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In re Behrens

United States Bankruptcy Appellate Panel of the Eighth Circuit

November 26, 2013

In re Bryan S. BEHRENS, Debtor.
v.
U.S. Bank National Association, as Trustee for RAMP 2006NC2, by Ocwen Loan Servicing, LLC, Creditor-Appellee. Bryan S. Behrens, Debtor-Appellant

Submitted: Oct. 17, 2013.

Page 352

Bryan Behrens, is incarcerated in Terre Haute, IN, and was not represented by counsel.

Richard Mark Beheler, Overland Park, MO, for Appellee.

Before FEDERMAN, Chief Judge, SCHERMER and SHODEEN, Bankruptcy Judges.

SCHERMER, Bankruptcy Judge.

The debtor, Bryan S. Behrens (the " Debtor" ) appeals from the order of the bankruptcy court [1] granting U.S. Bank National Association as Trustee for RAMP 2006 NC2, by Ocwen Loan Servicing, LLC (the " Creditor" ), relief from the automatic stay. The bankruptcy court did so without holding a hearing other than one that was held in the Debtor's wife's case. We have jurisdiction over this appeal from the final order of the bankruptcy court. See

Page 353

28 U.S.C. ยง 158(b). For the reasons set forth below, we affirm.

ISSUE

The issue in this case is whether the bankruptcy court acted properly when it granted the Creditor relief from the automatic stay to complete its foreclosure proceeding, and did so without a further hearing in the Debtor's case. We hold that the bankruptcy court's grant of relief from the automatic stay to the Creditor was proper.

BACKGROUND

On March 14, 2013, the Debtor filed a voluntary petition for relief under Chapter 11 of the United States Code (the " Bankruptcy Code" ). This was not the Debtor's first bankruptcy filing. In fact, the Debtor's March, 2013 filing (the " Debtor's 2013 Case" ) was the fourth out of five bankruptcy filings by the Debtor and his wife.

Real property (the " Property" ) owned by the Debtor and his wife secured indebtedness owed to the Creditor. In June, 2009, the Creditor commenced a foreclosure proceeding against the Property. Since February, 2009, the Debtor and his wife have made no payment to the Creditor. Starting in November, 2009, the Creditor's foreclosure proceeding was stayed and recommenced at various points in time due to bankruptcy filings by the Debtor or his wife. The first three cases filed by the Debtor or his wife (one Chapter 7 case and two Chapter 13 cases) were dismissed. The Debtor filed the fourth case, the Debtor's 2013 Case, which is the case in which the order was entered that is the subject of this appeal. The Debtor originally filed the Debtor's 2013 Case under Chapter 11. The Chapter 11 case was dismissed, but the dismissal was subsequently vacated and the reinstated case was converted to Chapter 7. The fifth case, a Chapter 7 case filed by the Debtor's wife, was ultimately dismissed after the bankruptcy court entered the order that is the subject of this appeal.

After the Debtor's 2013 Case was dismissed, and before it was reinstated and converted to Chapter 7, the Property was sold to the Creditor at a foreclosure sale held on May 10, 2013. Unbeknownst to the Creditor and to the Sheriff's Department, the Debtor's wife had filed her own bankruptcy case (the fifth filing) minutes prior to the May 10, 2013 foreclosure sale by the Sheriff. Then, on May 17, 2013, the dismissal of the Debtor's 2013 Case was vacated and the reinstated case was converted to Chapter 7. The Sheriff did not record his Sheriff's Deed prior to the time when the Debtor's ...


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