MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          May 30 2019, 9:21 am

court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.

APPELLANT PRO SE
Jason T. Myers
Lafayette, Indiana

                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason T. Myers,                                          May 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-SC-2197
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
June Palms Property                                      The Honorable Laura Zeman,
Management,                                              Judge
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         79D04-1803-SC-816 & 79D04-
                                                         1805-SC-1592

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                       Page 1 of 10
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jason Myers (Myers), appeals from the trial court’s order

      denying his motion to correct error seeking relief from a judgment in favor of

      Appellee-Plaintiff, June Palms Property Management, (June Palms).

[2]   We affirm.

                                                    ISSUE
[3]   Myers presents one issue on appeal, which we restate as: Whether the trial

      court abused its discretion when it denied his motion to correct error.

                      FACTS AND PROCEDURAL HISTORY
[4]   On August 11, 2017, Myers and June Palms entered into a lease agreement (the

      Lease) for an apartment located on 4th Street in Lafayette, Indiana. The Lease

      provided that the apartment “shall be occupied by no more than 1 persons . . .

      without the written consent of [June Palms].” (Appellant’s App. Vol. II, p. 17).

      The Lease further provided that Myers would be charged $100 per month for

      each “unauthorized occupant” determined to be living in the apartment and

      that Myers would be liable for costs and expenses, including legal and

      administrative fees, resulting from legal steps taken to enforce the provisions of

      the Lease. (Appellant’s App. Vol. II, pp. 15, 17).

[5]   In February 2018, June Palms received reports of loud arguments emanating

      from Myers’ apartment. June Palms became suspicious that Myers had an

      unauthorized person living in his apartment, so they sent an employee,

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 2 of 10
      Anthony Stout (Stout), to inspect the property. When he arrived to perform the

      inspection, Stout was greeted by Myers’ girlfriend. Myers was not home at the

      time. Stout observed several items of the girlfriend’s clothing and hygiene items

      in the apartment. The girlfriend appeared nervous and asked if she would be in

      trouble for staying in the apartment. She also asked Stout about using storage

      space in the laundry room.

[6]   June Palms concluded that Myers’ girlfriend was living in his apartment

      without authorization. June Palms issued Myers a notice of over-occupancy

      and began charging him an extra $100 per month, as provided for in the Lease.

      Myers continued to pay the base rate of his rent, but he did not pay the $100

      over-occupancy fee. Myers’ account with June Palms went into arrears, and

      late fees accumulated. June Palms had informed Myers that he could prove to

      them that the girlfriend was not living in his apartment by supplying a lease or

      mail showing that she lived elsewhere. The parties exchanged several emails

      regarding what type of mail would be acceptable proof of non-occupancy, but

      Myers never provided June Palms with documentation that satisfied them.

[7]   On March 14, 2018, June Palms filed a petition for eviction under Cause

      Number 79D04-1803-SC-816 (the -816 Eviction). June Palms sought payment

      of the outstanding over-occupancy fees, late fees, attorney’s fees, and possession

      of the apartment. In a March 19, 2018, email to June Palms, Myers stated that

      he believed that his girlfriend had mail from her bank card account which

      would satisfy June Palms’ requirements for showing non-occupancy. On

      March 27, 2018, the trial court held a hearing on the -816 Eviction petition.

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 3 of 10
      Myers testified that his girlfriend stayed with him often but did not specifically

      deny that she had spent five days and nights consecutively at his apartment,

      which was the standard June Palms used to determine occupancy. When asked

      why his girlfriend was not present to assist Myers with settling the occupancy

      issue, Myers responded that “she’s not part of it.” (Defendant’s Exh. 1, Vol.

      III, p. 15). Myers did not seek to admit a copy of his girlfriend’s mail for her

      bank card account as proof that she lived elsewhere. Myers did not ask the trial

      court if he could have a continuance of the proceedings in order to procure that

      mail. Myers also claimed, as he had in his answer to the -816 Eviction petition,

      that he had not been provided with the statutorily-required notice to evict by

      June Palms. The trial court ruled in favor of June Palms, issuing a judgment

      and an award of damages in their favor against Myers but denying June Palms

      the right to possession of the apartment.

[8]   Myers continued to pay his base rent amount but did not pay additional sums

      toward the -816 Eviction judgment. June Palms applied all of Myers’ rent

      payments to the -816 judgment, resulting in additional arrears to Myers’

      account. On May 14, 2018, June Palms filed a second eviction proceeding

      against Myers under Cause Number 79D04-1805-SC-1592 (the -1592 Eviction).

      On May 17, 2018, Myers filed a motion for relief from judgment pursuant to

      Indiana Trial Rule 60(B) seeking to vacate the -816 Eviction judgment.

      Framing his argument mainly as one of contract interpretation, Myers argued

      that June Palms was to blame for his failure to bring appropriate documentation

      of his girlfriend’s non-occupancy to court on March 27, 2018, because June

      Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 4 of 10
       Palms did not inform him until it was too late what sort of mail would be

       acceptable proof. Myers also claimed that the trial court should have allowed

       him more time to provide his girlfriend’s mail and that June Palms had not

       provided him with the statutorily-required notice of intent to evict.

[9]    On May 29, 2018, the trial court held a hearing on the -1592 Eviction petition

       and awarded June Palms additional damages and possession of the apartment.

       On June 5, 2018, the trial court held a hearing on Myers’ motion for relief from

       judgment, which it denied, concluding that Myers had not presented any new

       evidence and that he had not filed a timely motion to correct error in the -816

       Eviction. On July 2, 2018, Myers filed a motion to correct error challenging the

       trial court’s June 5, 2018, denial of his motion for relief from judgment. On

       August 6, 2018, the trial court denied Myers’ motion to correct error.

[10]   Myers now appeals. Additional facts will be presented as necessary.

                               DISCUSSION AND DECISION
                                             I. Standard of Review

[11]   We begin by noting that June Palms did not file an appellate brief in this

       matter. We do not develop arguments on behalf of an appellee who fails to file

       a brief. WindGate Props., LLC v. Sanders, 93 N.E.3d 809, 813 (Ind. Ct. App.

       2018). In such cases, we will reverse if the appellant establishes prima facie

       error, meaning error at first sight or error on the face of it. Id. However, even

       in light of this relaxed standard, we still have the obligation to correctly apply

       the law to the facts in the record to determine whether reversal is required. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 5 of 10
[12]   Myers appeals from the trial court’s denial of his motion to correct error,

       framing his arguments as contract, negligence, and due process issues. A trial

       court’s ruling on a motion to correct error is generally reviewed for an abuse of

       discretion, approaching our review with a strong presumption of correctness.

       Santelli v. Rahmatullah, 993 N.E.2d 167, 173 (Ind. 2013). An abuse of discretion

       occurs when the trial court’s decision is against the logic and effect of the facts

       and circumstances before it and the inferences to be drawn therefrom. Paulsen

       v. Malone, 880 N.E.2d 312, 313 (Ind. Ct. App. 2008). However, we review any

       questions of law de novo. Healey v. Carter, 109 N.E.3d 1043, 1047 (Ind. Ct. App.

       2018), trans. denied. This standard of review requires us to examine the

       propriety of the underlying order, namely the trial court’s June 5, 2018, denial

       of Myers’ motion for relief from judgment.

                                       II. Motion for Relief from Judgment

[13]   Myers filed a motion for relief from judgment seeking to vacate the -816

       Eviction judgment. 1 In his motion, Myers argued that his failure to provide his

       girlfriend’s mail at the March 27, 2018, hearing was “a mistake of law and

       reasonable neglect” because June Palms did not alert him beforehand that it

       would accept that as proof of her non-occupancy and that this was newly-

       discovered evidence. (Appellant’s App. Vol. II, p. 43). Myers also alleged that

       1
         Although Myers initially filed the motion in both eviction proceedings, no final judgment had been
       rendered in the -1592 Eviction, and the substance of the motion pertained to the -816 Eviction judgment.
       After Myers’ rent payments had extinguished the damages awarded in the -816 Eviction, at the hearing on
       Myers’ motion to correct error, June Palms agreed to vacate that judgment, noting that, by doing so, it was
       not conceding that the -816 Eviction judgment was in error.

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                     Page 6 of 10
       June Palms had not supplied him with the statutorily-mandated notice of intent

       to evict him. Except for the setting aside default judgments, the Indiana Trial

       Rules apply to proceedings to set aside small claims judgments. Summit Account

       & Comput. Serv. v. Hogge, 608 N.E.2d 1003, 1005 (Ind. Ct. App. 1993). Trial

       Rule 60(B) provides in relevant part:

               On motion and upon such terms as are just the court may relieve
               a party or his legal representative from a judgment . . . for the
               following reasons:

               (1) mistake, surprise, or excusable neglect;

               (2) any ground for a motion to correct error, including without
                   limitation newly discovered evidence, which by due diligence
                   could not have been discovered in time to move for a motion
                   to correct error under Rule 59[.]

       The movant has the burden to establish the grounds for relief, and because the

       relief is within the equitable discretion of the trial court, we will reverse the

       denial of relief only upon an abuse of the trial court’s discretion. In re Paternity

       of P.S.S., 934 N.E.2d 737, 740-41 (Ind. 2010).

[14]   The issues that Myers raised in his motion for relief from judgment did not

       involve mistake, surprise, excusable neglect, or newly discovered evidence. The

       issue of whether June Palms had complied with statutory notice requirements

       was known and litigated in the -816 Eviction proceedings. In addition, Myers

       was well aware that his girlfriend’s occupancy was the issue to be litigated at

       the March 27, 2018, hearing on the -816 Eviction petition, and he had already

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 7 of 10
       proposed to June Palms that her bank card account mailings would show her

       non-occupancy of his apartment. It was incumbent upon him to present that

       defense at the -816 Eviction hearing. He did not; nor did he seek a continuance

       of the proceedings in order to procure the mail. The trial court ruled in favor of

       June Palms, resulting in an award of damages against Myers, the non-payment

       of which eventually became the basis for the second eviction proceeding.

[15]   The trial court entered its order in favor of June Palms in the -816 Eviction on

       March 27, 2018. This was a final order which was appealable. See Ind. Small

       Claims Rule 11(A); Ind. Appellate Rule 2(H)(1). Myers had thirty days—until

       April 26, 2018—to either file a motion to correct error or to appeal the trial

       court’s final order. See T.R. 59(A); App. R. 9(A)(1). Myers did not file a

       motion to correct error or pursue a direct appeal. Instead, he waited until May

       17, 2018, to file a motion for relief from judgment. A motion for relief from

       judgment under Trial Rule 60(B) pertains to only procedural, equitable grounds

       justifying relief from the legal finality, not the legal merits, of a final judgment

       and is not a substitute for a direct appeal. P.S.S., 934 N.E.2d at 740. Because

       Myers did not show excusable neglect or newly discovered evidence, the trial

       court did not abuse its discretion when it denied his motion for relief from

       judgment or his subsequent motion to correct error based on that denial. See

       id.; Santelli, 993 N.E.2d at 172. For these reasons, Myers has not demonstrated

       even prima facie error. See WindGate Props., 93 N.E.3d at 813.

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 8 of 10
                                                     III. Due Process

[16]   We pause briefly to address Myers’ due process claim as it relates to the -1592

       Eviction. 2 Myers argues that his due process rights were violated when June

       Palms failed to supply him with the ten days of notice of intent to evict that he

       claims he was due pursuant to Indiana Code section 32-31-1-7. Assuming,

       without deciding, that this is correct, Myers presents no argument regarding

       how his defense in the -1592 Eviction was prejudiced as a result of this lack of

       notice. He claims in the summary of his argument that adequate notice would

       have allowed him “time to obtain and provide pay check stubs which provided

       his girlfriend’s address and switched the result of the proceedings” in his favor.

       (Appellant’s Br. p. 12). Myers made no indication at the -1592 Eviction hearing

       that he sought to introduce pay check stubs, so this claim of error appears to

       address the -816 Eviction, an issue which we have already determined was not

       properly before the trial court in the motion for relief from judgment. Therefore,

       Myers has failed to establish even prima facie error on the part of the trial court

       as it relates to the due process claim in the -816 Eviction proceedings. See Jones

       v. Housing Auth. of City of South Bend, 915 N.E.2d 490, 497 (Ind. Ct. App. 2009)

       2
         Myers also argues that the trial court violated his due process rights in both the -816 and -1592 Eviction
       proceedings by failing to “enter a proper show cause order pursuant to Ind. Code 32-30-3-2.” (Appellant’s
       Br. p. 15). Myers did not raise this claim in the trial court. Issues raised for the first time on appeal are
       waived, and, therefore, we decline to address it. See Plank v. Cmty. Hosps. of Ind., Inc., 981 N.E.2d 49, 53 (Ind.
       2013) (noting that declining to review issues not properly preserved for appeal is a cardinal principle of sound
       judicial administration).

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019                         Page 9 of 10
       (declining to reverse where Jones had failed to demonstrate how he was

       prejudiced by procedural due process error).

                                             CONCLUSION
[17]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion when it denied Myers’ motion to correct error based on its denial of

       his improper motion for relief from judgment. We also conclude that Myers

       failed to establish that he suffered any prejudice arising from the claimed

       violation of his due process rights.

[18]   Affirmed.

[19]   Bailey, J. and Pyle, J. concur

       Court of Appeals of Indiana | Memorandum Decision 18A-SC-2197 | May 30, 2019   Page 10 of 10


77 F.3d 474
U.S.v.Young*
NO. 95-10567
United States Court of Appeals,Fifth Circuit.
Dec 15, 1995
Appeal From:  N.D.Tex., No. 4:94-CR-145-A

1
DISMISSED.

*
 Fed.R.App.P. 34(a);  5th Cir.R. 34.2


300 B.R. 127 (2003)
In re Thelma E. ALLEN, Debtor.
No. 03-0571.
United States Bankruptcy Court, District of Columbia.
September 5, 2003.
*128 Charles R. Allen, Washington, DC, for Thelma E. Allen and Charles R. Allen.
L. Darren Goldberg, James E. Clarke, Draper & Goldberg, PLLC, Leesburg, VA, for Wells Fargo Bank Minnesota, N.A. as Trustee.

DECISION AND ORDER REGARDING MOTION FOR STAY PENDING APPEAL
S. MARTIN TEEL, JR., Bankruptcy Judge.
The court addresses a motion for stay pending appeal filed by the debtor, Thelma E. Allen ("Mrs. Allen"), and her son, Charles R. Allen ("Mr. Allen"), regarding an order that annulled the automatic stay and the co-debtor stay that had arisen in this case under, respectively, § 362(a) and § 1301 of the Bankruptcy Code (11 U.S.C.). Specifically, the order annulled the stays with respect to a foreclosure sale by Wells Fargo Bank Minnesota, N.A., as Trustee ("Wells Fargo") of Mr. Allen's District of Columbia residence ("the Property"). As part of their grounds for seeking a stay, the Allens' motion incorporates a motion for reconsideration filed under F.R. Civ. P. 59. The court has denied that motion for reconsideration for reasons stated in a decision issued today which elaborates on the grounds for annulling the bankruptcy stays. Applying the usual four factors for addressing a stay pending appeal, the court will deny a stay pending appeal, but will grant a stay of short duration to permit the Allens to seek a stay pending appeal from the district court.

I

LIKELIHOOD OF SUCCESS ON APPEAL
When a sole mortgagor is barred from commencing a bankruptcy case, the Bankruptcy Code is not intended to force the mortgagee to engage in a new bankruptcy case commenced by a wholly unexpected new debtor whose very ownership interest itself constitutes a breach of mortgage covenants and a ground for accelerating the mortgagor's debt and foreclosing on the mortgage. That proposition, and a finding that Wells Fargo was unaware of Mrs. Allen's bankruptcy case when it proceeded with the foreclosure sale, were the principal grounds upon which this court annulled the stays. Given the deferential standard of review on appeal, there is scant likelihood of the district court's reversing that ruling on appeal.
The standard of review on the appeal of an order annulling bankruptcy stays is whether the bankruptcy court abused its discretion.[1] This circuit's court *129 of appeals has observed that an abuse of discretion will exist, first, if the trial court relied on the wrong legal standards. F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 595 (D.C.Cir.1996). Once it is determined that the trial court applied the correct legal standards, however, an appellate court:
will reverse the [trial] court [only] if its decision rests on clearly erroneous factual findings or if it leaves [the appellate court] with a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.
Magaw, 102 F.3d at 596 (internal quotations omitted).[2]

A. Correct Legal Standards Were Applied

The court's decision relied on appropriate legal standards for annulling bankruptcy stays. Because Wells Fargo was unaware of Mrs. Allen's ownership interest or of her bankruptcy case when it sold the property at foreclosure to a third party, and because Wells Fargo would have obtained relief from the stays to proceed with foreclosure had it known of the bankruptcy case before foreclosing, annulment of the automatic stay and co-debtor stay was appropriate. See In Mut. Benefit Life Ins. Co. v. Pinetree, Ltd. (In re Pinetree, Ltd.), 876 F.2d 34 (5th Cir.1989); Albany Partners. Ltd. v. Westbrook (In re Albany Partners, Ltd.), 749 F.2d 670, 675-76 (11th Cir.1984). In addition, this court did not err in the legal standards it applied to the subsidiary question of whether, if Wells Fargo had been aware of the bankruptcy case, relief from the automatic stay to permit the prospective foreclosure would have been granted based on an abuse of the bankruptcy system, bad faith, and inability of Mrs. Allen's bankruptcy case (as that of an owner whose ownership violated mortgage covenants) to address Wells Fargo's debt.

B. The Findings of Fact Were Not Clearly Erroneous

The basic facts (underlying the court's ultimate discretionary findings of abuse of the bankruptcy system, bad faith, futility of the bankruptcy case, and cause for annulling the stay) are not in dispute except for the finding that Wells Fargo had no knowledge of Mrs. Allen's bankruptcy case when it foreclosed.[3] That finding was not clearly erroneous. The Allens' objections regarding Wells Fargo's evidence of its lack of knowledge were waived because the Allens failed to raise them at the trial.

C. There Was No Clear Error of Judgment in Applying Discretionary Standards in Annulling the Stays

Left for scrutiny on appeal are this court's ultimate findings, the discretionary *130 decisions calling for an exercise of judgment in applying relevant factors. The judgment calls this court made would not leave an appellate court, under the Magaw standard of review, "with a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Magaw, 102 F.3d at 596.
That the findings of abuse of the bankruptcy system, bad faith, and futility of Mrs. Allen's bankruptcy case were not clear errors of judgment is readily evident from a brief chronology of the events that transpired:

1986:                 Mr. Allen acquires ownership of the
                       Property.
1986-1999:            Mrs. Allen contributes to renovation
                       of the Property (and this is the
                       basis for her claiming an equitable
                       interest in the Property).
August 1999:          Mr. Allen, as sole record owner of
                       the Property, executes a Note
                       and a Deed of Trust (duly recorded
                       by Wells Fargo) granting
                       Wells Fargo a mortgage lien on
                       the Property. The Deed of Trust
                       contains a due-on-transfer clause,
                       as well as a covenant of seisin and
                       warranty of title.
February 27, 2002:    Mr. Allen commences his own bankruptcy
                       case staying Wells Fargo
                       from foreclosing despite 13
                       months of missed payments.
January 23, 2003:     Court dismisses Mr. Allen's case
                       with prejudice for 180 days, with
                       mortgage payments even further
                       behind.
March 21, 2003:       Mr. Allen executes deed conveying
                       the Property to himself and Mrs.
                       Allen as co-owners.
March 24, 2003:       Mr. Allen records deed and then
                       files petition commencing Mrs.
                       Allen's bankruptcy case.
March 27, 2003:       Wells Fargo, unaware of Mrs.
                       Allen's ownership interest and of
                       her bankruptcy case, sells the
                       Property at foreclosure to Case
                       Capitol Corporation.
May 27, 2003:         Mrs. Allen obtains a dismissal of
                       her bankruptcy case without ever
                       having filed schedules, a statement
                       of financial affairs, or a
                       chapter 13 plan.

Mrs. Allen's bankruptcy case was an attempt to circumvent the bar against Mr. Allen's re-filing a bankruptcy case, and Mrs. Allen's ownership interest violated provisions of the Deed of Trust. Accordingly, her case was an abuse of the bankruptcy system, and was filed in bad faith.
The last-minute transfer to Mrs. Allen violated the Deed of Trust's due-on-transfer clause. Although Mrs. Allen claims, alternatively, that she had an ownership interest prior to Wells Fargo making the loan, she left Mr. Allen in the position to enter into the Deed of Trust which, as a matter of District of Columbia law, subjected whatever equitable rights she had in the property to Wells Fargo's superior rights. Moreover, the Deed of Trust contained a covenant of seisin and warranty of title representing that he owned the property, and that covenant and warranty were violated by her alleged undisclosed ownership interest. As a court of equity, the court was fully justified in not allowing Mrs. Allen's undisclosed interest in the property and the last-minute conveyance to her to defeat Wells Fargo's rights after the sole mortgagor (Mr. Allen) had been barred from filing bankruptcy.
In addition, the court concluded that Mrs. Allen's case could not have addressed Wells Fargo's debt as to which Mr. Allen was the sole mortgagor. Without re-conveying the Property to Mr. Allen, Mrs. Allen could not cure the breaches of the Deed of Trust provisions arising from her ownership interest, and those provisions could not be modified without doing an end-run around the bar under 11 U.S.C. § 1322(b)(2) that Mr. Allen faced, in his own case, against modifying his home mortgage. Decisions that have permitted retention of property despite a violation of a due-on-transfer clause are distinguishable as not involving any issue of circumvention *131 of a bar against the actual mortgagor's filing bankruptcy.[4]

II

HARM TO THE ALLENS
If the annulment of the stays is kept in place and not stayed, Wells Fargo will be permitted to have the trustees under the Deed of Trust conclude their foreclosure sale to Case Capitol Corporation (if they did not do so already prior to learning of the bankruptcy case). Case Capitol Corporation will then be able to commence eviction proceedings against Mr. Allen, but Mr. Allen is hardly in a position to claim harm when he was barred from utilizing bankruptcy to address his mortgage problems.
Mrs. Allen does not even use the Property as her principal residence, so the loss of the Property would not deprive her of a residence. Moreover, with the shelter and delay occasioned by Mr. Allen's bankruptcy case, the Allens had months to sell the Property before foreclosure but failed to do so. The loss of whatever equity could have been realized in a non-forced sale can thus be laid at the Allens' feet.
It is not clear whether denying a stay pending appeal would moot the appeal,[5] thereby destroying Mrs. Allen's ownership of the Property she would retain in the event that the Allens were otherwise to prevail on appeal. Even if it would, that harm will have been suffered by one who did not bother to protect her asserted interest in the Property by insisting on a recorded deed early on, who thus chose to let Wells Fargo believe that Mr. Allen was the sole owner, and who, after Wells Fargo made the loan, could not have received a deed to the Property without triggering the due-on-transfer clause.
The harm to the Allens, a matter of their own doing, does not outweigh the other factors, all of which counsel against staying the court's order.

III

HARM TO WELLS FARGO AND CASE CAPITOL CORPORATION
There is no evidence that Case Capitol Corporation has gone to settlement to close its foreclosure sale purchase of the Property. A stay will harm Wells Fargo by delaying its receipt of the foreclosure sale proceeds (if not already received).[6] If Case Capitol Corporation were able to back out of the foreclosure sale because of the delay occasioned by a stay, Wells Fargo would be harmed because it would be forced to incur added foreclosure expenses, and might be left worse off. Mr. Allen says that the foreclosure sale Wells Fargo held did not pay the Wells Fargo debt in full, leaving him facing the prospect of a deficiency judgment, and there is no guarantee that on a new foreclosure sale the deficiency would not be higher.
*132 In addition, the purchaser at the foreclosure sale, Case Capitol Corporation, is suffering harm. A stay would mean that it could not take steps to evict Mr. Allen from the Property. Delay in evicting Mr. Allen will delay realization by Case Capitol Corporation of the benefits of ownership. Upon evicting Mr. Allen it could rent the Property or re-sell it. The delay in receipt of rents or of re-sale proceeds of course substantially harms Case Capitol Corporation because of the time value of money. In this same regard, a stay might result in Case Capitol Corporation receiving a lower re-sale price upon electing to pursue a re-sale: a stay might prevent a re-sale while mortgage rates are still historically low (albeit substantially higher than during a brief period after the foreclosure sale was completed), and thus conducive to receiving a favorable price for the Property.
Moreover, the record is unclear whether Case Capitol Corporation has actually closed the sale. If it has not, a stay would subject it to the possibility that the capital it might have to borrow to complete the sale once an appeal is completed may not be available on as favorable terms as are currently available.
The Allens have not offered to post a supersedeas bond that would protect Wells Fargo and Case Capitol Corporation against any losses that would be suffered by reason of a stay pending appeal. Such a bond would have to be substantial because of the uncertainties of the extent of harm that might befall Wells Fargo and Case Capitol Corporation. In any event, posting such a supersedeas bond would be insufficient to warrant granting a stay pending appeal, given the great unlikelihood of the Allens succeeding on appeal and the abuse that would be prolonged by allowing the Allens to continue to frustrate Wells Fargo's legitimate foreclosure efforts.[7]

IV

THE PUBLIC INTEREST
This is a private dispute, but there is a public interest (1) in not allowing abusive bankruptcy filings such as this to delay mortgagee's foreclosure efforts, and (2) in assuring the integrity of completed foreclosure sales that do not interfere with the goals of bankruptcy law. Delaying annulment here would give rise to the very abuse that this court found arose from Mrs. Allen's bankruptcy case, and would interfere with the legitimate commercial expectations of Wells Fargo and the purchaser at the foreclosure sale.
For all of these reasons, it is
ORDERED that the Allens' motion for a stay pending appeal is DENIED. It is further
ORDERED that with respect to a stay pending the Allens' seeking from the district court a stay pending appeal, the court's prior interim stay order (Docket Entry No. 48) is amended to provide that the order annulling the automatic stay and the co-debtor stay (Docket Entry No. 34) shall be stayed until September 12, 2003, and that if the Allens have filed a motion for stay with the district court by September 12, 2003, then the order annulling stays (Docket Entry No. 34) shall remain *133 stayed until the earlier of September 26, 2003, or the date the district court enters an order denying such motion for stay pending appeal.
NOTES
[1]  See Bunch v. Hoffinger Indus. (In re Hoffinger Indus.), 329 F.3d 948, 954 (8th Cir.2003); In re Gruntz, 202 F.3d 1074, 1084 n. 9 (9th Cir.2000) (en banc); In re Soares, 107 F.3d 969, 973 n. 4 (1st Cir.1997); Franklin Sav. Ass'n v. Office of Thrift Supervision, 31 F.3d 1020, 1023 (10th Cir.1994); Laguna Assocs. L.P. v. Aetna Cas. & Sur. Co. (In re Laguna Assocs. L.P.), 30 F.3d 734, 737 (6th Cir.1994); In re Sonnax Indus., Inc., 907 F.2d 1280, 1286 (2nd Cir.1990).
[2]  This standard has been applied in another circuit to the appellate review of a decision regarding annulment of a bankruptcy automatic stay. See In re Posner, 700 F.2d 1243, 1246 (9th Cir.), cert. denied, 464 U.S. 848, 104 S.Ct. 155, 78 L.Ed.2d 143 (1983). A district court probably need not be reminded that if the trial court's decision passes muster under the standards of Magaw, the appellate court may not substitute its judgment for that of the trial court. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971).
[3]  The Allens contend that Wells Fargo failed to make a prima facie case on various points. However, there was more than sufficient evidence to support all of the court's findings. The ultimate burden of persuasion on annulling the automatic stay for cause under 11 U.S.C. § 362(d)(1), it may be noted, was on the Allens. See 11 U.S.C. § 362(g)(2).
[4]  Moreover, for reasons discussed at length in the decision on the motion for reconsideration, those decisions assume, erroneously, that retention by the new owner of the property does not work a modification of the mortgage's due-on-transfer clause. See, e.g., In re Threats, 159 B.R. 241 (Bankr.N.D.Ill.1993) (stating the better rule).
[5]  See Albany Partners, 749 F.2d at 671 n. 1.
[6]  The record does not reveal whether the terms of the foreclosure sale, as often occurs, required Case Capitol Corporation to pay interest on its purchase price until that purchase price is paid to Wells Fargo. Such a provision might protect Wells Fargo with respect to the time value of money, but would mean that any delay of closing of the foreclosure sale would thus cost Case Capitol Corporation interest charges.
[7]  Moreover, although not decisive to the court's deciding to deny a stay, the court notes that a supersedeas bond might be an incomplete remedy because it would subject Wells Fargo and Case Capitol Corporation to the attorney's fees and expenses that proving their losses would entail, and it is unclear whether such fees and expenses could be recovered from a bond as an element of damages. Because there is scant likelihood of success on appeal, there is no reason to subject Wells Fargo and Case Capitol Corporation to that type of added cost.


An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA14-1196

                                 Filed: 21 April 2015

Disciplinary Hearing Commission of the North Carolina State Bar, No. 13 DHC

25

THE NORTH CAROLINA STATE BAR, Plaintiff,

             v.

WILLIAM T. BATCHELOR, II, Attorney, Defendant.

      Appeal by defendant from order entered 22 June 2014 by the Disciplinary

Hearing Commission of the North Carolina State Bar. Heard in the Court of Appeals

2 March 2015.

      The North Carolina State Bar, by David R. Johnson, Deputy Counsel, Maria J.
      Brown, Deputy Counsel, and Katherine Jean, Counsel, for plaintiff-appellee.

      Crawford & Crawford, LLP, by Robert O. Crawford, III, for defendant-
      appellant.

      STEELMAN, Judge.

      Where defendant conceded that he had committed a violation of the North

Carolina Rules of Professional Conduct, the Disciplinary Hearing Commission did not

err in concluding that the violation had occurred. The DHC did not err in suspending

defendant’s license to practice law.

                        I. Factual and Procedural Background
                          THE N.C. STATE BAR V. BATCHELOR

                                 Opinion of the Court

      William T. Batchelor (defendant) was admitted to the practice of law on 21

March 1986. After one year working for another lawyer at Carolina Legal Associates

in Wilmington, defendant purchased the practice, and has practiced law since that

time. To reconcile his trust account, defendant used a form developed by his father,

a non-lawyer, rather than the State Bar reconciliation form. Although defendant

reconciled his trust account monthly, he did not do so in accordance with State Bar

specifications, and did not conduct proper quarterly reconciliations. Defendant did

not put client names on deposit slips, making it virtually impossible to track client

funds in the trust account.

      In the mid-1990s, defendant established a flat fee system to cover office

expenses, charging clients $16 for bankruptcy cases and $25 for family law cases.

This system was explained to clients. Defendant paid office supply vendors directly

out of the trust account. Defendant was audited by the State Bar in the early 1990s.

He acknowledged that he did not listen carefully to the recommendations of the

auditor.

      From 2007 to 2010, defendant engaged four employees in his bankruptcy and

family law practice. He maintained his trust account with BB&T. In 2009, BB&T

changed its policies, prohibiting defendant from using a credit card with his trust

account. Defendant opened a new trust account with RBC Bank, which did allow a

credit card, and transferred $1,000 from the BB&T trust account to the RBC trust

                                            -2-
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

account. The owners of the $1,000 were not identified. Defendant was subsequently

sanctioned by the Bankruptcy Court in March of 2010.           Defendant disgorged

bankruptcy fees and was barred from filing bankruptcy petitions for one month.

Defendant was also reprimanded, and paid a $5,000 monetary sanction in another

Bankruptcy Court matter in November of 2010. Subsequently, defendant reduced

his caseload, studied the State Bar’s Lawyer’s Trust Account Handbook, and made

efforts to correct his trust accounting practices.

      In late 2010 or early 2011, a former employee filed a grievance with the State

Bar, which resulted in an investigation of defendant’s trust accounting practices

between 1 January 2007 and 1 January 2010. During this investigation, the State

Bar also reviewed two prior reprimands in defendant’s history: the first, from

November of 1990, for failure to adequately handle a client’s separation agreement;

the second, in 2007, for collecting a flat fee from a client and then unilaterally

converting to an hourly billing rate.      After the grievance was filed, defendant

consulted a certified public accountant recommended by the State Bar, but there is

no evidence in the record that the accountant was retained by defendant to assist

with his trust account practices, nor that defendant implemented any suggestions

that may have been made by the accountant.

      The matter was heard by the State Bar Disciplinary Hearing Commission (the

DHC) on 9 May 2014. Based upon the stipulated facts and the testimony at the

                                              -3-
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

hearing, the DHC concluded that defendant was subject to discipline pursuant to N.C.

Gen. Stat. § 84-28(b)(2) (2013). The DHC found the presence of three of the ten factors

enumerated in 27 N.C. Admin. Code 1B.0114(w)(1), which warranted suspension of

defendant’s license to practice law.     The DHC suspended defendant’s license to

practice law for three years, with the proviso that defendant could seek a stay of the

final two years of suspension after the first year.

      Defendant appeals.

                                II. Standard of Review

      We first note that “[t]he standard for judicial review of attorney discipline cases

is the ‘whole record’ test.” N.C. State Bar v. Sheffield, 73 N.C. App. 349, 354, 326

S.E.2d 320, 323 (1985) (citing N.C. State Bar v. DuMont, 304 N.C. 627, 286 S.E.2d 89

(1982)).

             This test requires the reviewing court to consider the
             evidence which in and of itself justifies or supports the
             administrative findings and ... also [to] take into account
             the contradictory evidence or evidence from which
             conflicting inferences can be drawn.... Under the whole
             record test there must be substantial evidence to support
             the findings, conclusions and result.... The evidence is
             substantial if, when considered as a whole, it is such that
             a reasonable person might accept as adequate to support a
             conclusion.

Id. (quoting DuMont, 304 N.C. at 643, 286 S.E.2d at 98-99) (internal quotations

omitted; alterations in original). “Ultimately, the reviewing court must apply all the

aforementioned factors in order to determine whether the decision of the lower body,

                                              -4-
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

e.g., the DHC, has a rational basis in the evidence.” N.C. State Bar v. Talford, 356

N.C. 626, 632, 576 S.E.2d 305, 310 (2003) (quotations and citations omitted). Our

Supreme Court has held that

             the following steps are necessary as a means to decide if a
             lower body's decision has a “rational basis in the evidence”:
             (1) Is there adequate evidence to support the order's
             expressed finding(s) of fact? (2) Do the order's expressed
             finding(s) of fact adequately support the order's subsequent
             conclusion(s) of law? and (3) Do the expressed findings
             and/or conclusions adequately support the lower body's
             ultimate decision?

Id. at 634, 576 S.E.2d at 311.

                                  III. Excessive Fees

      In his first argument, defendant contends that the DHC panel erred in

concluding that he charged and collected clearly excessive fees. We disagree.

      The North Carolina Rules of Professional Conduct provide that:

             (a)    A lawyer shall not make an agreement for, charge,
             or collect an illegal or clearly excessive fee or charge or
             collect a clearly excessive amount for expenses. The factors
             to be considered in determining whether a fee is clearly
             excessive include the following:

             (1)    the time and labor required, the novelty and
             difficulty of the questions involved, and the skill requisite
             to perform the legal service properly;

             (2)    the likelihood, if apparent to the client, that the
             acceptance of the particular employment will preclude
             other employment by the lawyer;

             (3)    the fee customarily charged in the locality for similar

                                              -5-
                              THE N.C. STATE BAR V. BATCHELOR

                                     Opinion of the Court

                legal services;

                (4)   the amount involved and the results obtained;

                (5)   the time limitations imposed by the client or by the
                circumstances;

                (6)    the nature and length           of   the   professional
                relationship with the client;

                (7)   the experience, reputation, and ability of the lawyer
                or lawyers performing the services; and

                (8)   whether the fee is fixed or contingent.

N.C. R. Prof’’l Conduct 1.5(a). In its complaint against defendant, the State Bar

alleged that:

                7.    During the period January 1, 2007 through June 30,
                2010, Defendant's practice was to collect a flat expense
                charge from clients to cover costs for mail, postage, paper
                and printer cartridges ("expense charge"). The expense
                charge collected to cover these costs was either $16.00 or
                $25.00, depending on the case, and the money collected
                from the client was deposited into the trust account
                Defendant was using at the time.

                8.    The flat expense charge referenced in paragraph 7
                was collected from clients irrespective of the actual costs
                Defendant incurred handling an individual client's case.

      The State Bar further alleged that:

                c)     By charging clients a flat expense charge of either
                $16.00 or $25.00, depending on the case, irrespective of the
                actual costs Defendant incurred in handling an individual
                client's case, Defendant charged and collected a clearly
                excessive amount for expenses in violation of Rule 1.5(a)[.]

                                                -6-
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

      In his answer to the complaint, defendant admitted to paragraphs 7 and 8,

quoted above, and contended that paragraph c) contained “legal conclusions to which

no response is appropriate or required.”

      The State Bar subsequently moved for summary judgment, alleging that:

             The facts established by Defendant's admissions prove the
             violations alleged in paragraphs a) through g), and i) and j)
             of the complaint; therefore, Plaintiff is entitled to judgment
             as a matter of law regarding the rule violations set forth in
             paragraphs a) through g), and i) and j) on pages 4 and 5 of
             Plaintiff's complaint.

      In his response to the motion for summary judgment, defendant stated:

             Defendant does not oppose the entry of summary judgment
             on the for the plaintiff [sic] on the Rule violations alleged
             in paragraphs a) through g) and i) and j) of the complaint,
             and agrees that the sole issue remaining in this case is the
             issue of what, if any, discipline is appropriate for the Rule
             violations.

      “Final pleadings which define the issues to be litigated and upon which the

case goes to trial can embody a judicial admission of a matter and serve to

conclusively remove the establishment of that fact from the issues which are to be

tried.” Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 606, 276 S.E.2d 375,

380 (1981). “A judicial admission is a formal concession which is made by a party in

the course of litigation for the purpose of withdrawing a particular fact from the realm

of dispute.” Id. at 604, 276 S.E.2d at 379.

                                              -7-
                           THE N.C. STATE BAR V. BATCHELOR

                                  Opinion of the Court

      In the instant case, defendant, in his response to the State Bar’s motion for

summary judgment, conceded the alleged rules violations, including the excessive

fees as alleged in paragraph c). Defendant explicitly stated that the sole issue

remaining in the case was that of “what, if any, discipline is appropriate for the Rule

violations.” We hold that this constitutes a judicial admission, designed to withdraw

the question of whether defendant charged excessive fees from the realm of dispute.

We further note that, although defendant appeals from the final order of discipline,

he does not appeal from the summary judgment order which established his judicial

admission. Accordingly, we hold that because there was a binding judicial admission

that defendant committed the violations alleged, the DHC did not err in concluding

that defendant charged and collected clearly excessive fees.

      This argument is without merit.

                                   IV. Suspension

      In his second and third arguments, defendant contends that the DHC panel

erred in suspending his license to practice law. We disagree.

                       A. 27 N.C. Admin. Code 1B.0114(w)(1)

      Defendant first contends that the DHC hearing panel erred in concluding that

three factors enumerated in 27 N.C. Admin. Code 1B.0114(w)(1) were present to

justify a suspension of his license to practice law. We disagree.

                                             -8-
                           THE N.C. STATE BAR V. BATCHELOR

                                  Opinion of the Court

      Title 27, Chapter 1 of the North Carolina Administrative Code, concerning the

rules and regulations of the North Carolina State Bar, provides the following:

              (1) Suspension or disbarment is appropriate where
             there is evidence that the defendant's actions resulted in
             significant harm or potential significant harm to the
             clients, the public, the administration of justice, or the
             legal profession, and lesser discipline is insufficient to
             adequately protect the public. The following factors shall
             be considered in imposing suspension or disbarment:

             (A)    intent of the defendant to cause the resulting harm
             or potential harm;

             (B)  intent of the defendant to commit acts where the
             harm or potential harm is foreseeable;

             (C)   circumstances reflecting the defendant's lack of
             honesty, trustworthiness, or integrity;

             (D)    elevation of the defendant's own interest above that
             of the client;

             (E)    negative impact of defendant's actions on client's or
             public's perception of the profession;

             (F)  negative impact of the defendant's actions on the
             administration of justice;

             (G)    impairment of the client's ability to achieve the goals
             of the representation;

             (H)   effect of defendant's conduct on third parties;

             (I)    acts of dishonesty, misrepresentation, deceit, or
             fabrication;

             (J)    multiple instances of failure to participate in the
             legal profession's self-regulation process.

                                             -9-
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

27 N.C. Admin. Code 1B.0114(w)(1) (2013). The Administrative Code lists other

factors to be considered, in addition to those set forth above, in any instance in which

discipline is imposed. 27 N.C. Admin. Code 1B.0114(w)(3). In its order of discipline,

the DHC concluded:

             1.     The Hearing Panel has carefully considered all of
             the different forms of discipline available to it. In addition,
             the Hearing Panel has considered all of the factors
             enumerated in 27 N.C.A.C. 1B §.0114(w)(1) of the Rules
             and Regulations of the North Carolina State Bar and
             concludes the following factors are present which warrant
             suspension of Defendant's license:

             a.    Intent of Defendant to commit acts where the harm
             or potential harm is foreseeable, to wit: failing to comply
             with trust account rules to ensure proper maintenance of
             and accounting for entrusted funds;

             b.      Elevation of Defendant's own interest above that of
             his clients; and

             c.     Negative impact of Defendant's actions on the
             client's or public's perception of the legal profession.

             ...

             3.    The Hearing Panel has considered all of the factors
             enumerated in 27 N.C.A.C. 1B §.0114(w)(3) of the Rules
             and Regulations of the North Carolina State Bar and
             concludes the following factors are applicable in this
             matter:

             a.    Prior disciplinary offenses in this state and the
             United States Bankruptcy Court;

             b.     Pattern of misconduct;

                                             - 10 -
                          THE N.C. STATE BAR V. BATCHELOR

                                  Opinion of the Court

             c.    Multiple offenses;

             d.    Full and free disclosure to the Hearing Committee
             and Defendant's cooperative attitude toward the
             proceedings;

             e.     Defendant's good character and reputation with
             lawyers in his community and with clients as presented in
             letters written on his behalf and

             f.    Substantial experience in the practice of law.

             ...

             6.     This Hearing Panel has considered lesser
             alternatives and concludes that a suspension is
             appropriate under the facts and circumstances of this case
             to address the potential for significant harm to Defendant's
             clients, and for the protection of Defendant's clients and
             the public.

      In its conclusions of law, paragraph 1, the DHC cited three of the factors based

upon which a suspension would be appropriate. Defendant contends that there was

no evidence to support these factors.

      With respect to the first factor, intent to commit actions with foreseeable

harmful results, defendant contends that he did not intentionally commit the actions

at issue, specifically that he did not intend to err in reconciling his trust account,

believing that he was performing reconciliations properly. However, the requirement

is not that defendant had to foresee the harmful results of his actions; rather, that

the defendant intended to commit the actions, and that harmful results were

                                            - 11 -
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

foreseeable. The evidence at trial showed that defendant did not keep a ledger book

and did not conduct a three-way reconciliation, both of which are considered standard

practice in reconciling a trust account. Defendant’s deviation from these practices

was sufficient evidence that he was intentionally acting in a manner from which he

could foreseeably harm clients.

      Defendant further contends that no clients were actually harmed by his acts.

The North Carolina Administrative Code requires that any harm be foreseeable, not

that it actually occur. The purpose of the code section is to deter those behaviors

which may harm clients, not only to punish those which actually do.

      With respect to the second factor, that defendant elevated his interests above

those of his clients, the evidence at trial shows that defendant charged flat fees to

each client intended to cover expenses for his office, as well as for other clients. It

was not in any client’s interest to pay for costs not connected to his or her own case;

for defendant to charge them for additional office expenses, or work on other cases,

was to elevate his own interests above theirs. We hold that this was sufficient

evidence to support this factor.

      With respect to the third factor, that defendant’s conduct negatively impacted

a perception of the legal profession, defendant offers a disingenuous argument that

the Bar itself has damaged the profession’s reputation by publishing articles about

lawyers’ failures to reconcile their trust accounts. The Bar’s publication history is

                                             - 12 -
                           THE N.C. STATE BAR V. BATCHELOR

                                   Opinion of the Court

not at issue; what is at issue is the fact that defendant failed to properly reconcile his

own trust accounts, and such conduct negatively impacted the reputation of the legal

profession. We hold that there was sufficient evidence to support this factor.

      Defendant lastly contends that the trial court found none of the remaining

seven factors in 27 N.C. Admin. Code 1B.0114(w)(1), which should count in his favor.

We note that the code does require these factors to be considered. Their absence from

the DHC opinion, however, does not require us to conclude that they were not

considered; rather, it indicates that they did not factor into the DHC’s final decision.

We hold that the factors found by the DHC were sufficient to support a conclusion

that suspension was appropriate.

      This argument is without merit.

                                B. Insufficient Evidence

      Defendant next contends that the DHC hearing panel erred in suspending his

license to practice law because there was insufficient evidence to support a finding

that a lesser sanction would not be adequate. We disagree.

      The evidence at trial shows not only that defendant regularly charged

inappropriate fees, but that he performed incomplete reconciliations of his trust

account. Defendant’s failure to grasp his own mistakes, coupled with his failure to

seek assistance with the process, suggests a potential for future harm to his clients.

Defendant was previously disciplined for his fee charging practices and his handling

                                             - 13 -
                         THE N.C. STATE BAR V. BATCHELOR

                                 Opinion of the Court

of cases, both in the Bankruptcy Court and before the State Bar. This suggests a

pattern of harmful deviation from professional rules. We hold that the DHC did not

err in concluding that suspension was an appropriate sanction.

      This argument is without merit.

      AFFIRMED.

      Chief Judge McGEE and Judge BRYANT concur.

      Report per Rule 30(e).

                                           - 14 -