Erickson v. Federal Land Bank of Omaha

101 B.R. 124, 1989 U.S. Dist. LEXIS 6339, 1989 WL 61792
CourtDistrict Court, D. Nebraska
DecidedJune 1, 1989
DocketNo. CV88-L-717
StatusPublished
Cited by1 cases

This text of 101 B.R. 124 (Erickson v. Federal Land Bank of Omaha) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Erickson v. Federal Land Bank of Omaha, 101 B.R. 124, 1989 U.S. Dist. LEXIS 6339, 1989 WL 61792 (D. Neb. 1989).

Opinion

MEMORANDUM ON APPEAL

URBOM, District Judge.

Rodney and Vera Erickson appeal from a journal entry dated November 30, 1988, wherein a United States bankruptcy judge1 found that the Federal Land Bank of North Platte had the right to proceed on its motion for relief from the automatic stay that it needs to continue foreclosure proceedings against the Ericksons’ land. The bankruptcy court found that the bank was entitled to proceed because it had determined that the Ericksons’ loan was distressed under the Agricultural Credit Act of 1987. The court also found that the Ericksons had no equity in the real estate and that the Ericksons did not carry their burden of showing that the property subject to the mortgage was necessary for an effective reorganization. Specifically, the bankruptcy court found that “[t]he FLB submitted convincing evidence that it had determined the loan was ‘distressed’ under the Agricultural Credit Act of 1987 and had considered and denied the restructuring request of the debtors.” Based on these findings, the bankruptcy judge granted the Farm Credit Bank relief from the stay.

In determining whether an order of a bankruptcy judge is a final order, this court is guided by the factors listed in In re Olson, 730 F.2d 1109, 1109 (8th Cir. 1984):

(1) the extent to which the order leaves the Bankruptcy Court nothing to do but to execute the order, ... (2) the extent to which delay in obtaining review would prevent the aggrieved party from obtaining effective relief, ... and (3) the extent to which a later reversal on that issue would require recommencement of the entire proceeding.

If the decision of the bankruptcy judge to grant the bank relief from the stay were reversed at a later date, and I am thinking particularly on the basis of non-compliance with the Agricultural Credit Act, then these proceedings would likely be required to be recommenced. Moreover, in keeping with the more liberal view of what constitutes a separate dispute for purposes of an appeal from bankruptcy court, I find that there remains nothing for the bankruptcy court to do in this foreclosure related proceeding but to execute the order. Cf. In re Leimer, 724 F.2d 744, 745 (8th Cir.1984). Thus, I shall review the bankruptcy judge’s decision.

The scope of review employed by district courts in their review of bankruptcy decisions has been outlined by the Eighth Circuit. “The bankruptcy court’s findings of fact are not to be overturned unless clearly erroneous; however, its conclusions of law are subject to de novo review. ... [A]n appellate court has the power to correct errors of law, including ‘a finding of fact that is predicated on a misunderstanding of the governing rule of law.’ ” In re Martin, 761 F.2d 472, 474-75 (8th Cir.1985).

In seeking reversal, the Ericksons argue that the Federal Land Bank did not comply with the provision of the Agricultural Credit Act that requires banks to make a specific determination as to whether a borrower’s loan is distressed. The notice provision of the Act states at 12 U.S.C. § 2202a(b)(l):

On a determination by a qualified lender that a loan made by the lender is or has become a distressed loan, the lender shall provide written notice to the borrower that the loan may be suitable for restructuring, and include with such notice—
(A) a copy of the policy of the lender established under subsection (g) of this section that governs the treatment of distressed loans; and
(B) all materials necessary to enable the borrower to submit an application for restructuring on the loan.

[126]*126Id. (emphasis added). Subsection (g) requires that each bank develop a restructuring policy that includes an explanation of the application process and of the borrower’s right to seek review of a denial of the application from a credit review committee.

In notifying the Ericksons that their loan “may be a distressed loan,” the Ericksons contend that the bank failed to make a determination that their loan was or had become distressed. A copy of In re Wagner, BK88-1788 (Bankr.D.Neb. Jan. 13, 1989), was filed by the Ericksons in support of their motion for an emergency stay. Exhibit A, filing 9. In that case, the bankruptcy court determined that a bank had failed to provide evidence to show whether a determination had been made regarding whether the loan was distressed. The court concluded:

Since the only evidence before the Court is an affidavit of a Farm Credit Bank officer attaching the letters sent to debtors and debtor’s response, this court cannot determine if the Farm Credit Bank made the statutorily required determination prior to mailing the restructuring materials. The letters do not indicate that the determination was made.

Id. The Ericksons argue that the bankruptcy judge erroneously concluded that the b,ank had made the determination that their loan was distressed because the bank submitted no more evidence than did the Farm Credit Bank in Wagner. They also seem to argue that, even if the bank made the determination, they received insufficient notice because the notice did not inform them that the bank had determined that their loan “was or had become” distressed. Based on the Wagner decision and the definition of “distressed loan” found in section 2202a(a)(3), the Ericksons contend that the Federal Land Bank failed to comply with the Agricultural Credit Act of 1987 and, therefore, they are entitled to reversal of the lower court’s decision.

I must determine whether the bankruptcy judge’s findings, that the bank made a determination that the loan was distressed and that the bank complied with the Agricultural Credit Act, are predicated on a proper understanding of the governing rule of law. In re Martin, supra. The term “distressed loan” is defined as:

a loan that the borrower does not have the financial capacity to pay according to its terms and that exhibits one or more of the following characteristics:
(A) The borrower is demonstrating adverse financial and repayment trends.
(B) The loan is delinquent or past due under the terms of the loan contract.
(C) One or both of the factors listed in subpart (A) or (B) together with inadequate collateralization present a high probability of loss to the lender.

At the hearing, the Federal Land Bank offered the affidavit of John E. Hartman who is a loan officer for the bank. The affidavit states:

The records of the Farm Credit Bank reflect that there was due and owing on the Variable Interest Rate Note the sum of $296,418.21 on February 25, 1987, together with interest thereon at a daily rate of $99.62187 from February 25, 1987; the amount due and owing as of October 31, 1988, would, accordingly, be $356,789.06.

Affidavit of John E. Hartman at para. 5.

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Related

Erickson (Rodney Moline) v. Federal Land Bank of Omaha
894 F.2d 1342 (Eighth Circuit, 1989)

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Bluebook (online)
101 B.R. 124, 1989 U.S. Dist. LEXIS 6339, 1989 WL 61792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/erickson-v-federal-land-bank-of-omaha-ned-1989.