United States District Court, S.D. Florida
IN RE MAXIMA SERRA, Debtor.
THE BANK OF NEW YORK MELLON, and NANCY K. NEIDICH, Standing Trustee, Appellees. MAXIMA SERRA, Appellant,
ORDER REVERSING BANKRUPTCY COURT ORDERS AND REMANDING
G. COOKE United States District Judge
case is a consolidated appeal arising out of a pro se
bankruptcy petition filed by Appellant Maxima Serra
(“Ms. Serra”). Ms. Serra appeals two bankruptcy
court orders issued in the underlying bankruptcy proceeding,
Order Granting the Bank of New York Mellon's Motion for
Relief from the Automatic Stay, see ECF No. 1, and
Order Denying Confirmation and Dismissing Chapter 13 Case,
see C2 ECF No. 1. For the reasons stated below, I
reverse the rulings of the bankruptcy court.
December 6, 2013, a final judgement of foreclosure was
entered against Maria Serra and in favor of Appellee, The
Bank of New York Mellon (“Bank of NYM”), related
to a property located in Hialeah, Florida. ECF No. 5-2,
32-33. Ms. Maxima Serra was listed as a tenant on the
judgment. Id. at 32. The foreclosed property was
eventually sold and a certificate of title to the property
was issued to Bank of NYM on October 13, 2015. Id.
Serra filed a Chapter 13 bankruptcy petition on January 17,
2017. ECF No. 9, 4; ECF No. 5-2, 6-14. Bank of NYM was the
only creditor listed to be noticed on her bankruptcy
petition. ECF No. 5-2, 1-14. While Ms. Serra lived at the
foreclosed property, she does not appear to have ever had a
legal interest in the property. See Deed, C2 ECF No.
10-1, 3. In fact, it was Ms. Serra's daughter who owned
the property from 2002 until it was foreclosed on and sold to
Bank of NYM in 2015. Id.; ECF No. 5-2, 32-33. At the
time Ms. Serra filed her bankruptcy petition, a writ of
possession was pending in the foreclosure proceeding.
Trustee's Br., 3; C2 ECF No. 10-1, 9-10.
February 1, 2017, the bankruptcy court issued a notice that
the meeting of creditors was scheduled for March 2, 2017, but
Ms. Serra filed a motion to excuse her appearance because she
was elderly. Trustee's Br., 4; C2 ECF No. 6-1, 3-4.
Appellee Nancy N. Neidich, the appointed Trustee
(“Trustee”), objected, and a hearing was held on
Ms. Serra's motion on April 4, 2017. Id. At the
hearing, the bankruptcy court took testimony from Ms. Serra
and ruled that Ms. Serra must appear at the meeting of
creditors. Trustee's Br., 4. On May 12, 2017,
the bankruptcy court scheduled the confirmation hearing for
the afternoon of June 6, 2017. Id.; C2 ECF No. 10-1,
9-10. Shortly thereafter, Bank of NYM filed a Motion for
Relief from Automatic Stay to Enforce Final Judgment of
Foreclosure with Certificate of Title Already Issued. ECF No.
5-2, 28-31. Bank of NYM argued its interest in the foreclosed
property was not adequately protected while Ms. Serra
occupied the property without making payments on the final
judgment or Chapter 13 plan, that Ms. Serra had no equity in
the property, and that the property was not necessary for an
effective reorganization. Id. at 29. According to
Bank of NYM, it was therefore entitled to relief from the
automatic bankruptcy stay pursuant to 11 U.S.C. §§
362(d)(2)(A) and (B). Id. A hearing on Bank of
NYM's motion was scheduled for the morning of June 6,
2017. ECF No. 5-2, 40. Ms. Serra never filed a response to
Bank of NYM's motion. Bank's Br., 8.
briefs, Ms. Serra states that she fell a week prior to the
June 6, 2017 hearings and injured her hip, causing her to be
bedridden and unable to attend either of the June 6, 2017
hearings. Serra's Br., 4. Ms. Serra alleges that her
daughter sent documents to the Trustee and to the bankruptcy
court, alerting both that Ms. Serra was unable to go to the
courthouse for the scheduled hearing. Id.;
Serra's Br., ECF No. 9, 9. She does not allege that she
notified Bank of NYM and Bank of NYM denies receiving any
notice that Ms. Serra was unable to attend the meeting.
Bank's Br., 3. The Trustee does not deny that she
received notice that Ms. Serra could not attend the hearing.
See generally, Trustee's Br. The hearing on Bank
of NYM's Motion for Relief from the Automatic Stay took
place on June 6, 2017 and the motion was granted. ECF No. 1,
3-5. According to the Trustee, during the hearing on the
motion for relief from stay, the bankruptcy court considered
the record and the testimony given by Ms. Serra at the April
4, 2017 hearing. Trustee's Br., 4-5. The bankruptcy court
then directed the Trustee to request a dismissal of the
Bankruptcy Case because bankruptcy could not afford Ms. Serra
relief from the writ of possession. Id. at 5-6.
However, there is no transcript from the June 6, 2017 hearing
in the record.
not appear that the confirmation hearing scheduled for the
afternoon of June 6, 2017 took place, as the bankruptcy
docket shows a Notice of Continued Confirmation Hearing was
entered on June 9, 2017, which continued the confirmation
hearing to July 11, 2017. On June 7, 2017, the bankruptcy
court issued its Order Granting The Bank of New York
Mellon's Motion for Relief from the Automatic Stay. ECF
No. 1, 3-5. On June 19, 2017, the bankruptcy court issued its
Order Denying Confirmation and Dismissing Chapter 13 Case. C2
ECF No. 1, 4-5.
Serra appealed both Orders timely and I have consolidated
both appeals into the instant case. Ms. Serra claims that the
bankruptcy court violated her right to due process and abused
its discretion by holding the June 6, 2017 hearing on Bank of
NYM's motion knowing she was confined to her bed and
could not attend the hearing. ECF No. 9, 10-11. She makes the
same arguments as to the bankruptcy court's dismissal of
her case, and makes the additional legal argument that the
bankruptcy court abused its discretion in dismissing her case
without a hearing in violation of Bankruptcy Rule 9014(a).
entertaining an appeal from a bankruptcy court, district
courts are entitled to ‘affirm, modify, or reverse a
bankruptcy court's . . . order' and will accept its
findings of fact unless those findings are clearly erroneous.
In re Boykin, 313 B.R. 516, 519 (M.D. Ga. 2004)
(Fed. Bankr. R. 8013). “A bankruptcy court's legal
conclusions and application of the law to the facts of a
given case are reviewed de novo . . . .”
HDR Architecture, P.C. v. Maguire Grp. Holdings, 523
B.R. 879, 885 (S.D. Fla. 2014) (citing Carrier Corp. v.
Buckley (In re Globe Mfg. Corp.), 567 F.3d 1291, 1296
(11th Cir. 2009)).
Dismissal of Bankruptcy Case
Serra argues she was entitled to a hearing prior to the
dismissal of her bankruptcy case. The Trustee argues that the
case was properly dismissed because there was no good faith
reason to keep the case open. Trustee does not engage with or
specifically address Ms. Serra's argument that she was
entitled to a hearing; she simply argues the bankruptcy case
could not provide Ms. ...