Matos, In re
| Decision Date | 03 June 1986 |
| Docket Number | No. 85-7510,85-7510 |
| Citation | 790 F.2d 864 |
| Parties | Bankr. L. Rep. P 71,177 In re Eliseo J. MATOS and Margarette W. Matos, Debtors. GWINNETT BANK & TRUST COMPANY, Plaintiff-Appellee, v. Eliseo J. MATOS and Margarette W. Matos, Defendants-Appellants. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
William Kent Upshaw, Holt & Cooper, Birmingham, Ala., for defendants-appellants.
Dannie Ray Davis, Leeds, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Alabama.
Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.
Eliseo J. Matos and Margarette W. Matos (debtors) guaranteed a note to Gwinnett Bank & Trust Company (Gwinnett Bank) and gave a mortgage on certain real property to secure the debt. On April 20, 1984, the debtors filed a petition pursuant to chapter 11 of the bankruptcy statute and were continued in possession of their estate. The note and mortgage held by Gwinnett Bank were in default and Gwinnett Bank moved the bankruptcy court to set aside the automatic stay, see 11 U.S.C. Sec. 362 (1982), and allow it to pursue its available state law remedies and foreclose on the property and mortgage. The debtors opposed the motion to lift the automatic stay, raising a challenge to the validity of the mortgage as against a debtor in possession. They alleged that the mortgage was recorded in violation of Ala. Code Sec. 35-4-110 (1975) 1 and was therefore subject to the debtors' avoidance power as provided in 11 U.S.C. Sec. 544 (1982).
On November 27, 1984, the bankruptcy court issued an order setting aside the automatic stay and allowing Gwinnet Bank to proceed to foreclose on the mortgage. The bankruptcy court denied the debtors' motion for reconsideration of its order but granted the debtors' motion for a stay of foreclosure pending appeal. The debtors filed a notice of appeal to the district court and Gwinnett Bank moved the district court for an order requiring the debtors to post a bond pending appeal. The district court granted the motion and the debtors posted the required $6,000 bond. On June 26, 1985, the district court affirmed the decision of the bankruptcy court to set aside the automatic stay and allow Gwinnett Bank to foreclose on the property. The district court subsequently denied the debtors' motion for rehearing. On July 12, 1985, the debtors moved the district court to stay its judgment pending appeal. The district court granted the motion for a stay upon the condition that the debtors post a bond in the amount of $20,000. The debtors filed a notice of appeal on July 25, 1985, but failed to post the bond required by the district court as a condition to obtaining a stay of its judgment. 2 Gwinnett Bank subsequently instituted foreclosure proceedings and purchased the property itself at a public auction.
It is settled law in this circuit that when the debtor fails to obtain a stay pending appeal of the bankruptcy court's or the district court's order setting aside an automatic stay and allowing a creditor to foreclose on property, the subsequent foreclosure and sale of the property renders moot any appeal. Markstein v. Massey Associates, 763 F.2d 1325 (11th Cir.1985); In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294 (11th Cir.1984). 3 This rule of law, which is premised upon considerations of finality, protection of the integrity of the foreclosure sale process, and the court's inability to rescind the sale and grant relief on appeal even if the purchaser of the property is a party...
To continue reading
Request your trial
-
In Re Fontainebleau Las Vegas Holdings LLC
...to protect “the integrity of the sale of the property to a good faith purchaser.” Miami Ctr. Ltd. P'Ship, 820 F.2d at 379 (citing In re Matos, 790 F.2d at 866). The Term Lenders, the Examiner, and other professionals may have relied on the bankruptcy court's orders (although that reliance i......
-
In re Wilkinson
...v. Ron Watkins, Inc., 105 B.R. 362, 364 (N.D.Tex.1987); In re Matos, 50 B.R. 742, 744 (N.D.Ala.1985), appeal dismissed as moot, 790 F.2d 864 (11th Cir.1986); In re Whitlow, 116 B.R. 158, 161 (Bankr. W.D.Mo.1990). 4 Of course, this avoidance and preservation would more likely than not increa......
-
Mission Prod. Holdings, Inc. v. Schleicher & Stebbins Hotels, L.L.C. (In re Old Cold, LLC)
...of the property renders moot any appeal." 187 F.3d 623 (1st Cir. 1998) (per curiam) 1998 WL 1085827 (quoting Matos v. Matos (In re Matos ), 790 F.2d 864, 865 (11th Cir. 1986) ). In S & S's view, this rule applies here even though the purchaser of the assets is the creditor who is a party to......
-
In re Egbert Development, LLC
...similar equitable principles and reverse the sale. We decline to follow the Eleventh Circuit\'s contrary position. See In re Matos, 790 F.2d 864, 866 (11th Cir.1986); In re Sewanee Land, Coal & Cattle, Inc., 735 F.2d 1294, 1296 (11th Id.; accord Onouli-Kona Land Co., 846 F.2d at 1172-73 (re......
-
Alla Raykin, section 363 Sales: Mooting Due Process?
...Inc. (In re Victoria Station Inc.), 88 B.R. 231, 234(B.A.P. 9th Cir. 1988). Contra Gwinnett Bank & Trust Co. v. Matos (In re Matos), 790 F.2d 864, 856 n.3 (11th Cir. 1986) (rejecting any contrast between statutory rights of redemption and sale of stock).Hicks v. Brandt (In re Healthco Int’l......