Mountain Valley Community Bank v. Freeman
Mountain Valley Community Bank v. Freeman
Opinion of the Court
ORDER ON APPEAL
Appellant-Creditor Mountain Valley Community Bank’s (“MVCB”) appeals the United States Bankruptcy Court for the Middle District of Georgia’s memorandum opinion and order dismissing MVCB’s adversary complaint with prejudice. MVCB contends the Bankruptcy Court erred by (1) ruling that MVCB could not initiate a confirmation action because the time to do so had expired; (2) determining that MVCB’s failure to pursue timely confirma
LEGAL STANDARD
The Court has jurisdiction to hear this appeal pursuant to 28 U.S.C. § 158(a). In reviewing the decision of a bankruptcy court, a district court functions as an appellate court.
BACKGROUND
On December 8, 2006, Freeman signed a note for $700,000.00 in favor of MVCB.
Freeman filed for Chapter 7 liquidation on November 16, 2010.
During the September 20, 2012 trial, the Bankruptcy Court determined that MVCB had yet to confirm the foreclosure sale of the White County property.
ISSUES ON APPEAL
A.Whether the Bankruptcy Court erred by ruling that MVCB could not initiate a confirmation action because the time to do so had expired.
B. Whether the Bankruptcy Court . erred by determining that MVCB’s failure to pursue timely confirmation precluded MVCB from seeking a deficiency claim in Freeman’s bankruptcy case.
C. Whether the Bankruptcy Court erred by concluding that MVCB does not have an enforceable claim against Freeman.
DISCUSSION
Georgia law requires confirmation of a foreclosure sale within 30 days. Specifically, O.C.G.A. § 44-14-161(a) states:
When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds, mortgages, or other lien contracts and at the sale the real estate does not bring the amount of the debt secured by the deed, mortgage, or contract, no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale to the judge of the superior court of the county in which the land is located for confirmation and approval and shall ob*250 tain an order of confirmation and approval thereon.
There is no dispute MVCB failed to confirm the August 2011 foreclosure sale. However, MVCB asserts that this 30-day period was tolled by 11 U.S.C. § 108(c), which provides that if applicable non-bankruptcy law fixes a period of time for commencing an action in which a debtor is protected, that time is tolled until the later of: “(1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay ... with respect to such claim.”
The automatic stay, as it applied to the commencement of actions or proceedings against Freeman, terminated when the court granted discharge on February 17, 2011.
MVCB cites In re McDaniel
CONCLUSION
Having reviewed the applicable law and the arguments of the parties, the Court agrees with the decision of the Bankruptcy Court. Accordingly, it is HEREBY ORDERED that the decision of the Bankruptcy Court be AFFIRMED.
SO ORDERED.
. See Williams v. EMC Mortg. Corp. (In re Williams), 216 F.3d 1295, 1296 (11th Cir. 2000) (per curiam).
. Fed. R. Bankr.P. 8013.
. Id.
. Equitable Life Assurance Soc’y v. Sublett (In re Sublett), 895 F.2d 1381, 1384 (11th Cir. 1990).
. See Nordberg v. Arab Banking Corp. (In re Chase & Sanborn Corp.), 904 F.2d 588, 593 (11th Cir. 1990).
. Goerg v. Parungao (In re Goerg), 930 F.2d 1563, 1566 (11th Cir. 1991).
. Complaint, Exhibit "A” [Doc. 1-3, p. 7],
. Id.
. Allison Aff., Exhibits "A,” "B,” “C” [Doc. 1-3, pp. 51-60]; see Plaintiff’s Motion for Summary Judgment, p. 2 (citing Allison Aff., ¶ 5, [Doc. 1-3, p. 48]) [Doc. 1-3, p. 24].
. See Plaintiff's Statement of Material Facts, ¶ 11 [Doc. 1-3, p. 38]; Defendant’s Response to Statement of Material Facts, p. 2 [Doc. 1-3, p. 80],
. Chapter 7 Voluntary Petition [Doc. 1], In re Freeman, Ch. 7 Case No. 10-32105 (Bankr. M.D.Ga. Nov. 16, 2010).
. See generally Complaint [Doc. 1-3, pp. 1-15].
. Order Discharging Debtor [Doc. 1-5].
. Motion for Relief from Stay [Doc. 23], In re Freeman, Ch. 7 Case No. 10-32105 (Bankr. M.D.Ga. May 13, 2010).
. Order Granting Motion for Relief from Stay [Doc. 24], In re Freeman, Ch. 7 Case No. 10-32105 (Bankr.M.D. Ga. Jun 9, 2010); Plaintiff’s Post-Trial Brief In Support of Its Complaint to Determine Discharge of Debt, p. 2 [Doc. 1-3, p. Ill],
. Trial Transcript, pp. 47-49 [Doc. 1-4].
. See id.
. See generally Memorandum Opinion [Doc. 46], In re Freeman, Adversary Proceeding No. 11-03019, 2012 WL 6680351 (Bankr.M.D.Ga. Dec. 21, 2012).
. Order Dismissing Complaint [Doc. 47], In re Freeman, Adversary Proceeding No. 11-03019, 2012 WL 6680351 (Bankr.M.D.Ga. Dec. 21, 2012).
. 11 U.S.C. § 108(c)(1)-(2).
. 11 U.S.C. § 362(c)(2)(C).
. The Court must presume Freeman’s debt was dischargeable for purposes of this analysis. See, e.g., In re Gibellino-Schultz, 446 B.R. 733, 740 n. 5 (Bankr.E.D.Pa. 2011) (applying a discharge and subsequent lift of the automatic stay to a section 523 proceeding, "unless” the debt is rendered nondischargeable, is consistent with both Congress’ intent and "the allocation of the evidentiary burden” in the section 523 proceeding, where "the creditor/plaintiff has the burden of persuasion to demonstrate nondischargeability under sections 523(a)(2), (4), and (6)”) (citing Grogan v. Garner, 498 U.S. 279, 288, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); In re Graham, 973 F.2d 1089, 1101 (3d Cir. 1992)).
. See Worth v. First National Bank of Alma, 175 Ga.App. 297, 333 S.E.2d 173 (1985).
. To determine whether MVCB has a claim, the court must look to state law. Grogan, 498 U.S. 279, 283, 111 S.Ct. 654. "The term 'debt' means liability on a claim.” 11 U.S.C. § 101(12). "The term ‘claim’ means — (A) right to repayment ...” 11 U.S.C. § 101(5). In this case, the right to repayment would be on the difference owed — or deficiency — on the White County property after foreclosure.
. No. 08-50021-JDW, 2008 WL 6858458 (Bankr.M.D.Ga. May 15, 2008).
. See id. at *2.
. See Order Granting Discharge, [Doc. 64], In re McDaniel, Ch. 7 Case No. 08-50021 (Bank.M.D.Ga. Aug. 25, 2009).
. The same distinction applies to Breeze v. Columbus Bank & Trust Co., 214 Ga.App. 534, 448 S.E.2d 276 (1994).
Reference
- Full Case Name
- In the Matter of MOUNTAIN VALLEY COMMUNITY BANK v. Terry Robert FREEMAN
- Status
- Published