Tennessee, dismissing Wilson’s case with
prejudice and terminating the Automatic Stay. Wilson filed two separate appeals, one
challenging the dismissal and another challenging the lift of the stay. Wilson filed his appeal in
this case, No. 2:13-cv-02270-STA-tmp, on May 1, 2013. Wilson filed his appeal in Case No.
2:13-cv-02270-STA-tmp on May 6, 2013. The appeals were consolidated on June 6, 2013 (D.E.
# 17) and this Opinion will address both issues. Wilson filed his Appellant’s Brief (D.E. # 22)
on July 3, 2013. Appellee BancorpSouth Bank (“Bancorp”) filed its Appellee’s Brief (D.E. # 23)
on July 17, 2013. On August 2, 2013, Wilson filed his Reply Brief (D.E. # 24).1 For the reasons

1

Also pending on the docket in this appeal are Wilson’s Emergency Motion to Request
Relief and Damages (D.E. # 4) and Amended Emergency Motion to Request Relief and
Damages (D.E. # 14). Both of these Motions were addressed and denied at the June 6, 2013
hearing before this Court (D.E. # 16). Since they were already addressed by the Court, they are
DENIED as moot. Additionally, Bancorp filed a Motion requesting that the June 6, 2013
hearing be treated as a status conference. Since that hearing already occurred, the Motion is
DENIED as moot. Wilson also filed a Motion for Leave of Court to Correct Omission of
1

set forth below, the decision of the Bankruptcy Court is AFFIRMED.
BACKGROUND
On October 2, 2010, Wilson filed a Voluntary Petition for Chapter 13 bankruptcy.
(Bankruptcy Proceeding, 2:12-bk-30491, D.E. # 1.)2 Wilson and his wife, Gena Kilgore-Wilson
(“Kilgore-Wilson”), owned property located at 5095 Elvis Presley Blvd., Memphis, Tennessee
38116 (the “Property”). Bancorp was the beneficiary under a recorded deed of trust and the
holder of a Note in the amount of $143,597.70 on the Property, making Bancorp a creditor in the
bankruptcy proceedings. (Interim Order on Creditor’s Emergency Motion for Termination ¶ ¶ 12, D.E. # 37.) A plan was entered which required Wilson to pay $1,530.00 per month. (Chapter
13 Plan, D.E. # 19.)
Previously, Kilgore-Wilson had filed several other bankruptcy proceedings in which the
Property was collateral. (Transcript of Bankruptcy Hearing, April 4, 2013, 36:24-37:18; Interim
Order on Creditor’s Emergency Motion for Termination ¶¶ 5-6.) Wilson and Kilgore-Wilson
then refinanced the note on the Property using funds from the Hardest Hit Program. (Transcript
of Bankruptcy Hearing, April 4, 2013, 9:25-11:14.) This stayed the pending foreclosure of the
Property. Kilgore-Wilson then defaulted through non-payment. Bancorp proceeded with

Names (D.E. # 9). It is unclear exactly what relief Wilson seeks. Because it is not brought as a
proper motion before this Court, that Motion is also DENIED. Finally, Wilson filed a Motion
for Default Judgment (D.E. # 25), which argues that Plaintiffs filed a Civil Complaint on
September 24, 2013, which Defendant has failed to respond to. As no Complaint has been filed
in this action, nor was anything filed on September 4, 2013, the Court assumes that Plaintiff has
filed this Motion in the wrong case. Even if Plaintiff did intend to file its Motion in this case, as
discussed below, the Court does not have jurisdiction to hear claims other than the appeal in this
case. Additionally, it is Error! Main Document Only.procedurally improper for a plaintiff to
seek a default judgment without first seeking and obtaining entry of default from the Clerk of
Court. Error! Main Document Only.Devlin v. Kalm, 493 F. App’x 678, 685–86 (6th Cir.
2012). Therefore, the Court DENIES Plaintiff’s Motion for Default Judgment.
2

All remaining docket entry citations are to the underlying Bankruptcy proceedings unless
otherwise noted.
2

foreclosure, which was then stayed when Wilson filed the bankruptcy action at issue in this case.
(Interim Order on Creditor’s Emergency Motion for Termination ¶¶ 8-9). Bancorp filed an
Emergency Motion for Termination of Automatic Stay on October 5, 2012. (D.E. # 9.) The
hearing on this Motion was delayed as Wilson and his wife made payments to Bancorp pursuant
to five interim orders which required payment and set forth the terms for continued monthly
payment. (D.E. ## 37, 42, 52, 60, 65).
On November 20, 2012, Bancorp filed a Motion to Dismiss (D.E. # 41). On March 29,
2013, Wilson filed an Emergency Objection to Bancorp’s Motion to Terminate Stay (D.E. # 67).
On April 4, 2013, the Bankruptcy Court held a hearing on Bancorp’s Motion to Dismiss and
Motion to Terminate Automatic Stay and Wilson’s Emergency Objection. The Bankruptcy
Court found that Wilson had not made any payments to his Chapter 13 plan and, based on this
finding, dismissed the case and lifted the Automatic Stay. (Transcript of Bankruptcy Hearing,
April 4, 2013, 50: 11-13.)
On April 23, 2013, Wilson filed a Notice of Appeal with the Bankruptcy Court (D.E. #
91), which was filed with this Court on May 1, 2013 (D.E. # 1, District Court Appeal Docket).
STANDARD OF REVIEW
The standard of review for bankruptcy appeals is clearly erroneous for the Bankruptcy
Court’s factual findings and de novo for its conclusions of law.3 “Clear error occurs only when
[the Court is] left with the definite and firm conviction that a mistake has been committed. If
there are two permissible views of the evidence, the factfinder’s choice between them cannot be

3

Class Five Nev. Claimants v. Dow Corning Corp., (In re Dow Corning Corp.), 280 F.3d
648, 656 (6th Cir. 2002).
3

clearly erroneous.”4 If the Bankruptcy Court’s conclusion raises a mixed question of law and
fact, the district court “must break the question into its constituent parts and apply the
appropriate standard of review for each.”5
ANALYSIS
As a preliminary issue, Wilson contends that the matter before the Court is more than an
appeal of the two Orders of the Bankruptcy Court. Rather, he claims that this is also a complaint
for breach of contract, breach of the implied covenant of good faith and fair dealing, and
violation of the Tennessee Consumer Protection Act. Wilson also seeks compensatory and
punitive damages in the amount of $500,000 for “damages for emotional distress, mental
anguish, inconvenience, humiliations, suffering, and loss of enjoyment of life work.”6 28 U.S.C.
section 158 gives district courts jurisdiction to hear appeals from final judgments, orders, and
decrees of the bankruptcy court. Because Wilson’s other causes of action were not part of the
bankruptcy proceeding from which he appeals, the Court has no jurisdiction to hear those claims
in this case. Since the claims are not cognizable, the Court will address the two issues Wilson
has raised on appeal: (1) whether the Bankruptcy Court erred in dismissing his case without
prejudice; and (2) whether the Bankruptcy Court erred in terminating the Automatic Stay on the
Property.
Dismissal
Wilson appeals the Bankruptcy Court’s dismissal of his case. The Bankruptcy Court
4

Mitan v. Duval (In re Mitan), 573 F.3d 237, 241 (6th Cir. 2009) (quotation omitted);
Fed. R. Bankr. P. 8013.
5

Bank of Montreal v. Official Comm. of Unsecured Creditor (In re Am. HomePatient,
Inc.), 420 F.3d 559, 563 (6th Cir. 2005) (quotation omitted).
6

(Appellant’s Reply Brief at 4.)
4

dismissed the case based on Wilson’s failure to make payments to his bankruptcy plan. A
debtor is required to begin making payment to his Chapter 13 plan within 30 days of filing the
plan.7 A party in interest may move a court to dismiss a Chapter 13 case for cause on the basis of
failure to commence plan payments.8 The Bankruptcy Judge found that Wilson had not made a
single payment to his plan.9 Wilson argues that he made payments directly to Bancorp, which
obviated the need to make payments to his bankruptcy plan. However, the Bankruptcy Judge
noted at the April 4, 2013 hearing that there were other creditors in the plan that needed to be
paid as well as administrative expenses and filing fees.10 The Trustee confirmed that no
payments had been made at the hearing and Wilson did not provide the Bankruptcy Court with
any contrary evidence. Therefore, it was not clearly erroneous for the Bankruptcy Court to
conclude that Wilson had not made any payments to the plan. Since no payments had been made
at all, it was proper for the Bankruptcy Court to dismiss Wilson’s case. Therefore, the
Bankruptcy Court’s Order dismissing the Bankruptcy case is AFFIRMED.

Termination of Automatic Stay
Bancorp argues that Wilson has not briefed this issue and therefore has waived it. However,
Wilson’s Appellant’s Brief specifically lists as an issue on appeal “whether the trial Court erred
in granting the termination of the automatic stay in regards to 5095 Elvis Presley Blvd.
Memphis, TN. on 4/5/2013 without allowing fair dealing or time for the error to be cured,

7

11 U.S.C. § 1326 (a)(1).

8
9

11 U.S.C. § 1307.
(Transcript

10

of Bankruptcy Hearing, April 4, 2013, 50: 11-13.)

(Transcript

of Bankruptcy Hearing 50: 13-19.)
5

modified or corrected by review or appeal?”11 Although the remainder of the brief does not
discuss this issue in detail, because Wilson, a pro se appellant, does address the issue, the Court
will consider it.
Bancorp also argues that Wilson has waived this argument on appeal because he failed to file
his notice of appeal within the 14 day deadline set by Federal Rule of Bankruptcy Procedure
8002(a). The Bankruptcy Court terminated the Automatic Stay on the Property on April 4, 2013.
Wilson did not file his Notice of Appeal until April 23, 2013. Since the Notice of Appeal was
filed more than 14 days after the entry of the Order, the appeal of this issue was untimely.
Even if the appeal had been timely, the Bankruptcy Court did not err in terminating the
Automatic Stay. Termination of the automatic stay of any property of the estate is proper if there
is no equity in the property, the debt is matured, and the debtor cannot pay the indebtedness.12
At the April 4, 2013 hearing, Kilgore-Wilson admitted that there was no equity in their house,13
that the refinanced indebtedness had matured,14 and that she and Wilson did not have the ability
to pay the debt15. Since there was no equity in the property at issue and the Wilsons could not
pay the matured debt, the Bankruptcy Court had grounds to terminate the Stay and therefore did
not err in doing so. Thus, the Court AFFIRMS the Order Lifting the Automatic Stay.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

11
12

(Appellant’s Brief at 1.)
11 U.S.C. 362(d).

13

(Transcript

of Bankruptcy Hearing, April 4, 2013, 15:12-21.)

14

(Transcript

of Bankruptcy Hearing, April 4, 2013, 38:6-11.)

15

(Transcript

of Bankruptcy Hearing, April 4, 2013, 31, 38.)
6

Date: December 20, 2013.

7