501 B.R. 351
8th Cir. BAP2013Background
- Behrens filed a voluntary Chapter 11 petition on March 14, 2013; this case followed multiple prior filings by Behrens and his wife.
- The Property is real property owned by Behrens and his wife, secured by the Creditor’s lien.
- Foreclosure proceedings against the Property began in 2009 and were repeatedly stayed or resumed due to the debtors’ bankruptcy filings.
- Foreclosure sale occurred on May 10, 2013, before the Court’s May 28 hearing in the wife’s case, and the Sheriff’s Deed was later recorded.
- Behrens and his wife engaged in serial bankruptcy filings to delay or hinder foreclosure, with no payments made to the Creditor since 2009.
- The bankruptcy court granted relief from the automatic stay under § 362(d)(4) in the wife’s case, allowing recording of the Sheriff’s Deed; a separate hearing in Behrens’ case was not held.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 362(d)(4) relief was properly granted to complete foreclosure | Behrens argues relief should not be granted without a separate hearing in his case | Creditor contends § 362(d)(4) applies and foreclosure may proceed based on the record and prior hearing | Relief proper under § 362(d)(4) |
| Whether a separate hearing in Behrens’ case was required | Behrens claims lack of notice/hearing violated due process | Record and prior hearing in the wife’s case suffice; no need for a second evidentiary hearing | No separate hearing required; record supported the ruling |
| Whether the bankruptcy court properly found a scheme to delay, hinder, or defraud creditors | Behrens disputes the finding of a deliberate scheme | Court’s findings show serial filings aimed at delaying foreclosure | Court correctly found a scheme under § 362(d)(4) applicability |
| Whether notice issues or evidentiary limitations affected the outcome | Behrens asserts inadequate notice and additional evidence were not allowed | Record and prior hearing provided sufficient notice and evidence | Arguments did not establish reversible error; no abuse of discretion |
Key Cases Cited
- In re Kujawa, 224 B.R. 104 (E.D. Mo. 1998) (separate evidentiary hearing not required when issues overlap)
- In re Abdul Muhaimin, 343 B.R. 159 (Bankr. D. Md. 2006) (serial filings evidence of delay tactics for § 362(d)(4))
- In re Lee, 467 B.R. 906 (Bankr. N.D. Ohio 2012) (repeat filings acknowledge delay with no change in circumstances)
- In re Blair, 2009 WL 5203738 (Bankr. E.D.N.Y. 2009) (serial filings on eve of foreclosure support § 362(d)(4) relief)
- In re Hymes, 2013 WL 653060 (Bankr. D. Alaska 2013) (courts recognize repeated filings as delay tactic relating to foreclosure)