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ALLEN v. WELLS FARGO BANK MINNESOTA

December 13, 2005.

THELMA E. ALLEN and CHARLES R. ALLEN, Appellants,
v.
WELLS FARGO BANK MINNESOTA, N.A., Appellee.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION AFFIRMING THE BANKRUPTCY COURT'S DENIAL OF THE APPELLANTS' MOTION FOR RECONSIDERATION
I. INTRODUCTION
This matter comes before the court on appeal from the United States Bankruptcy Court for the District of Columbia ("Bankruptcy Court"). The pro se appellants appeal an adverse ruling in their bankruptcy case. The appellants argue that the Bankruptcy Court erred by denying their motion for reconsideration of its earlier decision to annul the automatic stay*fn1 on the foreclosure proceedings. Because the Bankruptcy Court did not commit a clear error with respect to its factual findings and because the Bankruptcy Court's legal conclusions are correct, the court affirms the Bankruptcy Court's decision to deny the appellant's motion for reconsideration. II. BACKGROUND

A. Factual History

  From 1986 until 2003, appellant Charles Allen ("Mr. Allen") was the sole record owner of his residence, a property located at 1854 Fifth Street, N.W. in Washington, D.C. Bankr. Ct. Decision Regarding Mot. for Recons. ("Bankr. Ct. Decision") at 2. Appellant Thelma Allen ("Mrs. Allen"), Mr. Allen's mother, claims that she had an ownership interest in the property because she allegedly provided unsecured financial assistance to Mr. Allen between 1986 and 1999. Id. According to the appellants, they used Mrs. Allen's financial assistance to fund a substantial renovation of the property. Id.

  Mr. Allen executed a mortgage with the appellee in August 1999. The terms of the mortgage agreement required Mr. Allen to make monthly payments of $1,941.64 over a 30-year term. Id. at 3. Mr. Allen secured the mortgage with his property at 1854 Fifth Street, N.W. via a deed of trust. Id. at 3. The deed of trust securing the property contained a covenant of seisin*fn2 and a warranty of title*fn3 stipulating that Mr. Allen was the sole owner of the property and that he agreed to acceleration of his mortgage payments in the event that he breached any terms of the deed. Id. at 4-5. The deed of trust also contained a due-on-transfer clause stipulating that if all or any part of the property was sold or transferred without the appellee's prior written consent, the appellee could require immediate payment in full of all sums secured by the deed of trust. Id. at 8.

  After falling more than thirteen months behind in monthly mortgage payments, Mr. Allen owed the appellee more than $200,000 on the mortgage. Id. at 11. Mr. Allen filed a petition in the Bankruptcy Court under Chapter 13 of the Bankruptcy Code on February 27, 2002. Id. Because Mr. Allen had made only one payment as part of his bankruptcy plan,*fn4 the Bankruptcy Court dismissed Mr. Allen's case with prejudice on January 23, 2003. Id. After the Bankruptcy court dismissed Mr. Allen's case, the appellee scheduled a foreclosure sale of the property at 1854 Fifth Street, N.W. on March 27, 2003. Id. at 11, 13.

  Six days prior to the scheduled foreclosure sale, on March 21, 2003, Mr. Allen executed a deed conveying the property at 1854 Fifth Street, N.W. to himself and Mrs. Allen as tenants in common, each owning a 50% interest. Id. at 13-14. Three days later, on March 24, 2003, Mr. Allen filed his mother's bankruptcy petition commencing her case under Chapter 13 of the Bankruptcy Code. Id. at 14. The appellants allegedly called the office of Draper & Goldberg, the law firm representing the appellee, and left a voice mail message to notify the appellee of Mrs. Allen's pending bankruptcy petition in an effort to stop the foreclosure sale. Appellants' Br. at 4. The appellee claims, however, that it did not receive notice of Mrs. Allen's pending bankruptcy petition. Appellee's Br. ¶ 3. On March 27, 2003, the appellee sold the property located at 1854 Fifth Street, N.W. for $226,000 at a foreclosure sale to Case Capitol Corporation. Bankr. Ct. Decision. at 14-15.

  B. Procedural History

  After Mrs. Allen failed to complete the required bankruptcy filings, the Bankruptcy Court voluntarily dismissed her case on May 27, 2003. Appellee's Br. ¶ 4. On June 25, 2003, the appellee filed a motion to reopen Mrs. Allen's bankruptcy petition and to annul the automatic bankruptcy stay for cause pursuant to 11 U.S.C. § 362(d)(1). Id. ¶ 6. On July 17, 2003, the Bankruptcy Court annulled the stay in the appellants' foreclosure proceedings, effectively validating the foreclosure of the appellants' property. Mem. Order Den. the Appellee's Mot. to Dismiss Appeal and to Strike the Appellants' Br. (March 22, 2003) ("Mem. Order") at 1. The appellants then moved for reconsideration of the annulment, and on September 5, 2003, the Bankruptcy Court issued its final order denying the appellants' motion. Id.

  On September 15, 2003, the appellants filed a notice of appeal with the Bankruptcy Court. Id. After a complicated series of filings by the appellants and errors in assignment of motions to various judges in the district court,*fn5 the case came before this court. Id. at 1-2. The appellants filed a brief in support of their appeal on April 7, 2004. On March 22, 2005, this court directed the appellee to file a brief in opposition of the appeal. Id. at 4. The appellee filed its opposition to the appellants' appeal on April 25, 2005. The court now turns to the appellants' motion. III. ANALYSIS

  A. Legal Standard for Review of a Bankruptcy Court Decision

  U.S. district courts have jurisdiction over appeals of bankruptcy court decisions. 28 U.S. § 158(a). On appeal from a bankruptcy court, a district court may affirm, modify, or reverse a bankruptcy court's judgment, or remand with instructions for further proceedings. FED. R. BANKR. P. 8013; Johnson v. McDow (In re Johnson), 236 B.R. 510, 518 (D.D.C. 1999). A district court shall not set aside findings of fact unless they are clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses. FED. R. BANKR. P. 8013; Johnson, 236 B.R. at 518. "The burden of proof is on the party that seeks to reverse the Bankruptcy Court's holding. That party must show that the court's holding was clearly erroneous as to the assessment of the facts or erroneous in its interpretation of the law and not simply that another conclusion could have been reached." Johnson, 236 B.R. at 518 (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)). "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). As the Seventh Circuit memorably explained, "[t]o be clearly erroneous, a decision must . . . strike us as wrong with the force of a five week old, unrefrigerated dead fish." Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988). Courts, however, should review questions concerning the application of the controlling law de novo on appeal. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990). B. The Court Affirms the Bankruptcy Court's Decision to Deny Reconsideration of the Annulment of the Automatic Stay on Foreclosure

  On September 5, 2003, the Bankruptcy Court denied the appellants' motion to reconsider the July 2003 annulment of the bankruptcy stay. Bankr. Ct. Decision at 1. The appellants now argue that the Bankruptcy Court's factual findings and legal conclusions were erroneous, and therefore, that the Bankruptcy Court abused its discretion by denying the appellants' motion for reconsideration of the Bankruptcy Court's earlier ruling annulling the automatic stay. See generally Appellants' Br. Specifically, the appellants argue that the Bankruptcy Court erred when it determined that: (1) the appellee did not receive notice of Mrs. Allen's March 2003 bankruptcy petition prior to the foreclosure sale, (2) Mrs. Allen's bankruptcy petition was filed in bad faith, (3) the deed of trust voided Mr. Allen's conveyance to Mrs. Allen, and (4) it was appropriate to annul the automatic stay. The court addresses each one of these arguments in turn.

 
1. The Bankruptcy Court's Determination that the Appellee did Not Receive Notice of Mrs. Allen's Chapter 13 Filing Prior to Foreclosure is Not Clearly Erroneous
  The appellants argue that the Bankruptcy Court erred in determining that the appelle did not receive notice of Mrs. Allen's bankruptcy filing. Appellants' Br. at 9. Specifically, they allege that the Bankruptcy Court's determination is not supported by substantial evidence because the appellee's witness offered only uncorroborated hearsay testimony. Id. Further, the appellants introduce Federal Rules of Evidence 1002 and 1004 as bars to the admissibility of the Loss Mitigation Supervisor's*fn6 testimony.*fn7 Id. at 11. As a last resort, the appellants argue that the Bankruptcy Court should have drawn an adverse inference from the fact that the appellee failed to produce any record of the appellants' voice mail message.*fn8 The appellee, on the other hand, argues that the court's conclusion that the appellee did not receive notice of Mrs. Allen's bankruptcy filing represents a permissible view of the evidence, and therefore, is not clearly erroneous. Id. ¶ 18.

  The Bankruptcy Court's finding that the appellee did not receive notice of Mrs. Allen's Chapter 13 filing prior to foreclosure is a factual finding and, as such, is subject to the clearly erroneous standard of review. Johnson, 236 B.R. at 518 (citing Anderson, 470 U.S. at 573-74). The Bankruptcy Court heard testimony and reviewed voice mail records before coming to the conclusion that the appellee never received notice of Mrs. Allen's March 24, 2003 bankruptcy filing.*fn9 Bankr. Ct. Decision at 41-42. As the Bankruptcy Court stated, the appellants' description of the voice mail message "was at best sketchy." Id. at 43. Mr. Allen himself recognized that he was "uncertain whether he had contacted the appropriate office to stop the ...


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