United States District Court, D. Maryland
K. Bredar United States District Judge
an appeal from the United States Bankruptcy Court for the
District of Maryland. The appeal has been briefed (ECF Nos.
12, 14, 15), and no oral argument is necessary, Local Rule
105.6 (D. Md. 2016). For the reasons stated below, the
judgment of the Bankruptcy Court is affirmed.
Chukwunenye Henry Ekweani filed a Chapter 13 Petition on June
8, 2016. In re Ekweani, No. 16-17776 (Bankr. D.
Md.), ECF No. 1. On the same day, he filed Adversary
Proceeding No. 16-00277 against Wells Fargo Home Mortgage
Corporation (“WFHM”) seeking, inter
alia, an injunction preventing WFHM from foreclosing on
the home in which Appellant and his nonfiling spouse,
Ijeamaka Ekweani, have resided since purchase of the property
located at 6604 Sewells Orchard Drive, Columbia, Maryland
(the “Property”), on July 29, 1999. Id.
ECF No. 6.
filed his Chapter 13 Plan in which he proposed to pay $0 per
month for a term of 0 months. Id. ECF No. 11. Also,
in his Chapter 13 Plan was the following Non-standard
Provision: “At the conclusion of the pending Adversary
Proceeding Case No.: 16-00277 seeking declaratory judgment
concerning Wells Fargo Home Mortgage's anticipated claim,
debtor and his wife will obtain financing to pay the amount
determined by the Court.” Id. Appellant also
filed his calculation of disposable income, which showed
Appellant having $0 income and his spouse having gross
monthly income of $11, 105.85; further, the form showed their
joint monthly disposable income (after subtraction of certain
allowable expenses) as $3, 564.62. Id. ECF No. 13.
The Court notes that one of Appellant's subtracted
expenses was a home mortgage payment of $2, 039.69 per month.
Id. Even though the mortgage payments were
apparently in arrears, Appellant showed a “cure
amount” payable to WFHM of $0. Id.
Trustee filed his Objection to Confirmation of
Chapter 13 Plan, noting that the proposed Plan called for no
payments to the Trustee, even though Appellant has monthly
disposable income of $3, 564.62, thus failing to comply with
11 U.S.C. § 1325(b)(1). Id. ECF No. 18.
Additionally, the Trustee contended, “The purpose of
this case is to unreasonably hinder and delay the efforts of
Wells Fargo to foreclose on the real property secured by
Debtor's property. . . . The debtor is merely seeking to
re-litigate his dispute with Wells Fargo in this Chapter 13
case. This is entirely inappropriate.” Id.
Further, the Trustee argued the Plan was not feasible because
Appellant had “failed to explain and adequately
document how he will obtain financing to pay Wells Fargo if
and when he is successful in this litigation.”
Id. Finally, the Trustee stated, “This Plan
has not been filed in good faith and fails to meet the
requirements of 11 U.S.C. § 1325(a)(3). It does not
appear that the Debtor can propose a chapter 13 plan that can
be confirmed by this Court.” Id. The Trustee
concluded by asking the court to deny confirmation of the
Chapter 13 Plan without leave to amend. Id.
a hearing, the Bankruptcy Court concluded the proposed plan
did not meet the requirements of 11 U.S.C. § 1325 and
denied confirmation of the plan but provided Appellant with
leave to amend. Id. ECF No. 20. The court also
denied Appellant's motion to continue the confirmation
hearing. Id. ECF No. 21. Both of these orders were
entered August 10, 2016.
then filed an Amended Chapter 13 Plan. Id. ECF No.
25. In this proposal, Appellant planned to pay “$0 per
month prior to confirmation of this plan, and $1, 388.72 per
month after confirmation of this plan, for a total term of 60
months.” Id. He also stated that WFHM's
secured claim was “not affected by this plan and will
be paid outside of the plan directly by the Debtor.”
Id. He continued to include the same Non-standard
Provision regarding his plan to obtain refinancing on the
mortgage at the conclusion of the adversary proceeding.
second confirmation hearing, the Bankruptcy Court denied
confirmation of Appellant's Chapter 13 Plan without leave
to amend on September 28, 2016. Id. ECF No. 32.
Consistent with the Trustee's Objection, the court
concluded that the proposed Plan did “not fulfill the
requirements for confirmation set out in 11 U.S.C. §
1325 and that the Debtor [was] unable to file a Plan that is
susceptible of confirmation.” Id. Further, the
ORDERED, that if, within fourteen (14) days from the date of
entry of this Order, this case is not converted to a case
under another chapter or voluntarily dismissed, then this
case may be dismissed by the Court on account of Debtor's
failure to prosecute the case properly without further notice
Id. No proceedings on the merits have occurred in
No. 16-17776 since the denial of confirmation of
Appellant's Chapter 13 Plan without leave to amend. As of
this writing, the Bankruptcy Court has not exercised its
authority to dismiss the case.
filed a Notice of Appeal and Statement of Election on October
11, 2016. Id. ECF No. 37. In his notice, Appellant
described “the judgment, order, or decree appealed
from” as the Order Denying Confirmation of Chapter 13
Plan Without Leave to Amend entered on September 28, 2016.
on November 8, 2016, Wells Fargo Bank, N.A. (“Wells
Fargo”), filed its Motion for Order Confirming No Stay
Pursuant to 11 U.S.C. § 362(c)(3)(A) and Granting Relief
as to the Bankruptcy Estate and Co-Debtor Stay; the motion
was filed as to both Appellant and his spouse, Ijeamaka N.
Ekweani. Id. ECF No. 42. After a hearing, that
motion was denied without prejudice for failure to
demonstrate standing. Id. ECF No. 47 (entered
January 26, 2017). On February 23, 2017, Wells Fargo filed a
similar motion, indicating the total amount due on the
mortgage was $737, 403.62. Id. ECF No. 55. Included
as exhibits to the motion were documents establishing the
merger of Wachovia Mortgage Corporation (the original
mortgagee on the 2007 promissory note at issue) with and into
Wells Fargo Bank, National Association, effective May 6,
2011. Id. This time, Wells Fargo's motion was
granted, and the court entered an order on April 12, 2017,
confirming no automatic stay was in effect with respect to
Appellant and lifting the automatic stay of 11 U.S.C. §
362(a) as to the Bankruptcy Estate as well as the Co-Debtor
Stay of 11 U.S.C. § 1301(a) so that Wells Fargo could
proceed to a foreclosure sale of the Property. Id.
ECF No. 61. The court further ordered an equitable servitude
for a period of 180 days in the event of a future filing by
Appellant, his wife, or any other person or entity claiming
an interest in the Property such that either 11 U.S.C. §
362(a)'s automatic stay or 11 U.S.C. § 1301(a)'s
co-debtor stay shall not attach to the Property and shall not
apply to Wells Fargo's enforcement of its interest in the
Property. Id. Appellant filed a notice of appeal as
to this order. Id. ECF No. 63. That appeal was
docketed as a separate District Court case, Civ. No.
JKB-17-1174 (D. Md.), but was dismissed June 12, 2017 (ECF
No. 8), for failure to comply with Bankruptcy Rule
8009(a)(1) and the Court's order.
the primary Bankruptcy Court case No. 16-17776 was in
process, the Adversary Proceeding No. 16-00277 was also
moving forward. Wells Fargo filed a motion to dismiss the
complaint or, alternatively, to abstain, which the Bankruptcy
Court granted on September 1, 2016; after a hearing, the
court concluded it should abstain pursuant to 28 U.S.C.
§ 1334. No. 16-00277 (Bankr. D. Md.) ECF Nos. 8, 18. No
notice of appeal was filed from that order. The adversary
proceeding was closed March 31, 2017. Id. Dkt. Ent.
addition to Appellant's Case No. 16-17776 in the
Bankruptcy Court in this District, Appellant and his wife
have filed several other bankruptcy proceedings since 2008.
Ekweani filed a pro se Chapter 7 petition on May 21,
2008, which was converted to a Chapter 13 petition on
December 10, 2008. No. 08-16913 (Bankr. D. Md.) ECF Nos. 1,
72, 77. That case was dismissed on June 18, 2009, because the
debtor had “failed to commence making timely payments
as required by 11 U.S.C. § 1326.” Id. ECF
September 29, 2009, Appellant filed a Chapter 7 voluntary
petition in the Bankruptcy Court for the District of Arizona.
No. 09-24272 (Bankr. D. Ariz.) ECF No. 1. On January 25,
2010, Appellant and his wife filed an adversary proceeding
against Wachovia Mortgage Corporation for rescission of the
promissory note and deed of trust, claiming Wachovia did not
have a valid lien on the Property because Wachovia did not
have either a note or deed of trust signed by Appellant or by
anyone authorized by Appellant to sign those documents.
Adversary Proceeding No. 2:10-ap-00160 (Bankr. D. Ariz.) ECF
No. 1. Wells Fargo Bank, N.A., the successor to
Wachovia Mortgage Corporation, filed a counterclaim against
the Ekweanis. Id. ECF Nos. 17, 59. Wells Fargo then
filed a motion for summary judgment as to the Ekweanis'
claims and also filed a ...