Richard L. Alexander v. Prime Asset Fund II ( 2011 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 10, 2011*
Decided August 16, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
Nos. 11-1797 & 11-1798
In the Matter of RICHARD LOUIS Appeal from the United States District
ALEXANDER, Court for the Western District of Wisconsin.
Debtor-Appellant.
Nos. 10-cv-310-wmc & 10-cv-311-wmc
William M. Conley,
Chief Judge.
ORDER
After Richard Alexander filed for bankruptcy, a bankruptcy judge granted two
secured creditors, Kondaur Capital Corporation and Prime Asset Fund II, relief from the
automatic stay on collecting debts to permit them to pursue pending state-foreclosure
proceedings. See 11 U.S.C. § 362(a), (d). Alexander moved to reconsider, which was denied,
*
After examining the briefs and the records, we have concluded that oral argument
is unnecessary. Thus, the appeals are submitted on the briefs and the records. See FED. R.
APP. P. 34(a)(2)(C).
Nos. 11-1797 & 11-1798 Page 2
and then appealed to the district court, which affirmed. Because the bankruptcy court
granted both motions for relief for the same reasons, we decide the appeals together.
Finding no abuse of discretion, we affirm.
Each of the creditors asserted in its motion for relief from the stay that Alexander had
executed a promissory note and mortgage on specified property; the original holder of the
notes assigned them to Kondaur Capital and Prime Asset; and Alexander defaulted on the
obligations, prompting foreclosure proceedings. The creditors explained that their interests
were insufficiently protected because Alexander had failed to make monthly payments, had
no equity in the properties secured, and did not plan in his proposed bankruptcy budget to
pay real estate taxes or insurance. Alexander objected to each of the motions, arguing that
the creditors had not provided the bankruptcy court “proofs of claim” under Federal Rule of
Bankruptcy Procedure 3002.
After holding hearings in both cases, the bankruptcy court judge concluded that the
debt remaining on the mortgage notes well exceeded the value of the mortgaged properties,
Alexander retained no equity in the properties secured, and Alexander presented no
evidence of hazard insurance or payments of taxes. The court also rejected Alexander’s
argument that the secured creditors had not offered “proofs of claim,” concluding that no
such proof was required. As a result, the bankruptcy court granted the creditors’ requests
for relief from the automatic stay. A representative of the U.S. Trustee was present at each
hearing and did not object to the grant of relief from the automatic stay.
Alexander first sought reconsideration of each motion in the bankruptcy court and
then review by the district court, which affirmed, finding no abuse of discretion. He then
appealed to us. On appeal, we too review the bankruptcy court’s rulings to lift the automatic
stay for abuse of discretion and its underlying factual findings for clear error. See Colon v.
Option One Mortg. Corp., 319 F.3d 912, 916 (7th Cir. 2003); In re Williams, 144 F.3d 544, 546
(7th Cir. 1998); In re Vitreous Steel Prods. Co., 911 F.2d 1223, 1231-32 (7th Cir. 1990); In re
Boomgarden, 780 F.2d 657, 660 (7th Cir. 1985).
We find no fault with the bankruptcy court’s ruling. Alexander first argues on appeal
that the bankruptcy court erred by failing to permit him a 7-day extension to file an
objection to Kondaur Capital’s motion for relief from the stay. But though the bankruptcy
court denied the extension, it nonetheless entertained on the merits the objections Alexander
later filed. Consequently, any error in denying more time was harmless. See 28 U.S.C. § 2111;
FED. R. CIV. P. 61; Shinseki v. Sanders, 129 S. Ct. 1696, 1705 (2009). Alexander also faults the
bankruptcy court for granting the creditors’ requests for relief without requiring both
creditors to file “proofs of claim” as defined by Federal Rule of Bankruptcy Procedure
Nos. 11-1797 & 11-1798 Page 3
3003(c)(2). But a secured creditor need not file a “proof of claim” unless the creditor wishes
to take part in the distribution of estate assets; here the creditors sought to separate the
mortgaged property from the bankruptcy estate and vindicate their claims in foreclosure
proceedings in state court, as the bankruptcy code permits. See 11 U.S.C. § 506(d)(2); In re
Penrod, 50 F.3d 459, 461 (7th Cir. 1995) (“A secured creditor can bypass his debtor’s
bankruptcy proceeding and enforce his lien in the usual way, which would normally be by
bringing a foreclosure action in a state court. This is the principle that liens pass through the
bankruptcy unaffected.”); In re Pence, 905 F.2d 1107, 1110 (7th Cir. 1990).
Even though a “proof of claim” was not necessary, both creditors adequately justified
their motions for relief. Given the summary nature of automatic-stay proceedings, the
bankruptcy court may lift the stay if it is satisfied that a creditor has presented a colorable
claim that will not impair effective reorganization. See In re Vitreous Steel Prods. Co., 911 F.2d
at 1232; In re Johnson, 756 F.2d 738, 740 (9th Cir. 1985). Here, the creditors established their
claims by citing the original mortgage documents, the validity of which Alexander did not
dispute, and presenting copies of executed and recorded assignments transferring the
mortgage notes to the creditors. Furthermore, lifting the stay did not impair reorganization
because the bankruptcy court found, not clearly erroneously, that Alexander had no equity
in the properties, that he was insufficiently insured, and that he had no plan to pay either
the amount in arrears on the mortgage or the taxes due. The bankruptcy court properly
determined the absence of Alexander’s equity in the properties by comparing the valuations
from his own schedules with the amounts remaining on the notes (which exceeded
Alexander’s own estimates of market value). He had ample opportunity to present evidence
contesting these findings when he filed motions to reconsider in each case. His failure to
back up his arguments (for example, his claim to have insured the properties) with any
additional evidence belies his contrary arguments.
We note finally that Alexander also contends on appeal that creditors, their
attorneys, and the original mortgage holder on his properties conspired to defraud him. His
brief does not substantiate any fraud, however, and, more importantly, this is not the forum
for the airing of those grievances in the first instance. See Loubser v. Thacker, 440 F.3d 439, 442
(7th Cir. 2006) (“one cannot present evidence to an appellate court”).
AFFIRMED.