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Thull v. Wells Fargo Bank, N. A.

United States District Court, W.D. Wisconsin

March 20, 2018

JAMES THULL, Appellant,
v.
WELLS FARGO BANK, N.A., Appellee.

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Pro se appellant James Thull appeals from a decision of the United States Bankruptcy Court for the Western District of Wisconsin granting relief from the automatic stay in his Chapter 13 bankruptcy proceeding. Appellant Wells Fargo Bank, N.A., sought relief from the automatic stay to enforce its rights under a promissory note and a mortgage to Thull's home. The bankruptcy court held a series of three hearings on Wells Fargo's motion to give Thull the opportunity to verify Wells Fargo's payment records. Ultimately, the bankruptcy court granted Wells Fargo's motion at the third hearing, which Thull failed to attend.

         On appeal, Thull raises two arguments: (1) Wells Fargo lacked standing to seek relief from the automatic stay because it was not true holder of the promissory note; and (2) Thull was deprived of the opportunity to present evidence in opposition to Wells Fargo's motion because he had not received adequate notice of the third hearing. For the reasons explained below, neither argument provides a reason to reverse the decision of the bankruptcy court.

         BACKGROUND

         I draw the following facts from Wells Fargo's appendix to its brief and the record from Thull's bankruptcy proceeding. Dkt. 6; Dkt. 10-1; In re Thull, 13-15255 (Bankr. W.D. Wis. filed Oct. 29, 2013).

         In May 2005, Thull obtained a note from Argent Mortgage Company, LLC, for $104, 000 to purchase his home and signed a mortgage designating his home as collateral for the note. In May 2012, the mortgage was assigned to Wells Fargo. Dkt. 97-3. As for the note, it was endorsed in blank, which would make the note payable to the holder. See B. Dkt. 97-1, at 3. Wells Fargo filed copies of the note and other loan documents during Thull's bankruptcy proceeding. B. Dkt. Claims Register, Claim 10-1 and B. Dkt. 97.[1]

         A. Bankruptcy proceeding

         Thull filed for Chapter 13 bankruptcy in October 2013. Thull initially reported that Select Portfolio Servicing, Inc., was one of his creditors. B. Dkt. 9, at 8. Wells Fargo filed a proof of claim indicating that Select Portfolio Servicing was merely the servicer for Wells Fargo, the assignee of the note and mortgage. Dkt. 6-2, at 50-83. Thull then filed a modified Chapter 13 plan listing Wells Fargo as a creditor with a secured claim for his home, B. Dkt. 54, at 1-2. After filing that modified plan, Thull objected to Wells Fargo's claim on several grounds, including that Wells Fargo had failed to produce the original note for his verification and that the assignment of the mortgage was fraudulent. B. Dkt. 62, at 2. The bankruptcy court confirmed Thull's Chapter 13 plan, B. Dkt. 66, and denied Thull's objection to Wells Fargo's claim after a hearing at which Thull appeared pro se, B. Dkt. 75. Thull filed a further modified plan, again listing Wells Fargo as a secured creditor. B. Dkt. 87.

         In February 2017, Wells Fargo moved for relief from the automatic stay, alleging that Thull had failed to make the post-petition mortgage payments required under the plan from June 2015 to January 2017. B. Dkt. 97. The bankruptcy court held an initial telephonic hearings on Wells Fargo's motion on March 7, 2017. The bankruptcy court adjourned the hearing until April 4, 2017, so that Wells Fargo could provide Thull with its payment ledger which would allow Thull to verify whether the allegations of missed payments were correct. Wells Fargo provided the payment ledger. B. Dkt. 103. The bankruptcy court adjourned the hearing yet again to May 9, 2017, apparently in response to Thull's request for more time so he could collect and file documents. B. Dkt. 105. Thull was again asserting that Wells Fargo was not the true owner of the note and mortgage. B. Dkt. 104.

         Thull did not appear at the May 9, 2017 hearing, and the bankruptcy court granted Wells Fargo's motion in all respects. B. Dkt. 112.

         B. Jurisdiction

         This court has jurisdiction over appeals from “final judgments, orders, and decrees” of a bankruptcy court. 28 U.S.C. § 158(a)(1). The bankruptcy court's order granting Wells Fargo's motion for relief from the automatic stay constitutes a final judgment. See Colon v. Option One Mortg. Corp., 319 F.3d 912, 916 n.1 (7th Cir. 2003).

         C. Oral argument

         Thull asked this court for an accommodation earlier in the case to present his arguments orally. Dkt. 7. He stated that he suffered from a brain injury, which he could show by presenting his medical records if requested by the court. Id. Under Federal Rule of Bankruptcy Procedure 8019(b), an appellant is presumptively entitled to oral argument. But a district court need not hold oral argument when “the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.” Fed.R.Bankr.P. 8019(b)(3). Thull has finished briefing this case, and his briefs and submissions filed with the bankruptcy court indicate that he can articulate ...


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