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Clark v. Wells Fargo Bank, N.A.

United States District Court, E.D. North Carolina, Western Division

March 7, 2018

JAMES A. CLARK, JR., Appellant,
v.
WELLS FARGO BANK, N.A, Appellee.

         ON APPEAL FROM THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA NEW BERN DIVISION

          ORDER

          TERRENCE W. BOYLE, UNITED STATES DISTRICT JUDGE.

         This 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.

         BACKGROUND

         Appellant, 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).

         The 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].

         On 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].

         JURISDICTION AND STANDARD OF REVIEW

         Jurisdiction 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 ...


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