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Downs v. Federal National Mortgage Association

United States District Court, S.D. Illinois

September 13, 2016

KIM DOWNS, Debtor-Appellant,
v.
FEDERAL NATIONAL MORTGAGE ASSOCIATION, Movant-Appellee. Bankruptcy No. 15-31561

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         This is an appeal from the Bankruptcy Court's Order dated December 30, 2015, which granted Creditor/Appellee Federal National Mortgage Association's Motion for Relief from the Automatic Stay and Co-Debtor Stay (In re Kim Downs, Bankruptcy Case No. 15-31561, Doc. 41). The appeal is fully briefed. Downs filed her Appellant Brief with Appendix on March 23, 2016 (Doc. 8); Federal National Mortgage Association filed its Appellee Brief on April 22, 2016 (Doc. 11); and Downs filed a Reply Brief on May 6, 2016 (Doc. 12). For the reasons set forth below, the Court affirms the decision of the Bankruptcy Court.

         Background

         The Court adopts the background as set forth by the Bankruptcy Court and summarizes the lengthy procedural history that is not disputed by the parties (See In re Kim Downs, Bankruptcy Case No. 15-31561, Doc. 41).

         On April 5, 2010, One West Bank, FSB (“One West”), the predecessor in interest to Federal National Mortgage Association (“FNMA”), filed a complaint in the St. Clair County Circuit Court to foreclose on its mortgage on the real estate known as 3521 Steinberg Farm Road, Belleville, Illinois 62226 (“Property”). The Property at that time was owned by Downs (formerly known as Kim Hawthorne) and Gerald Hawthorne, the mortgagors, and monthly mortgage payments had not been made in ten months. On June 24, 2010, the St. Clair County Circuit Court entered an Order of Default and a Judgment for Foreclosure and Sale of the Property, in the amount of $319, 337.68. A judicial sale of the Property was held on April 25, 2011, at which time One West purchased the Property for the amount of its debt. On May 19, 2011, the St. Clair County Circuit Court entered an Order Approving the Report of Sale and Distribution. The Property was then deeded to FNMA on May 25, 2011.

         Downs filed various post-judgment motions. In these motions, Downs argued that One West had not complied with a Consent Order between One West and the Office of Thrift Supervision, the transfer of the ownership of the note and mortgage was falsely attested to, One West did not have standing to bring the original foreclosure action, and One West may have committed fraud upon the St. Clair County Circuit Court. The post-judgment motions were denied, as the court found that Downs had not shown the existence of a meritorious defense that was likely to succeed.

         On October 28, 2011, Downs appealed to the Illinois Appellate Court for the Fifth District, raising the same issues. On March 12, 2013, the Appellate Court affirmed the St. Clair County Circuit Court's ruling. See OneWest Bank, FSB v. Hawthorne, 2013 IL App (5th) 110475. The Appellate Court agreed with the St. Clair County Circuit Court that Downs had failed to plead facts showing the existence of a meritorious defense to the foreclosure action. In addition, the Appellate Court concluded that Downs also had failed to demonstrate due diligence in pursuing or presenting her defense prior to the entry of the foreclosure judgment.

         On October 29, 2013, Downs filed a separate lawsuit in the Circuit Court of St. Clair County against One West and two other defendants. In this lawsuit, Downs alleged that One West had not followed proper foreclosure procedures, had not been the legal holder of the mortgage and note, and had lacked standing in the foreclosure action. On February 11, 2014, the Court dismissed Downs's complaint with prejudice. Downs appealed that dismissal. On April 29, 2015, the Illinois Appellate Court for the Fifth District affirmed the dismissal, finding that her complaint was barred by the doctrine of res judicata. See Downs v. OneWestBank, FSB, 2015 IL App (5th) 140086-U.

         Meanwhile, on June 11, 2013 (during the pendency of her state court proceedings), Downs filed for Chapter 13 bankruptcy. In re Kim Downs, Bankruptcy Case No. 13-31082. On July 3, 2013, the bankruptcy case was dismissed for failure to comply with an order requiring her to file documents. In re Kim Downs, Bankruptcy Case No. 13-31082, Doc. 43.

         On August 7, 2013, Downs filed a second Chapter 13 bankruptcy case. In re Kim Downs, Bankruptcy Case No. 13-31457. On August 12, 2013, Creditor FNMA moved for relief from the automatic stay, which the Bankruptcy Court granted on October 8, 2013 (written order entered on October 22, 2013). Downs filed a Motion to Reconsider this order, which was denied on November 26, 2013. On December 9, 2013, Downs appealed the denial of the Motion to Reconsider to the District Court. See Downs v. Federal National Mortgage Association, Case No. 14-0003.

         The Bankruptcy Court dismissed her case on January 14, 2014, for failing to file an amended Chapter 13 plan. In re Kim Downs, Bankruptcy Case No. 13-31457, Doc. 63. On February 5, 2014, Downs filed a second Notice of Appeal to the District Court, this time appealing the dismissal of her Chapter 13 case. See Downs v. Federal National Mortgage Association, Case No. 14-1386.

         The District Court dismissed both appeals. On January 20, 2015, the District Court dismissed Downs's appeal of the denial of her Motion to Reconsider on the basis of her failure to file requested documents, including her designation of the record, statement of issues to be presented, and opening brief. On February 19, 2015, the District Court dismissed Downs's appeal of the dismissal of her case, citing her failure to comply with Court rules and procedures.

         Downs appealed both orders. On August 13, 2015, the Seventh Circuit Court of Appeals dismissed her first appeal as untimely. In re Kim Downs, Case No. 15-1376. On September 23, 2015, the Seventh Circuit affirmed the District Court's dismissal of her case for failure to prosecute. In re Kim Downs, Case No. 15-1370.

         On October 5, 2015, Downs filed another Chapter 13 bankruptcy case. This is the case subject to this appeal. On October 30, 2015, FNMA filed a Motion for Relief from the Automatic Stay and Co-Debtor Stay (Doc. 17 in Bankruptcy Case No. 15-31561). In the motion, FNMA asserted that, despite the confirmation of the foreclosure sale, Downs has continued to reside on the Property (Id.). Thus, FNMA sought relief from the stay in order to assert its possessory rights as owner of the Property (Id.). On December 30, 2015, the Bankruptcy Court granted the Motion for Relief from Automatic Stay ...


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