Owens v. GMAC Mortgage, LLC (In Re Owens)

Case: 12-15142 Date Filed: 04/29/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15142
Non-Argument Calendar
________________________
D.C. Docket Nos. 1:11-cv-03442-JEC; 11-bkc-72407-CRM
In re: TERRENCE OWENS,
Debtor,
___________________________________
TERRENCE OWENS,
Plaintiff - Appellant,
versus
GMAC MORTGAGE, LLC,
as Servicer for US Bank National Association
as Trustee for Ramp 2005EFC1,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 29, 2013)
Case: 12-15142 Date Filed: 04/29/2013 Page: 2 of 4
Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Terrence Owens, proceeding pro se, appeals the district court’s order
affirming the bankruptcy court’s grant of relief from the automatic stay and grant
of in rem relief to GMAC Mortgage, LLC (GMAC). After thorough review, we
affirm.
Owens filed for Chapter 13 bankruptcy in 2011. The filing automatically
stayed collection on Owens’s outstanding debt, including a stay of foreclosure
proceedings on a home owned by Owens. GMAC, the servicer for Owens’s
mortgage holder, moved for relief from the stay and for in rem relief on the home
in order to begin state-court foreclosure proceedings. The bankruptcy court held a
hearing on the matter and subsequently issued an order granting GMAC both
forms of relief for “reasons stated on the record in open court.” Owens appealed to
the district court, but did not request a transcript of the bankruptcy court hearing.
The district court affirmed the bankruptcy court’s decision, GMAC foreclosed, and
Owens now appeals.1
Owens asserts that the bankruptcy court erred in granting both in rem relief
and relief from the automatic stay. “If the appellant intends to urge on appeal that
1
Although Owens contends on appeal that the bankruptcy court lacked jurisdiction to grant
GMAC relief from the automatic stay, the bankruptcy court clearly had statutory authority to do
so. See 28 U.S.C. §§ 157(b)(1), (b)(2)(G).
2
Case: 12-15142 Date Filed: 04/29/2013 Page: 3 of 4
a finding or conclusion is unsupported by the evidence or is contrary to the
evidence, the appellant must include in the record a transcript of all evidence
relevant to that finding or conclusion.” Fed. R. App. P. 10(b)(2). When a pro se
litigant’s failure to do so prevents effective review of the trial court’s decision, we
must affirm. Loren v. Sasser, 309 F.3d 1296, 1304 (11th Cir. 2002). The
bankruptcy court granted relief “[f]or the reasons stated on the record in open
court.” Yet Owens did not provide either the district court or our court a transcript
of the bankruptcy court proceedings. We therefore cannot meaningfully review the
bankruptcy court’s decision and we must affirm. 2 See id.Owens also contends the bankruptcy court’s hearing did not afford him
adequate due process. “The core of due process is the right to notice and a
meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266
(1998). Without a transcript of the proceedings, however, we cannot evaluate
whether Owens had a meaningful opportunity to be heard. Because the burden of
furnishing a transcript for appellate review rests with Owens and he has failed to
comply with this obligation, we must affirm the district court’s conclusion that his
due process rights were not violated. See Loren, 309 F.3d at 1304.
2
Owens also argues that GMAC illegally foreclosed because it did not have an interest in the
property. But the bankruptcy court necessarily determined that GMAC had an interest in the
property when it granted GMAC relief from the automatic stay. See 11 U.S.C. § 362(d)
(providing that only “a party in interest” can request relief from an automatic stay). Because, as
discussed above, Owens has not provided the transcript necessary to meaningfully review that
decision, this argument fails.
3
Case: 12-15142 Date Filed: 04/29/2013 Page: 4 of 4
For the foregoing reasons, the district court’s order affirming the bankruptcy
court’s decision is
AFFIRMED.
4