Vanderbilt Mortgage and Finance, Inc. v. Lucas
Filing
7
MEMORANDUM OPINION AND ORDER directing that Vanderbilt Mortgage and Finance, Inc.'s 1 Petition and Motion to Stay Adversary Proceeding Pending Appeal and Request for Temporary Stay Pending Determination of the Motion to Stay Adversary Proceedi ng Pending Appeal is granted in part and denied in part; granting as to the Petitioner's motion to stay adversary proceeding pending appeal, and denying as moot as to Petitioner's request for temporary stay pending determination of the motion to stay. Signed by Judge Irene C. Berger on 8/22/2014. (cc: attys; any unrepresented party; Bankruptcy Court Clerk) (tmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
VANDERBILT MORTGAGE
AND FINANCE, INC.,
Petitioner,
v.
MISCELLANEOUS NO. 2:14-mc-00136
TONY EDWARD LUCAS,
Respondent.
MEMORANDUM OPINION AND ORDER
The Court has reviewed Vanderbilt Mortgage and Finance, Inc.’s Petition and Motion to
Stay Adversary Proceeding Pending Appeal and Request for Temporary Stay Pending
Determination of the Motion to Stay Adversary Proceeding Pending Appeal (Document 1), and
accompanying Memorandum in Support (Document 2), filed on July 18, 2014.
On August 4,
2014, Petitioner Vanderbilt filed a Stipulation (Document 4) whereby the “parties hereby
stipulate that Plaintiff-Respondent [Lucas] shall have through Wednesday, August 13, 2014, to
file a response to [Vanderbilt’s] Petition and Motion to Stay.” (Document 4 at 1.) In keeping
with the parties’ stipulation, on August 13, 2014, the Plaintiff-Respondent filed a Response to
Petition and Motion to Stay Pending Appeal (Document 5), which the Court has also reviewed,
as well as Vanderbilt’s Reply Memorandum in Support of its Petition and Motion to Stay
Adversary Proceeding Pending Appeal and Request for Temporary Stay Pending Determination
of the Motion to Stay Adversary Proceeding Pending Appeal (Document 6) filed on August 20,
2014.
For the reasons stated more fully herein, the Court finds that the Petitioner’s motion
should be granted in part and denied in part.
I.
FACTUAL AND PROCEDURAL HISTORY
This matter revolves around the lender-borrower relationship between Respondent Tony
Edward Lucas (Mr. Lucas) and Petitioner Vanderbilt Mortgage and Finance, Inc. (Vanderbilt),
and Mr. Lucas’ purchase of a mobile home sometime during October 2012. Specifically, he
struggled to make the necessary payments on the loan after his wife fell ill. Despite collection
calls and half payments tendered by Mr. Lucas, Vanderbilt initiated foreclosure proceedings on
his home on October 16, 2013.
A. District Court Proceeding
Thereafter, on October 28, 2013, Mr. Lucas filed suit in the Circuit Court of Raleigh
County, West Virginia, against Vanderbilt. His complaint contains two counts. Count One
asserts a claim for several violations of the West Virginia Consumer Credit and Protections Act
(“WVCCPA”), W. Va. Code §§ 46A-1-1-2 et seq. (2012), while Count Two asserts an additional
claim that the arbitration clause contained within the parties’ financing agreement is
unconscionable and thereby void and unenforceable.
On November 26, 2013, Vanderbilt filed its Notice of Removal (Document 2), and the
next day filed a Motion to Compel Arbitration and to Stay All Further Judicial Proceedings
(Document 3) with an accompanying Memorandum in Support (Document 4). Mr. Lucas never
filed a response in opposition or otherwise opposed the motion to compel arbitration. However,
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on February 3, 2014, the parties submitted a proposed Agreed Order Compelling Arbitration and
Staying All Further Litigation (Document 7), which this Court entered on February 5, 2014.
A. Other Proceedings
On October 28, 2013, the same day that Mr. Lucas filed his complaint in Raleigh County
Circuit Court, he also filed a Chapter 13 Voluntary Bankruptcy Petition (See Case No. 2:13-bk20546, Document 1). A Proof of Claim Objection and Adversary Proceeding to Determine
Validity of Lien was then filed by Mr. Lucas on January 7, 2014, resulting in the opening of a
new adversary proceeding, Case No. 2:14-ap-2000. In that proceeding, Mr. Lucas’ claims
against Vanderbilt are for unconscionable inducement, contract defense of fraud in the
inducement, and unconscionable arbitration clause. (See Case No. 2:14-ap-2000, Document 1.)
On February 12, 2014, in that case, Vanderbilt filed its Motion to Compel Arbitration and to Stay
All Further Judicial Proceedings (Case No. 2:14-ap-2000, Document 7) and Memorandum in
Support (Case No. 2:14-ap-2000, Document 8). Mr. Lucas filed a Response in Opposition (Case
No. 2:14-ap-2000, Document 14), and a hearing was held on April 1, 2014, before the Honorable
Ronald Pearson, United States Bankruptcy Judge for the Southern District of West Virginia.
Vanderbilt’s motion to compel arbitration and stay judicial proceedings was ultimately denied.1
(See Case No. 2:14-ap-2000, Document 17.)
Thereafter, on April 23, 2014, Vanderbilt filed three pleadings: (1) Motion for Leave to
Appeal Denial of Motion to Compel Arbitration and to Stay Adversary Proceeding Pending
Arbitration (Case No. 2:14-ap-2000, Documents 24), (2) Motion to Stay Adversary Proceeding
Pending Appeal (Case No. 2:14-ap-2000, Document 25), as well as a (3) Notice of Appeal [of
1
The Court notes that the Bankruptcy Judge entered his Order Denying [Vanderbilt’s] Motion to Compel
Arbitration and to Stay All Further Judicial Proceedings (Case No. 2:14-ap-2000, Document 27) on April 25, 2014.
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Order of Bankruptcy Judge styled ‘Time Frame Order Non Complex Matter’](Case No. 2:14-ap2000, Document 23). On April 29, 2014, Vanderbilt filed a Motion for Leave to Appeal Denial
of Motion to Compel Arbitration and to Stay Adversary Proceeding Pending Arbitration (Case
No. 2:14-ap-2000, Document 30) as well as a Motion to Stay Adversary Proceeding Pending
Appeal (Case No. 2:14-ap-2000, Document 31).
On May 6, 2014, Vanderbilt filed a Notice of Voluntary Dismissal of Appeal Filed on
April 23, 2014, wherein it voluntarily dismissed docket entries 23, 24, and 25, but noted that the
“dismissal shall be without prejudice to the Notice of Appeal dated April 29, 2014 (Dkt. No. 29),
the Motion for Leave to Appeal dated April 29, 2014 (Dkt. No. 30), and the Motion for Stay
dated April 29, 2014 (Dkt. No. 31), which appeal and motions are not dismissed.” (See Case No.
2:14-ap-2000, Document 37 at 1-2.) On July 15, 2014, the Bankruptcy Judge held a hearing,
denied the motion to stay, and entered an Order memorializing the same on July 21, 2014. (See
Case No. 2:14-ap-2000, Documents 51 & 52.)
On July 18, 2014, Vanderbilt filed a Petition and Motion to Stay Adversary Proceeding
Pending Appeal And Request for Temporary Stay Pending Determination of the Motion to Stay
Adversary Proceeding Pending Appeal (Case No. 2:14-mc-136, Document 1). Mr. Lucas filed
his Response to Petition and Motion to Stay Pending Appeal (Case No. 2:14-mc-136, Document
5) on August 13, 2014.
II.
APPLICABLE LAW
11 U.S.C. § 8001 mandates that “[a]n appeal from a final judgment, order, or decree of a
bankruptcy judge to a district court or bankruptcy appellate panel shall be taken by filing a notice
of appeal . . .” 11 U.S.C. § 8001. Section 8002 requires that the party file any notice of appeal
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“within 10 days of the date of the entry of the judgment, order, or decree appealed from,” with
the caveat that any “notice of appeal filed after the announcement of a decision or order but
before entry of the judgment, order, or decree shall be treated as filed after such entry.” 11
U.S.C. § 8002. Section 8005, titled Stay Pending Appeal, directs that “[a] motion for a stay of
the judgment, order, or decree of a bankruptcy judge . . . must ordinarily be presented to the
bankruptcy judge . . .[,]” but with the understanding that “a motion for such relief, or for the
modification or termination of relief granted by a bankruptcy judge, may be made to the district
court . . . but the motion shall show why the relief, modification, or termination was not obtained
from the bankruptcy judge.” 11 U.S.C. § 8005.
9 U.S.C. § 16(a) states that “[a]n appeal may be taken from an order (A) refusing a stay
of any action under section 3 of this title,” as well as “from an order (B) denying a petition under
section 4 of this title to order arbitration to proceed,” or from “a final decision with respect to an
arbitration that is subject to this title.” 9 U.S.C. §§ 16(a)(1)(A), 16(a)(1)(B), and 16(a)(3). “As a
general rule, the filing of an appeal “confers jurisdiction on the court of appeals and divests the
district court of its control over those aspects of the case involved in the appeal.” Levin v. Alms
and Associates, Inc., 634 F.3d 260, 263 (4th Cir. 2011). “Section 16(a)(1)(A) of the Federal
Arbitration Act (“FAA”), 9 U.S.C. § 16(a)(1)(A), authorizes an appeal from a district court's
denial of a petition to stay an action pending arbitration under § 3 of that act.” Levin, 634 F.3d at
264.
“By its clear and unambiguous terms, § 16(a)(1)(A) entitles any litigant asking for a § 3
stay to an immediate appeal from that motion's denial—regardless of whether the litigant is in
fact eligible for a stay.” Arthur Anderson LLP v. Carlisle, 556 U.S. 624 (2009). Further,
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“[j]urisdiction over the appeal ‘must be determined by focusing upon the category of order
appealed from, rather than upon the strength of the grounds for reversing the order.’” Carlisle,
556 U.S. at 624. (citing Behrens v. Pelletier, 516 U.S. 299, 311, 116 S.Ct. 834, 133 L.Ed.2d 773
(1996)).
III.
DISCUSSION
The issue before the Court is whether an appeal to the district court, following a
bankruptcy court’s denial of a motion to compel arbitration, results in an automatic stay of those
bankruptcy court proceedings.2 The Fourth Circuit Court of Appeals recently analyzed a similar
issue in Levin. That case presented an appeal from a district court’s denial of the Appellants’
motion to compel arbitration, with the Appellants’ “assert[ing] that the filing of [an] appeal
challenging the district court’s arbitrability decision divested that court of jurisdiction over the
underlying claims.” Levin, 634 F.3d at 263. The Fourth Circuit noted that there is a circuit split
on this issue, with “[t]he Third, Seventh, Tenth, and Eleventh Circuits [holding] that an appeal
regarding arbitrability of claims does divest the district court of jurisdiction over those claims, as
long as the appeal is not frivolous. The Second and Ninth Circuit have held that no such
divestiture occurs.” Id. The Fourth Circuit analyzed other circuit courts’ opinions and reasoning
prior to determining its position on the issue.
“The seminal case adopting the majority position is Bradford–Scott Data Corp. v.
Physician Computer Network, 128 F.3d 504 (7th Cir.1997).” Id. (citation omitted.) In joining
with Bradford-Scott, and the majority, the Fourth Circuit in Levin echoed the Bradford-Scott
court’s holding “that a district court was automatically divested of jurisdiction by the filing of an
2
The Court does not address the merits of Vanderbilt’s motion to compel arbitration. That is for later
briefing and determination.
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appeal that alleged that the claims before the district court were subject to mandatory
arbitration.” Id. (citation omitted.) Importantly, Levin also emphasized the policy considerations
underlying the reasoning in Bradford-Scott:
Arbitration clauses reflect the parties' preference for non-judicial
dispute resolution, which may be faster and cheaper. These
benefits are eroded, and may be lost or even turned into net losses,
if it is necessary to proceed in both judicial and arbitral forums, or
to do this sequentially.... Immediate appeal under § 16(a) helps to
cut the loss from duplication. Yet combining the costs of litigation
and arbitration is what lies in store if a district court continues with
the case while an appeal under § 16(a) is pending. Cases of this
kind are therefore poor candidates for exceptions to the principle
that a notice of appeal divests the district court of power to proceed
with the aspects of the case that have been transferred to the court
of appeals.
Levin, 634 F.3d at 263-64. However, Levin also cautioned that “the approach discussed above is
subject to certain safeguards against frivolous appeals,” and that “[f]or this reason, each of the
circuits adopting the majority view has created a frivolousness exception to the divestiture of
jurisdiction.” Id. at 265. Accordingly, Levin’s holding also adopted the frivolousness exception.
But the Court cannot end its inquiry here. See In re Butler, 2013 WL 2102969 (S.D.
W.Va. May 14, 2013) (Copenhaver, J.) (unpublished). To the contrary, this Court must satisfy
itself that the holding of Levin—reversing the district court’s decision that an automatic stay
from the denial of a motion to compel arbitration was not warranted—applies to an appeal from a
bankruptcy court to the district court, which is the procedural posture here.
Petitioner Vanderbilt stresses that Levin’s divestiture rule applies with equal force to an
appeal from a bankruptcy court to a district court. Vanderbilt proposes that “[t]he right to appeal
from either court (and the consequent right to stay) arises from the same statute — Section 16(a)
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of the FAA, and that the appeal invokes the divestiture rule, which applies regardless of the court
from which the appeal is taken.” (Document 2 at 10).
Respondent, Mr. Lucas, disagrees, and responds that “Vanderbilt now seeks this Court’s
assistance to further delay resolution of the bankruptcy, on which the Chapter 13 plan would
have already been confirmed if Vanderbilt had simply complied with the bankruptcy court’s
scheduling order.”
(Document 5 at 4.)
Mr. Lucas stresses that the case should not be
automatically stayed for two reasons. “First, Vanderbilt has failed to meet the standards for a
stay of a bankruptcy, as well established by the bankruptcy rules. Second, even adopting
Vanderbilt’s proposed rule of law, the appeal is frivolous and a stay is thus inappropriate.” (Id.
at 5.)
Mr. Lucas also argues that the reasoning in Levin “does not stand in the context of a
bankruptcy, when arbitration was denied precisely because of the profound bankruptcy interest
in simultaneously adjudicating the bankruptcy, the objection to claim, and adversary proceeding
in the same forum for the benefit of the creditors and in compliance with the Bankruptcy Code.”
(Id. at 6.) (emphasis in original). Mr. Lucas then states that this Court should “apply the four
factor test for stay pending appeal of a bankruptcy order,” and consequently, “[b]ecause
Vanderbilt fails to establish not just one, but all . . . four . . . required factors, its request for stay
should be denied.” (Id. at 6.) (internal footnote omitted). He also argues that “[b]ecause the
bankruptcy court . . . appropriately found the appeal frivolous, a stay should not issue.” (Id. at
6-12.)
Petitioner Vanderbilt replies that Mr. Lucas is ignoring “binding precedent and creat[ing]
the potential for wasting the resources of both the parties and the court.” (Document 6 at 1.) It
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stresses that the Bankruptcy Court never certified the appeal as frivolous, and that the statement
that there is not likelihood of success on appeal does not translate to frivolousness, as Mr. Lucas
posits. (Id. At 2-3.) Vanderbilt also maintains that Mr. Lucas wishes to frame the issue “under
the four-factor test applicable to non-arbitration appeals. The law is clear, however, that the
FAA governs.” (Id. at 1.) Finally, Vanderbilt maintains that it is “entitled to [a] stay pending
appeal as [a] matter of right under the FAA, as recognized by the Court of Appeals in Levin and
by Judge Copenhaver in Butler.” (Id. at 5.)
It is well established that district courts act as appellate courts when an appeal is taken
from a bankruptcy court’s judgment, order, or decree. “On an appeal the district court . . . may
affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with
instructions for further proceedings. . .” Fed. R. Bankr. P. 8013. “In considering such appeals
from bankruptcy court decisions, the district courts are thus required to review the bankruptcy
court's findings of fact for clear error, its legal conclusions de novo, and its exercise of discretion
for abuse thereof.” George Junior Republic in Pennsylvania v. Williams, 2008 WL 763304, at
*2 (E.D.Pa. Mar. 19, 2008) (citing IRS v. Pransky, 318 F.3d 536, 542 (3d Cir. 2003);
Professional Insurance Management v. Ohio Casualty Group of Insurance Companies, 285 F.3d
268, 282-283 (3d Cir.2002); In re Krystal Cadillac Oldsmobile GMC Truck, Inc., 142 F.3d 631,
635 (3d Cir.1998)); see also In re Modanlo, 266 F.App'x 272, 274 (4th Cir.2008) (per curium)
(unpublished decision) (“In a bankruptcy appeal, we review the bankruptcy court’s decision
directly, applying the same standard of review as did the district court . . . Under this standard,
we review legal conclusions de novo and factual findings for clear error.” (citations omitted)).
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The Northern District of West Virginia was faced with the similar issue of whether to
grant a stay pending appeal of a denial by that court of a motion to compel arbitration and
whether any portion of its case could go forward while the appeal was pending. See Forrester v.
Penn Lyon Homes, Inc., 2007 WL 4375938 (N.D. W.Va. 2007). Clearly, this case preceded the
Fourth Circuit’s issuance of its opinion and ruling in Levin. Further, the case did not involve a
bankruptcy, but a review of it is useful when addressing the issue of whether a stay is appropriate
from a policy standpoint. There, the Court based its denial of the motion to stay pending appeal
of an earlier denial of a motion to compel arbitration on frivolousness grounds, injected with
timeliness concerns, finding the denial “appropriate because of the defendants’ actions in waiting
until shortly before trial to raise the issue of arbitration in a case that is over two years old.”
Forrester, 2007 WL 4375938 at *1.
Here, by contrast, Vanderbilt has sought to compel arbitration at every stage throughout
the different cases and venues. It promptly proposed a joint agreement to arbitrate in Case No.
5:13-cv-30294, which was eventually entered, and also promptly moved to compel arbitration in
the bankruptcy adversarial proceeding. Thus, it cannot be said that Vanderbilt’s conduct, in any
way, parallels the dilatory conduct that was present in Forrester. (See also Hill v. PeopleSoft
USA, Inc., 341 F.Supp.2d 559, 560 (D. Md. 2004) (“A complete stay of all proceedings is not
here appropriate because of the Defendant’s actions, or rather inactions, in earlier stages of this
litigation. This is a case in which the Defendant employer has had a ‘death bed’ conversion to
the benefits of arbitration after ignoring and thwarting” the arbitration process . . . .)
Moreover, if any fault, resting on dilatory grounds, is to be assessed between the parties,
it is not with Vanderbilt. The Respondent, Mr. Lucas, had previously agreed to arbitrate his
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claims before the American Arbitration Association in Case No. 5:13-cv-30294 pending before
this Court. Specifically, Mr. Lucas signed off on a proposed agreed order that stated “to the
extent that [Mr. Lucas] wishes to pursue any claim against Vanderbilt, those claims must be
prosecuted in arbitration before the American Arbitration Association, as provided for in the
Arbitration Agreement between [Mr. Lucas] and Vanderbilt.” (Document 7.) At the request of
the parties, the proposed agreed order compelling arbitration was memorialized in this Court’s
February 5, 2014 Order (Document 8), where, in addition to the above, Mr. Lucas was ordered
to “initiate the arbitration by filing [his] claims with the American Arbitration Association within
one hundred twenty (120) days of the date of this Order, and that failure to do so will result in
dismissal, with prejudice, of all of the [Mr. Lucas’s] claims.” (Document 8 at 2.) Importantly,
the claims pending before this Court in Case 5:13-cv-30294, which Mr. Lucas agreed to arbitrate
and was subsequently ordered to arbitrate, are nearly identical to those at issue in the adversary
proceeding in Case No. 2:14-ap-2000.3
Further, this Court’s order compelling arbitration was entered well before the bankruptcy
court’s hearing on the motion to compel arbitration and stay adversary proceedings in Case No.
2:14-ap-2000. Said hearing was not held until April 1, 2014, and further, the bankruptcy court’s
written order was not filed until April 25, 2014. A review of all four dockets orbiting this matter
reveals that after agreeing to arbitrate and stay litigation in this Court on February 5, 2014, Mr.
Lucas subsequently filed a response in opposition on March 6, 2014 (Case No. 2:14-ap-2000,
Document 14) to Vanderbilt’s motion to arbitrate and stay in the adversarial proceeding. This
3
The Court notes that Mr. Lucas’ original state court complaint alleged claims for unlawful debt collection
(Count I) and unconscionable arbitration clause (Count II), while his adversary proceeding complaint alleges claims
for unconscionable inducement (Count I), contract defense of fraud in the inducement (Count II), and
unconscionable arbitration clause (Count III). (Accord Case No. 5:13-cv-30294, Document 2-1 at 2-6 with Case No.
2:14-ap-2000, Document 1 at 1-11.) The same set of facts support the claims alleged in both cases.
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Court finds that such gamesmanship is inappropriate, inexcusable, and has resulted in delay in
both proceedings. It is apparent that Mr. Lucas has violated this Court’s plainly worded order to
initiate arbitration, which was entered at the request of the parties and as a result of their
agreement, after the filing of the bankruptcy.
Forrester also followed the Ninth Circuit’s reasoning against an automatic stay as “welltaken, especially in this case” because “an automatic stay of proceedings pending arbitration
‘would allow a defendant to stall a trial simply by bringing a frivolous motion to compel
arbitration.’” Forrester, 2007 WL 4375938 at * 2 (citing Britton v. Co-Op Banking Group, 916
F.2d 1405, 1412 (9th Cir. 1990).4 This issue of delay could impact the Court’s determination of
whether the appeal was frivolous if there was a need for this Court to make a sua sponte finding
on the issue or to review the Bankruptcy Court’s certification of the same. However, here,
contrary to Mr. Lucas’ assertion, the Bankruptcy Court did not “clearly [find], as supported by
the law and the records, that the appeal is frivolous and pursued with the express purpose of
simply delaying resolution of the pending bankruptcy.” (See Document 5 at 12.) Indeed, the
word frivolous does not appear in any of the Bankruptcy Court’s orders. No certification of
frivolousness as contemplated by the Fourth Circuit, when it expressly adopted the exception to
the automatic divestiture rule championed in Bradford-Scott, was made by the Bankruptcy
Judge.
After review and careful consideration of the factual and procedural history, as well as
the Fourth Circuit’s opinion in Levin, the Court finds no distinguishing facts or reasoning that
support the conclusion that the divestiture rule should apply to an appeal taken from a district
court order to the appellate level, but not to an appeal taken from a bankruptcy court to a district
4
The Forrester Court also noted that no appeal had actually been filed.
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court. The Respondent’s argument, regarding the four factor test the court uses to determine
whether a stay should be issued, is not helpful in this context. As previously stated, district
courts act as appellate courts when reviewing a bankruptcy court’s order, decree, or judgment in
much the same way that the Fourth Circuit Court of Appeals would review an order, judgment,
or decree from one of its district courts. See In re Royal, 137 Fed.Appx. 537 (4th Cir. 2005).
Moreover, the record before the Court reveals that Vanderbilt has timely appealed the
bankruptcy court’s order(s): (1) denying its motion to compel arbitration and (2) denying its
motion to stay the adversarial proceeding pending appeal of the earlier denial of the motion to
compel arbitration. Further, the Court finds the bankruptcy court’s order did not certify the
appeal as frivolous when it denied the motion to stay pending appeal of the arbitration issue.
(See 2:14-ap-2000, Documents 17 & 27.) Thus, in keeping with the Fourth Circuit’s adoption in
Levin of the majority position, Vanderbilt’s appeal of the denial of its motion to compel
arbitration automatically divested the bankruptcy court of jurisdiction over the underlying claims
and required an automatic stay of the adversary proceeding.
CONCLUSION
Wherefore, after careful consideration, the Court ORDERS that Vanderbilt Mortgage
and Finance, Inc.’s Petition and Motion to Stay Adversary Proceeding Pending Appeal and
Request for Temporary Stay Pending Determination of the Motion to Stay Adversary Proceeding
Pending Appeal (Document 1) be GRANTED in part and DENIED in part. Specifically, the
Court ORDERS that the Petitioner’s motion to stay adversary proceeding pending appeal be
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GRANTED, while its request for temporary stay pending determination of the motion to stay be
DENIED as MOOT.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record, to any
unrepresented party, and to the Bankruptcy Court Clerk.
ENTER:
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August 22, 2014
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