United States District Court, E.D. North Carolina, Western Division
JAMES A. CLARK, JR., Appellant,
WELLS FARGO BANK, N.A, Appellee.
APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE
EASTERN DISTRICT OF NORTH CAROLINA NEW BERN DIVISION
TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.
cause comes before the Court on James A. Clark, Jr.'s
pro se appeal of the Bankruptcy Court for the
Eastern District of North Carolina's Order of July 13,
2017. The appeal has been fully briefed and the matter is
ripe for review. For the reasons that follow, the decision of
the bankruptcy court is AFFIRMED.
Clark, initiated this action by noticing an appeal of an
order of the United States Bankruptcy Court for the Eastern
District of North Carolina, Warren, J. presiding, entered on
July 13, 2017. [DE 1]. In its order, the bankruptcy court
granted appellee's, Wells Fargo's, motion for in
rem relief from automatic stay pursuant to 11 U.S.C.
§ 362(d)(4) as to property located at 515 Morgan Trace
Lane in Goldsboro, North Carolina. Wells Fargo is the holder
of a promissory note secured by a valid lien on the Morgan
Trace Lane property, which is evidenced by a deed of trust in
the original amount of $201, 400.00 dated March 15, 2004.
Since the origination of the Wells Fargo loan, Clark and the
Morgan Trace Lane property have been subject to five
bankruptcy proceedings. The bankruptcy court, after a hearing
at which Clark, his co-debtor Helen P. Clark, and counsel for
Wells Fargo appeared, held that Clark, through his previous
filings and lack of good faith, had demonstrated that Wells
Fargo's request for relief pursuant to 11 U.S.C. §
362(d)(4) should be allowed and that Clark's current
bankruptcy filing represents part of a scheme to defraud
creditors. Section 362(d)(4) provides that, on request of a
party and after notice and a hearing, a court shall grant
relief from the automatic stay which is imposed upon the
filing of a bankruptcy petition where:
with respect to a stay of an act against real property under
subsection (a), by a creditor whose claim is secured by an
interest in such real property, if the court finds that the
filing of the petition was part of a scheme to delay, hinder,
or defraud creditors that involved either-
(A) transfer of all or part ownership of, or other interest
in, such real property without the consent of the secured
creditor or court approval; or
(B) multiple bankruptcy filings affecting such real property.
11 U.S.C. § 362(d)(4).
bankruptcy court granted Wells Fargo's motion for relief
from automatic stay, terminated the stay previously afforded
by 11 U.S.C. §§ 362 and 1301(c) as to the
co-debtor/co-mortgagor Helen P. Clark, and ordered that Wells
Fargo may enforce the deed of trust and collect or recover
the indebtedness it secures. The bankruptcy court
specifically held that Wells Fargo may proceed with
foreclosure or any other action available to it. The
bankruptcy court further held that the relief granted to
Wells Fargo was in rem and that it shall be binding
on any other bankruptcy case filed within two years of the
date of entry of the order. Finally, the bankruptcy court
barred Clark from filing bankruptcy of any chapter in any
district for one year. [DE 1-1].
August 11, 2017, the bankruptcy court, after conducting a
hearing on August 1, 2017, at which Clark and counsel for
Wells Fargo appeared, denied Clerk's motion to stay
pending appeal. [DE 12 at 76]. The bankruptcy court held that
Clark had failed to show any likelihood of success on appeal,
that Clark would not suffer irreparable harm as the 13 July
2017 Order was reasonably foreseeable due to the substantial
amount of mortgage delinquency, that Wells Fargo would be
harmed by a stay, and that the public interest did not weigh
in favor of granting Clark a stay. Id. at 77-78. By
order entered October 25, 2017, this Court denied Clark's
requests for stay pending appeal and petition for writ of
supersedes. [DE 25].
AND STANDARD OF REVIEW
over this appeal is proper pursuant to 28 U.S.C. §
158(a), which provides that "[t]he district courts of
the United States shall have jurisdiction to hear
appeals...from final judgment, orders, and decrees...of
bankruptcy judges entered in cases and proceedings referred
to the bankruptcy judges under section 157 of this
title." See also In re Lee,461 Fed.Appx. 227,
231 (4th Cir. 2012) (order granting or denying relief from
automatic stay is final and appealable). A bankruptcy
court's findings of fact shall not be set aside unless
clearly erroneous. In re White,487 F.3d 199, 204
(4th Cir. 2007). "A finding is clearly erroneous when
although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed."
United States v. U.S. Gypsum Co.,333 U.S. 364, 395
(1948) (internal quotation marks ...