Tabitha Baker v. Bank of America, N.A.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: December 29, 2020
• Docket: 20-10780
• Status: Unpublished

Opinion

USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 1 of 20

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT __________________________

No. 20-10780 Non-Argument Calendar __________________________

D.C. Docket No. 9:19-cv-80782-RLR Bkcy No. 9:18-bk-16061-MAM

TABITHA BAKER,

Plaintiff-Appellant,

versus

BANK OF AMERICA, N.A.,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(December 29, 2020)

Before WILSON, BRANCH, and LAGOA, Circuit Judges.

PER CURIAM: USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 2 of 20

When Tabitha Baker fell behind on her home mortgage payments, Baker’s

creditors scheduled multiple foreclosure sales. Each scheduled sale was thwarted

by a last-minute bankruptcy filing. Despite a fifth bankruptcy filing on the eve of a

scheduled foreclosure sale—which entitled Baker to an automatic stay from the

foreclosure proceeding—Bank of American N.A. (“BANA”) executed the sale.

Baker then sued BANA and the winning bidder for violating the automatic stay.

So, BANA sought retroactive and prospective relief from the stay in the

bankruptcy court. The bankruptcy court granted BANA’s requested relief because

it found that the numerous bankruptcy filings were part of a scheme to delay the

foreclosure sale. The district court affirmed. Baker appeals, arguing that the

bankruptcy court erred for numerous reasons. We affirm because the bankruptcy

court did not abuse its discretion in reopening the case and granting BANA’s

requested relief.

I. Background

Because we write primarily for the parties, we describe only those facts

necessary to address the issues raised in this appeal.

On April 28, 2005, Tabitha Baker1 executed and delivered a promissory note

for $392,000 to Countrywide Home Loans, Inc. (“Countrywide”) to finance her

1 For an unknown period, Baker’s last name was Cote. For clarity’s sake, we will refer to her throughout this opinion as Baker.

2 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 3 of 20

purchase of a home in Fulton County, Georgia (the “Property”). The loan was

secured by a mortgage deed. On February 5, 2008, Baker executed and delivered a

loan modification agreement to Countrywide. Baker ceased making payments

after October 7, 2008.

Between 2006 and 2017, the Property was transferred by a quit claim deed

on five occasions. The Property was transferred between and among Baker,

Michael Bourf, Mark Schecklenburg, the Four Square Foundation, and the

Bayshore Company. Baker retained an interest in the Property after the first two

transfers, and she received complete ownership again after the fifth transfer.

Beginning in 2012, there were five bankruptcy filings associated with the

Property. Baker first filed for Chapter 13 bankruptcy 2 in July 2012, but her case

was dismissed because she failed to attend the meeting of creditors or file the

necessary paperwork. From 2015 to 2018, Baker’s creditors (including BANA)

scheduled four foreclosure sales on the Property. Each time, a bankruptcy petition

was filed on the eve of or mere days before the scheduled sale. Mark

Schecklenburg petitioned for bankruptcy on two occasions, and Four Square

2 “A Chapter 13 bankruptcy—sometimes called a ‘wage earners plan’—enables a debtor with a regular income to repay all or part of his debts, typically over a three- to five-year period.” In re Cumbess, 960 F.3d 1325, 1330 (11th Cir. 2020).

3 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 4 of 20

Foundation petitioned on one occasion. Those petitions were all dismissed when

the debtors failed to file necessary paperwork or attend hearings and meetings.

Relevant here, Baker filed a fifth bankruptcy petition on April 2, 2018—the

day before a scheduled foreclosure sale. The clerk of the bankruptcy court ordered

Baker to correct numerous deficiencies in her filing. When Baker did not cure the

deficiencies, the bankruptcy court dismissed the case on May 21, 2018, with 180

days’ prejudice.3

Although Baker’s bankruptcy filing triggered an automatic stay on a

scheduled foreclosure sale under 11 U.S.C. § 362(a), a foreclosure sale occurred as

planned on April 3, 2018. Najarian Capital, LLC was the successful bidder at the

sale.

Baker then sued BANA and Najarian Capital, LLC in federal court for

violating the automatic stay. Baker sought damages and asked the district court to

hold the defendants in contempt of court.

In response to Baker’s lawsuit, BANA returned to the bankruptcy court and

moved to reopen Baker’s bankruptcy case. It requested nunc pro tunc relief from

the automatic stay, prospective relief, and other related relief. The bankruptcy

3 Under the Bankruptcy Code, an individual is barred from petitioning for bankruptcy for 180 days if his previous “case was dismissed by the court for willful failure of the debtor to abide by orders of the court, or to appear before the court in proper prosecution of the case[.]” 11 U.S.C. § 109(g). The bankruptcy court identified numerous deficiencies in Baker’s bankruptcy petition and ordered her to provide her Social Security number. Baker never supplemented her bankruptcy petition. 4 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 5 of 20

court scheduled a hearing on the motion on January 15, 2019. Baker filed an

untimely response to the motion at 11:30 p.m. on the night before the hearing that

included a declaration from Baker.4 In her response, she argued that: (1) BANA

did not properly move to reopen the case, (2) BANA was guilty of unclean hands,

(3) BANA should be estopped from reopening the case and seeking relief, and (4)

nunc pro tunc relief was unwarranted. Despite the untimeliness of Baker’s

submission, the bankruptcy court permitted both parties to argue their respective

positions at the hearing.

At the conclusion of the hearing, the bankruptcy court orally explained why

it found cause to grant BANA’s motion and requested relief. The bankruptcy court

then issued an order memorializing its decision. Baker moved to alter or amend

the bankruptcy court’s order, but her motion was denied when she failed to appear

at a hearing on the motion.

Baker appealed to the district court, but the district court affirmed. This

appeal followed.

4 The local rules provide that: Memoranda, affidavits and other papers intended for consideration at any hearing . . . shall be filed and served so as to be received by the movant and the court not later than 4:30 p.m. on the second business day prior to the hearing, or the papers submitted may not be considered at the hearing. S.D. Fl. Bankr. L.R. 5005-1(F)(1).

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II. Standard of Review

When reviewing a decision of the bankruptcy court, we “sit[] as a second

court of review and . . . examine[] independently the factual and legal

determinations of the bankruptcy court and employ[] the same standards of review

as the district court.” In re Daughtrey, 896 F.3d 1255, 1273 (11th Cir. 2018)

(quotation omitted). We review the bankruptcy court’s decision to lift an

automatic stay for abuse of discretion. In re Dixie Broad., Inc., 871 F.2d 1023,

1026 (11th Cir. 1989). “A bankruptcy court abuses its discretion when it either

misapplies the law or bases its decision on factual findings that are clearly

erroneous.” In re Daughtrey, 896 F.3d at 1274. We review legal conclusions de

novo. In re Feingold, 730 F.3d 1268, 1272 n.2 (11th Cir. 2013). “A factual

finding is not clearly erroneous unless, after reviewing all of the evidence, we are

left with a definite and firm conviction that a mistake has been committed.” In re

Daughtrey, 896 F.3d at 1273 (citation and quotation marks omitted).5

5 The district court applied plain error review because it determined that Baker forfeited her arguments before the bankruptcy court by (1) failing to file a timely response to BANA’s motion to reopen, and (2) failing to appear at the hearing on Baker’s first motion to alter or amend. On appeal, BANA adopts the district court’s reasoning and submits that plain error review applies. We are not persuaded. At the hearing on the motion to reopen, the bankruptcy court admonished Baker’s counsel for her untimely filing. Nevertheless, the bankruptcy court “permit[ted] [her] to make oral argument in response to [the] motion,” while advising Baker’s counsel not to “assume” that the court had read her untimely filing. The bankruptcy court’s accompanying order again acknowledged Baker’s untimely filing. But nothing in the hearing transcript or order suggests that the bankruptcy court based its decision on Baker’s failure to file a timely response. To the contrary, it noted that it had “heard argument of counsel for BANA 6 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 7 of 20

We “may affirm for any reason supported by the record, even if not relied

upon by the district court.” Lage v. Ocwen Loan Servicing LLC, 839 F.3d 1003,

1009 (11th Cir. 2016) (quotation omitted).

III. Discussion

Baker raises several arguments challenging the bankruptcy court’s order.

None is persuasive. We address each argument in turn.

A. BANA’s standing to pursue relief in the bankruptcy court

Baker argues that BANA lacked standing to pursue relief before the

bankruptcy court for two reasons. First, she argues that BANA lacked

constitutional standing because it did not have a pecuniary or other identifiable

interest in the bankruptcy proceeding. Second, she argues that BANA lacked

“party in interest” standing under the United States Bankruptcy Code because it

was not a secured creditor. We disagree.6

First, we consider constitutional standing. The subject-matter jurisdiction of

federal courts is limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2.

and for the Debtor” and was granting BANA’s motion “for the reasons stated on the record” at the hearing. Accordingly, we decline to find forfeiture. 6 Baker submits that we should remand the case to the bankruptcy court to determine the issue of standing in the first instance. We decline to do so because we “review the legal question of standing de novo[,]” Charles H. Wesley Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1351 (11th Cir. 2005), and the record contains enough evidence to decide the question. Relatedly, Baker also maintains that the district court should have remanded the case when it found that BANA was a servicer rather than a creditor. The distinction is irrelevant because, as we will explain, both a servicer and a creditor have party in interest standing. 7 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 8 of 20

“To have a case or controversy, a litigant must establish that he has standing[.]”

United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). And to establish

standing, a “litigant must prove (1) an injury in fact that (2) is fairly traceable to

the challenged action of the defendant and (3) is likely to be redressed by a

favorable decision.” Jacobson v. Fla. Sec’y of State, 974 F.3d 1236, 1245 (11th

Cir. 2020). BANA suffered an injury because Baker defaulted on the loan that

BANA services and because Baker sued BANA in federal court for sanctions and

to hold BANA in contempt of court for violating the automatic stay. Both injuries

are directly traceable to Baker. And the bankruptcy court’s order granting relief to

BANA is likely to redress BANA’s injury. BANA will benefit from the proceeds

of the foreclosure sale, and BANA can rely on the bankruptcy court’s order as a

defense against Baker’s lawsuit. Therefore, BANA had Article III standing in the

bankruptcy court.

Next, we address party in interest standing. When an individual files a

voluntary bankruptcy petition under 11 U.S.C. § 301, that petition triggers an

automatic stay that protects a debtor “against actions to enforce, collect, assess or

recover claims against the debtor or against property of the estate.” United States

v. White, 466 F.3d 1241, 1244 (11th Cir. 2006) (citing 11 U.S.C. § 362(a)). But

“[o]n request of a party in interest and after notice and a hearing, the [bankruptcy]

court shall grant relief from the [automatic] stay . . . , such as by terminating,

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annulling, modifying, or conditioning such stay” under certain circumstances. 11

U.S.C. § 362(d) (emphasis added). Relevant here, the bankruptcy court shall grant

relief from “a stay of an act against real property . . . by a creditor whose claim is

secured by an interest in such real property, if the court finds that the filing of the

petition was part of a scheme to delay, hinder, or defraud creditors” involving

either: (1) the “transfer of all or part ownership of, or other interest in, such real

property without the consent of the secured creditor or court approval[,]” or (2)

“multiple bankruptcy filings affecting such real property.” Id. § 362(d)(4)

(emphasis added).

A loan “servicer is a party in interest in [Chapter 13] proceedings involving

loans which it services.” Greer v. O’Dell, 305 F.3d 1297, 1302 (11th Cir. 2002).

A “creditor” is an “entity that has a claim against the debtor.” 11 U.S.C.

§ 101(10). And a “claim” is a “right to payment” or a “right to an equitable

remedy for breach of performance if such breach gives rise to a right to

payment[.]” 11 U.S.C. § 101(5)(A)–(B).

In its motion to reopen, BANA identified itself as a secured creditor for, and

the servicer of, Baker’s loan. It supported its motion to reopen with default and

foreclosure notices it sent to Baker over the years. Those notices identified BANA

as acting on behalf of the creditor—Bank of New York Mellon—and servicing the

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loan.7 Thus, BANA had standing under the plain language of § 362(d) to move to

reopen given its status as creditor and servicer.

Although Baker raises a variety of subsidiary points, Baker essentially

argues that BANA lacks standing because it has no contractual rights under the

security deed or promissory note and no legal interest in the property. However,

Baker misses the critical point that BANA had a legal interest in the property as the

representative of the secured creditor and the servicer of the loan. Indeed, Baker

acknowledged the fact—in the bankruptcy court and in her complaint for

sanctions—that BANA is the servicer of the loan and that she failed to make loan

payments to BANA. BANA’s status as a representative of the secured creditor and

as the loan servicer is all that is required to establish its standing to seek relief in

the bankruptcy court. 8

B. The bankruptcy court’s statutory authority to reopen the case

Next, Baker argues that BANA improperly moved to reopen her bankruptcy

case under 11 U.S.C. § 350(b). She contends that a case can be reopened under

7 In addition to having standing by virtue of its acting on behalf of the Bank of New York Mellon, BANA also had standing as a “creditor” because it had a “claim” against Baker (in the form of a “right to payment”). See 11 U.S.C. § 101(5)(A), (10); see also In re Hayden, No. 13- 57281, 2013 WL 3776296, at *2 (Bankr. N.D. Ga. June 25, 2013) (“It is recognized that a servicer of a mortgage is clearly a creditor and has standing to file a proof of claim or assert a claim against a debtor pursuant to its duties as a servicer.”). 8 After carefully considering Baker’s related standing arguments, we find them meritless. For example, Baker argues that BANA was not a creditor because it lacked authority under Georgia law to conduct the foreclosure sale. As noted above, however, BANA has standing for other reasons. 10 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 11 of 20

§ 350(b) only after a case has been closed under § 350(a). And she maintains that

her bankruptcy case was dismissed and not closed. We conclude that the

bankruptcy court had statutory authority to reopen her case.

A bankruptcy court “shall close [a] case” after “an estate is fully

administered and the court has discharged the trustee[.]” 11 U.S.C. § 350(a). A

case may also “be reopened in the court in which such case was closed to

administer assets, to accord relief to the debtor, or for other cause.” Id. § 350(b).

Either “the debtor” or another “party in interest” may move to reopen a case under

§ 350(b). Fed. R. Bankr. P. 5010.

Neither the Bankruptcy Code nor the Bankruptcy Rules define when an

estate is “fully administered.” Nevertheless, when “the trustee has filed a final

report and final account and has certified that the estate has been fully

administered,” and there is no objection, “there shall be a presumption that the

estate has been fully administered.” Fed. R. Bankr. P. 5009(a).

The “bankruptcy court retains broad discretion [under § 350(b)] to reopen a

closed case on a motion of the debtor or another party in interest.” Slater v. United

States Steel Corp., 871 F.3d 1174, 1186 (11th Cir. 2017) (en banc). Thus, we are

deferential to the decision of the bankruptcy court. See In re Haker, 411 F.2d 568,

569 (5th Cir. 1969) (“It is elemental bankruptcy law that the granting of a petition

to reopen is a matter addressed to the sound discretion of the Court, and the only

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reason for setting aside the judgment of the trial court is for an abuse of that

discretion.”).

Baker’s Chapter 13 bankruptcy petition was dismissed with 180 days’

prejudice for failing to file necessary paperwork. Baker moved to reinstate her

petition, but the bankruptcy court denied that motion. The Chapter 13 trustee then

filed the final report and account. The bankruptcy court discharged the trustee and

ordered the case to be closed. Thus, the bankruptcy court fulfilled the plain terms

of § 350(a).

Because Baker sued BANA for violating the automatic stay, BANA later

moved to reopen the case under § 350(b). It sought relief from the automatic stay

under 11 U.S.C. § 362(d)(4), citing Baker’s “scheme to stall, hinder, delay[,] and

defraud the Bank’s efforts to enforce its creditor’s rights with respect to the . . .

Property.” Because the bankruptcy court eventually closed the case, BANA

could—and did—move to reopen under § 350(b), and the bankruptcy court acted

within its broad discretion in granting BANA’s motion.9

9 Baker also argues that BANA moved for relief using the wrong procedural mechanism. She contends that her bankruptcy case was dismissed and not closed and, thus, BANA should have filed a Rule 60 motion rather than moving under § 350(b). See Fed. R. Bankr. P. 9024 (applying Fed. R. Civ. P. 60 to motions seeking relief from a judgment or order). It is true that the bankruptcy court initially dismissed her case with 180 days’ prejudice. But Baker’s argument fails because the bankruptcy court later issued an order closing Baker’s case, and she concedes that § 350(b) is the proper mechanism for reopening a closed case. Moreover, even if we were to ignore the bankruptcy court’s order closing the case, Baker does not attempt to rebut the presumption that her case was fully administered (and therefore closed) when the trustee filed 12 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 13 of 20

C. Baker’s demand for an evidentiary hearing

Next, Baker argues that the bankruptcy court should have held an

evidentiary hearing before granting BANA’s motion to reopen because the

declaration attached to her opposition to BANA’s motion raised disputed issues of

material fact concerning BANA’s entitlement to relief from the automatic stay.

Specifically, she maintains that she raised disputed issues of material fact

concerning whether: (1) she knew about several of the deed transfers and

bankruptcy filings; (2) BANA knew that an automatic stay was in place (and when

it knew); (3) BANA’s legal counsel told Baker that if she could verify that she

filed the fifth bankruptcy petition, the foreclosure sale would have to be rescinded;

(4) BANA delayed in seeking relief from the automatic stay; and (5) Baker ceased

to prosecute the fifth bankruptcy case because BANA offered a loan modification.

We find Baker’s argument unavailing because she delayed in seeking an

evidentiary hearing until after the bankruptcy court granted BANA’s motion to

reopen.

As explained, the bankruptcy court “shall grant relief from the [automatic]

stay” on “request of a party in interest and after notice and a hearing,” if “the court

finds that the filing of the petition was part of a scheme to delay, hinder, or defraud

its report and account and the bankruptcy court discharged the trustee. See Fed. R. Bankr. P. 5009(a). 13 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 14 of 20

creditors.” 11 U.S.C. § 362(d) (emphasis added). “[A]fter notice and a hearing”

means “after such notice as is appropriate in the particular circumstances, and such

opportunity for a hearing as is appropriate in the particular circumstances[.]” Id.

§ 102(1).

Courts have long recognized that this standard is flexible and the hearing

need not be evidentiary in nature. See, e.g., In re Eliapo, 468 F.3d 592, 603 (9th

Cir. 2006) (noting that “the notice-and-hearing definition in § 102(1) is flexible

and sensitive to context”); In re Sullivan Cent. Plaza I, Ltd., 935 F.2d 723, 727 (5th

Cir. 1991) (holding that when “a matter has already been adequately argued before

the bankruptcy judge, and the judge determines that no further hearings are

necessary, then the debtor’s due process rights are not violated when the judge

decides the issue without further hearings”); In re Spillane, 884 F.2d 642, 646 (1st

Cir. 1989) (holding that a hearing without cross examination was appropriate under

§ 102(1) because the district court questioned the parties and permitted them to

present argument); Pursifull v. Eakin, 814 F.2d 1501, 1505–06 (10th Cir. 1987)

(holding that a hearing satisfied the requirements of § 362 because a debtor “had

the opportunity at [the] hearing to argue against the lifting of the [automatic]

stay”); In re Boomgarden, 780 F.2d 657, 662 (7th Cir. 1985) (holding that two

non-evidentiary hearings satisfied § 102(1) because they “covered all of the

important substantive provisions of § 362(d)”).

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At the same time, a “motion for relief from an automatic stay provided by

the Code . . . shall be made in accordance with Rule 9014.” Fed. R. Bankr. P.

4001(a)(1). Rule 9014 provides that “relief shall be requested by motion, and

reasonable notice and opportunity for hearing shall be afforded the party against

whom relief is sought.” Fed. R. Bankr. P. 9014(a). The rule further provides that

“[t]estimony of witnesses with respect to disputed material factual issues shall be

taken in the same manner as testimony in an adversary proceeding.” Fed. R.

Bankr. P. 9014(d). But as the committee notes explain, subsection (d) was “added

to clarify that if the motion cannot be decided without resolving a disputed material

issue of fact, an evidentiary hearing must be held at which testimony of witnesses

is taken.” Id. (emphasis added).

After BANA filed its motion to reopen, the bankruptcy court scheduled a

non-evidentiary hearing. Under that court’s local rules, the non-evidentiary

hearing “shall be restricted to the pleadings, affidavits and papers of record and to

the arguments of attorneys.” S.D. Fl. Bankr. L.R. 4001-1(E). The local rules also

provide that any “[m]emoranda, affidavits and other papers intended for

consideration at any hearing already set before the court” “shall be filed and served

. . . not later than 4:30 p.m. on the second business day prior to the hearing, or the

papers submitted may not be considered at the hearing.” S.D. Fl. Bankr. L.R.

5005-1(F)(1) (emphasis added). However, an untimely submission from a party

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may be considered by the bankruptcy court if the untimely filing is accompanied a

late filing notice that notes “the emergency nature of the filing or stat[es] the

exceptional circumstances for the untimely filing.” S.D. Fl. Bankr. L.R. 5005-

1(F)(2).

Baker received notice and a hearing. The question we must decide is

whether the non-evidentiary hearing was appropriate in the particular

circumstances of this case given the requirements of Rule 9014 and the bankruptcy

court’s local rules.

Baker argues that because she opposed the requested relief from the

automatic stay and highlighted disputed material issues of fact at the

non-evidentiary hearing, the bankruptcy court was required to hold an evidentiary

hearing to resolve those disputed facts under Rule 9014.

Baker’s argument is unpersuasive. Baker did not request an evidentiary

hearing until after the bankruptcy court granted BANA’s motion to reopen. We

generally “turn a deaf ear to protests that an evidentiary hearing should have been

convened but was not” when “the protestor did not seasonably request such a

hearing in lower court.” Sunseri v. Macro Cellular Partners, 412 F.3d 1247, 1250

(11th Cir. 2005) (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st Cir.

1989)). Like the plaintiffs in Sunseri, Baker was “on notice that the [bankruptcy]

court” scheduled a non-evidentiary hearing and “would decide [BANA’s] motion

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based only on the written submissions.” Id. Yet she did not request an evidentiary

hearing either in her untimely opposition to BANA’s motion or at the non-

evidentiary hearing. That omission is puzzling considering that Baker’s counsel

referenced Baker’s declaration at the hearing and the bankruptcy court stated its

findings on the record and indicated that it would grant the motion to reopen.

Although Baker requested an evidentiary hearing in her motion to alter or amend

the bankruptcy court’s order granting BANA’s motion to reopen, Baker does not

explain why the need for an evidentiary hearing became apparent after the

bankruptcy court’s order. Even then, Baker and her counsel failed to attend the

hearing on Baker’s motion to alter or amend the bankruptcy court’s order. Baker’s

lack of diligence does not entitle her to an evidentiary hearing.

Accordingly, the bankruptcy court did not abuse its discretion in conducting

a non-evidentiary hearing.

D. The bankruptcy court’s finding that nunc pro tunc and prospective relief from the automatic stay was warranted

Finally, Baker contends that the bankruptcy court did not conduct the proper

analysis before granting BANA nunc pro tunc and prospective relief from the

automatic stay under 11 U.S.C. § 362(d). We disagree.

BANA moved for relief under § 362(d)(4). As we noted, under § 362(d)(4),

the relevant question is whether the bankruptcy court “finds that the filing of [a

bankruptcy] petition was part of a scheme to delay, hinder, or defraud creditors” 17 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 18 of 20

that involved either the transfer of ownership of the real property “without the

consent of the secured creditor or court approval” or “multiple bankruptcy filings

affecting such real property.”

Short of identifying the factual history of the case as a “scheme,” the

bankruptcy court made every factual finding necessary to support relief under

§ 362(d)(4). The bankruptcy court cited § 362(d)(4). The bankruptcy court found

that the case “appears to be an extremely egregious situation” given the “multiple

bankruptcy filings by multiple debtors, none of which appear to have been filed in

good faith, and all of which were dismissed by various bankruptcy courts based

upon the . . . debtors’ collective failures to comply with the Bankruptcy Code and

the Bankruptcy Rules[.]” In addition, it found that “[t]his situation really cries out

for stay relief, as well as the prospective two-year stay relief under [§] 362(d)(4).”

The bankruptcy court continued:

[T]he Court finds that there is cause for stay relief to be granted on a nunc pro tunc basis, given that there has been a failure for over ten years by this debtor to make payments on account of this mortgage loan; that the allegations indicate that there have been multiple bankruptcy filings by various entities and individuals, including [this case].

...

The Court further finds that in light of the successive bankruptcies, the delay in the ability of Bank of America to proceed with a foreclosure sale of this property because of bankruptcy filings by Mr. Shecklenburg, the Foundation, and then most recently by this debtor,

18 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 19 of 20

it is appropriate to grant a two-year prospective stay relief with respect to this property in accordance with Section 362(d)(4).

In short, the bankruptcy court found that multiple bankruptcy filings were part of a

scheme to delay Baker’s creditors from foreclosing on the property and, therefore,

nunc pro tunc and prospective relief was warranted under § 362(d)(4).

Baker argues that to grant BANA relief under § 362(d)(1), the bankruptcy

court had to find “cause.” Baker notes that we look to several factors in

considering whether “cause” exists, including: (1) “whether the debtor has acted in

bad faith,” (2) “the hardships imposed on the parties with an eye towards the

overall goals of the Bankruptcy Code,” and (3) “pending state court

proceedings[.]” In re Feingold, 730 F.3d 1268, 1277 (11th Cir. 2013) (citation and

quotation marks omitted). And Baker asserts that the bankruptcy court failed to

make such a finding—either at the hearing or in its order granting BANA’s

motion—because it did not “cite to a case or state the legal standard” governing

motions brought under § 362(d)(1). 10

Baker’s argument is unavailing. As an initial matter, BANA moved for

relief from the automatic stay under § 362(d)(4) and not § 362(d)(1). So the

requirements of § 362(d)(1) are irrelevant. In addition, as we have noted from the

10 Baker also rehashes her argument that there are disputed issues of material fact because her declaration “refutes” BANA’s factual allegations and the bankruptcy court’s factual findings. We have already rejected that argument. 19 USCA11 Case: 20-10780 Date Filed: 12/29/2020 Page: 20 of 20

hearing transcript, the bankruptcy court adequately explained that it found “cause”

to grant BANA’s request for nunc pro tunc and prospective relief from the

automatic stay. 11

The bankruptcy court’s analysis satisfied the requirements of § 362(d)(4).

Therefore, the bankruptcy court did not abuse its discretion by awarding BANA

nunc pro tunc and prospective relief from the automatic stay.

IV. Conclusion

For the reasons explained, we affirm.

AFFIRMED.

11 To the extent that Baker argues that the bankruptcy court was required to cite § 362(d)(4) and restate its factual findings in the written order granting BANA’s motion to reopen, we reject that argument. Baker does not provide any legal authority—and we are unaware of any—that requires the bankruptcy court to restate the rationale it orally provided at the hearing in its written order. It is sufficient that the bankruptcy court’s order incorporated “the reasons stated on the record” at the hearing.