Opinion
Case No: 2:15-cv-233-FtM-38
06-08-2015
IN RE: JENNIFER MITCHELL BANK OF AMERICA, N.A., Appellant, v. JENNIFER MITCHELL, Appellee.
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This matter comes before the Court on the Appellant, Bank of America's Motion for Summary Affirmance Subject to Appellate Review (Doc. #1) filed on May 8, 2015. The Appellee has not filed a response in opposition and the time to do so has now passed.
Pursuant to 28 U.S.C. § 158(a). The United States District Court functions as an appellate court in reviewing decisions of the United States Bankruptcy Court. In re Fish, 2013 WL 1104884, *2 (M.D. Fla. March 18, 2013) (citing In re Colortex Indus., Inc., 19 F.3d 1371, 1374 (11 th Cir. 1994)). This Court reviews de novo the legal conclusions of the bankruptcy court. In re Fish, 2013 WL 1104884 at *2 (citing In re JLJ, Inc., 988 F.2d 1112, 1116 (11th Cir. 1993)).
The standard of review employed by this Court in reviewing the bankruptcy court's findings of fact is the clearly erroneous standard of review described in Federal Rule of Bankruptcy Procedure 8013: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the bankruptcy court to judge the credibility of the witnesses." In re Fish, 2013 WL 1104884 at *2 (citing In re Thomas, 883 F.2d 991, 994 (11th Cir.1989)). A finding of fact is clearly erroneous when, "although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Crawford v. W. Elec. Co., Inc., 745 F.2d 1373, 1378 (11th Cir.1984) (citing United States v. United States Gypsum Co., 333 U.S. 364, 68 S. Ct. 525, 92 L. Ed. 746 (1948)).
DISCUSSION
The Appellant, Bank of America, holds a junior lien on the Debtor's property. On March 19, 2015, the Debtor petitioned the Bankruptcy Court to strip off Bank of America's junior lien. The Bankruptcy Court granted the Motion to Strip off the junior lien in compliance with the Eleventh Circuit's holding in McNeal v GMAC Mortgage, LLC, 735 F.3d 1263 (11th Cir. 2012). In McNeal, the Eleventh Circuit held that a junior lien may be stripped off or voided when the junior lien is completely underwater because a senior lien exceeds the value of the property. The Eleventh Circuit stated in such circumstances the junior lien may be stripped off pursuant to 11 U.S.C. § 506(d).
Bank of America disputes the Eleventh Circuit's holding in McNeal and seeks to appeal the Eleventh Circuit's analysis. However, this Court is bound by the Eleventh Circuit's holding in McNeal and must affirm the Bankruptcy Court's decision. As such, Bank of America moves the Court for summary affirmance of the Bankruptcy Court's decision so that it may take its appeal of the issue to the Eleventh Circuit and on to the Supreme Court if necessary.
Courts in the Middle District of Florida have previously granted the Motion for summary affirmance on the same issue presented here. Bank of America wishes to join this case with the others from the Eleventh Circuit and appeal the McNeal holding. Based upon the Appellant's brief, the Court finds good cause to grant the Motion and issue summary affirmance in this case.
Accordingly, it is now
ORDERED:
The Appellant, Bank of America's Motion for Summary Affirmance Subject to Appellate Review (Doc. #1) is GRANTED. The Decision of the United States Bankruptcy Court Granting the Debtor's Motion to Strip the Appellant's lien is hereby AFFIRMED. The Clerk shall enter judgment accordingly, transmit a copy of this Order and the Judgment to the Clerk of the Bankruptcy Court, terminate the appeal, and close the file.
DONE and ORDERED in Fort Myers, Florida this 8th day of June, 2015.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE
Copies: All Parties of Record