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Spencer v. Federal Home Loan Mortgage Corp.

United States District Court, W.D. Wisconsin

March 30, 2017

SHEILA MARIE SPENCER, Appellant,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION a/k/a Freddie Mac, Appellee. SHEILA M. SPENCER, Appellant,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION a/k/a Freddie Mac, Appellee. SHEILA M. SPENCER, Appellant,
v.
FEDERAL HOME LOAN MORTGAGE CORPORATION and PNC BANK, N.A., Appellees.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge

         These three appeals from decisions of the Bankruptcy Court of the Western District of Wisconsin comprise debtor Sheila M. Spencer's latest attempt to delay foreclosure on her home. Spencer appeals the court's decision to lift the automatic stay in the 15-cv-332 appeal; she appeals the court's decision to dismiss the adversary proceeding in the 15-cv-327 appeal; and she appeals the court's decision to dismiss her Chapter 13 petition in the 15-cv-455 appeal. After reviewing the parties' submissions and the bankruptcy records, the court now affirms all three decisions.

         BACKGROUND[1]

         On April 3, 2015, Spencer filed a Chapter 13 voluntary bankruptcy petition. In re Spencer, No. 15-11204 (Bankr. W.D. Wis. Apr. 3, 2015) (dkt. #1). On April 16, 2015, creditor PNC Bank, N.A., filed a motion for relief from stay. Id. (dkt. #10). The bankruptcy court conducted an evidentiary hearing on May 11, 2015, and issued an opinion on May 15, 2015, in which the court found that “Spencer has engaged in a scheme to delay creditors involving multiple bankruptcy filings affecting real property, ” and therefore PNC Bank was entitled to relief from the automatic stay under 11 U.S.C. § 362(b)(20). Id. (dkt. ##60, 61).

         On April 26, 2015, Spencer also filed an adversary proceeding against PNC Bank, N.A., and Freddie Mac, among other individuals and corporate entities, seeking a judgment “declaring the relative rights, interests, obligations and responsibilities concerning Ms. Spencer's Homestead, ” “declaring the mortgage recorded in the Wood County Register of Deeds purporting to encumber Ms. Spencer's Homestead to be adjudged null and void, ” “determining the identity and capacity of any parties entitled to receive adequate protection payments and/or the proceeds of sale of the Homestead” and “determining the amount of each such claim or interest.” Spencer v. Fed. Home Loan Mrtg. Corp., No. 15-00060-cjf (Bankr. W.D. Wis. Apr. 26, 2015) (dkt. #1). On April 30, 2015, the bankruptcy court ordered sua sponte that Spencer brief why her adversary proceeding is not barred by the Rooker-Feldman doctrine.[2] Id. (dkt. #6). After review of Spencer's response, the bankruptcy court dismissed the adversary proceeding for lack of subject matter jurisdiction in a decision also dated May 15, 2015, finding Spencer's claims were indeed barred by Rooker-Feldman. Id. (dkt. #14); see also Id. (dkt. #15).

         On June 30, 2015, the court held a preliminary hearing on the plan for confirmation as well as PNC's motion to dismiss the case. During the hearing, Attorney Nora as counsel for Spencer acknowledged that the amount to be distributed to unsecured creditors was overstated. In re Spencer, No. 15-11204 (Bankr. W.D. Wis.) (dkt. #122) 9. Judge Furay then asked:

When can we anticipate at least a plan amendment to address the distribution issue, if you will, if I can use that term as shorthand, that's been identified by the trustee?
MS. NORA: If I may have ten days, Your Honor . . . .
THE COURT: I was just asking for a date, Ms. Nora. So if I said that a plan amendment will be filed no later than July 10, 2015, to address the plan distribution -- I'm making some notes.
MS. NORA: May I have until July 13th, Your Honor, just because I am in proceedings in a remote location on the 10th? But I will hasten to get this done.
THE COURT: All right. So I will make a note that a plan amendment will be filed no later than July 13, 2015, to address the plan distribution issue to unsecured creditors. . . . If the amendment is not filed by that date, the case will be dismissed.

Id. 10. During that same exchange, Attorney Nora also agreed to provide a declaration concerning Spencer's failure to provide tax returns from 2011 to 2013, also by July 13. Id. at 12.

         In a one-page order dated that same day, June 30, 2015, the bankruptcy court ordered:

A plan amendment will be filed no later than July 13, 2015, to address the plan distribution issue to unsecured creditors. Further, the Debtor will provide an affidavit or other evidence to the trustee with respect to the 2011 through 2013 tax returns and the fact that Debtor was not required to file such returns by June 13, 2015. If the ...

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