In re Coffey

595 B.R. 501
CourtUnited States Bankruptcy Court, D. South Carolina
DecidedDecember 21, 2018
DocketC/A No. 18-05614-DD
StatusPublished

This text of 595 B.R. 501 (In re Coffey) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Coffey, 595 B.R. 501 (S.C. 2018).

Opinion

David R. Duncan, Chief US Bankruptcy Judge, District of South Carolina

This matter is before the Court on a motion for relief from stay filed by Gateway Mortgage Group, LLC ("Gateway") on November 14, 2018. The debtor, L.E. Pauli Coffey, filed three responses to the motion. A hearing was held on Gateway's motion on December 18, 2018.1 Gateway's counsel and Ms. Coffey both appeared at the hearing. At the hearing, both parties consented to the Court reviewing the documents filed in both the state court and the United States District Court litigation between the parties. Accordingly, the Court advised the parties that it would likely grant Gateway's motion, subject to its review of the state court and District Court dockets. Subsequent to the hearing, on December 18 and December 20, Ms. Coffey filed additional responses to Gateway's motion. After reviewing all of the documents filed in relation to the motion for relief from stay and the state court and District Court dockets, and consistent with its tentative ruling at the December 18 *503hearing, the Court now grants Gateway's motion and issues this order.

BACKGROUND AND FACTS

1. Ms. Coffey filed her chapter 7 bankruptcy case pro se on November 2, 2018.

2. Ms. Coffey's schedules and statements were due on November 16, 2018, but to date have not been filed. Ms. Coffey's meeting of creditors is scheduled for December 27, 2018.

3. Gateway filed its motion for relief from stay on November 14, 2018. In its motion, Gateway seeks relief from the automatic stay to conclude the foreclosure of its collateral, Ms. Coffey's residence located at 1707 Palmetto Drive, Beaufort, SC 29902 (the "Property").

4. The evidence presented by Gateway indicates that it is the holder of a note in the original principal amount of $ 110,000.00, executed and delivered by Chris A. Smock, Ms. Coffey's deceased husband, to Gateway on May 21, 2014.2 The note is secured by a mortgage on the Property. Ms. Coffey did not sign the note or the mortgage. For several reasons, Ms. Coffey disputes the validity of the mortgage and asserts that it does not encumber the Property.

5. The certification of facts attached to Gateway's motion indicates that the fair market value of the Property is $ 110,000.00. Ms. Coffey did not file a certification of facts with her responses. See SC LBR 4001-1(a)(2) ("Failure to complete, serve, and file a responding certification of facts, or to complete fully the certification of facts shall be deemed an agreement to the terms contained in the movant's certification."). Ms. Coffey asserts a higher value but presented no evidence of value at the hearing.

6. Gateway's certification of facts indicates that the amount owed to Gateway is $ 139,718.13. Ms. Coffey disputes that anything is owed to Gateway.

7. Gateway commenced a state court foreclosure action for foreclosure of its mortgage on the Property on October 25, 2016.3 Gateway's foreclosure action does not seek a deficiency judgment against Ms. Coffey and therefore is not attempting to recover from Ms. Coffey personally. Gateway concedes that Ms. Coffey did not sign the note or the mortgage.

8. On December 30, 2016, Gateway filed a motion for summary judgment in the foreclosure action, requesting that the Court find its mortgage on the Property valid. Judge Dukes, the Master-in-Equity for Beaufort County, granted the motion on January 30, 2017, finding that Gateway's mortgage is valid and ordering that the foreclosure can proceed. Judge Dukes subsequently recused himself on August 2, 2017; however, the January 30, 2017 order was not vacated. R. Thayer Rivers, Jr. was appointed the special referee for the case on August 17, 2017.

9. After lengthy litigation between the parties, an Order and Judgment of Foreclosure and Sale was issued on September 18, 2018.

10. The foreclosure sale was scheduled for November 5, 2018; however, the sale was cancelled due to Ms. Coffey's bankruptcy filing on November 2.

*50411. Ms. Coffey filed a notice of appeal of the Order and Judgment of Foreclosure and Sale on September 24, 2018. The appeal is currently pending. Ms. Coffey filed a motion to stay the foreclosure sale, which the South Carolina Court of Appeals denied on November 2, 2018. Ms. Coffey concedes that she has not and cannot post the bond to stay the sale of the Property as required by S.C. Code § 18-9-170.

12. Litigation between the parties is also pending in the United States District Court. On November 7, 2017, Ms. Coffey commenced an action against Gateway for violations of the Fair Credit Reporting Act, invasion of privacy, and negligent, wanton, and intentional conduct.4 Gateway filed a motion to dismiss the action on January 29, 2018, and United States Magistrate Judge Mary Gordon Baker issued a Report and Recommendation on July 16, 2018 recommending that the motion be granted. United States District Judge Norton adopted the Report and Recommendation on August 3, 2018. Ms. Coffey appealed the decision to the Fourth Circuit on August 9, 2018, and the Fourth Circuit affirmed the District Court on October 25, 2018. The Fourth Circuit's mandate and judgment was entered on November 16, 2018.

13. At the hearing on Gateway's motion for relief from stay, Ms. Coffey put forth several arguments in opposition to the motion, referencing pleadings and evidence she stated she had previously filed in both the state court foreclosure action and the District Court action. As a result, after the hearing and with the consent of the parties, the Court reviewed the dockets and the pleadings filed for both cases, as well as the docket for the pending appeal of the foreclosure action.

DISCUSSION

Gateway's motion asserts that Gateway is entitled to relief from stay pursuant to 11 U.S.C. § 362(d)(1) and (d)(2). For the reasons set forth below, Gateway is entitled to relief from stay pursuant to § 362(d)(1) for cause, due to lack of adequate protection and to the advanced stage of the state court and District Court actions and pursuant to § 362(d)(2) because Ms. Coffey has no equity in the property and the property is not necessary for an effective reorganization.

1. § 362(d)(1)

11 U.S.C. § 362(d)(1) provides, in relevant part:

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.

The bankruptcy code does not define "cause." In re Beaumont , 548 B.R.

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Related

In Re Gibson
450 B.R. 585 (D. South Carolina, 2011)
In re Mitchell
546 B.R. 339 (D. South Carolina, 2016)
In re Beaumont
548 B.R. 437 (D. South Carolina, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
595 B.R. 501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-coffey-scb-2018.