Derek Leroy McSmith v. Bank of America, N.A., 671 F. App'x 775

Debtor Derek Leroy McSmith filed a pro se Chapter 13 petition on February 27, 2015.
Bank of America, N.A. (BOA) filed an emergency motion on March 2, 2015, seeking relief from the automatic stay to proceed with a nonjudicial foreclosure sale set for March 3, 2015.
The bankruptcy court held hearings on March 3 and April 14, 2015; at the first hearing the court allowed the sale to proceed but barred recording of the deed; at the second hearing the court validated the sale and permitted BOA to record the deed.
At the April 14 hearing McSmith appeared, acknowledged he could not make timely Chapter 13 plan payments, and had failed to appear at the meeting of creditors.
McSmith appealed to the district court claiming he was denied due process because the bankruptcy court did not hear from his prospective tenant (who would have made rent to cover plan payments) before allowing BOA to record the deed; the district court affirmed.
The Eleventh Circuit reviewed de novo legal conclusions and for clear error the bankruptcy court’s factual findings, and affirmed the district court’s judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether McSmith was denied due process before BOA was allowed to record deed after foreclosure	McSmith argued he was denied due process because the court did not consider testimony from his prospective tenant showing ability to fund plan payments	BOA argued McSmith received notice and had an opportunity to be heard at both hearings; bankruptcy court acted within its discretion	Held: No due process violation; McSmith had notice, attended hearings, and admitted inability to make timely payments

In re Optical Technologies, Inc., 425 F.3d 1294 (11th Cir. 2005) (standard of review for bankruptcy appeals: de novo for legal conclusions, clear error for facts)
Grayden v. Rhodes, 345 F.3d 1225 (11th Cir. 2003) (due process requires notice and opportunity to be heard)