Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 1 of 10 PageID #: 74
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
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`
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`In re:
`JOHN O. MARABLE, JR.
` Appellant,
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`CASE NO: 4:15-cv-00788
`Judge Mazzant
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`§
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`v.
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`THE BANK OF NEW YORK MELLON
`As Trustee For the Certificatesholders
`Of CWMBS, Inc., CHL Mortgage Pass-
`Through Trust 2007-11 Mortgage Pass-
`Through Certificates, Series 2007-11,
`Its Successors and Assigns
` Appellee
`
`
`
`
`MEMORANDUM OPINION AND ORDER AFFIRMING
`APPEAL FROM THE UNITED STATES BANKRUPTCY COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`(CASE NUMBER 11-43002-BTR-13)
`______________________________________________________________________________
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`Pending before the Court is John O. Marable, Jr.’s (“Marable” or “Debtor”) appeal from
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`the bankruptcy court’s November 4, 2015 Order Granting Motion for Relief from Automatic
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`Stay and Co-Debtor Stay filed by The Bank of New York Mellon FKA The Bank of New York,
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`As Trustee for the Certificateholders of CWMBS, Inc., CHL Mortgage Pass-Through Trust
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`2007-11 Mortgage Pass-Through Certificates, Series 2007-11, Its Successors and Assigns (Dkt.
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`#1). Having reviewed the bankruptcy court’s order, the record, and the parties’ submissions, the
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`Court finds that the bankruptcy court’s order should be affirmed.
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`

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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 2 of 10 PageID #: 75
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`BACKGROUND
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`On April 30, 2007, Marable and Nicey V. Marable (the “Marables”) executed a
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`Promissory Note (the “Note”) in the original principal amount of $748,000.00 payable to the
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`order of First Mortgage Home Lending L.L.C., D/B/A Victory Mortgage (“Victory Mortgage”)
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`(Case No. 11-43002-BTR-13, Docket No. (“Btr. Dkt. #”) 62). Concurrently with the execution
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`of the Note, the Marables executed a Deed of Trust granting a lien to Victory Mortgage on 4516
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`Mahogany Lane, Copper Canyon, Texas, 75077-8547 (“the Property”) (Btr. Dkt. #62). On May
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`24, 2011, the Deed of Trust was assigned to The Bank of New York Mellon FKA The Bank of
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`New York (“BONY”), as trustee For the Certificatesholders of CWMBS, Inc., CHL Mortgage
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`Pass-Through Trust 2007-11 Mortgage Pass-Through Certificates, Series 2007-11 (Btr. Dkt.
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`#62).
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`On October 1, 2011, Marable filed his voluntary Chapter 13 bankruptcy petition in the
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`bankruptcy court (Btr. Dkt. #1). Nicey V. Marable was not a debtor in the bankruptcy
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`proceeding but was protected by the co-debtor stay of 11 U.S.C. Section 1301 (Btr. Dkt. #1). On
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`July 12, 2012, the bankruptcy court entered an order confirming Marable’s Chapter 13 Plan (Btr.
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`Dkt. #43).
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`On August 5, 2015, BONY filed a Motion for Relief from Automatic Stay and Co-Debtor
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`Stay as to the Property (the “Motion for Relief”) (Btr. Dkt. #69). In the Motion for Relief,
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`BONY alleged that the Marables had not made post-petition mortgage payments and the unpaid
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`principal balance due and owing on the Note was $713,141.45 (Btr. Dkt. #69 at p. 3). BONY
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`requested that the bankruptcy court enter an order granting relief from the automatic stay to
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`allow BONY to exercise its right to foreclosure and disposition of the Property and payment of
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`costs, expenses, and reasonable attorneys’ fees (Btr. Dkt. #69 at p. 4).
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`2
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 3 of 10 PageID #: 76
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`On August 12, 2015, Marable filed an Answer to the Motion for Relief (Btr. Dkt. #70).
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`On October 7, 2015, Marable filed a Motion for Withdrawal of Counsel and requested
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`permission to proceed pro se (Btr. Dkt. #72). Richard Kinkade, Marable’s attorney of record at
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`the time, filed a Motion for Withdrawal of Counsel on October 12, 2015 (Btr. Dkt. #73).
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`On November 2, 2015, the bankruptcy court held a final hearing on the Motion for Relief
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`(the “Final Hearing”) and found that there was cause to lift the stay because Marable had not
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`made any post-petition mortgage payments (Dkt. #4 at p. 6). On November 4, 2015, the
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`bankruptcy court entered an order granting BONY’s Motion for Relief (Btr. Dkt. #75). The
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`bankruptcy court granted the Motion for Withdrawal of Counsel on November 10, 2015 (Btr.
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`Dkt. #77). On November 12, 2015, Marable filed his Notice of Appeal regarding the bankruptcy
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`court’s order (Dkt. #1).
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`After filing his notice of appeal, Marable designated the following issues to be decided
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`on appeal:
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`1. Did the Court abused [sic] its discretion by denying Debtor’s right to a fair
`hearing by requiring the Debtor to preceed [sic] at The Hearing without Debtor’s
`Attorney of Record present at The Hearing. Whereas, The Court had not issued
`an Order to grant Debtor permission to act Pro Se?
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`2. Was it a denial of due process, or otherwise reversible error to provide Debtor
`with this type of hearing on the relevant relief from stay issues, whereas, The
`BONY did not have to present its evidence in admissible form, such as, by
`sworn testimony by persons with personal knowledge and to not allow Debtor to
`contest the truth of said evidence by cross examination controverting evidence of
`its own?
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`3. Did the Court err by only considering Debtor’s failure to make all post petition
`payments, instead of also considering whether The BONY was adequately
`protected in the property, particularly given the fact that this is what Debtor
`alleged in Debtor’s response to the MFRFS?
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`4. What evidence is necessary to prove Constitutional Standing and Prudential
`Standing in the context of a Motion for Relief from Stay in Bankruptcy Court on
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`3
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 4 of 10 PageID #: 77
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`
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`residential real estate? Other ways of framing this issue is contained in the
`following sub-questions:
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`a. Did the Court err in failing to require BONY to present evidence that it
`paid true value of its own for ownership of the Loan, and that even if it
`had, that it had not sold the Loan to another non-party?
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`b. Did the Court err in failing to require BONY to present evidence that it
`had a security interest in the Property, meaning that it was still possessed
`of the DOT rights?
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`c. Was it error to rely on statement of BONY’s Attorney as to the fact that
`the appearance of the documents attached to its motion constituted a true
`and complete representation of the actual facts of the case, particularly,
`since there is a good and reasonably [sic] cause to allege that the facts
`that would be revealed at trial would be that the apparent picture created
`by these documents would be dispelled in cross-examination and
`controverting evidence of the BONY’s fraudulent submission to this
`Court?
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`5. What effect should the established lack of credibility on the part of financial
`institutions related to residential mortgage loan servicing and foreclosure
`processing have upon residential mortgage stay relief procedures, in cases of
`pertinent mortgage loan debt. Particularly when such motions are challenged by
`the homeowner? This is within the context that, admittedly, in prior years such
`motions had been routine, such that when a Debtor had not made the monthly
`mortgage payments, stay relief was proper, absent a plan for Debtor to cure the
`arrearage. Because of the unsafe, unsound and fraudulent practices related to
`residential mortgage loan servicing and foreclosure processing for mortgages,
`primarily dated after 2006. This lack of credibility has been established, because
`it has been made part of the official public record, and because of the astonishing
`and overwhelming findings made through official investigations, private legal
`and expert inquiries and investigative journalism. There have been serious
`questions raised concerning the execution of documents by Bank of America, a
`previous owner of the Note and DOT, by what are being referred to as
`“robosigners” to the point that, a couple of years ago, The State of Texas
`suspended all foreclosures by Bank of America. And 48 other States similarly
`banned Bank of America foreclosures.
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`
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`6. Whether the Bankruptcy Court erred in not requiring the BONY to complete the
`evaluation of the Debtor’s eligibility under the Making Home Affordable
`Program established by the United States Department of the Treasury pursuant
`to the Emergency Economic Stabilization Act of 2008, before granting the Order
`to lift the automatic stay.
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`(Dkt. #3 at pp. 3 – 6).
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`4
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 5 of 10 PageID #: 78
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`LEGAL STANDARD
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`A district court has jurisdiction to hear appeals from “final judgments, orders, and
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`decrees” of a bankruptcy court. 28 U.S.C. § 158(a)(1) (2012). A bankruptcy court’s “findings of
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`fact are reviewed for clear error and conclusions of law are reviewed de novo.” Drive Fin.
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`Servs., L.P. v. Jordan, 521 F.3d 343, 346 (5th Cir. 2008); see also In re Soileau, 488 F.3d 302,
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`305 (5th Cir. 2007); Ferrell v. Countryman, 398 B.R. 857, 862 (E.D. Tex. 2009). In a
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`bankruptcy appeal, “a district court cannot consider issues that were not initially presented to the
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`bankruptcy court.” Ferrell, 398 B.R. at 863 (citations omitted). A district court “will not allow a
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`party to raise an issue for the first time on appeal merely because a party believes that he might
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`prevail if given the opportunity to try a case again on a different theory.” Ferrell, 398 B.R. at
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`863 (citing Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996)).
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`Under Section 362(a) of the Bankruptcy Code, the filing of a bankruptcy petition
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`“operates as an automatic stay of several categories of judicial and administrative proceedings
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`that affect the property in the debtor's bankruptcy estate.” Prince v. CMS Wireless LLC, No.
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`4:11-CV-438, 2012 WL 1015001, at *3 (E.D. Tex. Mar. 22, 2012) (citing 11 U.S.C. § 362(a)(1)
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`(2012)). “The purposes of the stay are to protect the debtor’s assets, provide temporary relief
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`from creditors, and further equity of distribution among the creditors by forestalling a race to the
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`courthouse.” Prince, 2012 WL 1015001, at *3 (citing Reliant Energy Servs., Inc. v. Enron Can.
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`Corp., 349 F.3d 816, 825 (5th Cir. 2003)). However, a creditor may obtain relief from the stay
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`“for cause.” Prince, 2012 WL 1015001, at *3 (citing 11 U.S.C. § 362(d)(1)).
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`Section 362(d)(1) of the Bankruptcy Code states, “on request of a party in interest and
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`after notice and a hearing, the court shall grant relief from the stay . . . by terminating, annulling,
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`modifying, or conditioning such stay . . . (1) for cause, including the lack of adequate protection
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`5
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 6 of 10 PageID #: 79
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`of an interest in property of such party in interest.” 11 U.S.C. § 362(d)(1). “Cause” is not defined
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`in the bankruptcy code, but rather is determined on a case-by-case basis. See In re Reitnauer,
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`152 F.3d 341, 343 n. 4 (5th Cir. 1998); In re Mendoza, 111 F.3d 1264, 1271 (5th Cir. 1997);
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`Prince, 2012 WL 1015001, at *3–4. “A debtor’s failure to make payments constitutes cause” for
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`granting a motion for relief from stay. In re Hernandez, No. 11-31893-H3-13, 2011 WL
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`2515980, at *3 (Bankr. S.D. Tex. June 22, 2011).
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`“Bankruptcy courts are given broad discretion to fashion relief from the automatic stay.”
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`Prince, 2012 WL 1015001, at *3–4 (citing In re Barnes, 279 F. App’x 318, 319 (5th Cir. 2008)).
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`A bankruptcy court’s order lifting the automatic stay is reviewed for abuse of discretion. See In
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`re Mirant Corp., 440 F.3d 238, 245 (5th Cir. 2006); In re Mendoza, 111 F.3d at 1266; Prince,
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`2012 WL 1015001, at *2. In general, a bankruptcy court abuses its discretion in lifting or
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`modifying an automatic stay “only if it applies an improper legal standard or bases its decision
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`on clearly erroneous facts.” Cain v. Rackspace U.S., Inc., No. SA-14-MC-333-XR, 2014 WL
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`3495715, at *1 (W.D. Tex. July 10, 2014) (first citing In re Butan Valley, N.V., 2009 WL
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`6509349, at *2 (Bankr. S.D. Tex. 2009); and then citing In re Cahill, 428 F.3d 536, 539 (5th Cir.
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`2005)).
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`ANALYSIS
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`The Court notes that the only issues on appeal raised before the bankruptcy court are
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`Issue 1, whether the bankruptcy court abused its discretion by requiring Marable to proceed pro
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`se before granting the Motion for Withdrawal of Counsel, and Issue 3, whether the bankruptcy
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`court erred in finding cause to lift the stay (Dkt. #3 at p. 3). The remaining arguments presented
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`on appeal were not advanced in the bankruptcy court. Accordingly, the Court need not address
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`6
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 7 of 10 PageID #: 80
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`these issues. See Ferrell, 398 B.R. at 863 (noting that a district court cannot consider issues that
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`were not initially presented to the bankruptcy court).
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`Withdrawal of Counsel
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`Marable contends that he was entitled to have his attorney of record appear and defend
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`his case until the bankruptcy court granted the Motion for Withdrawal of Counsel. The Court
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`finds that this argument is without merit.
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`The United States Supreme Court has held that there is no Sixth Amendment right to
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`counsel in civil cases. See Lassiter v. Dep’t of Soc. Servs. of Durham Cty, 452 U.S. 18, 24–28
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`(1981). “The right to counsel only exists in favor of an indigent whose physical liberty is at
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`stake.” Ferrell, 398 B.R. at 866 (citing In re Eagle, 373 B.R. 609, 612 (8th Cir. BAP 2007)).
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`“Consequently, an indigent debtor has no right to appointed counsel in a bankruptcy
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`proceeding.” Ferrell, 398 B.R. at 866 (citing In re Wynn, 889 F.2d 644, 646 (5th Cir. 1989)). A
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`bankruptcy court may allow a debtor to proceed pro se without granting an extension of time to
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`obtain an attorney if the debtor has ample notice of the hearing and adequate time to prepare for
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`the hearing. See In re Stathatos, 163 B.R. 83, 87 (N.D. Tex. 1993). The withdrawal of an
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`attorney in a bankruptcy case is a “matter entrusted to the sound discretion of the court and will
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`be overturned on appeal only for an abuse of that discretion.” In re Wynn, 889 F.2d at 646
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`(citing Streetman v. Lynaugh, 674 F.Supp. 229 (E.D. Tex. 1987)).
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`Here, Marable filed a Motion for Withdrawal of Counsel on October 7, 2015 (Btr. Dkt.
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`#72). On October 12, 2015, Richard Kinkade, the attorney of record at the time, also filed a
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`Motion for Withdrawal of Counsel (Btr. Dkt. #73). During the Final Hearing on November 2,
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`2015, the bankruptcy court noted that it had not yet acted on the Motion for Withdrawal of
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`Counsel but stated that it would allow Marable to proceed pro se (Dkt. #4 at p. 3). The
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`7
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 8 of 10 PageID #: 81
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`bankruptcy court granted the Motion for Withdrawal of Counsel on November 10, 2015 (Btr.
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`Dkt. #77).
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`Although Marable’s attorney of record was not present at the Final Hearing, Marable did
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`not have a constitutional right to appointed counsel in the bankruptcy proceeding. See Ferrell,
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`398 B.R. at 866. Further, Marable filed the Motion for Withdrawal of Counsel approximately a
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`month before the Final Hearing, giving him ample notice of and adequate time to prepare for the
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`Final Hearing. See In re Stathatos, 163 B.R. at 87. The bankruptcy court thus did not abuse its
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`discretion in allowing Marable to proceed pro se during the Final Hearing.
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`Cause to Lift the Stay
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`Marable contends that the bankruptcy court erred in finding cause to lift the stay because
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`it only considered Marable’s failure to make post-petition payments and did not consider
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`whether BONY was adequately protected in the Property. A bankruptcy court’s order lifting the
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`automatic stay is reviewed for abuse of discretion. See In re Mirant Corp., 440 F.3d at 245. The
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`Court finds that the bankruptcy court did not abuse its discretion in finding cause to lift the stay.
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`Section 362(d)(1) of the Bankruptcy Code states, “on request of a party in interest and
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`after notice and a hearing, the court shall grant relief from the stay . . . by terminating, annulling,
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`modifying, or conditioning such stay . . . (1) for cause, including the lack of adequate protection
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`of an interest in property of such party in interest.” 11 U.S.C. § 362(d)(1). “Cause” for the
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`lifting of the stay pursuant to Section 362(d)(1) is not defined in the Bankruptcy Code and must
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`be determined on a case-by-case basis. See In re Reitnauer, 152 F.3d at 343 n. 4; In re Mendoza,
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`111 F.3d at 1264.
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`A creditor seeking relief “must provide evidence that the value of the collateralized
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`property is declining or is threatened to decline in value as a result of the automatic stay” to
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`8
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 9 of 10 PageID #: 82
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`establish a prima facie case of cause due to a lack of adequate protection. Id. However, a lack of
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`adequate protection of an interest in property is only one of the means by which a creditor may
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`show cause for relief from stay. See 11 U.S.C. § 362(d)(1); see also In re JCP Props., Ltd., 540
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`B.R. 596, 613 (Bankr. S.D. Tex. 2015) (determining that although creditor failed to establish a
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`prima facie case of cause for relief from stay due to lack of adequate protection, there was cause
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`to lift the automatic stay pursuant to Section 362(d)(1) because the debtor filed its bankruptcy
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`petition in bad faith). “A debtor’s failure to make payments” also constitutes cause for granting
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`a motion for relief from the stay. In re Hernandez, 2011 WL 2515980, at *3. See also In re
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`Ramos, 540 B.R. 580, 594 (Bankr. N.D. Tex. 2015) (“[T]he court acknowledges that many cases
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`come before it in which a debtor has missed post-petition mortgage payments and is confronted
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`with a motion to lift stay from his or her mortgage lender at some point midway through her
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`Chapter 13 plan. The stay is often lifted. The mortgage lender forecloses.”) (emphasis omitted).
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`During the Final Hearing, Marable stipulated that he had not made any post-petition
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`payments on the home mortgage (Dkt. #4 at p. 5). Based on this stipulation, the bankruptcy
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`court held that cause existed to lift the stay (Dkt. #4 at p. 6). The bankruptcy court was not
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`required to also consider whether BONY was adequately protected in the Property. The
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`bankruptcy court did not abuse its discretion in finding that Marable’s failure to make post-
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`petition mortgage payments constituted cause to lift the stay.
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`CONCLUSION
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`Based on the foregoing and having applied the appropriate standards of review, the Court
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`hereby AFFIRMS the holdings of the bankruptcy court.
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`IT IS SO ORDERED.
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`Case 4:15-cv-00788-ALM Document 9 Filed 09/07/16 Page 10 of 10 PageID #: 83
`Case 4:15—cv—0O788—ALM Document 9 Filed 09/07/16 Page 10 of 10 Page|D #: 83
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`SIGNED this 7th day of September, 2016.
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`AMOS L. MAZZANT
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`% ,2
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`UNITED STATES DISTRICT JUDGE
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