Carlson v. U.S. Bank (In re Carlson)

Summarized by Lars Fuller , BakerHostetler
11 years 4 months ago

Citation:

Carson v. U.S. Bank, N.A. (In re Carlson), No. 14-6024 (BAP 8th Cir. October 17, 2014)

Tag(s):

Ruling:

The 8th Circuit BAP affirmed the rulings of the U.S. Bankruptcy Court for the District of Minnesota denying debtors' motion for violation of automatic stay, violation of homestead exemption, violation of discharge, and creditor misconduct. The BAP ruled that the failure of the pro se debtors-appellants to provide record of bankruptcy court's oral rulings prevented BAP from finding that the bankruptcy court's factual basis for rulings was clearly erroneous. The BAP also noted that based on debtors' brief, its legal arguments for reversal were without merit in that debtors' premise that liens do not survive bankruptcy was incorrect. Liens do survive discharge unless expressly avoided. BAP also rejected debtors' arguments that homestead exemption avoided liens, and that postponing foreclosure sale violated automatic stay.

Procedural context:

After bankruptcy court denied pro se debtors' motions for violation of automatic stay, violation of homestead exemption, violation of discharge, and creditor misconduct, debtors appealed to BAP.

Facts:

Debtors filed a pro se Chapter 13 case to stop foreclosure on residence. Foreclosing lender filed motion to dismiss and bar from filing for one year, or alternatively, motion for relief from stay. Debtors filed counter motion for violation of automatic stay, violation of homestead exemption, violation of discharge, and creditor misconduct. Following a hearing on debtors' motion, bankruptcy court denied motion. Debtors appealed. Debtors failed to provide BAP with factual record from bankruptcy court. Debtors' appellate brief indicated that Debtors had previously obtained Chapter 7 discharge, and incorrectly believed the discharge avoided mortgage holder's consensual liens, and, alternatively, and also incorrectly, that homestead exemption negated consensual liens. Debtors also incorrectly argued that postponing foreclosure sale violated automatic stay.

Judge(s):

Federman, Saladino, Shodeen

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