597 F.3d 651 (5th Cir. 2010), 09-60394, In re Barner

Docket Nº:09-60394
Citation:597 F.3d 651
Opinion Judge:PER CURIAM:
Party Name:In the Matter of Nancy BARNER, Debtor. v. Saxon Mortgage Services, Inc., Servicer for Deutsche Trust Company, Appellee. Nancy Barner, Appellant,
Attorney:D.L. Jones, Jr., Jackson, MS, for Barner. George Dewey Hembree, III, Stephen Thomas Masley, McGlinchey Stafford, P.L.L.C., Jackson, MS, for Saxon Mort. Services, Inc.
Judge Panel:Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
Case Date:February 15, 2010
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 651

597 F.3d 651 (5th Cir. 2010)

In the Matter of Nancy BARNER, Debtor.

Nancy Barner, Appellant,

v.

Saxon Mortgage Services, Inc., Servicer for Deutsche Trust Company, Appellee.

No. 09-60394

United States Court of Appeals, Fifth Circuit

February 15, 2010

Page 652

D.L. Jones, Jr., Jackson, MS, for Barner.

George Dewey Hembree, III, Stephen Thomas Masley, McGlinchey Stafford, P.L.L.C., Jackson, MS, for Saxon Mort. Services, Inc.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:

Appellee Saxon Mortgage Services, Inc. (" Saxon" ), conducted a foreclosure sale of Appellant Nancy Barner's (" Barner" ) principal residence a day after her bankruptcy filing and subsequently moved for a determination that the automatic stay was not in effect at the time of the sale. The bankruptcy court, citing an order issued in Barner's previous bankruptcy, granted the motion and the district court affirmed. Barner appeals, arguing that the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (" BAPCPA" ) precludes application of the prior order. Because no provision of BAPCPA affected the continued vitality of pre-BAPCPA orders, we AFFIRM.

I. BACKGROUND

Barner filed her first bankruptcy case, under Chapter 7 of the Bankruptcy Code, on October 18, 2004. At the time, Deutsche Bank Trust owned a deed of trust secured by Barner's principal residence and serviced by Saxon. On December 14, 2004, the bankruptcy court entered an order (" 2004 order" ) lifting the automatic stay as it applied to Barner's residence. Barner's case was subsequently dismissed.

On February 1, 2007, one day before the scheduled foreclosure sale of her residence, Barner filed a second bankruptcy petition, this time under Chapter 13. Saxon proceeded with the sale and, on June 27, filed a motion seeking a determination that the automatic stay was not in effect as to the residence at the time of the sale. After a hearing on the merits, the bankruptcy court ruled that the stay was not in

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effect because of the 2004 order. The court relied on Jefferson v. Mississippi Gulf Coast YMCA, Inc., 73 B.R. 179, 182 (S.D.Miss.1986), which held that the automatic stay does not bar foreclosure proceedings " where an Order ... was entered lifting the stay...

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