The bankruptcy court granted the Motion for in rem relief sought by Wells Fargo pursuant to 11 U.S.C. § 362(d)(4), as to Mr. Clark and his wife, further barring Mr. Clark from filing any bankruptcy in the Eastern District of North Carolina for one year.
In denying the Mr. Clark’s motion for stay pending appeal and for a writ of supersedes, the district denied such finding the Mr. Clark had not made a clear showing that he had a likelihood of success in the appeal and agreeing with the bankruptcy court that Mr. Clark would not suffer irreparable harm in the absence of a stay, as he had been in default on the mortgage for 4.5 years.… Read More
The standard for a stay pending appeal requires a showing of all of the following:
(1) That the movant is likely to succeed on the merits;
(2) That the movant is likely to suffer irreparable harm in the absence of the injunction;
(3) That the balance of equities tips in his favor; and
(4) That the injunction is in the public interest.
Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir. 2009) vacated on other grounds, 130 S. Ct. 2371 (2010). In this case, the appellant was being treated as fully secured in a feasible plan with a multi-million dollar equity cushion.… Read More
The Bankruptcy Court, subsequently affirmed by the District Court, determined that the two liens held by Bank of America against real property were void pursuant to 11 U.S.C. § 544(a)(1) because of inaccurate property descriptions. See Meade v. Bank of America (In re Meade), 2011 Bankr. LEXIS 4631, 2011 WL 5909398 (Bankr. E.D.N.C. July 29, 2011), and Bank of America v. Meade,Bank of Am. v. Meade, 2012 U.S. Dist. LEXIS 96071 (E.D.N.C. July 9, 2012). Bank of America appealed to the 4th Circuit, but failed to seek a stay pending appeal and, pursuant to the Chapter 11 plan and other orders of the Bankruptcy Court, the Debtor sold the real property free and clear of all liens.… Read More
The pro se Debtor attacked a foreclosure on several fronts, first appealing the Clerk of Court authorization of the foreclosure to the Superior Court and then to the Court of Appeals. The Debtor did not file a motion to stay the foreclosure pending the appeal and the property was sold at auction.
The Court of Appeals held that the foreclosure auction mooted the subsequent appeal, leaving nothing to be heard.
For a copy of the opinion, please see:
Wilson- Failure to Enjoin Foreclosure Pending Appeal.pdf… Read More