Jester v. Wells Fargo Bank N.A. (In re Jester)
- Summarized by Steven Mulligan , Coan, Payton & Payne, LLC
- 9 years 2 months ago
- Citation:
- Jester, et al. v. Wells Fargo Bank N.A. (In re Jester), Case No. EO-15-002 (BAP 10th Cir. October 22, 2015). Unpublished.
- Tag(s):
-
- Ruling:
- If a court is unable to provide debtor any relief, reopening a bankruptcy case would be futile and a court does not abuse its discretion if it refuses to reopen the case. In this case, neither the failure to dismiss a prepetition foreclosure action, nor entering into a loan modification agreement, or commencing an in rem foreclosure action post discharge and after debtor’s bankruptcy case was closed violated the automatic stay or the discharge injunction. Thus, debtors were not entitled to substantive relief and the case need not be reopened.
- Procedural context:
- Plaintiff appealed the bankruptcy court’s denial of debtors’ motion to reopen their bankruptcy case. The BAP affirmed. Decisions to reopen a case are reviewed for abuse of discretion; whether a violation of the automatic stay or the discharge injunction occurred or whether the application of the Rooker-Feldman applies are questions of law reviewed de novo.
- Facts:
- The bank had initiated a prepetition foreclosure that was stayed when debtors filed bankruptcy. After debtors received their discharge and the case was closed, debtors and the bank entered into a loan modification agreement that included a provision that debtors discharge was not affected. After the agreement was executed, the bank dismissed the prepetition foreclosure and debtors promptly defaulted under the modification agreement. The bank commenced a new foreclosure and obtained judgment. One of the debtors filed a motion to reopen the bankruptcy case to be able to file an adversary proceeding against the bank, debtors’ counsel and others for among other claims, violations of TILA, RESPA and the federal discovery code. The bankruptcy court found that debtor essentially wanted the court to set aside the state foreclosure action and release the lien on his home. The court refused to reopen the case.
- Judge(s):
- Thurman, Jacobvitz, Hall (Hall)
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