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In re Schweiger, 17-19857

Debtor’s Counsel: Michael P. Coyle, Esq.

Counsel for MidFirst Bank: Richard J. Rogers, Esq.

 

The debtor filed a Motion for Stay Pending Appeal with respect to his appeal of an order granting MidFirst Bank’s Motion for Relief From the Automatic Stay.  The Bankruptcy Court, David E. Rice, Judge, held that regardless of whether the more difficult Real Truth About Obama, Inc. v. FEC test applied or the less difficult Long v. Robinson test applied, the request for a stay pending appeal should be denied.  In particular, the Court focused on the likelihood of success on the merits.  MidFirst Bank sought relief from the automatic stay to continue a foreclosure proceeding in which the auction sale occurred earlier on the same day that the debtor’s bankruptcy petition was filed.  The debtor sought to invalidate the foreclosure sale and cure his mortgage defaults under 11 U.S.C. § 1322(c).  The Court rejected the debtor’s argument that the unreported decision in Kameni v. Ocwen Loan Servicing, 589 Fed. App’x 145 (4th Cir. 2015), was applicable because the foreclosure sale in Kameni occurred after the bankruptcy petition had been filed in a case where the automatic stay did not go into effect upon the filing by reason of 11 U.S.C. § 362(c)(4) but was subsequently imposed retroactively effective as of the petition date.

Entered: 
2018-01-19
Case: 
17-19857
Judge: 
David E. Rice