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Akers v. Hildebrand

United States District Court, M.D. Tennessee, Nashville Division

June 1, 2018

DEBORAH L. AKERS, Appellant,
v.
HENRY E. HILDEBRAND, III, et al., Appellees.

          MEMORANDUM AND ORDER

          ALETA A TRAUGER UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Standard of Review

         A. Report and Recommendation

         Typically 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.

         The 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).

         B. Bankruptcy Court Rulings

         This 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) (citation omitted).

         II. Background

         The 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.

         Appellant-Debtor 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).[1] 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.

         After 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.

         In 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).

         In 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.

         In 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 ...


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