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In re Mainoo

United States District Court, N.D. Texas, Fort Worth Division

June 22, 2017

IN RE EMMANUEL O. MAINOO, Debtor,
v.
COMERICA BANK, Appellee. EMMANUEL O. MAINOO, Appellant, District Court No. 4:17-CV-232-A

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         This action is before the court as an appeal from an order of the United States Bankruptcy Court for the Northern District of Texas, Fort Worth Division, the Honorable Mark X. Mullin presiding. Having considered the briefs of appellant, Emmanuel 0. Mainoo ("Debtor"), and appellee, Comerica Bank ("Comerica"), the record on appeal, and applicable authorities, the court finds that the bankruptcy court's order should be affirmed.

         I.

         Jurisdiction

         The appeal is from a bankruptcy court order signed February 2, 2017, granting Comerica relief from stay. The bankruptcy court denied Debtor's motion for reconsideration on March 1, 2017. This court's jurisdiction exists under 28 U.S.C. § 158(a).

         II.

         Underlying Proceedings

         Around December 2002, Debtor purchased real property located at 2546 N. Beltline Road, Arlington, Texas 76011 (the "Property"}. To finance the purchase, Debtor executed a U.S. Small Business Administration Note (the "Note") made payable to Comerica in the original payable amount of $279, 800.00. The Note was secured by a Deed of Trust that was filed in the deed records of Dallas County, Texas on December 30, 2002.

         On March 5, 2013, Debtor filed a Voluntary Petition for Relief under Chapter 13 of the Bankruptcy Code. Debtor disclosed that he held an interest in the Property but did not disclose that the Property was subject to a secured lien held by Comerica. Rather, Debtor listed Comerica as an unsecured creditor with a claim of $267, 387.

         Debtor filed a Chapter 13 Plan and Motion for Valuation (the "Plan") on March 13, 2013, again listing Comerica as an unsecured creditor and omitting the existence of the secured lien. Comerica did not file a Proof of Claim or object to Debtor's plan, and the plan was confirmed.

         Over three years after the Plan was confirmed, Comerica filed a motion in the bankruptcy court to terminate the automatic stay pursuant to 11 U.S.C. § 362(d), asserting that it was a secured creditor with a claim of at least $345, 747.14, which was secured by a valid and perfected lien in the Property. In response, Debtor argued that the stay should not be lifted because the lien was void and unenforceable. Debtor contended that his signature on the Deed of Trust was forged, Comerica waived its right to enforce the lien by failing to object to the Plan, and that the statute of limitations had expired, among other things. After full briefing and a hearing, the bankruptcy court granted Comerica's motion for relief from stay.

         III.

         Issues on Appeal The six issues that Debtor presents on appeal are:

1. Whether the bankruptcy court's determination that the Debtor signed a deed of trust is clearly erroneous as [Comerica] presented no testimony or other evidence contradicting the Debtor's claim of forgery, and ...

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