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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 20-10780
Non-Argument Calendar
__________________________
D.C. Docket No. 9:19-cv-80782-RLR
Bkcy No. 9:18-bk-16061-MAM
TABITHA BAKER,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 29, 2020)
Before WILSON, BRANCH, and LAGOA, Circuit Judges.
PER CURIAM:
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When Tabitha Baker fell behind on her home mortgage payments, Baker’s
creditors scheduled multiple foreclosure sales. Each scheduled sale was thwarted
by a last-minute bankruptcy filing. Despite a fifth bankruptcy filing on the eve of a
scheduled foreclosure sale—which entitled Baker to an automatic stay from the
foreclosure proceeding—Bank of American N.A. (“BANA”) executed the sale.
Baker then sued BANA and the winning bidder for violating the automatic stay.
So, BANA sought retroactive and prospective relief from the stay in the
bankruptcy court. The bankruptcy court granted BANA’s requested relief because
it found that the numerous bankruptcy filings were part of a scheme to delay the
foreclosure sale. The district court affirmed. Baker appeals, arguing that the
bankruptcy court erred for numerous reasons. We affirm because the bankruptcy
court did not abuse its discretion in reopening the case and granting BANA’s
requested relief.
I. Background
Because we write primarily for the parties, we describe only those facts
necessary to address the issues raised in this appeal.
On April 28, 2005, Tabitha Baker1 executed and delivered a promissory note
for $392,000 to Countrywide Home Loans, Inc. (“Countrywide”) to finance her
1
For an unknown period, Baker’s last name was Cote. For clarity’s sake, we will refer to
her throughout this opinion as Baker.
2
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purchase of a home in Fulton County, Georgia (the “Property”). The loan was
secured by a mortgage deed. On February 5, 2008, Baker executed and delivered a
loan modification agreement to Countrywide. Baker ceased making payments
after October 7, 2008.
Between 2006 and 2017, the Property was transferred by a quit claim deed
on five occasions. The Property was transferred between and among Baker,
Michael Bourf, Mark Schecklenburg, the Four Square Foundation, and the
Bayshore Company. Baker retained an interest in the Property after the first two
transfers, and she received complete ownership again after the fifth transfer.
Beginning in 2012, there were five bankruptcy filings associated with the
Property. Baker first filed for Chapter 13 bankruptcy 2 in July 2012, but her case
was dismissed because she failed to attend the meeting of creditors or file the
necessary paperwork. From 2015 to 2018, Baker’s creditors (including BANA)
scheduled four foreclosure sales on the Property. Each time, a bankruptcy petition
was filed on the eve of or mere days before the scheduled sale. Mark
Schecklenburg petitioned for bankruptcy on two occasions, and Four Square
2
“A Chapter 13 bankruptcy—sometimes called a ‘wage earners plan’—enables a debtor
with a regular income to repay all or part of his debts, typically over a three- to five-year period.”
In re Cumbess,
960 F.3d 1325, 1330 (11th Cir. 2020).
3
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Foundation petitioned on one occasion. Those petitions were all dismissed when
the debtors failed to file necessary paperwork or attend hearings and meetings.
Relevant here, Baker filed a fifth bankruptcy petition on April 2, 2018—the
day before a scheduled foreclosure sale. The clerk of the bankruptcy court ordered
Baker to correct numerous deficiencies in her filing. When Baker did not cure the
deficiencies, the bankruptcy court dismissed the case on May 21, 2018, with 180
days’ prejudice.3
Although Baker’s bankruptcy filing triggered an automatic stay on a
scheduled foreclosure sale under
11 U.S.C. § 362(a), a foreclosure sale occurred as
planned on April 3, 2018. Najarian Capital, LLC was the successful bidder at the
sale.
Baker then sued BANA and Najarian Capital, LLC in federal court for
violating the automatic stay. Baker sought damages and asked the district court to
hold the defendants in contempt of court.
In response to Baker’s lawsuit, BANA returned to the bankruptcy court and
moved to reopen Baker’s bankruptcy case. It requested nunc pro tunc relief from
the automatic stay, prospective relief, and other related relief. The bankruptcy
3
Under the Bankruptcy Code, an individual is barred from petitioning for bankruptcy for
180 days if his previous “case was dismissed by the court for willful failure of the debtor to abide
by orders of the court, or to appear before the court in proper prosecution of the case[.]”
11
U.S.C. § 109(g). The bankruptcy court identified numerous deficiencies in Baker’s bankruptcy
petition and ordered her to provide her Social Security number. Baker never supplemented her
bankruptcy petition.
4
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court scheduled a hearing on the motion on January 15, 2019. Baker filed an
untimely response to the motion at 11:30 p.m. on the night before the hearing that
included a declaration from Baker.4 In her response, she argued that: (1) BANA
did not properly move to reopen the case, (2) BANA was guilty of unclean hands,
(3) BANA should be estopped from reopening the case and seeking relief, and (4)
nunc pro tunc relief was unwarranted. Despite the untimeliness of Baker’s
submission, the bankruptcy court permitted both parties to argue their respective
positions at the hearing.
At the conclusion of the hearing, the bankruptcy court orally explained why
it found cause to grant BANA’s motion and requested relief. The bankruptcy court
then issued an order memorializing its decision. Baker moved to alter or amend
the bankruptcy court’s order, but her motion was denied when she failed to appear
at a hearing on the motion.
Baker appealed to the district court, but the district court affirmed. This
appeal followed.
4
The local rules provide that:
Memoranda, affidavits and other papers intended for consideration at any
hearing . . . shall be filed and served so as to be received by the movant and the
court not later than 4:30 p.m. on the second business day prior to the hearing, or
the papers submitted may not be considered at the hearing.
S.D. Fl. Bankr. L.R. 5005-1(F)(1).
5
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II. Standard of Review
When reviewing a decision of the bankruptcy court, we “sit[] as a second
court of review and . . . examine[] independently the factual and legal
determinations of the bankruptcy court and employ[] the same standards of review
as the district court.” In re Daughtrey,
896 F.3d 1255, 1273 (11th Cir. 2018)
(quotation omitted). We review the bankruptcy court’s decision to lift an
automatic stay for abuse of discretion. In re Dixie Broad., Inc.,
871 F.2d 1023,
1026 (11th Cir. 1989). “A bankruptcy court abuses its discretion when it either
misapplies the law or bases its decision on factual findings that are clearly
erroneous.” In re Daughtrey, 896 F.3d at 1274. We review legal conclusions de
novo. In re Feingold,
730 F.3d 1268, 1272 n.2 (11th Cir. 2013). “A factual
finding is not clearly erroneous unless, after reviewing all of the evidence, we are
left with a definite and firm conviction that a mistake has been committed.” In re
Daughtrey, 896 F.3d at 1273 (citation and quotation marks omitted).5
5
The district court applied plain error review because it determined that Baker forfeited
her arguments before the bankruptcy court by (1) failing to file a timely response to BANA’s
motion to reopen, and (2) failing to appear at the hearing on Baker’s first motion to alter or
amend. On appeal, BANA adopts the district court’s reasoning and submits that plain error
review applies. We are not persuaded. At the hearing on the motion to reopen, the bankruptcy
court admonished Baker’s counsel for her untimely filing. Nevertheless, the bankruptcy court
“permit[ted] [her] to make oral argument in response to [the] motion,” while advising Baker’s
counsel not to “assume” that the court had read her untimely filing. The bankruptcy court’s
accompanying order again acknowledged Baker’s untimely filing. But nothing in the hearing
transcript or order suggests that the bankruptcy court based its decision on Baker’s failure to file
a timely response. To the contrary, it noted that it had “heard argument of counsel for BANA
6
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We “may affirm for any reason supported by the record, even if not relied
upon by the district court.” Lage v. Ocwen Loan Servicing LLC,
839 F.3d 1003,
1009 (11th Cir. 2016) (quotation omitted).
III. Discussion
Baker raises several arguments challenging the bankruptcy court’s order.
None is persuasive. We address each argument in turn.
A. BANA’s standing to pursue relief in the bankruptcy court
Baker argues that BANA lacked standing to pursue relief before the
bankruptcy court for two reasons. First, she argues that BANA lacked
constitutional standing because it did not have a pecuniary or other identifiable
interest in the bankruptcy proceeding. Second, she argues that BANA lacked
“party in interest” standing under the United States Bankruptcy Code because it
was not a secured creditor. We disagree.6
First, we consider constitutional standing. The subject-matter jurisdiction of
federal courts is limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2.
and for the Debtor” and was granting BANA’s motion “for the reasons stated on the record” at
the hearing. Accordingly, we decline to find forfeiture.
6
Baker submits that we should remand the case to the bankruptcy court to determine the
issue of standing in the first instance. We decline to do so because we “review the legal question
of standing de novo[,]” Charles H. Wesley Educ. Found., Inc. v. Cox,
408 F.3d 1349, 1351 (11th
Cir. 2005), and the record contains enough evidence to decide the question.
Relatedly, Baker also maintains that the district court should have remanded the case
when it found that BANA was a servicer rather than a creditor. The distinction is irrelevant
because, as we will explain, both a servicer and a creditor have party in interest standing.
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“To have a case or controversy, a litigant must establish that he has standing[.]”
United States v. Amodeo,
916 F.3d 967, 971 (11th Cir. 2019). And to establish
standing, a “litigant must prove (1) an injury in fact that (2) is fairly traceable to
the challenged action of the defendant and (3) is likely to be redressed by a
favorable decision.” Jacobson v. Fla. Sec’y of State,
974 F.3d 1236, 1245 (11th
Cir. 2020). BANA suffered an injury because Baker defaulted on the loan that
BANA services and because Baker sued BANA in federal court for sanctions and
to hold BANA in contempt of court for violating the automatic stay. Both injuries
are directly traceable to Baker. And the bankruptcy court’s order granting relief to
BANA is likely to redress BANA’s injury. BANA will benefit from the proceeds
of the foreclosure sale, and BANA can rely on the bankruptcy court’s order as a
defense against Baker’s lawsuit. Therefore, BANA had Article III standing in the
bankruptcy court.
Next, we address party in interest standing. When an individual files a
voluntary bankruptcy petition under
11 U.S.C. § 301, that petition triggers an
automatic stay that protects a debtor “against actions to enforce, collect, assess or
recover claims against the debtor or against property of the estate.” United States
v. White,
466 F.3d 1241, 1244 (11th Cir. 2006) (citing
11 U.S.C. § 362(a)). But
“[o]n request of a party in interest and after notice and a hearing, the [bankruptcy]
court shall grant relief from the [automatic] stay . . . , such as by terminating,
8
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annulling, modifying, or conditioning such stay” under certain circumstances.
11
U.S.C. § 362(d) (emphasis added). Relevant here, the bankruptcy court shall grant
relief from “a stay of an act against real property . . . 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” involving
either: (1) the “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 (2)
“multiple bankruptcy filings affecting such real property.”
Id. § 362(d)(4)
(emphasis added).
A loan “servicer is a party in interest in [Chapter 13] proceedings involving
loans which it services.” Greer v. O’Dell,
305 F.3d 1297, 1302 (11th Cir. 2002).
A “creditor” is an “entity that has a claim against the debtor.”
11 U.S.C.
§ 101(10). And a “claim” is a “right to payment” or a “right to an equitable
remedy for breach of performance if such breach gives rise to a right to
payment[.]”
11 U.S.C. § 101(5)(A)–(B).
In its motion to reopen, BANA identified itself as a secured creditor for, and
the servicer of, Baker’s loan. It supported its motion to reopen with default and
foreclosure notices it sent to Baker over the years. Those notices identified BANA
as acting on behalf of the creditor—Bank of New York Mellon—and servicing the
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loan.7 Thus, BANA had standing under the plain language of § 362(d) to move to
reopen given its status as creditor and servicer.
Although Baker raises a variety of subsidiary points, Baker essentially
argues that BANA lacks standing because it has no contractual rights under the
security deed or promissory note and no legal interest in the property. However,
Baker misses the critical point that BANA had a legal interest in the property as the
representative of the secured creditor and the servicer of the loan. Indeed, Baker
acknowledged the fact—in the bankruptcy court and in her complaint for
sanctions—that BANA is the servicer of the loan and that she failed to make loan
payments to BANA. BANA’s status as a representative of the secured creditor and
as the loan servicer is all that is required to establish its standing to seek relief in
the bankruptcy court. 8
B. The bankruptcy court’s statutory authority to reopen the case
Next, Baker argues that BANA improperly moved to reopen her bankruptcy
case under
11 U.S.C. § 350(b). She contends that a case can be reopened under
7
In addition to having standing by virtue of its acting on behalf of the Bank of New York
Mellon, BANA also had standing as a “creditor” because it had a “claim” against Baker (in the
form of a “right to payment”). See
11 U.S.C. § 101(5)(A), (10); see also In re Hayden, No. 13-
57281,
2013 WL 3776296, at *2 (Bankr. N.D. Ga. June 25, 2013) (“It is recognized that a
servicer of a mortgage is clearly a creditor and has standing to file a proof of claim or assert a
claim against a debtor pursuant to its duties as a servicer.”).
8
After carefully considering Baker’s related standing arguments, we find them meritless.
For example, Baker argues that BANA was not a creditor because it lacked authority under
Georgia law to conduct the foreclosure sale. As noted above, however, BANA has standing for
other reasons.
10
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§ 350(b) only after a case has been closed under § 350(a). And she maintains that
her bankruptcy case was dismissed and not closed. We conclude that the
bankruptcy court had statutory authority to reopen her case.
A bankruptcy court “shall close [a] case” after “an estate is fully
administered and the court has discharged the trustee[.]”
11 U.S.C. § 350(a). A
case may also “be reopened in the court in which such case was closed to
administer assets, to accord relief to the debtor, or for other cause.”
Id. § 350(b).
Either “the debtor” or another “party in interest” may move to reopen a case under
§ 350(b). Fed. R. Bankr. P. 5010.
Neither the Bankruptcy Code nor the Bankruptcy Rules define when an
estate is “fully administered.” Nevertheless, when “the trustee has filed a final
report and final account and has certified that the estate has been fully
administered,” and there is no objection, “there shall be a presumption that the
estate has been fully administered.” Fed. R. Bankr. P. 5009(a).
The “bankruptcy court retains broad discretion [under § 350(b)] to reopen a
closed case on a motion of the debtor or another party in interest.” Slater v. United
States Steel Corp.,
871 F.3d 1174, 1186 (11th Cir. 2017) (en banc). Thus, we are
deferential to the decision of the bankruptcy court. See In re Haker,
411 F.2d 568,
569 (5th Cir. 1969) (“It is elemental bankruptcy law that the granting of a petition
to reopen is a matter addressed to the sound discretion of the Court, and the only
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reason for setting aside the judgment of the trial court is for an abuse of that
discretion.”).
Baker’s Chapter 13 bankruptcy petition was dismissed with 180 days’
prejudice for failing to file necessary paperwork. Baker moved to reinstate her
petition, but the bankruptcy court denied that motion. The Chapter 13 trustee then
filed the final report and account. The bankruptcy court discharged the trustee and
ordered the case to be closed. Thus, the bankruptcy court fulfilled the plain terms
of § 350(a).
Because Baker sued BANA for violating the automatic stay, BANA later
moved to reopen the case under § 350(b). It sought relief from the automatic stay
under
11 U.S.C. § 362(d)(4), citing Baker’s “scheme to stall, hinder, delay[,] and
defraud the Bank’s efforts to enforce its creditor’s rights with respect to the . . .
Property.” Because the bankruptcy court eventually closed the case, BANA
could—and did—move to reopen under § 350(b), and the bankruptcy court acted
within its broad discretion in granting BANA’s motion.9
9
Baker also argues that BANA moved for relief using the wrong procedural mechanism.
She contends that her bankruptcy case was dismissed and not closed and, thus, BANA should
have filed a Rule 60 motion rather than moving under § 350(b). See Fed. R. Bankr. P. 9024
(applying Fed. R. Civ. P. 60 to motions seeking relief from a judgment or order). It is true that
the bankruptcy court initially dismissed her case with 180 days’ prejudice. But Baker’s
argument fails because the bankruptcy court later issued an order closing Baker’s case, and she
concedes that § 350(b) is the proper mechanism for reopening a closed case. Moreover, even if
we were to ignore the bankruptcy court’s order closing the case, Baker does not attempt to rebut
the presumption that her case was fully administered (and therefore closed) when the trustee filed
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C. Baker’s demand for an evidentiary hearing
Next, Baker argues that the bankruptcy court should have held an
evidentiary hearing before granting BANA’s motion to reopen because the
declaration attached to her opposition to BANA’s motion raised disputed issues of
material fact concerning BANA’s entitlement to relief from the automatic stay.
Specifically, she maintains that she raised disputed issues of material fact
concerning whether: (1) she knew about several of the deed transfers and
bankruptcy filings; (2) BANA knew that an automatic stay was in place (and when
it knew); (3) BANA’s legal counsel told Baker that if she could verify that she
filed the fifth bankruptcy petition, the foreclosure sale would have to be rescinded;
(4) BANA delayed in seeking relief from the automatic stay; and (5) Baker ceased
to prosecute the fifth bankruptcy case because BANA offered a loan modification.
We find Baker’s argument unavailing because she delayed in seeking an
evidentiary hearing until after the bankruptcy court granted BANA’s motion to
reopen.
As explained, the bankruptcy court “shall grant relief from the [automatic]
stay” on “request of a party in interest and after notice and a hearing,” if “the court
finds that the filing of the petition was part of a scheme to delay, hinder, or defraud
its report and account and the bankruptcy court discharged the trustee. See Fed. R. Bankr. P.
5009(a).
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creditors.”
11 U.S.C. § 362(d) (emphasis added). “[A]fter notice and a hearing”
means “after such notice as is appropriate in the particular circumstances, and such
opportunity for a hearing as is appropriate in the particular circumstances[.]”
Id.
§ 102(1).
Courts have long recognized that this standard is flexible and the hearing
need not be evidentiary in nature. See, e.g., In re Eliapo,
468 F.3d 592, 603 (9th
Cir. 2006) (noting that “the notice-and-hearing definition in § 102(1) is flexible
and sensitive to context”); In re Sullivan Cent. Plaza I, Ltd.,
935 F.2d 723, 727 (5th
Cir. 1991) (holding that when “a matter has already been adequately argued before
the bankruptcy judge, and the judge determines that no further hearings are
necessary, then the debtor’s due process rights are not violated when the judge
decides the issue without further hearings”); In re Spillane,
884 F.2d 642, 646 (1st
Cir. 1989) (holding that a hearing without cross examination was appropriate under
§ 102(1) because the district court questioned the parties and permitted them to
present argument); Pursifull v. Eakin,
814 F.2d 1501, 1505–06 (10th Cir. 1987)
(holding that a hearing satisfied the requirements of § 362 because a debtor “had
the opportunity at [the] hearing to argue against the lifting of the [automatic]
stay”); In re Boomgarden,
780 F.2d 657, 662 (7th Cir. 1985) (holding that two
non-evidentiary hearings satisfied § 102(1) because they “covered all of the
important substantive provisions of § 362(d)”).
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At the same time, a “motion for relief from an automatic stay provided by
the Code . . . shall be made in accordance with Rule 9014.” Fed. R. Bankr. P.
4001(a)(1). Rule 9014 provides that “relief shall be requested by motion, and
reasonable notice and opportunity for hearing shall be afforded the party against
whom relief is sought.” Fed. R. Bankr. P. 9014(a). The rule further provides that
“[t]estimony of witnesses with respect to disputed material factual issues shall be
taken in the same manner as testimony in an adversary proceeding.” Fed. R.
Bankr. P. 9014(d). But as the committee notes explain, subsection (d) was “added
to clarify that if the motion cannot be decided without resolving a disputed material
issue of fact, an evidentiary hearing must be held at which testimony of witnesses
is taken.” Id. (emphasis added).
After BANA filed its motion to reopen, the bankruptcy court scheduled a
non-evidentiary hearing. Under that court’s local rules, the non-evidentiary
hearing “shall be restricted to the pleadings, affidavits and papers of record and to
the arguments of attorneys.” S.D. Fl. Bankr. L.R. 4001-1(E). The local rules also
provide that any “[m]emoranda, affidavits and other papers intended for
consideration at any hearing already set before the court” “shall be filed and served
. . . not later than 4:30 p.m. on the second business day prior to the hearing, or the
papers submitted may not be considered at the hearing.” S.D. Fl. Bankr. L.R.
5005-1(F)(1) (emphasis added). However, an untimely submission from a party
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may be considered by the bankruptcy court if the untimely filing is accompanied a
late filing notice that notes “the emergency nature of the filing or stat[es] the
exceptional circumstances for the untimely filing.” S.D. Fl. Bankr. L.R. 5005-
1(F)(2).
Baker received notice and a hearing. The question we must decide is
whether the non-evidentiary hearing was appropriate in the particular
circumstances of this case given the requirements of Rule 9014 and the bankruptcy
court’s local rules.
Baker argues that because she opposed the requested relief from the
automatic stay and highlighted disputed material issues of fact at the
non-evidentiary hearing, the bankruptcy court was required to hold an evidentiary
hearing to resolve those disputed facts under Rule 9014.
Baker’s argument is unpersuasive. Baker did not request an evidentiary
hearing until after the bankruptcy court granted BANA’s motion to reopen. We
generally “turn a deaf ear to protests that an evidentiary hearing should have been
convened but was not” when “the protestor did not seasonably request such a
hearing in lower court.” Sunseri v. Macro Cellular Partners,
412 F.3d 1247, 1250
(11th Cir. 2005) (quoting Aoude v. Mobil Oil Corp.,
892 F.2d 1115, 1120 (1st Cir.
1989)). Like the plaintiffs in Sunseri, Baker was “on notice that the [bankruptcy]
court” scheduled a non-evidentiary hearing and “would decide [BANA’s] motion
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based only on the written submissions.”
Id. Yet she did not request an evidentiary
hearing either in her untimely opposition to BANA’s motion or at the non-
evidentiary hearing. That omission is puzzling considering that Baker’s counsel
referenced Baker’s declaration at the hearing and the bankruptcy court stated its
findings on the record and indicated that it would grant the motion to reopen.
Although Baker requested an evidentiary hearing in her motion to alter or amend
the bankruptcy court’s order granting BANA’s motion to reopen, Baker does not
explain why the need for an evidentiary hearing became apparent after the
bankruptcy court’s order. Even then, Baker and her counsel failed to attend the
hearing on Baker’s motion to alter or amend the bankruptcy court’s order. Baker’s
lack of diligence does not entitle her to an evidentiary hearing.
Accordingly, the bankruptcy court did not abuse its discretion in conducting
a non-evidentiary hearing.
D. The bankruptcy court’s finding that nunc pro tunc and prospective relief
from the automatic stay was warranted
Finally, Baker contends that the bankruptcy court did not conduct the proper
analysis before granting BANA nunc pro tunc and prospective relief from the
automatic stay under
11 U.S.C. § 362(d). We disagree.
BANA moved for relief under § 362(d)(4). As we noted, under § 362(d)(4),
the relevant question is whether the bankruptcy court “finds that the filing of [a
bankruptcy] petition was part of a scheme to delay, hinder, or defraud creditors”
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that involved either the transfer of ownership of the real property “without the
consent of the secured creditor or court approval” or “multiple bankruptcy filings
affecting such real property.”
Short of identifying the factual history of the case as a “scheme,” the
bankruptcy court made every factual finding necessary to support relief under
§ 362(d)(4). The bankruptcy court cited § 362(d)(4). The bankruptcy court found
that the case “appears to be an extremely egregious situation” given the “multiple
bankruptcy filings by multiple debtors, none of which appear to have been filed in
good faith, and all of which were dismissed by various bankruptcy courts based
upon the . . . debtors’ collective failures to comply with the Bankruptcy Code and
the Bankruptcy Rules[.]” In addition, it found that “[t]his situation really cries out
for stay relief, as well as the prospective two-year stay relief under [§] 362(d)(4).”
The bankruptcy court continued:
[T]he Court finds that there is cause for stay relief to be granted on a
nunc pro tunc basis, given that there has been a failure for over ten
years by this debtor to make payments on account of this mortgage
loan; that the allegations indicate that there have been multiple
bankruptcy filings by various entities and individuals, including [this
case].
...
The Court further finds that in light of the successive bankruptcies, the
delay in the ability of Bank of America to proceed with a foreclosure
sale of this property because of bankruptcy filings by Mr.
Shecklenburg, the Foundation, and then most recently by this debtor,
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it is appropriate to grant a two-year prospective stay relief with
respect to this property in accordance with Section 362(d)(4).
In short, the bankruptcy court found that multiple bankruptcy filings were part of a
scheme to delay Baker’s creditors from foreclosing on the property and, therefore,
nunc pro tunc and prospective relief was warranted under § 362(d)(4).
Baker argues that to grant BANA relief under § 362(d)(1), the bankruptcy
court had to find “cause.” Baker notes that we look to several factors in
considering whether “cause” exists, including: (1) “whether the debtor has acted in
bad faith,” (2) “the hardships imposed on the parties with an eye towards the
overall goals of the Bankruptcy Code,” and (3) “pending state court
proceedings[.]” In re Feingold,
730 F.3d 1268, 1277 (11th Cir. 2013) (citation and
quotation marks omitted). And Baker asserts that the bankruptcy court failed to
make such a finding—either at the hearing or in its order granting BANA’s
motion—because it did not “cite to a case or state the legal standard” governing
motions brought under § 362(d)(1). 10
Baker’s argument is unavailing. As an initial matter, BANA moved for
relief from the automatic stay under § 362(d)(4) and not § 362(d)(1). So the
requirements of § 362(d)(1) are irrelevant. In addition, as we have noted from the
10
Baker also rehashes her argument that there are disputed issues of material fact because
her declaration “refutes” BANA’s factual allegations and the bankruptcy court’s factual findings.
We have already rejected that argument.
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hearing transcript, the bankruptcy court adequately explained that it found “cause”
to grant BANA’s request for nunc pro tunc and prospective relief from the
automatic stay. 11
The bankruptcy court’s analysis satisfied the requirements of § 362(d)(4).
Therefore, the bankruptcy court did not abuse its discretion by awarding BANA
nunc pro tunc and prospective relief from the automatic stay.
IV. Conclusion
For the reasons explained, we affirm.
AFFIRMED.
11
To the extent that Baker argues that the bankruptcy court was required to cite
§ 362(d)(4) and restate its factual findings in the written order granting BANA’s motion to
reopen, we reject that argument. Baker does not provide any legal authority—and we are
unaware of any—that requires the bankruptcy court to restate the rationale it orally provided at
the hearing in its written order. It is sufficient that the bankruptcy court’s order incorporated
“the reasons stated on the record” at the hearing.
20
