In re Brumlik

185 B.R. 887, 1995 Bankr. LEXIS 521, 75 A.F.T.R.2d (RIA) 2264, 1995 WL 516573
CourtUnited States Bankruptcy Court, M.D. Florida
DecidedApril 11, 1995
DocketBankruptcy No. 95-1468-6B3
StatusPublished
Cited by4 cases

This text of 185 B.R. 887 (In re Brumlik) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Brumlik, 185 B.R. 887, 1995 Bankr. LEXIS 521, 75 A.F.T.R.2d (RIA) 2264, 1995 WL 516573 (Fla. 1995).

Opinion

MEMORANDUM OPINION

ARTHUR B. BRISKMAN, Bankruptcy Judge.

This matter came before the Court on the final evidentiary hearing on the Motion for Relief from Stay filed by City National Bank of Florida (“City National”) (Doc. No. 4). Appearing before the Court were David Shields, attorney for the Movant; Roy Beach, attorney for the Debtor; and Carl Spate, attorney for Boston Investors Group, Inc. After receiving testimony, exhibits and arguments of counsel, the Court makes the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

Timothy S. Brumlik (the “Debtor”) and his spouse filed for relief under Chapter 11 of the Bankruptcy Code in the Middle District of Georgia on April 9, 1991. The case was transferred to the Middle District of Florida on July 15,1991. Subsequently, the case was converted to a Chapter 7 case, Case No. 91-03720-6C7 (the “Chapter 7 ease”). No discharge has been entered in that case.

In August 1983, the Debtor and his spouse purchased home subject to a first mortgage subsequently assigned to Boston Investors Group Inc. and Cambridge Capital Corporation. In August 1984, the Debtor and his spouse obtained a second mortgage on the property through City National which was modified pursuant to a September 22, 1987 Mortgage Modification and Conversion Agreement. The Debtor and his spouse defaulted under the terms of the first and second mortgages. The first mortgagee alleges the Debtor and his spouse failed to make the payment timely when due on February 1,1991 and failed to make all payments subsequent to October 1, 1991, leaving the principal sum due of $401,310.79 plus inter[889]*889est, costs, and attorney fees.1 City National alleges it failed to receive a timely payment on January 30, 1991, and failed to receive payments subsequent to September 9, 1991, except for a few interest payments in late 1994, leaving the principal sum due of $327,-004.16 plus interest, costs, and attorney fees.

City National, the Trustee, and the Debtor entered a Stipulation on Movant’s Motion for Relief from Stay (the “Stipulation”) in the Chapter 7 case. The Debtor consented to relief from stay and stipulated that:

In no event shall Debtors or Trustee take any action to delay a foreclosure sale of the property beyond November 21, 1994, if by that date all of the requirements for the sale of the property set forth in paragraph 19 of this Stipulation have not been completed.

The Court entered an Order Granting City National’s Motion for Relief from Stay on May 26, 1994 in the Chapter 7 case. The Order approved the stipulation, granted relief to City National in accordance with the Stipulation, and provided: “The parties shall comply with the terms of the Stipulation.”

City National scheduled a foreclosure sale pursuant to a final judgment in Seminole County Circuit Court, under Case No. 94-1208-CA-14-B, pursuant to Movant’s second mortgage on the homestead owned by the Debtor and his wife (the “foreclosure case”). The foreclosure sale was set for Thursday morning, March 30, 1995, at 11:00 a.m. The Debtor filed this petition for relief under Chapter 13 of the Bankruptcy Code on the eve of the foreclosure sale, March 29,1995, at approximately 3:00 p.m. The Chapter 13 filing was an attempt to delay City National’s foreclosure sale beyond November 21, 1984, a breach of the Stipulation, and a violation of the Order requiring the parties to comply with the Stipulation.

At an emergency hearing on March 30, 1995, this Court entered an Order granting Movant partial relief from stay to allow the scheduled foreclosure sale to be take place with the condition that no certificate of title or sale was to be issued until further order of this Court at a final evidentiary hearing which was held April 7, 1995.

Pursuant to the Stipulation, the Debtor and his wife are indebted under the first mortgage and the second mortgage in excess of $750,000.00. The Debtor and his spouse are indebted to the first mortgagee2 in the sum of $547,063.38 plus interest accruing at the rate of $121.23 daily. City National is owed the sum of $450,041.25 plus attorney fees subject to court approval. Federal tax hens secured against the property are in excess of $1,000,000.00. The Debtor contends the tax obligations will be satisfied in the pending Chapter 7 case but as of the date of the fifing of the Chapter 13 petition, the taxes are still due and owing.

The Debtor has made allegations he has a claim against one of the mortgage holders which is unsupported by documentary evidence. No lawsuit has been filed as to that claim. All events giving rise to the liability as to the mortgages and secured tax liability occurred prior to the fifing of the current bankruptcy petition and are not contingent.

CONCLUSIONS OF LAW

The automatic stay is governed by Section 362 of the Bankruptcy Code which provides in pertinent part,

(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—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;

11 U.S.C. § 362(d). Once a moving party establishes “cause” for relief from stay, the burden then shifts to the debtor to demonstrate that he is entitled to protection of the automatic stay. Goya Foods v. Unanue-Casal (In re Unanue-Casal), 159 B.R. 90 [890]*890(D.P.R.1993), aff'd 23 F.3d 395 (1st Cir.1994); 11 U.S.C. § 362(g). Whether “cause” exists for relief from stay is a question dependent upon facts as adduced at the hearing and guided by a trial court’s discretion. Unanue-Casal, 159 B.R. at 94. Where “cause” exists, relief must be granted. Id.

City National bases its contention of “cause” on breach of the Stipulation, violation of the Order approving said Stipulation, and exceeding the threshold for eligibility for Chapter 13.

A court order properly entered consistent with due process is entitled to full faith and credit. Shron v. M & G Promo Servs. (In re Anthony Sicari, Inc.), 151 B.R. 60 (S.D.N.Y.1993). As an order of this Court, the May 27, 1994 Order Granting City National Bank’s Motion for Relief from Stay requiring the parties to comply with the terms of the Stipulation is entitled to full faith and credit in this case.

By filing for relief under Chapter 13 of the Bankruptcy Code immediately prior to the scheduled foreclosure sale, the Debtor breached the Stipulation’s provisions precluding any action to delay a foreclosure sale beyond November 21, 1994, and violated the Order requiring the parties to comply with the terms of the Stipulation.

The Debtor’s first and second mortgages on the property exceeded $750,000.00. In addition, a tax lien of more than $1,000,-000.00 is secured by the property. Section 109(e) of the Bankruptcy Code governs eligibility under Chapter 13. It provides,

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185 B.R. 887, 1995 Bankr. LEXIS 521, 75 A.F.T.R.2d (RIA) 2264, 1995 WL 516573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-brumlik-flmb-1995.