Credit Nation Lending Services, LLC v. Nettles

489 B.R. 239, 2013 WL 1282305, 2013 U.S. Dist. LEXIS 40941
CourtUnited States Bankruptcy Court, N.D. Alabama
DecidedMarch 25, 2013
DocketNo. 5:12-cv-1840-SLB
StatusPublished
Cited by8 cases

This text of 489 B.R. 239 (Credit Nation Lending Services, LLC v. Nettles) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, N.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Credit Nation Lending Services, LLC v. Nettles, 489 B.R. 239, 2013 WL 1282305, 2013 U.S. Dist. LEXIS 40941 (Ala. 2013).

Opinion

MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Chief Judge.

This case is before the court on Credit Nation Lending Services, LLC’s (“Credit Nation”) Notice of Appeal, (doc. I),1 from the March 19, 2012 Judgment of the United States Bankruptcy Court for the Northern District of Alabama, Northern Division. Credit Nation requests this court to reverse the portion of the Judgment discharging appellees Louis Nettles (“Mr. Nettles”) and Linda Nettles’s (“Mrs. Nettles”) (collectively, “the Nettles”) indebtedness to Credit Nation in the amount of $6,127.54. Upon consideration of the record, the submissions of the parties, and the relevant law, the court is of the opinion that the Judgment of the bankruptcy court is due to be affirmed.

I. STANDARD OF REVIEW

District courts have appellate jurisdiction over the judgments, orders, and decrees of bankruptcy courts. 28 U.S.C. § 158(a). The applicable standard of review regarding findings of fact is set out in Rule 8013 of the Federal Rules of Bankruptcy Procedure, which provides:

[242]*242On an appeal the district court ... may affirm, modify, or reverse a bankruptcy judge’s judgment, order, or decree or remand with instructions for further proceedings. Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless 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. “A factual finding is not clearly erroneous unless this court, after reviewing all of the evidence, [is] left with the definite and firm conviction that a mistake has been committed.” IBT Int’l, Inc. v. Northern (In re Int’l Admin. Servs., Inc.), 408 F.3d 689, 698 (11th Cir.2005) (internal quotation marks and citation omitted). The district court’s review of a bankruptcy court’s legal conclusions, on the other hand, is de novo. Club Assocs. v. Consol. Capital Realty Investors (In re Club Assocs.), 951 F.2d 1223, 1228 (11th Cir.1992). Likewise, mixed questions of law and fact are reviewed de novo. See Christopher v. Cox (In re Cox), 493 F.3d 1336, 1340 n. 9 (11th Cir.2007) (citing Green Tree Acceptance Inc. v. Calvert (In re Calvert), 907 F.2d 1069, 1071 (11th Cir.1990)). “While [the district court] as an appellate court gives deference to all findings of fact by the fact finder if based upon substantial evidence, [the appellate court] freely examines the applicable principles of law to see if they were properly applied and freely examines the evidence in support of any particular finding to see if it meets the test of substantiality.” Club Assocs., 951 F.2d at 1228-29 (internal quotation marks and citation omitted); See also Verola v. Colton (In re Verola), 336 B.R. 547, 549 (S.D.Fla.2004) (“De novo review requires the Court to make a judgment independent of the bankruptcy court’s, without deference to that court’s analysis and conclusions.” (internal quotation marks and citation omitted)). A bankruptcy court’s decision to award punitive damages pursuant to section 362(k) of the Bankruptcy Code, 11 U.S.C. § 362(k), is subject to de novo review. In re McBride, 473 B.R. 813, 821 (S.D.Ala.2012) (citing Varela v. Ocasio (In re Ocasio), 272 B.R. 815, 823 (1st Cir. BAP 2002)).

II. STATEMENT OF FACTS2

On September 30, 2011, the Nettles filed a Chapter 13 bankruptcy petition and plan in the United States Bankruptcy Court for the Northern District of Alabama, Northern Division. (B.C. Docs. 1 & 8.) Credit Nation filed a secured proof of claim with respect to the Nettles’s 2005 Kia Spectra on October 20, 2011, in the amount of $6,127.54. (Doc. 2 at 15:3-6.) The Nettles filed an amended Chapter 13 plan on December 7, 2011, which the bankruptcy court confirmed on December 13, 2011. (B.C. Docs. 35 & 37.) The Nettles proposed a monthly fixed payment be made to Credit Nation in the amount of $250.00. (Doc. 2 at 3:16-18.)

On March 9, 2012, Mrs. Nettles noticed that the Kia Spectra, the couple’s only mode of transportation, was missing. (Id. at 7:7-11, 9:7-9.) After initially contacting the police, Mrs. Nettles called Credit Nation suspecting that the vehicle had been repossessed because, as Mrs. Nettles testified, “this happened last year at this same [243]*243time with the same people.” (Id. at 7:14-16.) A representative of Credit Nation confirmed her suspicion, stating that the vehicle had been repossessed due to a lapse in insurance coverage. (Id. at 7: lb-17.) Mrs. Nettles immediately contacted her attorney, Jeffrey Irby (“Irby”), and the insurance company. (Id. at 7:18-20.) The insurance company emailed Mrs. Nettles verification that the insurance policy remained in effect, as well as sending proof of insurance to Irby and Credit Nation. (Id. at 7:20-23.)

Irby then contacted counsel for Credit Nation, Brandon Bryson (“Bryson”). Irby informed Bryson of the Nettles’s bankruptcy, faxed him proof of insurance coverage, and requested that the vehicle be returned. (Id. at 12:5-11, 12:13-18.) Bry-son was aware of the bankruptcy proceedings. (Id. at 12:9-13.) Irby contacted Bryson a second time, again requesting the vehicle’s return. (Id. at 12:17-18.) Bryson provided Irby with a telephone number and stated “[the Nettles] could go and pick the vehicle up.” (Id. at 12:19-20.) Bryson indicated that the vehicle was impounded in Georgia. (Id. at 12:21.) Irby asked, “Are you going to deliver it?” to which Bryson responded, “They can make arrangements to pick it up.” (Id. at 12:21-23.) At that point, Irby advised Bryson that the Nettles “would file a motion with the court seeking for the property to be returned.” (Id. at 12:24-25.)

On March 12, 2012, the Nettles filed a Motion Seeking Turnover of Property Pursuant to 11 U.S.C. Section 542 and a Motion for Expedited Hearing in the bankruptcy proceeding. (B.C. Does. 43 & 44.) Due to a problem with the certificates of service, the Nettles filed amended versions of the prior filed documents on March 13, 2012. (B.C. Docs. 47 & 48.) That same day, the bankruptcy court set the Amended Motion Seeking Turnover of Property Pursuant to 11 U.S.C. Section 542 for a hearing at 9:00 a.m. on March 19, 2012. (B.C. Doc. 49.)

Mrs.

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489 B.R. 239, 2013 WL 1282305, 2013 U.S. Dist. LEXIS 40941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/credit-nation-lending-services-llc-v-nettles-alnb-2013.