United States District Court, M.D. Tennessee, Nashville Division
DEBORAH L. AKERS, Appellant,
HENRY E. HILDEBRAND, III, et al., Appellees.
MEMORANDUM AND ORDER
A TRAUGER UNITED STATES DISTRICT JUDGE
the court is the appellant's Objection (Doc. No. 28)
seeking de novo review of the magistrate judge's
Report and Recommendation (“R&R”) (Doc. No.
26), recommending that the plaintiff's Motion for
Preliminary Injunction (Doc. No. 23) be construed as a motion
for stay pending appeal and that it be denied. For the
reasons set forth herein, the Objection is
OVERRULED in its entirety, the R&R is
ACCEPTED, and the appellant's Motion for
Preliminary Injunction is DENIED.
Standard of Review
Report and Recommendation
within fourteen days after being served with a report and
recommendation, any “party may serve and file specific
written objections to the proposed findings and
recommendations.” Fed.R.Civ.P. 72(b)(2) (emphasis
added). The district court must review de novo any
portion of the report and recommendation “that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). In
conducting its review, the district court “may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Id.
court may decline to review any objections that are not
sufficiently specific “to enable the district court to
discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373,
380 (6th Cir. 1995). “The filing of vague, general, or
conclusory objections does not meet the requirement of
specific objections and is tantamount to a complete failure
to object.” Cole v. Yukins, 7 Fed.Appx. 354,
356 (6th Cir. 2001) (citing Miller, 50 F.3d at 380).
Bankruptcy Court Rulings
court reviews a bankruptcy court's conclusions of law
de novo but reviews its findings of fact for clear
error, Rembert v. AT&T Universal Card Servs. (In re
Rembert), 141 F.3d 277, 280 (6th Cir. 1998), with
“due regard” accorded the bankruptcy court's
opportunity to judge the credibility of the witnesses. In
re Aubiel, 534 B.R. 300, 307 (B.A.P. 6th Cir. 2015)
court adopts in its entirety the magistrate judge's
recitation of the factual and procedural background of this
case and presumes familiarity with the history of this case
and the underlying bankruptcy proceedings. For purposes of
reviewing the appellant's objections, the court will
summarize only the history strictly necessary to
consideration of the appellant's Objection.
Deborah Akers initiated the action in this court by filing a
Notice of Appeal of the Order Denying Confirmation,
Converting Case, and Continuing Motion for Relief from Stay
and Motion for Relief from Co-Debtor Stay
(“Confirmation Order”), entered by the United
States Bankruptcy Court for the Middle District of Tennessee
(“Bankruptcy Court”) in Akers' bankruptcy
case, In re Akers, No. 3:17-bk-04635 (Bankr. M.D.
Tenn. Nov. 3, 2017) (B'cy Doc. No. 88). After Akers filed
her appeal, the Bankruptcy Court entered an order
(“In Rem Order”) (B'cy Doc. No. 135)
granting the Motion to Reconsider the Amended Motion for
Prospective Relief from Stay (B'cy Doc. No. 115) filed by
Gregory Funding LLC as Servicer for AJX Mortgage Trust II, a
Delaware Trust, Wilmington Savings Fund Society, FSB, Trust
(“Gregory Funding”). Akers thereafter filed an
Amended Notice of Appeal to include reference to the In
Rem Order as well.
briefing of the appeal was completed, Akers filed her Motion
for Preliminary Injunction (Doc. No. 23), specifically
requesting that Gregory Funding and its attorneys, Shapiro
& Ingle, LLP, be enjoined from “any further acts to
enforce their fraudulent lien” on Akers' residence,
real property located at 543 Richmar Drive, Nashville,
Tennessee (the “Richmar residence”). (Doc. No.
23, at 1.) More specifically, she seeks to prohibit Gregory
Funding from proceeding with the foreclosure sale of the
Richmar residence, presently scheduled for 11:00 a.m. on
Wednesday, June 6, 2018, pending this court's resolution
of her appeal.
support of her preliminary injunction motion, Akers
incorporates by reference, in their entirety, her Amended
Prehearing Statement filed in the Bankruptcy Court on October
16, 2017 (B'cy Doc. No. 75) and her Opening Brief and
Reply Brief filed in this court in support of her appeal.
(Doc. Nos. 13, 18.) She argues that this documentation makes
it clear that neither she nor her husband, James Akers,
engaged in any fraudulent transfers in connection with her
bankruptcy proceeding; that any fraudulent transfers that
have occurred in this case must be attributed to Gregory
Funding; and that she is in possession of “extensive
documentation . . . which will prove, beyond any
reasonable doubt, ” that Gregory Funding
has no lawful interest in the Richmar residence. (Doc. No.
23, at 3 (emphasis in original).) She identifies as the basis
for her appeal Gregory Funding's purported lack of
standing to enforce an “unlawful” lien on the
Richmar residence. (Doc. No. 23, at 3.) She claims that
permitting the foreclosure sale to proceed would cause Akers
and her husband to suffer a financial loss in excess of $400,
000 and leave them without financial means to obtain suitable
housing, food, medical care, transportation and other
necessities, strip them of all legal interests in the Richmar
residence, and “destroy” their credit rating.
(Doc. No. 23, at 3-4.) Gregory Funding responded to the
Motion for Preliminary Injunction. (Doc. No. 25.) Its
response also incorporates by reference its briefing related
to the merits of the underlying appeal (Doc. No. 15).
addressing the preliminary injunction motion, the magistrate
judge found, first, that Akers' filings do not conform to
the procedural requirements, specifically because Akers
failed to file a motion for a stay pending appeal of the
Bankruptcy Court's In Rem Order and because,
even if her preliminary injunction motion is construed as a
motion for stay pending appeal, Akers did not satisfy the
requirements of Rule 8007 of the Federal Rules of Bankruptcy
Procedure. The magistrate judge concluded that Akers'
failure to comply with Rule 8007, standing alone, was fatal
to her motion.
addition, however, the magistrate judge concluded that, even
if the court waived compliance with Rule 8007, construed
Akers' preliminary injunction motion as one for a stay
pending appeal, and considered it as such on the merits,
Akers has not met her burden of proving that a stay or any
other type of injunctive relief is warranted, because she has
not shown that any of the factors relevant to a request for
injunctive relief weigh in her favor. Specifically, the
magistrate judge found that Akers could not show (1) that she
has a likelihood of prevailing on the merits of her appeal;
(2) that there is a likelihood that she would be irreparably
harmed absent a stay; (3) that others would not be harmed if
the court grants the stay; or (4) that ...