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Glover v. Golden Trestle, LLC

United States District Court, D. South Carolina, Greenville Division

September 18, 2019

Gregory Allen Glover, d/b/a Fresh Burger, Appellant,
v.
Golden Trestle, LLC, Appellee.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          Jacquelyn D. Austin United States Magistrate Judge

         This matter arises from Gregory Allen Glover's (“Glover”) Petition filed under Chapter 13 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of South Carolina (the “Bankruptcy Court”) at case number 19-00459-HB (the “Bankruptcy Action”).[1] See Bankruptcy Action, Doc. 1. Pending before the Court are (1) Glover's pro se[2] appeal [Doc. 1] from an Order of the Bankruptcy Court, dated March 15, 2019, lifting the automatic stay as to Golden Trestle, LLC (“Golden Trestle”) [Doc. 11-1 at 3-11], and (2) Golden Trestle's motion to dismiss the appeal [Doc. 20]. Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2)(e), D.S.C., the undersigned United States Magistrate Judge is authorized to review all pretrial proceedings involving litigation by individuals proceeding pro se, such as this action, and submit findings and recommendations to the District Judge. Having reviewed the Parties' submissions, the undersigned recommends that the Court grant Golden Trestle's motion and dismiss Glover's appeal for mootness.

         BACKGROUND

         Factual Background[3]

         In 2016, Glover, doing business as Fresh Burger, LLC, endeavored to open a restaurant at 457 South Pleasantburg Drive in Greenville, South Carolina. See Bankruptcy Action, Doc. 19 at 1. Pursuant to a lease agreement between Fresh Burger, LLC, [4] and Golden Trestle, Glover agreed to lease the property for his restaurant from Golden Trestle for a period of ten years. Id. at 2. Under the lease agreement, Fresh Burger, LLC, was required to pay rent in the amount of $5, 000 per month for the first year, with the rent increasing incrementally over the ten-year lease term. Id. However, Glover failed to pay rent each month, with the exception of an initial $5, 000 deposit required by the lease agreement and three additional payments totaling only $3, 000. Id. Glover claimed that he had to incur costs to repair the premises for use, which he believed should offset the rent payments due under the lease. Id. at 2-3. He also claimed that he paid rent in cash to an individual claiming to be an agent of Golden Trestle.[5] Id. at 3. Golden Trestle, on the other hand, claimed the individual was not authorized to receive rent payments and that Golden Trestle never received the purported rent payments. Id. at 3-4.

         Because Fresh Burger, LLC, failed to pay rent as required by the lease, Golden Trestle initiated eviction proceedings in the state court. Id. at 4. Glover then commenced the Bankruptcy Action, resulting in an automatic stay of those state court eviction proceedings. Id. at 4-5. On January 25, 2019, the same day that Glover commenced his Bankruptcy Action, he purportedly dissolved Fresh Burger, LLC, the corporation that was the party to the lease. Id. at 5. In the Bankruptcy Action, Glover proposed a plan to pay the arrearages for the unpaid rent payments over a sixty-month term. Id.

         Bankruptcy Court Proceedings

         Glover filed for Chapter 13 bankruptcy on January 25, 2019. See Bankruptcy Action, Doc. 1. On January 30, 2019, Golden Trestle filed a motion for relief from the automatic stay under 11 U.S.C. § 362(d)(1), so that it could pursue recovery of its real property in state court. See Bankruptcy Action, Doc. 6. Glover filed an objection to the motion for relief from stay on February 13, 2019, and the Bankruptcy Court held a hearing on February 26, 2019. See Bankruptcy Action, Docs. 14, 16.[6] On March 15, 2019, the Honorable Helen E. Burris issued an Order granting Golden Trestle's motion for relief from stay, allowing Golden Trestle to proceed with its eviction against Glover in the state court. See Bankruptcy Action, Doc. 19. Thereafter, on March 28, 2019, Plaintiff filed a notice of appeal regarding the Bankruptcy Court's Order granting Golden Trestle's relief from the stay. See Bankruptcy Action, Doc. 23. Glover did not request a stay of the Bankruptcy Court's Order lifting the stay pursuant to Federal Rule of Bankruptcy Procedure 8007 pending his appeal to this Court. On April 5, 2019, the Chapter 13 Trustee filed a motion to dismiss the Bankruptcy Action because Glover failed to appear at a meeting of the creditors under 11 U.S.C. § 341. See Bankruptcy Action, Doc. 28. After Glover failed to file a response to the motion to dismiss, the Bankruptcy Court dismissed the underlying Bankruptcy Action by Order dated May 9, 2019, and denied Glover's motion to reconsider on July 3, 2019.[7] See Bankruptcy Action, Docs. 32; 39.

         District Court Procedural History

         Glover filed his notice of appeal in the Bankruptcy Court on March 28, 2019, which was transmitted to this Court on March 29, 2019. [Docs. 1; 1-1.] By Orders dated April 17, 2019, and May 20, 2019, Glover was directed to file his Designation of Record pursuant to Federal Rule of Bankruptcy Procedure 8009, and the Parties were directed to file briefs. [Docs. 5; 9.] On May 20, 2019, the Bankruptcy Court transmitted Glover's Designation of Record to this Court. [Doc. 11.] Glover filed his brief on June 19, 2019 [Doc. 15], and Golden Trestle filed its brief on July 18, 2019 [Doc. 21].

         On July 8, 2019, Glover filed a motion for temporary injunction pending this Court's disposition of his appeal, seeking to enjoin the state court's scheduled hearing on Golden Trestle's eviction action. [Doc. 16.] On July 9, 2019, the Honorable Henry M. Herlong, Jr., denied Glover's motion, finding the Bankruptcy Court had lifted the automatic stay as to the leased property that was the subject of the state court eviction action. [Doc. 18.]

         On July 18, 2019, Golden Trestle filed a motion to dismiss the instant appeal as moot. [Doc. 20.] The next day, the Court filed an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Glover of the motion to dismiss procedure and of the possible consequences if he failed to adequately respond to the motion. [Doc. 23.] Glover did not file a response to the motion to dismiss. Accordingly, by Order dated August 27, 2019, the Court again directed Glover to file a response to the motion to dismiss and advised Glover that if he failed to respond, this action could be subject to dismissal for failure to prosecute and for failure to comply with this Court's orders, pursuant to Federal Rule of Civil Procedure 41(b). [Doc. 25.] However, Glover failed to file any response, and the time set forth in the Court's Order has lapsed. Accordingly, the matter is ripe for review.

         APPLICABLE LAW

         Liberal Construction ...


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