Patsy Lee Martens v. Countrywide Loans ( 2005 )

United States Bankruptcy Appellate Panel
FOR THE EIGHTH CIRCUIT
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No. 05-6023 EM
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In re: George Allen Martens and *
Patsy Lee Martens, *
*
Debtors. *
*
Patsy Lee Martens * Appeal from the United States
* Bankruptcy Court for the
Debtor-Appellant, * Eastern District of Missouri
*
v. *
*
Countrywide Home Loans, *
*
Creditor-Appellee. *
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Submitted: September 19, 2005
Filed: October 3, 2005
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Before FEDERMAN, MAHONEY, and VENTERS, Bankruptcy Judges.
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FEDERMAN, Bankruptcy Judge.
Debtor Patsy Lee Martens (Martens) appeals an order of the bankruptcy court,1
entered on May 23, 2005, granting relief from the automatic stay to creditor
Countrywide Home Loans (Countrywide). We affirm.
FACTUAL BACKGROUND
On April 5, 2005, Martens and her husband filed a Chapter 7 bankruptcy
petition. On April 13, 2005, Countrywide filed a motion for relief from the automatic
stay, or alternatively, a motion to dismiss. On May 19, 2005, the court held a hearing.
At the hearing Countrywide submitted a copy of a promissory note evidencing a loan
in the amount of $125,400, executed on March 15, 2004, and a copy of a deed of trust
granting a security interest in real estate legally described as:
A PART OF THE EAST HALF OF THE SOUTHWEST QUARTER OF
SECTION 26, TOWNSHIP 62, RANGE 14, DESCRIBED AS
BEGINNING AT THE SOUTHWEST CORNER OF THE EAST HALF
OF THE SOUTHWEST QUARTER, AND RUNNING THENCE
NORTH 420 FEET, THENCE EAST 518 FEET, THENCE SOUTH 420
FEET, THENCE WEST 518 FEET TO THE POINT OF BEGINNING.2
Countrywide represented that Martens had made no monthly payments, as required
by the promissory note, since December of 2004. Martens agreed with that
representation. Countrywide also represented that the balance due was $124,755.57,
plus late fees, attorneys fees, and prepayment penalty fees in the amount of
$7,024.60. Martens did not dispute that fact either. Indeed, on Schedule D of her
bankruptcy schedules she listed a debt to Countrywide in the amount of $125,400,
and she did not identify that debt as being disputed. At the hearing, however, she
1
The Honorable Kathy Surratt-States, United States Bankruptcy Judge for the Eastern
District of Missouri.
2
Pl. Ex. # 11 (May 23, 2005, Order granting relief from the automatic stay).
2
claimed that she did not originate the loan with Countrywide, therefore, Countrywide
was a mere third-party debt collector. She argued that a third-party debt collector
must present the original copy of the promissory note in order to foreclose on real
estate, or to make any effort to collect a debt once informed the debt is in dispute. She
stated that unless Countryside presented her with the original note, she did not have
to make payments, and Countrywide had no right to foreclose. She also claimed that
Countrywide violated the Fair Debt Collection Practices Act (the FDCPA) by
attempting to collect the debt without displaying the original promissory note, by
continuing collection efforts once informed the debt is being disputed, and by filing
the motion for relief from stay. She further claimed that the bankruptcy court had no
jurisdiction to hear this matter.3
STANDARD OF REVIEW
A bankruptcy appellate panel shall not set aside findings of fact unless clearly
erroneous, giving due regard to the opportunity of the bankruptcy court to judge the
credibility of the witnesses.4 We review the legal conclusions of the bankruptcy court
de novo.5 We review the granting of a motion for relief from stay for clear error.6
3
Martens was represented by counsel at the time she filed her bankruptcy petition. At
the hearing on this motion, counsel to Countrywide stated that she had been advised
by debtor’s counsel that he would be consenting to the motion for relief from the
automatic stay. Nevertheless, Martens appeared pro se at the hearing and is appearing
pro se in this appeal.
4
Gourley v. Usery (In re Usery), 123 F.3d 1089, 1093 (8th Cir. 1997); O'Neal v.
Southwest Mo. Bank (In re Broadview Lumber Co., Inc.), 118 F.3d 1246, 1250 (8th
Cir. 1997) (citing First Nat'l Bank of Olathe, Kansas v. Pontow, 111 F.3d 604, 609
(8th Cir.1997)). Fed. R. Bankr. P. 8013.
Pontow, 111 F.3d at 609; Sholdan v. Dietz (In re Sholdan), 108 F.3d 886, 888 (8th
5
Cir. 1997).
6
Resolution Trust Corp. v. Swedeland Development Group, Inc. (In re Swedeland
3
DISCUSSION
We will first address the jurisdictional argument. Martens argues in her brief
that the bankruptcy court did not “support and defend the U.S. Constitution,”
therefore, it did not have jurisdiction to decide the motion for relief from stay.
Martens cited no accepted legal authority for her argument. The Martenses, however,
submitted themselves, voluntarily, to the jurisdiction of the bankruptcy court when
they filed their Chapter 7 bankruptcy petition.7 They received a discharge on July 29,
2005, including the discharge of $55,429.60 in unsecured debt.8 Moreover,
bankruptcy judges “may hear and determine all cases under title 11 and all core
proceedings arising under title 11.”9 A motion to “terminate, annul, or modify the
automatic stay” is a core proceeding.10 Since Martens subjected herself to the
jurisdiction of the bankruptcy court by filing her petition, and since the bankruptcy
court has clear jurisdiction to rule on a core proceeding in a bankruptcy case, we find
no merit to her argument that the bankruptcy court was without jurisdiction to rule
on the motion for relief from the automatic stay.
She also apparently argues that a creditor cannot foreclose a deed of trust
unless it presents the original promissory note. That argument may or may not be one
that could be presented to the state court during the foreclosure procedure itself. The
Development Group, Inc.), 16 F.3d 552, 558 (3rd Cir. 1994); American Network
Leasing, Inc. v. Apex Pharmaceuticals (In re Apex Pharmaceuticals), 203 B.R. 432,
439 (N.D. Ind. 1996).
7
28 U.S.C. § 1334.
8
Plaintiff’s Appendix, Ex. # 1.
9
11 U.S.C. § 157(b)(1).
10
11 U.S.C. § 157(b)(2)(G).
4
bankruptcy court, however, held that Missouri is not an “original document” state.11
In any event, that issue is not relevant to a motion to lift the automatic stay in a
bankruptcy court.12 A determination by the bankruptcy court to grant relief from the
automatic stay is guided by § 362(d) of the Bankruptcy Code (the Code). That section
provides that the court shall grant relief either for cause, or if there is no equity and
the property is not necessary for an effective reorganization:
(d) On request of a party in interest and after notice and a hearing, the
court shall grant relief from the stay provided under subsection (a) of
this section, such as by terminating, annulling, modifying, or
conditioning such stay–
11
See Mo. Stat. Ann. § 400.3-309 (stating that “a person seeking enforcement of an
instrument under subsection (a) must prove the terms of the instrument and the
person’s right to enforce the instrument. If that proof is made, Section 400.3-308
applies to the case as if the person seeking enforcement had produced the
instrument”); Affiliated Acceptance Corp. v. Boggs, 917 S.W.2d 652, 656 (Mo. Ct.
App. 1996) (holding that the note, but not the original note, or proof that the note
cannot be produced, must be introduced); UT Communications Credit Corp. v. Resort
Development, Inc., 861 S.W.2d 699, 709 (Mo. Ct. App. 1993) (holding that the
recording of a deed of trust was prima facie evidence of delivery and the failure of
the grantor to give the grantee the original deed does not overcome that prima facie
evidence). See also In re Lord, 325 B.R. 121, 128 (Bankr. S.D.N.Y. 2005) (where the
bankruptcy court granted relief from the stay despite a debtor’s claim that only the
“true owner of the original note can collect payment”).
12
Martens argues that she brought a Rule 9014 motion, therefore, the bankruptcy court
had to consider her claim that Countrywide had to present the original note to prove
it had a valid claim before it could pursue its motion for relief from stay. The
bankruptcy court properly discounted this argument. Rule 9014 provides that relief
in a contested matter shall be requested by motion and reasonable opportunity for
notice and a hearing. Fed. R. Bankr. P. 9014(a). A motion for relief from the
automatic stay is a contested matter and Martens was given notice and a hearing. In
any event, a Rule 9014 motion is not the appropriate procedure to be used to
determine the validity of a lien. Fed. R. Bankr. P. 7001(2).
5
(1) for cause, including the lack of adequate protection of
an interest in property of such party in interest;
(2) with respect to a stay of an act against property under
subsection (a) of this section, if–
(A) the debtor does not have an equity in such
property; and
(B) such property is not necessary to an
effective reorganization.13
The statutory grounds for granting relief from the automatic stay are in the
disjunctive.14 The bankruptcy court must, therefore, grant relief if the movant either
proves cause, or proves that there is no equity in the property and that it is not
necessary for a successful reorganization.15 Cause has been defined to mean “any
reason whereby a creditor is receiving less than his bargain from a debtor and is
without a remedy because of the bankruptcy proceeding.”16 A creditor is entitled to
relief from the automatic stay if the debtor is not making mortgage payments,17 and
if there is insufficient equity in the property to adequately protect the creditor.18 In
this case, Martens admitted that she has made no mortgage payments since December
of 2004. She scheduled the property with a fair market value of $135,000, and she
scheduled Countrywide as the secured creditor. She did not dispute that the balance
13
11 U.S.C. § 362(d)(1) and (2).
14
Production Credit Assoc. of the Midlands v. Wieseler (In re Wieseler), 934 F.2d 965,
968 (8th Cir. 1991).
15
Id.; In re Food Barn, Inc., 159 B.R. 264, 266 (Bankr. W.D. Mo. 1993).
16
Food Barn, 159 B.R. at 266.
17
Wieseler, 934 F.2d at 968; In re Kapp, 315 B.R. 87, 90 (Bankr. W.D. Mo. 2004).
18
11 U.S.C. § 362(d)(1).
6
due on the date of the hearing was $133,751.72. For these reasons alone, the
bankruptcy court did not err when it found cause existed to grant relief from the
automatic stay.
The bankruptcy court only needed to determine that cause existed in order to
grant the relief sought by Countrywide. However, by her own admissions, Martens
does not have equity in the property, which satisfies § 362(d)(2)(A). This is a Chapter
7 liquidating bankruptcy case, therefore, by definition, the property is not necessary
for an effective reorganization, which satisfies § 362(d)(2)(B). Martens’ claim that
Countrywide violated the FDCPA is supported only by her allegation that it could not
collect its debt without presentment of the original note. Yet, she cited no provision
of the FDCPA that so provides, and we have found none. For all these reasons, we
affirm the decision of the bankruptcy court.
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