Case: 15-14754 Date Filed: 11/29/2016 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14754
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-01414-CAP; 1:15-bkc-53684-BEM
In re:
DEREK LEROY MCSMITH,
Debtor.
__________________________________________________________________
DEREK LEROY MCSMITH,
Plaintiff-Appellant,
versus
BANK OF AMERICA, N.A.,
as Servicing Agent for Bank of America, N.A.
successor by merger with BAC Home Loans Servicing, LP
formerly known as Countrywide Home Loans Servicing, LP,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(November 29, 2016)
Case: 15-14754 Date Filed: 11/29/2016 Page: 2 of 4
Before JULIE CARNES, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
Derek Leroy McSmith pro se appeals the district judge’s order affirming the
bankruptcy judge’s granting the emergency motion for relief from the automatic
stay imposed by 11 U.S.C. § 362(a) by Bank of America, N.A. (“BOA”). We
affirm.
I. BACKGROUND
McSmith filed a pro se petition for Chapter 13 bankruptcy on February 27,
2015. On March 2, 2015, BOA filed an emergency motion for relief from the
automatic stay imposed by 11 U.S.C. § 362(a), so it could proceed with a
nonjudicial foreclosure sale scheduled for the following day, March 3, 2015. The
bankruptcy judge held a hearing on March 3, 2015, at which McSmith appeared.
Following the hearing, the judge granted BOA’s motion for the limited purpose of
allowing BOA to conduct the foreclosure sale but ordered BOA not to record a
deed under power until further notice.
The bankruptcy judge held a second hearing on BOA’s motion on April 14,
2015. At that hearing, McSmith stated he could not make a timely plan payment,
and the Chapter 13 trustee stated McSmith had failed to appear at the meeting of
creditors. Following the hearing, the bankruptcy judge issued an order granting
BOA’s motion, validating the foreclosure sale, and permitting BOA to record its
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deed under power.
McSmith appealed the bankruptcy judge’s order in District Court for the
Northern District of Georgia. He argued the bankruptcy judge had denied him due
process in granting BOA’s motion, because he had secured a prospective tenant
whose rental payments would have covered his monthly Chapter 13 plan
payments. In response, BOA asserted the bankruptcy judge properly had exercised
her discretion in granting the motion, and McSmith was not denied due process,
because he had received notice of the motion and the opportunity to be heard at the
April 14, 2015, hearing.
In affirming the bankruptcy judge’s order, the district judge noted McSmith
had received notice of BOA’s motion and appeared at both the March 3, 2015, and
April 14, 2015, hearings, where he had the opportunity to be heard. In the
intervening time between the hearings, McSmith had the opportunity to cure the
arrearage on BOA’s claim, but he had failed to show he was capable of or planned
to comply with a payment plan. Consequently, the district judge concluded
McSmith had received due process, and his challenge to the bankruptcy judge’s
order lacked merit.
II. DISCUSSION
On appeal, McSmith argues he was denied due process because the
bankruptcy judge did not hear from his prospective tenant before granting BOA’s
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motion and allowing BOA to record the deed under power. In a bankruptcy
appeal, we review de novo legal conclusions by either the bankruptcy judge or the
district judge. In re Optical Technologies, Inc., 425 F.3d 1294, 1300 (11th Cir.
2005). We review the bankruptcy judge’s factual findings for clear error. Id.
The Fifth and Fourteenth Amendment due process clauses prohibit federal
and state government actors from depriving individuals of their property without
due process of law. See U.S. Const. amend. V, XIV. To satisfy due process, an
individual must receive notice and have an opportunity to be heard. Grayden v.
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
The district judge correctly concluded the bankruptcy judge did not deny
McSmith due process in granting BOA’s motion to proceed with a nonjudicial
foreclosure sale. McSmith had received notice of the motion and attended both the
March 3, 2015, and April 14, 2015, hearings regarding that motion. He was given
the opportunity to be heard at the April 14, 2015, hearing, where he admitted he
was unable to make a timely plan payment. Therefore, McSmith’s due process
rights were not violated. Grayden, 345 F.3d at 1232.
AFFIRMED.
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