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COMERICA BANK v. D'BEEFS, LLC, 5:15-CV-00038-F. (2015)

Court: District Court, E.D. North Carolina Number: infdco20151023k63 Visitors: 18
Filed: Oct. 21, 2015
Latest Update: Oct. 21, 2015
Summary: ORDER JAMES C. FOX , Senior District Judge . This matter is before the court on Plaintiff Comerica Bank's ("Comerica") Second Amended Motion for Default Judgment and Attorney's Fees [DE-18]. Comerica brings this motion only as to Defendants D'Beefs, LLC, and 7 by 34, LLC, because of bankruptcy proceedings initiated by the individual defendants. However, it appears to the court that the automatic stay as to Maurice Grunwitz Licardo should be lifted due to his discharge under 11 U.S.C. 727.
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ORDER

This matter is before the court on Plaintiff Comerica Bank's ("Comerica") Second Amended Motion for Default Judgment and Attorney's Fees [DE-18]. Comerica brings this motion only as to Defendants D'Beefs, LLC, and 7 by 34, LLC, because of bankruptcy proceedings initiated by the individual defendants. However, it appears to the court that the automatic stay as to Maurice Grunwitz Licardo should be lifted due to his discharge under 11 U.S.C. § 727. See Discharge of Debtor, In re Licardo, No. 15-3222-5-DMW (Bankr. E.D.N.C. September 23, 2015) (Docket Entry 14); see also 11 U.S.C. § 362 (c)(2)(C) ("[T]he stay of any other action under subsection (a) of this section continues until the earliest of ... if the case is a case ... under chapter [11] of this title, the time a discharged is granted or denied. ..."). Therefore, the automatic stay is LIFTED as to Defendant Maurice Licardo.

Additionally, an issue not addressed by Comerica's motion is whether allowing the motion for default judgment is appropriate in light of the Fourth Circuit's interpretation of Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L.Ed. 60 (1872), and the application of Rule 54 of the Federal Rules of Civil Procedure. See, e.g., United States ex rel. Hudson v. Peerless Ins. Co., 374 F.2d 942, 945 (4th Cir. 1967). Accordingly, Comerica is DIRECTED to file supplemental briefing within 30 days of the filing date of this order explaining why allowing the motion for default judgment is appropriate in light of the Fourth Circuit's application of Frow. Alternatively, if Plaintiff determines that the Fourth Circuit's interpretation of Frow should preclude the entry of default judgment against the non-answering defendants, it should file a notice so stating within 30 days.

For the foregoing reasons, Comerica's Second Amended Motion for Default Judgment and Attorney's Fees [DE-18] is DENIED WITHOUT PREJUDICE.

SO ORDERED.

Source:  Leagle

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